APPENDIX
Narrative Summary of the Record The record in this case is an extraordinary documentation oí' every facet of the institution called Pennhurst. Even the detailed summary below cannot be¾in to tell it all. Areas considered include an introduction to the institution and the physical environment,1 injuries and physical abuse,2 psychological abuse and absence of program,5 physical restraints, chemical restraints and seclusion,'1 regression,' potential for improvement of the institution/' and community services.'
A. The Institution The effect of Pennhurst State School and Hospital
on its residents, mentally retarded people, is the focal point of this action. Pennhurst vvas established on the
1. Pau,c`s A 1 -AT. P;iL',es A9-A12.
:·î. Pa«c·s A12-A15. 4. Paues Al¯)-A18.
r~>. !'atíc;s A18-A20. a Panes A2O-A22.
I'.ll'l·S A22-A2().
A
Pennhurst v. Halderman
MR-PA-0002-0014

A2
outskirts of Spring City, Pennsylvania, in 1908 as the Eastern Pennsylvania School for the Feeble-Minded and Epileptic.8 Its purpose then and its purpose today is to provide training for mentally retarded citizens to enable them to return to our society and function as productive members of it.9 Throughout its history, Pennhurst has been unable to fulfill this intention.10 Instead, it has continually visited inexorable physical and psychological damage on those it was established to assist, increasing the helplessness of persons who by virtue of their handicap are least able to resist an inflexible system and most likely to suffer from it.
Retardation is neither a disease nor an illness.'' It is a handicap which manifests itself in impaired intellectual ability and, in some cases, problems in adaptive be-
8. Act 424, Laws of Pennsylvania (May 15, 1903); Act 42, Laws of Pennsylvania (April 4, 1907).
9. Mental Health and Mental Retardation Act of 1966, 50 Pa. Stat. Ann. §§4101 et seq; "care and training," Act 424; "maintenance and training," Act 42, supra note S; Ex. P-l, P-2, P-6.
10. Pennhurst has been successful in achieving another explicit purpose of state legislation, " segregation" of the retarded at the facility. Act of June 12, 1913, 32 Laws of Pennsylvania 494.
11. Mental retardation and mental illness have no similarity to one another; they are "two entirely different conditions."
Mental retardation refers primarily to a deficit in intellectual development and social adaptation; whereas mental illness refers to a disorder of thinking, emotions and behavior.
Mental retardation occurs usually cither prior to, at. or shortly following birth; whereas mental illness can occur at any time in life and often the onset is during adulthood.
Mental retardation is primarily an education.il problem; mental illness is primarily a psychiatric problem.
Whereas mental retardation is essentially irreversible, thai is, although it can be improved, there is at this stage of our knowledge no cure; mental illness is often reversible and curable. Tr. 1-87 to 88 Roos; 446 l·\Supp. at 1298; 10a; Tr. 2-2 to 2-12 Clements.

A3
havior.12 While mental retardation cannot be cured in the conventional sense, its effects can be overcome through habilitation, the process by which retarded individuals are aided in acquiring and maintaining those life skills which enable them to cope more effectively with their environments and raise their level of physical, mental, and social efficiency.u Habilitation requires normalization of the individual's living situation because where culturally valued means are employed, retarded people are enabled to live valued lives and they respond in a fashion which minimizes the limitations of their conditions.14 "The principles of normalization have been accepted by the administration of Pennhurst and by the Department of Public Welfare, which is responsible
12. "Mental retardation is essentially a problem of learning, a delect particularly of the individual's ability to think abstractly, to exercise judgments, to solve problems, and to retain information Tr. 1-85 Roos: 6-94 to 95 Settle: 446 F.Supp. at 1298: 10a: Tr 2 - l i Clements.
13. Tr. 1-9C> to 1-97 Roos: 5-186 (¯.lenn: 446 I·¯.Supp.. at 1298. 10a. Habilitation is "A generic term we use to refer to the maiiv specific activities designed to foster maximum development of the individual. Included in the term are various approaches to education the development of social and intellectual skills, the development ol pre-vocationai and vocational skills, and related types of activities " Tr. 1 -95 to 96 Roos. It is implementation of the de\ el<>pmental m<xlel of mental retardation. "By [the developmental modelj we mean essentially that retarded individuals should be approached with the assumption that they are capable of growth, of development, ol learning; that the environment which we provide for them has ,i major impact in determination of the rate of this development, indeed, that the human organism is highly plastic and is m continued interchange with our environment. Tr. 1-105 to !PC¡ Roos
"[`vV'¡ith proper h,>.bilitation, the level <>l'lime tioning ol everv re tarded person may be improved" and p<·<>¡;!e "may be removed from the ranks of the retarded." 146 I`.SP .. .it 1298. l().i. Tr 2 7 Clements.
14 Tr. 1-106 Roos: 5-88 Cirardeau, 5-l·S6 to 187 (.lenn. 7 120 Hirst. "Normalization" is ,i technical word of art which eiuom-

A4
for the administration of programs in the five county area. . . . " 446 F.Supp. at 1311; 42a (citations to record omitted).
Pennhurst is not providing, nor has it provided, habilitation or a normalized environment to its residents.15 They have had only the opportunity to learn self-defense and survival techniques necessary to a continued existence in an institution.
B. The Physical Environment at Pennhurst
The District Court found that "the physical environment is hazardous to the residents, both physically and psychologically." 446 F.Supp. at 1308. This finding was not made lightly, but rather was based on consideration of t!ie testimony of eighty witnesses, who included thirteen experts on mental retardation, nine parents of retarded persons who lived at Pennhurst, three former residents of Pennhurst, thirty-nine employees of Pennhurst, and two officials of the Commonwealth of Pennsylvania. Voluminous documentary evidence, including photographs of Pennhurst, were also introduced at the trial before Judge Raymond J. Broderick.
NOTK 14 — (Continued)
passes the techniques and goals ol` habilitation. See Wolfensberger. "The Definition of Normalization- Update. 1'roblcms. Disagree ments. and Misunderstandings." in \'ormulizati(>'i. Social Inte<µtitioti and Community Alternatives (l¯lynn 8o Nitsch eds l!-)8U). Normalization means that the "environment should be designed to increase the complexity of the behavior of the developing individual to increase his human qualities as these are defined by the world in which we live.*** |UjnfortunateIy we have tended to foster and generate dovianc·y by treating people as if they were different by isolating them and segregating them from society. Tr. 1-106 to 107 Hoos.
15. 446 F.Supp. at 1318; 58a. "[F|or the retarded class members as a whole. Pennhurst cannot be an appropriate setting in which to provide habilitation." 012 F.2d at 114; 150a.

A5
Currently, Pennhurst does not meet minimum professional or governmental standards set for such an institution for mentally retarded persons.16 As the Acting Medical Director of the institution admitted at the trial, Pennhurst's ". . . physical plant itself would not measure up to any standards" Tr. 19-185, Hedson. Many of its buildings have been in use since its founding in 1908 and the deteriorating structures are in constant need of repair.17 Often the buildings are fire traps.18
Concrete and tile are the primary components of the physical environment at Pennhurst.19 Petitioners' characterization of the living quarters which house the majority of residents as "larger older dormitory settings" distorts the daily living conditions of Pennhurst residents. Brief for Petitioners at 2 n.2. Residents live in "totally intolerable conditions." Tr. 1-175, Roos. The buildings at the institution are subdivided into wards, each ward consisting of, at least, a sleeping area, a dayroom and a bathroom, none of which are constructed or used in a fashion which might be minimally consistent with the common perception of a dormitory.20
16. E.g., 446 F.Supp. at 1302. 1308; 24a. 34a. Tr. 19-185 Hedson; 7-54 Dyb\vad ("emergency" conditions); 1-172 to 173 Roos ("totally unsuitable buildings"); 1-1 10 to 115 Roos (professional and governmental "minimum standards" not met).
17. Tr. 8-127 Hirst; 2-159 Taub; Ex. C-42, CÍ-46. 18. The Security Office at Pennhurst is its own fire department from 3:00 p.m. to 7:00 a.m. Ruddick Deposition at 7, 38. Security personnel have extinguished minor fires "numerous times." Id. at 38-39. Tr. 9-145 Sobetsky; 6-146 to 150 Settle. 19. K.q., Clements N.T. 2-54, 2-57, U.S. Kx. 48. Photos 21, 26. 20. As cne former resident of Pennhurst described his former home. "It looks like a darn big place and it has a gang of boys. They sleep together and all." Tr. 8-5 Trocster. Mr. Trooster entered Pennhurst at the age of seven, He left the institution for the communitv a( the age of 1H. and is now employed1. I iis slorv is discussed infra at 28. Another former resident explained. "It was like one big room with Ibrtv in them." Tr. 8-22 Hill.

A6
The mother of two named plaintiffs described their ward as "the most awful place I have ever seen in my life." Tr. 13-19 Taylor. She was asked:
Q. What did the ward look like physically? A. Physically, the floors were concrete. They were cracked, full of holes. The place smelled of urine and feces. The holes in the concrete were filled with filthy water and the children looked like prisoners.21
It is "a stultifying and essentially a dehumanizing environment." Tr. 7-52 Dybwad.
In sleeping areas on the wards at Pennhurst, beds are found row upon row. One ward was described as having three rows of four beds with about three or four feet of space separating them; a five foot high tile wall separates the rows of beds.22 Sleeping areas are often insufficiently furnished, and generally lack any provisions for individual privacy, much less sufficient pillows, bedspreads or decoration.23
Dayrooms at Pennhurst, where the bulk of the residents' time is spent, often have no furniture at all. although some have a lew chairs or tables and a television, and the rooms are poorly lighted.2'1 The hard surfaces
21. Tr. 13-19 Taylor. Sec Tr. 12-82 Caranfa (ward of plaintiff Sorotos a "big room with a broken cement floor"); 1-132 Roos f a very barren place . . . just bare floor and bare wall"): 1-171 Roos describing Photo 54 in Kx. G-48; i "just the bare floor and walls, and that is a resident almost nude King on the bare floor"); 8-109 Hirst. 7-53 Dybwad f a n ugly place." "inhuman dimensions"): 2-152 Taub ("snakepit" where plaintiff lived): 4-70 Lancaster-Gave.
22. Nagle Ücp. at Hi-18. 23. Photos 29. 30, and 56 at Kx. G-48: Tr. 1-149 to 150 Roos; 2-54 to 55. 93 to 94 Clements; 19-46 Pinnann; Smith Dept at 4344; Nagle Dcp. at 16-18. 24. E.g., Photo 54. 102 and 103 at Kx G-48; Tr. 1-171 Roos. 6149 Settle; Smith Dep. at 43-44; Nai;lc Dcp. at 5-10; notes 19-21 supra.

A 7
and lack oí` f u r n i s h i n g amplify the c o n t i n u o u s "blaring" noise at the institution.25
T h e shower and bathing areas on the wards of Pennhurst are as dehumanizing as the sleeping areas and dayrooms. Consistent with the rest of the ward environment, they are totally bereft of provisions for privacy; like the beds, the toilets are lined row upon row, without doors or partitions to grant even minimal privacy.26 Toilets lack seats "universally" and toilet paper.2' The hard surfaces of the bathroom floors, already dangerous because slippery, are made even more so so due to the practice of covering them with wet sheets.28 Bathing areas have no soap or towels.21' These are "conditions which violate the very basic rules of hygiene." Tr. 1-158 Roos.
Pervasive filth in all areas of the wards compounds the problems of barren and d e h u m a n i z i n g design and
25. Tr. 1-150 Roos; 6-149 Settle; 5-98 Cirardeau. "Moreover, the noise level is often so hij;h that many residents simply stop speakim>. (Clements, N T . 2-59).`` 446 F.Supp. at 1308; 35a.
26. Tr. 1-149. 158, 169 to 170 Roos (no privacy, dirt, "i'eces on the wall and the floor"): 2-40 Clements; Troester 8-6 to 7; Photos 5, 39. 105. 106 at Ex. (`.-48: Barton I)ept. at 26.
27. Tr. 1-158 Roos; 5-96 Cirardeau; Nat;le I)ep. at 26; 2-160 Tauh; 3-142 Lo\vrie.
28. Photo 39. 42. 43 and 44 in Ex. C-48: Tr. 2-42 to 45 Clements; 446 F.Supp. at 1309; 37a (plaintiff I)iNoIfi iost an eye after slipping in shower).
29. Photo 7 in l·`.x. C-48;Tr. 2-4 1 to 43 Clements; 1-1 19 Roos. During the mass showerin.u in "wide open" areas. Tr. 8-6 to 7 Troester, residents have heen "squirted down with a hit; hose" while "screaming with fear." Tr. 12-82 to 83 Caranfa (rcuardhiK plaintiff Sorotos). For mornini; washing, a Pennhurst employee explained. "We mii;ht take a wet ran across leys and arms." Nat;le I)ep. at 40. The ahsenee of soap, towels and adequate hathinn procedures have serious consequences for treatment. Tr. 2-4 1 to 43. 45 Clements. In addition, physically dangerous hathint; practices are engaged in. Tr. 2-38 Clements (descrihiny photo 1 in F \ . C-48).

A8
non-existence of basic necessities of hygiene. Excrement and urine are often found on the floors of wards; bathrooms contain unflushed toilets, excrement on toilet seats (when seats are available at all), walls and floors.30 One expert witness "observed excrement, urine, dirty mops strewn about, [and] pools of water on the floor."31 Urine and feces remain on ward floors, in residents' beds and on bodies for lengthy periods of time.32
As might be expected, the ubiquitous filth at Pennhurst causes interminable odor as well as infestation of vermin. Roaches permeate the facility. Smith Dep. at 38, 47. Flies are commonly observed crawling on the bodies of residents. Tr. 18-69 Pool.33 Residents suffer from epidemics of pinworms and various infectious diseases.34
30. Tr. 1-158, 160, Roos; Smith üep. at 41; Photo 50 at Ex. C48. Seclusion rooms have feces on ceilings and walls. Tr. 1-134 Roos; 4-179 to 190 Lo\vrie; Ex. P-6 (Pennhurst staff committee report).
31. Tr. 1-160 Roos. 32. "There was frequently urine and feces on the floor, under their fingernails, in their hair and still is" Tr. 12-63 Caranfa (re plaintiff Sorotos); 2-161 to 162 (defecation in beds); Smith Dep. at 41 (floors), 33. One witness testified:
There was one time when there was a baby lying on the floor and the Hies were in her mouth and nose and I picked them out and asked the girl who worked at Pennhurst. Dorothy, in charge of the ward, to do something about it.
And she said, "Well, what do you think I can do." And I came downstairs and complained to Norma Heard and I said they shouki have the baby in a crib with mosquito netting over the crib. It was summer and there were a lot of Hies drawn by all the urine and feces all over the place. Tr 12-80 to 81 Caranfa. 34. Tr. 16-193 Conley; Hedson Dep. at 1222.

A9
C. Injuries and Physical Abuse
Accidents on slippery floors and diseases are far from the only harms inflicted by Pennhurst on its residents. Rather, the catalogue of hazards is as long as it is shocking, as is evidenced by a report of just one month at the institution. In January of 1977, for example, 833 residents of Pennhurst suffered minor injuries and 25 residents suffered major injuries.35 After reviewing this summary of injuries to residents, one expert characterized the document as a "battlefield report" and concluded that "[i]t appears that it is physically hazardous for the residents to be in the environment."36 The number of injuries at Pennhurst is "fairly constant," a Pennhurst official testified.37
Each named plaintiff sustained serious injury while in the institution. 446 F.Supp. at 1309-1310; 36a-4Oa. Larry Taylor "was beaten about the head and face so badly he was unrecognizable. You couldn't see eyes, nose and mouth. I mean he was totally beyond recognition." Tr. 13-30 Taylor; letter to superintendent 13-64 to 65. Both Larry and Kenneth Taylors' "heads have been cracked open so often that there are spots on their heads where they will never grow hair." Tr. 13-23 Taylor. Nancy Beth Bowman "was bruised constantly, marked, black eyes" so that she "will be scarred for the rest of her life." Tr. 13-72, 75 to 77, 94 Bowman. Pennhurst classi-
35. Kx. C-15; YuuiiKhci¯K Dep. at 78-84; TV. 158. 163. 164 to 169 Hoos. Very few bones in residents' bodies have not been broken at one time or another. Sec TV. 15-130 Cirardeau: Kx. CM8 (lingers and toes); Hedson Dep. at 1 16 (ribs); 1-165 Roos (broken arm not discovered for 24 hours); Hedson Dep. at lül (arm); 7-137 Hirst (pelvis); Mathe\v Dep. at 81 (spine). Sec Ex. CM4 (Pennhurst Accidents and Injuries Committee Study of Fracture Records), described at TV. 7-132 to 137 Hirst.
36. TV. 1-163 Roos. Sec 1-164 to 169 Roos. 37. TV. 22-40 to 4 1 Foster. Fxperts retained by the defendants agreed that the injuries were preventable. TV. 13-154 Hersh.

A10
fied serious injuries as "minor,"38 including many of those observed every week for seven years (except for four occasions) on plaintiff Sorotos.39
Terri Lee Halderman sustained one of her forty injuries when, despite staff's knowledge of Ms. Haiderman's need for supervision, she was permitted to walk around her living unit at four in the morning in a camisole (straightjacket) and a helmet. She was found lying on the floor two hours later bleeding profusely from the mouth. An aide sought and was granted permission to pull from Halderman's mouth what appeared to be a tooth; the material was later found to be part of the plaintiffs jaw, broken in the fall.'40
Lack of supervision of residents has often caused injury and death to persons confined at Pennhurst." Residents have drowned, both in bathtubs at Pennhurst and in the Schuylkill River, which flows through the grounds of the institution.42 Often there are "missing residents" who are off the ward without staff knowledge or supervision. Ruddick Dep. at 28-30.
The design of the living units at Pennhurst exacerbates the inadequacy of staffing, contributing to unsupervised activity and hence the frequency of accidents. One oí` the factors contributing to Ms. Halderman's jaw fracture was that the nature of the ward design there and on other units provides blind
38. ". . . a bite, the skin is broken hi maybe six or eiyht places and there are scabs formed and the bruises last two weeks, you couldn't classify it as a minor bite." Tr. 12-89 Camilla. Aciard. Tr. 13-29 Taylor.
39. 446 l·¯.Supp. at 1309-13 10; 38a. For injuries to other plaintiffs, sec, e.()., Tr. 9-151 to 153 Sobetsky: Tr. 9-1 1 Heinsicker.
40. Tr. 8-G8 to 72 Hirst. Pennhurst staff were found by a special in\est¡natinµ, committee to have acted improperly. Id. Recommended policy changes were not implemented. Id. at 88-" 1.
41. Ik>dson ücp. at 90, 96-98; Kx. C-22. l>-62. 42. Id., Tr. 7-164 Iloos. Alter several deaths, a fence was built to prevent access to the river. Residents now simp!v climb over it Ruddick Dep. at 33-34.

All
spots that made it very difficult for the aides to supervise all of the people all of the time.43
Abuse of residents by the staff has been an ongoing fact of life at Pennhurst, inevitable in an overcrowded and understaffed institution. Reported incidents of abuse4¯1 include the eyewitnessed rape of a resident by a direct care worker,40 beating of residents with sets of keys and shackle belts,46 and an aide's unprovoked tossing of a small, physically handicapped child across a room. In the last instance, after the child landed on his stomach on the cement floor of his ward, the aide approached him and slapped him across the face.47 Plaintiff Bowman's family was not told of several incidents of physical abuse by staff of their child. Tr. 1383 Bowman.18
43. Tr. 8-72. 108 Hirst; 2-60 to 62 Clements. At the time of the jaw fracture, Ms. Halderman was living in a new Pennhurst building, built in the early 1970s, called New Horizons. It was described by one expert as follows: "You would never think of human beings living there. You might store things in such a building." Tr. 7-56 Dybwad. Pennhurst staff felt it was "no place for habilitation, for people to live." Tr. 8-109, 119 Hirst.
44. Abuse is not effectively monitored. Tr. 1-144 to 146 Roos. 45. Ex. G-37; Tr. 1-167 Roos; Ruddick Dep. at 17-23. 46. Kx. C-36, C,-25: Tr. 1-167 to 168 Roos; 13-83 Bowman. 47. Tr. 3-113 Ruddick; Ruddick Dep. at 24-27. 48. Former residents of Pennhurst described being "slapped around" and beaten by staff, "some with their fists." Fr. 8-32 Hill; 834 Vaughn. On a visit to plaintiff George Sorotos. his foster mother witnessed a child thrown five or six feet through the air:
While I was feeding Georgie the aide was slapping several different patients about the arms and shoulders and then she took one child by the back of the neck and held open the swinging door with one hand and threw the child through and he landed on all fours in the other room. Tr. 12-79 Caranfa. More than 3,500 painful electric shocks, causing burns on his buttocks, were administered to a resident in a program approved by the Secretary of Public Welfare. Tr. 5-31 to 5 35 Lowric: 8-102 to 103 Hirst (the "haphazard activity . . did not work" to aid the resident); Depositions of l.owrie and Biodv. The veteran head of the Psychology Department regarded the treatment as "inhumane and torturous." Tr. 8-103 Hirst.

A12
On his tour of the institution, an expert who testified at the trial witnessed one resident severely beating another while the scene was casually observed by a staff member. "The employee was sitting there watching," because, said the employee, "that's not in my job description." Tr. 2-60 Clements.
D. Psychological Abuse and Absence of Program and Activity
In addition to blatant forms of dehumanization, Pennhurst residents are subjected to an inherently "almost totally impersonal" setting. 446 F.Supp. at 1303. Pennhurst residents live out their lives as a group, engaging in "life maintenance activities" timed for the convenience of staff. Residents are awakened between 5:30 and 6:00 a.m. and are "toileted," showered and dressed, assembly line fashion, in bathrooms containing open rows of toilets and group showers. ^19
Meals are a health hazard for residents. At special risk are those who are fed by staff who use improper feeding techniques, such as feeding individuals while they arc lying down or by raking a spoonful of food across the upper teeth, or by feeding people too rapidlv. Tr. 1-159 Roos. Thus, the danger of the resident literally inhaling his food is significantly increased and can lead to death by aspiration, asphyxiation, or aspiration pneumonia. Id.; Tr. 2-66 Clements. Those able to feed them-
49. Supra notes 26-32: Barton Dep. at 26: Klick Dep. at i·4(); Tr. 1-149, 160 Rons; 2-40 Clements; ,5-96 Girardeau; photos 5, :îí). 105. 106 at I:`x. G-48. Plaintiff's are often nude, dressed in underwear, or ill-fitting institutional clothes and without shoes or socks. Tr. 1-149 Roos: 12-81 to 83, H5Caranfa; 13-23 Taylor; 13-80 Bowman. "It was ghastly. Here was this little seven year old boy and all these naked men milling around, screaming, swearing. He was terrified and, of course, I was heartbroken. Tr. 12-61 to 62 Caranfa.

AÏ3
selves are subjected to thefts of food by other residents, making nutritional planning impossible.)0
Life at Pennhurst is a continuum of inactivity and idleness.:>: An expert said:
This is what í described as enforced idleness. These individuals are simply vegetating and there seems to be no systematic activity. °`2
Records selected by Pennhurst staff for expert witnesses confirm the inactivity, e.g., tr. 2-77 to 80 Clements, as do government surveys. Tr. 18-83 Pool. Parents of plaintiffs saw
. . . zombies, people walking around like that in an enclosure, all in straiijackets, and walking with the arms tied up.
Tr. 2-151 Taub. And,
The toys were in the cage and they weren't allowed to have them out. 1 never saw a toy played with ever.
Tr. 12-63 Caranfa.
The majority of Pennhurst residents do not receive sufficient programming by minimally acceptable professional standards according to superintendent and his superiors:'' For example, in one Pennhurst unit residents
50. Tr. 2-71 to 72 Clements; photos 30 and 37 at Kx. (;¯`I8. Lack ol` nourishment is likely. E.(/.. Tr. 1-159 Roos. On many wards residents must eat with their finders or use spoons, the only utensil provided them. Tr. 1-159 Roos.
51. Tr. 1-120 to 122 Roos; 2-57. 77 Clements; 5-98 C,irardeau; 0-1 •49 Settle: l·l-01 Thurman (expert retained by defendants): photos 8, l·l. 21. 23. 26.. 31. 33. 52. 55, 50, 103 at Kx. C,-4tì. "The individuals are simply sitting there whilin^ away their lives."
52. Tr. 1 -1 72 Roos. 53. Tr. 1-1 19 Roos; 27-72. 77 to 78 Rice; l)ep. ol Rice at 179. 180.

A14
have no programs to teach them handwashing, se`J`í ceding or tooth brushing although they are in need of these skills.`'^1 Residents receive only l ½ hours of programmed activities weekdays (none on weekends), including non-benefïcial activities such as television. 446 F.Supp. at 1304; 24 a.5° Programs are "almost nonexistent." Tr. 2-36, 76 Clements; 2-153 Taub (plaintiff Taub); 13-23, 37 to 38 Taylor (plaintiffs Taylor).
Residents in need of specialized programs do not receive them. The head of the Psychology Department testified that "hundreds" of residents needing psychological services were not receiving them, creating "a crippling situation."06 Long waiting lists exist for every program at the institution. '7 For example, the Speech and Hearing Department accomodates one-sixth of the residents needing such services; physical therapy is given to less than half the people ¯equiring it; most people at Pennhurst receive no recreation or occupational therapy.j8
The institution encourages the development or increase of behavior problems among the residents; residents engage in self-stimulating behavior ranging from rocking to self-injury and aggressive actions toward others, to relieve the interminable boredom which permeates their lives at Pennhurst. :><) These behavior problems "are symptomatic of the institution." Tr. 8-107 Hirst; 2-83 to 84 Clements; plaintiff Bowman, for example, learned to bite others at Pennhurst. Tr. 13-71 Bowman.

5 1 . N;i.nlc Dc·p. at 2 5 . 'Mi. •I 1.

5 5 . Six h o u r s p e r d a y is m i n i m a l l y a d e q u a t e . Tr. 1-120 Knos. ll

clone in s m a l l H'`o`-ips in specific t r a i n i n i ; activities. /(/. at 1-123.

5f). Tr. 7-HK>. 107 Hirst.

5 7 . F o s t e r iX`p. at 4 2 ; Tr. 1-15.`î to 154 Koos.

5 8 . F o s t e r l ) e p . at 12. -K>; Rossi l ) e p . at 2 2 ; IK> F . S u p p . at

i:·i(M-l:·i()5: 2·la-2(¡a.

5<). /•;.(/.. T r .

; to !JH Hoos; 12 Cirardeau.

A15
There are no programs in use to decrease such behavior/'0
E. Physical Restraints, Chemical Restraints and Seclusion
VVhiJe adequate programming could reduce or eliminate these behaviors, note 60 infra, Pennhurst's response has been to restrain persons engaging in maladaptive behaviors. Control oí` residents is maintained through the use (and abuse; of physical restraints, seclusion and chemical restraints.
Physical restraints include such devices as shackles, straightjackets, chest restraints, security belts, face masks, halters, feet restraints, helmets, mittens, muffs and muff shackles/'1 The use of these devices is common at Pennhurst and it is used in lieu of treatment and lor punishment/'2
One expert described seeing residents' hands tied together, persons tied to a wheelchair by their wrists and persons tied to beds by their wrists and ankles/'`1 One resident spent 2,041 hours tied to a bed from August to October of 1976/>f Another spent 123 hours in hand re-
60 Tr. 4-12.3 Lowric; 1-l·-13 Rons: Nai;le Dep. at 50, 73-7J. Commonlv accepted h u m a n e teach in 14 methods are available hut not used at P e n n h u r s t . l·'..(¡., Tr. I -1 2 3 to 130 Cirardcau. This is yraphieally demonstrated by the experience oí one school-ai;ed person at P e n n h u r s t . W h e n ¡U I'ennhursl. he was kept in arm restraints which deprived him of the ahilitv to fiend his arms at the elbows because he would slap himself. When he was m school, where he had a program, restraints were not used, .\,ii;le l)ep. .it 01-05. ÍH.
01. Photos •I7-I<) at l·;.\. (i-18: Mathews Uep. at 02. 02. ¯IY. J - J '¯Î:-5 KOOS; 2-83 Clements; 5-125 to 12<ì Cirardeau; 8-11 Troester; photo 18 at Kx. 0-181 l-'.x. C.-.','ì. C.~\<) Restraints cause injury and death O n e eleven vear old resirlent of Pennhutst strangled on the restr.imts used to tie him to a chair \·`.\. \'-(>2 .See IV. 2-83 to 8 T 87 Clements: 7-130 to 131 Hirst 03. Tr. 1-l.¯·J.| to 135 Roos. 01. Mathews l)e[). .it 01-0f>

A16
straints during one month and still another spent 690 hours in hand and feet restraints in another month.6:' Not only are restraints dangerous in and of themselves, but their use makes residents more subject to the attacks of others.66 In addition, participation in programming is physically impossible.67
Without notice to or permission from their parents, Pennhurst placed minor plaintiffs in physical restraints.68 Although she could walk, Linda Taub was tied into a wheelchair so staff would know where she was."9 Plaintiff Sorotos was restrained:
He would be tied to the bench. Often he would be walking around the floor, on all fours pulling the bench with him. Q. I don't understand. A. Well, he would try to get up and he'd fall over. The bench was tied to his back, so lie would just drag it around.
Tr. 12-84 Caranfa.
Seclusion, the practice of putting residents alone in a locked room, is also common at Pennhurst.'° Generally seclusion rooms at Pennhurst are dark, hard surfaced, unpadded, dangerous, and devoid of furniture; these rooms are filthy. Tr. 1-136 Roos (observing l`eces on the ceiling and old clothes on exposed pipes).71 Seclusion at
(.i¯>. id. at rø, 7 ! . G(i. Tr. 2-87 C l e m e n t s ; 5-12H (iirardeau. (i7. Id. 68. Tr. 13-31 Taylor; 2-152 to I 53 Taul>. 69. Id. Tau!>. 70. Tr. I-133 Rons 71. `l·K> I'.Slipp. at 1306 n.3 1; photos <)7. 98 at Kx. C-IH; Tr. 1 ]`.',`2 to 133. 131 Koos. P e n n h u r s l stall surveyed e v e n seclusion room ¿u`.(i. in a written report to the administration, lound daiu',erous conditions including sharp ecl^cs. exposed wiring, hot radiators, matches, and smeared fetes. Kx. I'-f>6: Tr. •l·l7O to lí)(J. 5-1 l o â . As the employee testified, "an animal shouldn't even he placed in .i room like that. ` Id. at •l-l?)í) I,ourio

A17
Pennhurst is used as punishment for such things as rules infractions72 and setting fires.'1
Often a seclusion order is written PRN'¯4 — "an open door putting the individual in the seclusion room anytime they see fit." Tr. 1-134 Roos. One resident of Pennhurst, Joseph O., was kept in seclusion for five years running; his room was hosed down to clean it.7'
The use of seclusion is unacceptable under professional standards for caring for the retarded because it promotes no positive behavior and, in fact, is regarded by residents as a reward for inappropriate behavior.7'1 Use of restraints and seclusion is "totally unacceptable" for habilitation and "essentially condemn[s] the individual to a lifetime of confinement.""
The use of drugs to control behavior is by far the most prevalent form of restraint at Pennhurst. Drug practices at Pennhurst fall far short of minimum professional standards and include excessive use of psychotropic drugs, polypharmacy. and the administration of drugs on a PRN basis.'"
At Pennhurst, psychotropic drugs, i.e.. major tranquilizers, 'n are used for behavior control, in contravention oí Food and Drug Administration standards on prescription and dosage.HU About twice as many residents
71. A f o r m e r P e n n h u r s t r e s i d e n t testified t h a t a r e s i d e n t c o u l d spend live clavs or two w e e k s in seclusion for b r e a k i n g rules It K 27 Hill.
7'». l{ii(](!ick 1 ) e p at 11; ;n t h i s s i t u a t i o n , t h e u s e of s e c ! u s i o n w a s a p p r o v e d l>y a " b u s i n e s s a d m i n i s t r a t i v e officer." L a t e r .1 p h v s i c i a n v a l i d a t e d t h e d e c i s i o n w i t h o u t s e e i n g t h e r e s if lent Id at •l·}-·l¯>
7 1 , A b b r e v i a t i o n lor pro rr tiuta. " a s is n e c e s s a r v `` 7.¯>. Tr. l')-7^>. 12 I to 125 F ' i r m a n n 7f> Tr. ¯>-l I') to ¡·¿<) ( , n a t d e a t i : l-l.T> to l.}í> Moos. 7 7 Tr. 1-1 i j to l.¯·jt¿ Moos. 7 8 Tr. '>•'.',<•> ti; ÍH. ) J to •)(> .¯>.¯j S p i a i ; u e "1'o!v phai¯III.M v ` is i b e s i m u l l a n e o . i s u s e o| n i . i n \ rlrut;s l o r " I ' l ì \ . " M C n o t e 71 \II¡HÍI 7() T h e <·l.mi4<·rs. n a u i i c ,\m\ e l l e i I ol t h e s e p o \ v e i l u l d i u u s a n · d e s c r i b e d at Tr. ¯> 1 •^> to M S p : a u u e HO /(/. at :i-:ir> to »I

A18
are receiving psychotropic medication as would normally be expected to require them.31
At Pennhurst, medication is used for the convenience of staff and in lieu of habilitation.82 Often, the use of these drugs prevents residents from benefìtting from those few learning experiences available. For example, for many years plaintiff Larry Taylor could not walk and often fell asleep in school as a result of his medication.83 Pennhurst's polypharmacy policies make it nearly impossible to determine the efficacy of a particular medication.8'1 Training of staff in drug use is insufficient and evaluation of practices is improper.85 Drugs are administered PRN, often by an aide and without a doctor's order.86 They are also imposed on minor residents without notice to or consent from parents.87
Drugs are not a treatment for mental retardation. Pennhurst Acting Medical Director testified, "I don't think that there are any drugs that will change menial retardation." Tr. 19-190 Hedson.
F. Regression
The results of confinement in the institution called Pennhurst are, sadly, predictable. An individual entering
8!. Id.; Tr. 2-89 Clements. 82. Tr. 2-88 to 92: 3-5.} Sprague. 83. Tr. 13-21. 28. (¯>2 Taylor. Drugs made µ¡aintiff Sorotos "glassy-eyed" and "groggy" at I'ennhurst: lie was "fine" at home without any drugs. Tr. 12-86 (`aranía. Plaintiff Bowman developed tremors and shakes from drugging at Pt`nnhurst. Tr. I3-S6. 87 to •H) Howman. Sec •l·J6 l·¯.Supp. at 1308. 1310; 32a-33a. 38a. .Vh\ 8-1. Tr. 2-í)0 to <)2 Clements; 3-26. 32. 3·l. 37. II. •l.¯>. 51 Sprague; Hedson l)ep. at 59-61. 85. F.x. (í-33; Tr. 3-3<l. 12-16 Sprague. A testifying expert observed and had photographed a resident being loreil>ly and danger ouslv drugged on the lloor .it Pennhurst Photo 38 at ì·`.\. (Í--IH; 213() to 137 Clements. 80. Boyle Dcp. at 38; Tr. l(i-7í) Hciylt·; 18 71 Poo! 87. l·:.q.,Tr. 13 2 l i a v l o r ; 13-72 Howman

A19
Pennhurst can only become more handicapped. The conditions at Pennhurst "are likely to foster regression, maladaptive behavior, and curtailment of mental, personal, social and physical development. Among these conditions I would emphasize enforced idleness, mass living and regimentation, an enviionment which deviates markedly from the normative." Tr. 1-177 Roos.
As the District Court concluded, "the environment at Pennhurst is not only not conducive to learning new skills, but it is so poor that it contributes to losing skills already learned." 446 F.Supp. at 1308; 34a (citations to record and note omitted). Accord, Tr. 1-151 to 152 Roos; 58-59 Clements; 4-73 Lancaster-Gaye; 4-34 to 35 Flueck (study of random sample of records); 7-116 to 118 Hirst; 7-65 to 67 Dyb\vad.
Plaintiff Terri Lee Halderman was known to be "apt to regress."88 Yet, from the time she entered Pennhurst, Ms. Halderman received no programs to prevent regression.8<) Residents of Pennhurst who, like Ms. Halderman, enter the institution able to speak, cease to do so because the noise level on the wards is so high that individual conversation is impossible.<)0 Not only are residents deprived of the ability to learn new skills in the institution, the conditions therein make inevitable the loss of other acquired skills/"
The intellectual and behavioral deterioration inflicted by Pennhurst is a common denominator affecting all residents. Those who, in addition to mental retardation, also suffer physical handicaps, are doubly injured by life at Pennhurst.`12 Those residents fortunate enough to have wheelchairs often do not have chairs which are
88. K.\. V-(>(ì (H;dderm;in records); Tr. 8-75. 128 to 129 Hirst. 89. Id. at 8-80. ÍK). Tr. f)-88 H;iklcrnian. 9-10 Munsickcr; 2-59 Clements; 7I2f¡ I lirst. Sci· Tr. 2-1 70 Taul> (plaintiffs functionini; "went down.") 91. \'ì(>l·`.Supp.;it l.¯WH; :M¡i; Tr. l-9(¡. 100. 151 Koos. 92 I'\(ï l·'.Supp. at I.'iOr>; 2f>a n.28.

A2O
appropriately designed for them.91 Those who do not have wheelchairs are transported in makeshift wheeled tables known as "cripple carts." And those who lack "cripple carts" are confined to their beds, often on "crib wards." With the absence of physical therapy and the lack of needed equipment, physically handicapped residents develop contractures, the freezing and atrophy of unused muscles, which, in some cases, can only be remedied (if at all) by radical surgery.94
G. Potential for Improvement of the Institution
The most telling commentary on the facts of life at Pennhurst is that provided by three retardation experts who, the defendants' counsel told the court, were "clearly retained by us to help us in the defense of this litigation." Tr. 13-148 (Deputy Attorney General VVatkins). After a vigorous struggle over the admissibility of their testimony, Tr. 12-3 to 15, the experts summarized their three-month study, embodied in a 350 page report, with a 1.000 page appendix, and a separate paragraph-by-paragraph analysis of the complaint.'''
The defense team attempted to answer four questions:
First, what is the role of an institution in the service delivery system. Number 2. is an institution an appropriate educational treatment facility; 3 is Pennhurst an adequate setting; and 4 if not. can Pennhurst be made an adequate facility?
93. 4-4« F . S u µ p . at 130-1-1305: 25a-2Oa: Tr. 2O-9<> to 101 Fekul;i.
9 1 . Photo I 2 . i t K.v C;-·48: Tr. 2-50 to 5 1 . 55-57 C'k·im·riis. 1 7 ) 75 Lancaster-Gave.
95. Tr. 13-! 25 to 120 llersl>. T h e SI 2.000 contract lor the " c o m p r e h e n s i v e , objective e \ a l a u t i o n of I V n n h u r s t . " ul. at 13-1 17 is PAIIC l·¯.x. 7 1 . T h e District Court declined to require t h e defendants to produce the written report

A2l
TV. 13-119 Hersh.9f> In response to the first question, they concluded that
the institution has pretty much lost its role, that it is essentially an obsolete way of treating people. It is based on a series of assumptions which are dated. * * * So that the conclusion we came to is that there is no role for an institutional service delivery system in Pennsylvania.
Id. at 13-128 to 129. An institution was found to be an inappropriate educational treatment facility. Tr. 13-129.
On the third question, Pennhurst was found inadequate:
We found in many ways that the staff of Pennhurst were really fine people, they were hardworking people, they were doing their best. However, we came to the conclusion that because of the essential obsolescence of the total system and because of the complexity of the interpenetration of the various systems — Southeastern Pennsylvania, child-welfare system, mental retardation system, et cetera, et cetera, that having evaluated all the factors that we could put our hands on we came to the conclusion that Pennhurst is not an adequate facility.
<)6. For brevity, the testimony of only me witness. Dr. Alexander Hersh. is presented here. One of the others. Dr. Valaida Walker, former Pennsylvania Department of Public Welfare ReU¡onal Mental Retardation Commissioner, cited the teams recommendation that, once its residents were provided individualized services elsewhere, "the name oí Pennhurst be abolished completely and never be attached to any part of the facility whatsoever for obvious reasons." Tr. 1 1-7 to 8. The other team member is expert Dr. Kenneth Thiimian.

A22
Tr. 13-130. And it cannot be sufficiently improved:
We came to the conclusion that it could not, that there is no way that Pennhurst could be made into ¿n adequate facility. It is simply too far beyond repair and there are just literally hundreds of reasons why this is the case, not the least of which is the fact that Pennhurst as the whole structure, the whole way of operating out there is simply too far gone.
Tr. 13-131. The views of defendants' experts were shared by every expert for plaintiffs.
The defendants — state and counties alike — have been unable, despite more than fifteen years of planning and effort, and despite the availability of S21,000,000 earmarked for Pennhurst dispersal, to alter the life imposed on plaintiffs.97
H. Community Services
There is a world for the retarded outside Pennhurst. The institution's staff, from social worker to superintendent, agree that all its residents can be better served in small facilities in the community, and the Department of Public Welfare agrees;"8 the state, in fact, had slated Pennhurst to be emptied under a five-year plan.''1'
All persons living at Pennhurst, including the most severely mentally and physically disabled, should receive services and habilitation in the community; people
97. Sec Tacts at notes 194-196 infra; Tr. 1-1-10 to 21 (former state retardation Commissioner Walker); 6-165 to 166 Settle. Alter years of effort, the VVillowbrook institution remains unfit for human habitation. Tr. 2-108 Clements.
98. Tr. 8-16(3 to 167 Hindman; 1-185 huos; 2-1 1 1 Clements: 22-171 to 172 YouriKber^; 22-77 Foster; 26-22 Rite; Youni;ben; Dep. at 102; Foster Dep. at 63.
99. Tr. 28-46, 48 Rice; facts at note 195 infra; 446 l·`.Supp. at \:U:Ì: 47a-48a.

A23
with identical disabiJities — Pennhurst residents' "twins" — in Pennsylvania are receiving such habilitation now.100
The graphic contrast between life at Pennhurst and life in the community with needed services was best related at trial by individuals who left the institution.
After spending ten years at Pennhurst, Robert Troester now lives in a Doylestown, Pennsylvania, group hoine with seven other men. He now has his own room, does his own cooking and helps with the shopping. Each day he takes public transportation to his sheltered workshop, where he is employed as a collator. He enjoys going to movies and restaurants in the Doylestown area. Tr. 8-13 to 19 Troester.
After years at Pennhurst, Robert Hill lives in the community, and works in a delicatessen, "five days, except holidays and Saturday and Sunday." Tr. 8-29 Hill. In his leisure time, Mr. Hill enjoys television, walking or fishing, and mystery novels. Id. at 8-27 to 31.
Robert Vaughn spent thirteen years at Pennhurst. He now lives in a group home and is employed as a dishwasher in a local department store. To get to his job he must take three different buses. He is an usher in his church. Tr. 8-39 to 42 Vaughn.
These examples are not aben`ations, but rather are typical experiences of Pennhurst residents who return to the community.)ül They also are not attributable to a lack of disability or a lack of behavior problems. Grace Auerbach, the mother of Sidney Auerbach, age 51, who was severely retarded and a resident of Pennhurst for 38 years, described the difference in her son. At Pennhurst,
lüü. 446 F.Supp.. at 1311; 42a-43a; Tr. 1-183. 185. 190 Roos; 2-84. 111. 125 Clements; 5-161 Girardeau; G-25 to 26. 29 to 31, 35 Glenn; 7-68 to 71 Dybvvad; 14-21 Walker; 19-69 to 70 Pirmann; 27101 Rice.
101. E.g., 10-74. 75. 87 Wood; 10-110 Brown; 10-166 to 167 Bolin; 1 1-72 to 73. 80 to 81 Kulp.

A24
iVIr. Auerbach never spoke. Now, his mother testified, he speaks continuously. He now cooks for himself, holds a job, and keeps his own bank account. Tr. 8-44 to 8-62 Auerbach, 446 F.Supp. at 1311 n. 47; 42a. Residents who engaged in assaultive behavior, temper tantrums and soiling themselves, after six months in a community placement, no longer displayed such activity. Tr. 10-166 to 174 Bolin.
Community living embraces the use of a large spectrum of services, some of which are used as a matter of course by non-retarded persons. A "house-type" residential setting is only "one of many different possibilities" for community care; "We know, of course that there are many other models, including foster placement, family placement, and apartment living, independent living." Tr. 1-207 Roos. In some cases, "a small communitybased institution" may be necessary to meet the needs of an individual. Id. at 1-208. Other existing residential possibilities include subsidized relatives' homes and supervised apartment clusters. [0`2 The type of arrangement depends on the needs and abilities of the prospective resident.
In addition to, and reducing the need for, residential placement outside the family home, there exists a continum of services designed to serve the retarded person in the community. These services include early intervention and infant stimulation programs, nursery and pre-school programs, public school programs, pre-vocational and vocational training, and independent employment.105
102. Sec. (•.(/., note 4 suprii; Tr. 2-90 to 9 7 C l e m e n t s : 0-18 to 20 Glenn; 5-l·ll to i¢il Girardeau: photos 89. 90. 9 1 . 94. 95 at K\. G
•18.
103. J·:,r/.. P h o t o s 5 7 . 5 8 . 8 9 , f).¯J at K \ . G - 1 8 ; 5 - 1 1 1 . 1-12. ]¯>í). 101 Girardeau: 0-0 toH. 1 4 Glenn; 0-95 to 98. I 72 to 171 Settle; 101 I to : Ì 2 . 15. (¡O. 0 5 : 1 1-3 1 Miller.

A25
With 85% of the retarded capable of gainful employment, Tr. 6-95 Settle, and with vocational services operating in the area surrounding Pennhurst, it is no surprise that the typical response of former residents to the provision of vocational services is tremendous progress, including participation in competitive employment.10'1
It is "considerably less costly to provide for mentally retarded persons in ihe community than in institutions." Tr. 12-20 Conley (expert retardation economist; based on Pennsylvania costs). In 1977, per-resident annual average cost was $20,000 at Pennhurst and $14,000 in the community. Id ,`t 12-22, 23, 35; 446 F.Supp. at 1312; 44a (per diem costs: $64 v. $28). For example, for Montgomery County residents in Pennhurst at a $3.3 million annual cost, it would require $1.9 million to provide habilitation outside that facility. Tr. 12-15. State Commissioner Rice acknowledged at trial that the cost of Pennhurst would more than cover the community care cost for all its residents. Tr. 27-39 to 40.
Existing community services for the retarded in Pennsylvania, including those for former Pennhurst residents, are "excellent," "highly developed," "very good."10'3 Funds are available for further development of such services. 446 F.Supp at 1312; 43a-44a; notes 194, 195 and 196 infra. Both the state and the county defendants are responsible for the monumental and needless incarceration of human beings under Pennhurst`s regime.lo(>
10}. Photos 57. 58, 9'A at I·`.x. C-48: 8-10 Troester; 8-29 Hill: 840 Vaughn; 10-74 to 7 5 Wood; 10-106. 1 10 Hro\vn: 10-100 to 107 Hoiin; 1 1-10 to 4.¯i Miller; 1 l-7¯2 to l?>. 8 0 to 81 Kulp.
105. Tr. 12-20 Conley: 0-50 Clenii; 5-111 to 10! (ürardeau. Other states have c o m m u n i t y services of considerable quality lor severely and profoundly retarded persons. Tr. 28-45 Rice; 1-198 u> I9í) í{oss.
100. On direct county involvement, sec 440 l·'.Supp. at 1212l2!.5: 45a-4Oa: 012 l·¯.2d at ÌO.l·. I29a-I3()a.

A26
The crisis that is Pennhurst and its resolution were correctly characterized by its Superintendent, Dr. C. Duane Youngberg:
As I said a number of times, it is not mental retardation per se that requires the institution. It is just the lack of alternative resources . . . I often say that it is not a matter of our people getting ready to return. It is a matter of the community getting ready to take their people back.
Youngberg Dep. at 102.

 
 NO. 81-2101-CFX Seer 81-23G3

TITLE ?ennhurst State School and Hospital, et al., Petitioner! V. Terri Lee Halderman, et al.

DOCKETED
May 13, 1982

COURT
United States Court of Appeals for the Third Circuit
PROCEEDINGS AND ORDERS

Counsel for Petitioners: H. Bartow Farr, III

Counsel for Respondents: Solicitor General, Thomas K. Gilhool

Sept. 15, 1981
Sept. 1-7, 1981 Sept. 22, 1981 Sept. 25, 1981 Sept. 25, 1981 Sept. 28, 1901 Sept. 28, 1981

Application for stay filed, and order denying same by Brennan, J., Sept. 17, 1981. Application for stay refiled with Rehnquist, J. Response by U.S. filed. Response by Halderman filed. Response by PARC filed in opposition. Reply by State of Pennsylvania filed. Response by Suburban Counties (Joinder of Sub. Counties)

Oct. 5, 1982
May 13, 1982 May 28, 1982 May 27, 1982 June 1, 1982 June 1, 1982 June 4, 1982
June 4, 1982 June 7, 1982
June 21, 1982

The application for stay of the orders of the United States District Court for the Eastern District of Pennsylvania, entered Apr. 24, 1980, May 28, 1980, Julv 14, 1930 and March 2, 198Ì, addressed to Rehnquist, j . , and referred to the Court is DENIED.
Pet Ltion for writ of certiorari filed. (Record filed). Bri if of respondent PARC et al. in opposition filed, Mot on of respondents Halderman, et at. for leave to proceed
in forma pauperis, and brief in opposition filed. DISTRIBUTED. 6-17. Bri f for the U. S. in opposition field. (D). Bri \f, amici curiae on behalf of Alabama, American Samoa, et al. in support of petition filed, Rep: y brief for the petitioners filed. (D). Brii f, amicus curiae, of the State of New York in support of petition filed. (D).
The motion of respondents Terri Lee Halderman, et al. for leave to proceed in forma pauperis is GRANTED. Petition GRANTED.

July 19, 1982
Sept. 3, 1982 Sept. 4, 1982 Sept. 7, 1982 Sept. 20, 1982
Sept. 22. 1982

Order extending time to file the joint appendix and petitioners' brief on the merits until Sept. 4, 1982. Brief for the petitioners filed. Brief, amici curiae, for Alabama, et al. filed. Joint appendix filed.

lotion of respondents Terri Lee Halderman, et al. to ismiss writ of certiorari as improvident].1" granted

DISTRIBUTED. 10-8. (Above motion) '

`"`` '

(OVF

Pennhurst v. Halderman

MR-PA-0002-9000

81-2101

9^¿¿íe

No.

PROCEEDING! AND ORDERS

Oct. 1, 1982

Order extending time to file the respondents' brief on

the merits until Nov. 15, 1982.

Oct. 4, 1982

3pposition by petitioners to motion of respondents

to dismiss writ of certiorari as improvidently

granted filed.

Oct. 6, 1982
Oct. 6, 1982 Oct. 12, 1982

Reply of respondents' to petitioners' opposition to motion filed. Supplemental memorandum for Halderman respondents file
The motion of respondents Halderman, et al. to dismiss

the writ of certiorari as improvidently granted is

%v ¾·. m

¾¾lMd<M¾¾¾¾>>. eett a l · f i l e d ·

Nov. 16, 1982

Application for leave to file respondents' brief on tl·

merits in excess of page limitations, and order granti

same by Brennan, J., 11/17/82, not to exceed 93 pages.

Nov. 24, 1982 Bri :f for the United States filed.

Dec. 14, 1982

CIRCULATED,

Jan. 5, 1983

?íotion of the ``·arties for divider', p.r°'.i™ent f?.`}.^<^.

Jan. 17, 1983

he motion of the parties for divided argument is GRANTI

Feb. 15, I9Ö3 Rep y brief for petitioners filed. (D).

Feb. 22, 1983

ARGUED.

 
 r*fc;¿¾

C.A. 74-1345
ATTORNEYS

TERRI LEE HALDERMAN, a retarded citizen, by her mother and legal guardian, Winifred Halderman,
Plaintiff

`-For plaintiff: David Ferleger, Esq.
P«>jee·t"2321 Satisom Street Phil&·. Pa.. 19103
For: plffs'

v.

/ PENNHURST STATE SCHOOL AND HOSPITAL; DEPARTMENT OF PUBLIC WELFARE; HELENE WOIILGEMUTH, 5c-crciary of the Department of Public Welfare; C. DUANE YOUNGBERG, Superintendent, Pennurst
t State School and Hospital; KOEERT SMILOVTTZ, Assistant Supcrintendc:iii, P<·nnK¡rst State School
` and liospita1; \1 All(JAKKT < ÜIKKN, BETTY UPill()L·¡), ALICE JiAlìTON.. PAT1IICIA LYTTL",
j . ;NAGLI·;.. P . E. KLICK, MAJÍY SHANTA, DR. UL···JJJ.Y, DR. PAUOCCA, I IE LEN FRANCIS, MS. W.'.iMJli, Staff, agents and employees of Penníiu. ,.. State School and Hospital; JOHN DOCTÜK, JANE NURSE, JACK AIDE, JILL THERAPIST, RICHARD ROE, and JANE ROE, unknown and unnamed staff, employees and -· agents of Pennhurst State School and Hospital, all individuals sued in their official and individual capacities,

>

"Defendants

V*O)
Dìlworth

a, Kalish, ant

ity Bld«.

s t . 19109

«rvening p l f f s . , Pa.

Þ . i.^, Ptiblic Interest Law Center of THOMf)S f 1315 Walnut S t . , 19107

ÇrtUtooi- tort P·¤na. A»sn. forTWt«rd

Citizens,

bt

For defendant¾ DiBolfi

Norman J . Watkins, Esq. — t3') Deputy Attorney General `¯.¯> Dept. of J u s t i c e , Capitol H a r r i s b u r g , Pa. 17120 v· f o r d e f t s ' ¯ . .. •^ ; ,.`¯

Peter A. Glascptft

Rm. 510 Admin.:Bi< Doylestown, i For: Co. o£ *~¿cka*'
Geo. ¾ `
J o s . Catan.ia¯'; Pe¢<r Bo·¿¡

-STATISTICAL RECORD
J.S. 5 mailed
J.S. 6 mailed Basis of Action:
CIVIL RIGHTS
Action arose at:

COSTS
Clerk
Marshal Docket fee Witness fees Depositions

DATE

NAME OR RECEIPT NO.

5/30, Cf (.o

I 1974

Date Order o

i£

PROCEEDINGS

Judgment K"

Jb 30 Complaint filed ' 30 Summons Exit
10 Summons returned 6/5/74 served Dept. of Public Welfare, Harrisburg, Helen.e Wohlgemuth, Pennhurst State School & Hospital, C. Duane Youngber¾, Betty uphold, Robert Smilovitz, P.E. Klick, Dr. Parocca, Margaret Green, Alice Barton, Helen Francis and "UNEXECUTED" as to Dr. Hedley, Ms. Weiler, Mary Shanta, J. Nagle, Patricia Lyttle, fil·é^d

10 Appearance of Norman J. Watkins, Esq. as counsel for defts', filed î Plffs. first set of interr., filed.

5 Defts' notice of intention to file Motion to Dismiss, filed 2 Defts' Motion to Dismiss and Memorandum of Law in Support thereof,
filed

!9 AMENDED COMPLAINT, filed Defts1 First Set of Interrogatories to Plff Parent and Family Assn.

3f Pennhurst with C e r t i f i c a t e of Service thereof, f i l e d

L2 Defts' supplemental motion to dismiss, notice of intention to reinstate motion to

dismiss and to assert additional grounds for dismissal, with memorandum in suppori

thereof, filed.

26 Defendant's answers to plaintiffs first set of interrogatories > fi½ed.

U Stipulation, and ORDER, -that time for p l f f s . response to def's. motion to

RJB

dismiss, e t c . , is extnedeê to 9/l6/7½, filed.

i r i f f ' s , brie::1 í>:.. assistance to def's. motion to dismiss, filed.

I! î-¾ü!orandun`. o lav: `ir. rap

trief in resistance to def's. morion to d

Flfff''s. e.ns¯./er to first set of interrogatories, filed.

7¯,,ff's. supplementary reference of law as to treatment rights of retardates, filJed

;,etion to intervene of the United States of America, Memorandum of law in suppor thereof (for leave to intervene as plff.), filed. P l f f s . memorandum in support of the motion of the United States to intervene, filed. L€ttei¯írom John A. Thiers, V.P. of Supplee- Mosley, Inc., to Judge Broderick re conditf ` at Pennhurst State School and Hospital, filed.

Lef's. memorandum in opposition to the motion of the U.S.A. to intervene, filed. .2 Amendment to United States' motion to intervene, filed.

file:'

Supplemental memorandum ir. opposition to the Intervention of the U.S., by defs., filed,

?`·.ff's. supplemental memorandum in support of United State's Intervention, file

`'-~.~... ra`.¯.--tr`.wf the United States in response to def?s. opposition to intervention o

the rrr.L‰eâ Z~<`:zez, f i l e d . ¯

:.,1, th·`-¯l the rr.otio:. of the United .Ttates of Ar.erics to ir.terver.e as a ppssrrtt¿·

R.I3

laintiff ÌE

filed.

i//¿::'..7'755 entered and copies !r.aiied.

r":.s~iì~:.·-.":/•'. t o ti:.t Tr.ction o f t h e V . í . tc i n t e r v e n e , ^'.i?h t h a t trie: T.'.C m o v e s.tetrvoenie ×~ per-iccive ?ait;¯ ylff. ur.der ?::.li ?;- í`l ` , andcertificstio.`. of service tr¡c·r of, filed.(

P l f f s . request for production of documents, and certification of service thrreof, filed.

`°lff. Linda Taub's interrogatories addressed to defs., filed.

"f. Robert Sobetsky's interrogatories addressd. to defs., filed. Theresa Sobetsky's interrogatories addressd. to defs., filed,
áÙSx,P- l ) > r i Lee Halderman¯'s interrogatories addressed to defs. filed, ->eth Taylor's interrogator^ _·¿ addressed to a^f.^ filed.

. Lee Kalderman ez a l v . ¿nnh`jrst 3 t , So

IDA. Rev. Civil Docket Continuation

PAGE 2

PROCEEDINGS

D»te Order oi Judgment Not·

'HI
x. IS

?lff. Larry Taylor's interrogatories addressed to defs., filed. Plff. <¾orge 3orotos interrogatories addressed to defs., filed.
?lff. Nancy 3eth Bowman's interrogatories addressed to defs., filed. Plff's. second set of interrrogatories addressed to defs., filed.

.\.f: s. r¾q
-¯`· ^ • - * - ` i

^roì`x`e, i`il-ì. ?··cdMc':iar`. c¯` ¯

Defs'. notices of depositi ns ofT·;inifred Kalderman, et al, and certification of Service thereof, filed.

June 1 Stipulation and ORDER, that Defs. will forward all responses to all outstanding RJ3 discovery requests, etc., on or before 6/2/75, etc., filed.

Motion of Pa. Association for retarded Children, et al, to intervene as parties- plff.,

filed.

/ , _ A , , .„, , .

Memorandim in support of plff.-intervenors' Pa. Assoc. of Retarded Citizens' et al's motion to intervene, filed.

Def. Pennhurst State Schools' supplemental responses to first set of interrogatories, fil Plff's. memorandum in support of motion to intervene by the Pa. Assoc. of Retarded
Citizens, et al, filed. Affidavit of C. Duane Youngberg re: answers to supplemental responses to first sejt of
interrogatories, filed.
17 D e f s . objections to plff.-intervenor's request to produce, filed. 17 Defs.' objections to plff's. interrogatories, filed.

Def.s' memorandum in opposition to the application of the pa. Assoc. of Retardrdl
18 Citizens' for intervention, and certifiation of service thereof, filed.

Defs.' memorandum in opposition to application of Pa. Assoc. of Retarded Citizens
19 for intervention, filed.

June 2U Letter from pl£f's. counsel to judge Broderìck re: request for oral argument,fijLed. 50 Julpr 3 Plff's. request for production of documents, filed.

`-y

Plff. Maynard Taylor, a member of the class's, motion for preliminary injunction and affidavit of anonymous in support thereof, filed.
Plff'o. motion to compel production of documents and answers to interrogatories,

15 22 28
3-¤. 2

Plff's. notice of deposition of Dr. Robert Smilovitz, Stanley Meyers, and Dr. C. Duane Youngberg, filed.

Plff's. preliminary memorandum re: power of federal court to halt Pennhurst commitments

on motion for a preliminary injunction, filed.

j

ORDER, that the hearing on plff's. motion for preliminary injunction is set for 9/12/75;

further ORDERED that plffs. are hereby authorized to make service of the motion ¦ RJB

herein on all parties and Judge Alexander F. Barbieri, etc., filed.

¦

7/28/75 entered and copies mailed.

I

2efs.1 response to interrogatories regarding plff. Terri Lee Kaidarman, filed. |

ORDER,, that the hearingg on pplff's. motion for preliminary injunction is hereby RJ3

rescheduled to 10/2/75, filed.

5/2/75 entered and copies mailed.

¯3U£Ji¿3

74-1345

PROCEEDINGS

Govt's motion to compel production of document s as requested, memorandum in support, affidavit in support, filed.

Dato Order or Judgment N o t ^ T ¯>

Plff s. motion to shorten the time within which d e f s . shall respond to plff s. Request to produce, and certification of service thereof, filed.
D e f s . answers to plff's. second set of interrogatories, filed.
Defs.1 notice of intention to file motion to dismiss as to plff.-intervenor, mot:.::.on to dismiss as to plff.-intervenor, memorandum of law, and certification of serv: rilaa.
Defs.' response to plff's. motion to compel production of documents and answers to plff's. first and second set of interrogatories, filed.
Def's. response to plff.-intervenor's motion to compel production of documents, ii`l:ed. r^ •Joint memorandum in support of defs.' responses to plff's. motion to compel prcdv rt:tiioonn \ câ documents and answers to plff's. first and second set of interrogatories, etc., filed. Defs.' certificate of service of documents #63 and 6^, filed.

HZAP.ETG re: motion for preliminary injunction: CONSENT ORDER signed by judge.

Rõ¯3

Memorandum of intsrvenor U.S.A. in opposition to motion to dismiss, filed.

D e f s . response to plff's. motion for preliminary injunction on behalf of l·iaynar< Taylor , Jr., etc., filed. Def's. supplementary Tner.¯.orandun of law re: rights of mentally retarded persons, í;

ORD2R, dated 10/2/75> that defs. are enjoined from admitting into ?ennhurtst

RJ3

State School and Hospital any person adjudicated as delinquent, etc., filed.

IO/7/73 entered and copies mails:

Def's. first set of interrogatories to plff.-intervenor, filed.

Transcript of hearing re: motion for preliminary injunction, filed. (lO/2/75)

Defs.1 motion to withdraw opposition to motion to intervene on behlaf of the Pa. jAssoc. for Retarded Citizens, and certification of service, filed.

Stipulation and ORDER, that paragraph 3(a) of the complaint in intervention of PÍ,

Assoc. for Retarded Citizens et al is amended, etc., filed.

RJB

Memorandum of United States in opposition to def's. motion to dismiss U.S. as a p¯†ff.-

intervenor, filed. Plff's. supplementary memorandum of law regarding d e f s . motion to dismiss,f fil5d.

3 ORDER, dated ll/ll/75, that d e f s . motion to withdraw defs. opposition to mo¯t}ion RJ3 to intervene on behalf of Pa. Assoc. of Retarded Citizens is GRANTED, filed. ll/lU/75 entered and copies mailed.
0 ORDER, dated ll/l2/75, that the motion of Pa. Assoc. of Retarded Citizens, et al¡ RJB to intervene as party plff's. is GRANTED, etc., filed. ll/lU/75 entered and copies mailed.
2Cj Defs.' motion to modify order for a preliminary injunction, notice of motion, m<!tnorandum I of law, and certification of service, filed.
Plff -intervenor's answers to defsÉ. interrogatories, filed.
18 D e f s . motion to compe¾ answers to ä e f s . interrogatories to intervenor U.S.A.,
notice of motion, affidavit and memorandum in support thereof, and certification of service, filed. Govt's. memorandum in opposition to motion to conroel answers to interrogatories, filed. .9 Defts. motion for protective order, notice, memorandum and affidavit, filed.

IL DOCKET CONTINUATION SHEET .AINTIFF
?ERRI LEE HALDERMAN ETC.
NR.
1975

NJD
DEFENDANT
PENNHURST STATE SCHX>L ET AL
PROCEEDINGS

DOCKET NO. _ PAGE ! + O F

.PAGES

82 Dec 1976

23 Order fixing l/7/76 at 9:30 a.m. for argument of all outstanding motions, filed 12/2^/75 entered & copies mailed

3 Jan

k

tl

85 ft

:6 M

It

7

11

38 Feb

!f

92 " 93

5 Plff's memorandum in opposition ±n deft's motion for protective Order

with regard to plff's own medical records aãd certificate, filed.

7 Plff's bråâf in support of motion for preliminary injunction on

behalf of Maynard Taylor, Jr., etc., filed.
7 Argued Sur: motion to dismiss compaiint & motion of Commonwealth to

dismiss Flff-Intervenor - C.A.V.. filed

, Rj3

8 Amended complaint of Pennsylvania Association for Retarded Citizeas, et al

in Intervention class-action, filed.

8 29
10

SUMMDNS EXIT Transcript of testimony of l/7/76, filed. Appearance of Peter A. Glascott for Co. of Bucks, filed.

11 Summons returned, " on l/28/76 served William Spingler, COnnissioner of Del.

County, Paul Burrichter, Mental Health''Mental Retardation Adm for Del County,

Mayor Frank Ri:szo, Faith R. Whittlesey, Commissioner for Eel. County, Charles

Keeler, Commissioner for Del. County, Leon Soffer, Mental Health/Mental ?.etardatic

Adm. for Phila. County, The City Counsel of Phila - unable to locate, or¯.

l/29/76 served or. Frank W. Jenkins, Commissioner of Montgomery County, Lawrence

lí. Curry, Commissioner of ì·bnt. County, Herman A. Roether, Mental Health./

Mental Retardation Add. for Mor.t. County, A. Russell Parkhouse, Comnissoner for

î·bnt. County, on 2^/7¤ served on Roger Bowers, Commissioner for Bucks County,

Joseph Ca*ania, C0~.m3sicr.er for 3uo¾s County, Gecrg¾ ì·íets:?er, Commissioner for

Bucks County, Peter Eodenheiiaber, Mental Health' Mental Retardation Adn. -'or

Bucks County, on 2/5/76 served or. Williar. A. Me Ker.dr¯/, Mental Health/Mental

Retardation Adn. for Chester County, Leo McEersott, Cc=nnissicr.er for Chester

County, 3arl Baker, Conmissioner for Chester County, Robert 3tre¯ol, Commissioner

for Chester County, on 2/6/76 served on George X. Schwartz, President of City

of Fhila Council, UîGXSCüTZD per letter; Pennhurst State School L· Hospital,

Wilber Hobbs, Dep'y Sec'y for Southeastern Region, Russell Rice, Jr., Commissior.e

of Mental Health Retardation for the Southeastern Region, C. Duane Younberg.

Superintendant'of Pennhurst School & Hosp.,Aldo¯Colautti, Exec. Dep'y Sec'y,

Dept. of Public Víelfare of the Commonwealth of ?er.na, Frank 3. Eeal, Stanley

Meyers", filed

19 Appearance of ?eter Glascott, 2sq for the defts' George M. Hetzer, Tr. Roger Bowers î: Joseph ". Catania ¾ ?eter Hod=r.heicner, filed

Appearance of Thomas 7. 3cViilpp, Ssq for the defts' Commissioners of

the County of Delaware -2: Paul 3urrichter,¯ filed

25 Firit interrogatories of plff-interveners, Penn. Assoc. for Ret«rded Citizens,

et al to defts' Pennhurst State School & Hosp., Dept of Public Welfare of the

Commonwealth of Penna., Frank S. Beal, Sec'y of Dept of Public Welfare, Stanley

Meyers, Dep'y Sec'y of Mental Retardation; Dept of Public Welfare, Aldo Colaitti,

Executive Dep'y Sec'y, Dept of Public Welfare, Wilbur Hobbs, Dep'y Sec'y for the

Southeastern Region, Dçpt. of Public Welfare, Russell Rice, Jr., Commissioner of

Mental Retardation for Southeastern Region, Dept of Public Welfare, C. Duane

Youngberg, Superintendent of Pennhurst State School ¾Hosp., filed

26 2ntry of appearance of Thomas M. Kittredge, 23q. for the defts' Robert Strebl, Earl Baker & Leo McDennott, Conmiasloners for Chester County &

William A. McKendry; Mental Health/Mental Retardation for Chester County,

filed

^__,

(fì/iZn'í^~/ DC`'"AIRev` "7¯

DC 111A (Rev. 1/75)
PLAINTIFF
TEKRI LEE HALDERMAN

C . IL DOCKET CONTINUATION SHEET DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL

DOCKET NO. 74-1345

41
PAGE. .OF.

. PAGES

DATE

NR.

1980

PROCEEDINGS

805 JUL
806 "
807 "
8 0 8 •" 809 " 810 " 811 " 812 " 813 "
814 " 815 " 816 "
817 " 818 " 819 "

ORDER THAT THE REGISTRY OF THE COURT SHALL PAY TO THE OFFICE OF THE SPECIAL

MASTER THE SUM OF $ 6 6 , 4 0 2 . 0 3 , THIS AMOUNT COVERS THE EXPENSES OF THE SPECIAL

MASTERS OFFICE FOR THE PERIOD JULY 1 THROUGH JULY 3 1 , 1980, FILED. RJB

7 / 3 / 8 0 ENTERED &. COPIES MAILED ( g i v e n t o F i n a n c i a l D e p t . )

ORDER THAT THE COI-2`©NWEALTH OF PENNSYLVANIA SHALL PAY TO THE REGISTRY OF THIS

COURT THE AMOUNT OF $ 8 , 8 0 6 . 0 0 , BY THE FIRST DAY OF AUGUST, 1980, THIS AMOUNT

REFLECTS COST ESTIMATES FOR OPERATION OF THE OFFICE OF THE HEAPING MASTER FROM

AUGUST 1 , THROUGH AUGUST 3 1 , 1980, FILED.

RJB

7 / 3 / 8 0 ENTERED & COPIES MAILED

ORDER THAT THE REGISTRY OF THE COURT SHALL PAY TO THE OFFICE OF THE HEARING

MASTER THE SUM OF $ 8 , 8 0 6 . 0 0 , THIS AMOUNT COVERS THE EXPENSES OF THE HEARING

MASTERS OFFICE FOR THE PERIOD JULY 1 THROUGH JULY 3 1 , 1980, FILED.

RJB

7 / 3 / 8 0 ENTERED & COPIES MAILED ( g i v e n t o F i n a n c i a l D e p t . )

Memorandum o f PARC, e t a l , c o n c e r n i n g p r o p o s e d o r d e r o f May 2 0 , 1980, f i l e d .

Appearance of Herbert B. Newberg, Esq. as co-counsel f o r p l f f ' s Parents and

Family Association of Penrihurst, e t a l , filed.

P e t i t i o n of David F e r l e g e r , Esq. f o r Award of i n t e r i m counsel fees and c o s e s ,
filed. Brief of David Ferleger, Esq. in support of petition for an interim award of counsel fees and costs, filed.
Affidavit of David Ferleger, Esq. in support of petition for an interim award of counsel fees and costs, filed.

ORDER THAT THE EXCEPTION FILED BY CHESTER COUNTY DEFT'S TO THE HEARING MASTER'S

REPORT OF INDIVIDUAL DETERI·ttNATION RE: W.C., I S HEREBY DISMISSED AS PREMATURE,

ON THE GROUND THAT THE HEARING MASTER HAS SCHEDULED A FURHTER HEARING, FOR

MODIFICATION OF THE HEARING MASTER'S ORDER OF 6 / 1 6 / 8 0 , ETC. , FILED. RJB

7 / 8 / 8 0 ENTERED & COPIES MAILED

9 F i n a n c i a l Report f o r t h e Month ended December 3 1 , 1979, f i l e d .

9 F i n a n c i a l Report f o r t h e Month ended January, 1980, f i l e d .

C e r t i f i e d Copy o f Order R e c e i v e d from U . S . Court of Appeals d a t e d
7/7/80 that the motions in 79-2092 and 79-2093 to f i l e briefs 30 days after Supreme Court Decisiions in S.C. Nos. 79-1404, 79-1408, 79-1414 and 79-1489 are Granted; Motion by Plff. Appellees, Haider man et al to Dismiss Appeals is Denied, filed. 7/10/80 Entered. 11 ORIGINAL PLFF'S MOTION TO AMEND OPINION OF DECEMBER 2 3 , 1977, NOTICE, BRIEF IN

SUPPORT, Sc CERTICATE OF SERVICE, FILED.

15 ORDER THAT THE COURT \UIL HOLD A HEARING, RECEIVE MEMORANDA & HEAR ORAL ARGUMEN

ON JULY 2 1 , 1980 AT 1 0 : 3 0 A.M. IN COURTROOM 10B, ETC., FILED.

RJB

7 / 1 5 / 8 0 ENTERED & COPIES MAILED

15 ORDER THAT NO RESIDENT OF PENNHURST SHALL BE TRANSFERRED TO A COMMUNITY LIVING LIVING ARRANGEMENT IN ACCORDANCE WITH PRIOR ORDERS OF THIS COURT UNLESS & UNTIL

THE HEARING MASTER HAS DETERMINED THAT SUCH TRANSFER I S VOLUNTARY, ETC., FILED.

7 / 1 5 / 8 0 ENTERED & COPIES MAILED

CONT. ON PAGE # 4 2

tf"¾· á

C.A. 74-1345
ATTORNEYS

TERRI LEE HALDERMAN, a retarded citizen, by her mother and legal guardian, Winifred Halderman,
Plaintiff

`-For plaintiff: David Ferleger, Esq.
Sansom Street For; plffs'

v.
>• PENNHURST STATE SCHOOL AND HOSPITAL; DEPARTMENT OF PUBLIC WELFARE; HELENE WOHLGEMUTH, Secretary of the Department of Public Welfare; C. DUANE YOUNGBERG, Superintendent, Pennurst
r State School and Hospital; HOEERT SMILOVITZ, Assistant Superintendent, Pennl·¯.¡rst State School
- and liospila1; \IAIIC;AIŒT < \lìl·]KX, BETTY UPMOLi), ALICE BAIÌTON.. PATRICIA L Y T T L · \ J . ¦NAGLl·;.. P. E. KLICK, MAJíY SHANTA, DRi. HKOUÏ.Y, DR. PAliOCCA, HELEN FRANCIS, MS. W.¯.iMJR, Staff, agents and employees of Pefcniu¡. .... State School and Hoapital; JOHN DOCTüü, JANE NURSE'. JACK AIDE, JILL THERAPIST, RICHARD ROE, and JANE ROE, unknown and unnamed staff, employees and agents of Pennhurst State Sciiool and Hospital, all individuals sued in their official and individual capacities,

\

Defendants

(hO) DÜworth, Pagsón, Kalish, ant
Llty Bldg.
st. 19109
irvening p l f f s . , Pa.

Public Interest Law Center of 1315 Walmrt S t . , 19107 for: P·nna. A·sn. tat Citizens, lfeOttwit*,
For defendant ¾ Düfclfi

Norman J . V7atkins, Esq.

Deputy Attorney General

Dept. of J u s t i c e , Capitol

Harrisburg, Pa. 17120 .-

for defts' *

.. ¯

Peter A. Glascotfc •

Rm. 510 Admin. _ w , Doylestown, Pa. 18901 For: Co. of te*
Geo. ¾ _
Jos. Cataniau Pè¯¢«i·

STATISTICAL RECORD
J.S. 5 mailed
J.S. 6 mailed Basis of Action:
CIVIL RIGHTS Action arose at:

¯tX)STS-
Clerk
• ¾!'
Marshal Docket fee Witness fees Depositions

DATE

NAME OR RECEIPT NO.

) j Cf U o it

111974 iu

,—?<

FPI Ml l - 3 - 7 Z - 1 O O M ¯ · l b 5

PROCEEDINGS
4_

Date Order o:
Judgment N°

30 Complaint filed 30 Summons Exit

10 Summons returned 6/5/74 served Dept. of Public Welfare, Harrisburg,

Helen.e Wohlgemuth, Pennhurst State School & Hospital, C. Duane

Youngberg, Betty Uphold. Robert Smilovitz, P.E. Klick, Dr. Parocca,

Margaret Green, Alice Barton, Helen Francis and "UNEXECUTED" as Dr. Hedley, Ms. Weiler, Mary Shanta, J. Nagle, P a t r i c i a Lyttle,

ftiol·é;,d

10 Appearance of Norman J . Watkins, Esq. as counsel for d e f t s 1 , filed
3 Plffs. first set of interr., filed.

5 Defts1 notice of intention to f i l e Motion to Dismiss, filed 2 Defts1 Motion to Dismiss and Memorandum of Law in Support thereof,
filed

Ì9 AMENDED COMPLAINT, f i l e d 2 Defts1 F i r s t Set of Interrogatories t o P l f f Parent and Family Assn.
of Pennhurst with Certificate of Service thereof, f i l e d

L2 Defts' supplemental motion to dismiss, notice of intention to reinstate motion to dismiss and to assert additional grounds for dismissal, with memorandum in suppori

thereof, filed.

26 Defendant's answers to plaintiffs first set of interrogatories » fi½ed.

Stipulation, and ORDER, that time for p l f f s . response to d e f s . motion to

RJB

dismiss, etc., is extnedeô to 9/l6/7^> filed.

riff r s . brief i'·¯.. assistance to d e f s . motion to dismiss, filed.

1: Memorandum of la¯·: in reply to p l f f s . t r i e f in resistance to d e f s . notion to d ssiiss, filed
P l f f s . answer to first set of interrogatories, filed. r , f f ' s , supplementary reference of law as to treatment rights of retardates, filed
;.etion to intervene of the United States of America, Memorandum of law in suppor thereof (for leave to intervene as p l f f . ) , filed. P l f f s . memorandum in support of the motion of the United States to intervene, filed. Lettei¯from John A. Thiers, V.P. of Supplee- Mosley, Inc., to Judge Broderick re: condit_¯ ¯ at Pennhurst State School and Hospital, filed.
L e f s . memorandum in opposition to the motion of the U.S.A. to intervene, file' .2 Amendment to United States' motion to intervene, filed.

memorandum in opposition to the Intervention of the U.S., by defs., filed.

:-¯-.ff's. supplemental memorandum in support of United State's Intervention, filet.,

^:r. ran^jmof the United States in response to d e f s. opposition to intervention of

;r.e '.'ni¯"ea " rtec, filed. •

;he ratio:, of the United ~tates of America :o intervene a;

R-J3

rl£i:-tiff i 3?Jt¯`í3

ì/2.^./7" entered and copies mailed.

t o t h e mction of the V.?.. c intervene, such

ne .G. moves to intervene

£ S permissive part;/ plff. under ?! e ?·'-fl),` and. certification of service thereof, filed. Ç

P l f f s . request for production of documents, and certification of service tberjeof, filed.

`°lff. Linda Taub's interrogatories addressed to defs., filed.

*f. Robert Sobetsky's interrogatories addrecsd. to defs., filed. Theresa Sobetsky's interrogatories addressd. to defs., filed, `>ri Lee Ha,lderman¯'s interrogatories addressed to defs. filed, ">eth Taylor's interrogator J _·¿ addressed to G?fs filed.

2Ì

Lee Kaldersmn e¯c a l •/. ¿nnhurst 3 t , Sc

10A. Rev. Clvtl Docket Continuation

PAGE 2

PROCEEDINGS

Plff. Larry Taylor's interrogatories addressed to defs., filed. Plff. George 3orotos interrogatories addressed to defs., filed.
?lff. Nancy Beta Bowman's interrogatories addressed to defs., filed. Plff's. second set of interrrogatories addressed to defs., filed.
>* v^r,'À-" <

Date Order or Judgment Not>

Defs'. notices of depositi`ns of "inifred Kalderman, et al, and certification of $ervice thereof, filed.
June ì Stipulation and ORDER, that Defs. will forward all responses to all outstanding RJ3 discovery requests, etc., on or before 6/2/75, etc., filed.
a 3 Motion of Pa. Association for retarded Children, et al, to intervene as parties- plff.,

Memorandim in support of plff.-intervenors' Pa. Assoc. of Retarded Citizens' et al's motion to intervene, filed.
h Def. Pennhurst State Schools' supplemental responses to first set of interrogatories, filt Plff's. memorandum in support of motion to intervene by the Pa. Assoc. of Retarded Citizens, et al, filed.
Affidavit of C. Duane Youngberg re: answers to supplemental responses to first sejt of interrogatories, filed.
17 Defs. objections to plff. - intervenor' s request to produce, filed. 17 Defs.' objections to piff's. interrogatories, filed.
18 Def.s' memorandum in opposition to the application of the pa. Assoc. of Retardrd Citizens' for intervention, and certifiation of service thereof, filed.

19 Defs.' memorandum in opposition to application of Pa. Assoc. of Retarded Citizens for intervention, filed.

June 4- Letter from pl£f's. counsel to judge Broderick re: request for oral argument,filed. 50 July 3 Plff's. request for production of documents, filed.

ly lU

Plff. Maynard Taylor, a member of the class's, motion for preliminary injunction

and affidavit of anonymous in support thereof, filed.

Piff's. motion to compel ¯¤rcduction of documents and answers to interrogatories,!

filed.

^

j

15 . 22

Piff's. notice of deposition of Dr. Robert Smilovits, Stanley Meyers, and Dr. C. Duane Youngberg, filed.

Piff's. preliminary memorandum re: power of federal court to halt Pennhurst commitments

on motion for a preliminary injunction, filed.

I

; 28 ORDER, that the hearing on piff's. motion for preliminary injunction is set for Q/l2/75;

further ORDERED that plffs. are hereby authorized to make service of the motion ¡ RJB

herein on all parties and Judge Alexander F. Barbieri, etc., filed.

¡

7/28/75 entered and copies mailed.

21 Defs.1 response to interrogatories regarding plff. Terri Lee Haider-man, filed.

ORDER, that the hearing on piff's. motion for preliminary injunction is hereby RJ3

rescheduled to 10/2/75> filed. f/2/75 entered and copies mailed.

74-1345

PROCEEDINGS

Date Order or Judgment Not

Govt's motion to compel production of document s as requested, memorandum in support, affidavit in support, filed.

Plff s. motion to shorten the time within which defs. shall respond to plff's. ‡·equest to produce, and certification of service thereof, filed.
Def's. answers to plff's. second set of interrogatories, filed.

Defs.' notice of intention to file motion to dismiss as to plff.-intervenor, mot: on to dismiss as to plff.-intervenor, memorandum of law, and certification of serv oe,filed.
Defs.' response to plff's. motion to compel production of documents and answers to plff's. first and second set of interrogatories, filed.
¾ f s . res`conse to tuff.-intervenor's motion to compel production of documents, í`iled. •Joint memorandum in support cf defs.' responses to plff's. motion to compel production ofi documents and answers to plff's. first and second set of interrogatories, etc.J filed. Defs.1 certificate of service of documents #63 and 6"·, filed.

HEARING re: motion for preliminary injunction: CONSENT ORDER signed by judge.

RJ3

Memorandum of intervenor U.S.A. in opposition to motion to dismiss, filed.

Def's. response to plff's. motion for preliminary injunction en behalf of î·¦aynar< Taylor , Jr., etc., filed. Def's. sut)r>lementary memorandum of law re: rights cf mentally retarded persons, fi

ORDER, dated 10/2/75, that defs. are enjoined from admitting into ?ennhurtst

RJ3

State School and Hospital any person adjudicated as delinquent, etc., filed.

IO/7/73 entered and copies ma lie:.

Defs. first set of interrogatories to plff.-intervenor, filed.

Transcript of hearing re: motion for preliminary injunction, filed, (l0/2/75)

Defs.1 motion to withdraw opposition to motion to intervene on behlaf of the Pa. Assoc. for Retarded Citizens, and certification of service, filed.

Stipulation and ORDER, that paragraph 3(a) of the complaint in intervention of Ps,

Assoc. for Retarded Citizens et al is amended, etc., filed.

RJB

Memorandum of United States in opposition to defs. motion to dismiss U.S. as a p4ff·-

intervenor, filed.

Plff s. supplementary memorandum of law regarding def's. motion to dismiss,f fil|ed.

13 ORDER, dated ll/ll/75, that defs. motion to withdraw defs. opposition to moijion RJ3 to intervene on behalf of Pa. Assoc. of Retarded Citizens is GRANTED, filed. ll/lU/75 entered and copies mailed.
ORDER, dated ll/l2/75, that the motion of Pa. Assoc. of Retarded Citizens, et alj RJB to intervene as party plff's. is GRANTED, etc., filed.
ll/lU/75 entered and copies mailed.
2C Defs.' motion to modify order for a preliminary injunction, notice of motion, memorandum of law, and certification of service, filed.
26 Plff -intervenor's answers to def's¯. interrogatories, filed.
>8 Defs. motion to compe¾ answers to fiefs, interrogatories to intervenor U.S.A., notice of motion, affidavit and memorandum in support thereof, and certification of service, filed.
.8 Govt's. memorandum in opposition to motion to compel answers to interrogatories,
filed.
-9 Defts. motion for protective order, notice, memorandum and affidavit, filed.

IL DOCKET CONTINUATION SHEET -AINTIFF

7ERRI LEE HALDERMAN ETC.

DATE

NR.

DEFENDANT
PENNHURST STATE SCHOOL ET AL
PROCEEDINGS

DOCKET NO. _ PAGE Ì L OF

PAGES

1975

82 Dec l97ž

23 Order fixing l/7/76 at 9:30 a.m. for argument of all outstanding motions, filed.
i2/2ú/75 entered & copies mailed

3 Jan

Plff's memorandum in opposition ±ri deft's motion for protective Order with regard to plff's own medical records aàd certificate, filed.

h " 85 "

7 Plff's brief in support of motion for preliminary injunction on
behalf of Maynard Taylor, Jr., etc., filed.
7 Argued Sur: motion to dismiss compaiint & motion of Commonwealth to

26 "

dismiss Plff-Interveno¿ - C.A.V., filed

. , RJ3

8 Amended complaint of Pennsylvania Association for Retarded Cxtizeas, et al

h "

8
29

38 Feb 10

11

in Intervention class-action, filed.
SUMMDNS EXIT Transcript of testimony of l/7/76, filed.
Appearance of Peter A. Glascott for Co. of Bucks, filed.
Summons returned, " on l/28/?6 served William Spingler, COnmissioner of Del. County, Paul Burrichter, Mental Health/Mental Retardation Adm for Del County, Ma^or Frank Riszo, Faith R. Whittlesey, Commissioner for Del. County, Charles Keèier, Commissioner for Del. County, Leon Soffer, Mental Health/Mental Retardatio Adm. for Phila. County, The City Counsel of Phila - unable to locate, or. l/29/76 served on Frank W. •Jenkins, Commissioner of Montgomery County, Lawrence " Curr·`r, Commissioner of Mont. County, Herman A. Roether, Mental Health/ Mental Retardation Adm. for Mont. County, A. Russell Parkhouse, Cora¤issoner for

Retardation Adn. for Chester County, Leo McEeraott, Cczsnissioner for Chester

County, Earl 3aker, Commissioner for Chester County, Robert 3trebl, Commissioner

for Chester County, on 2/c/76 served on George X. Schwartz, President of City

of Phila Council, UNEXECUTED per letter; ?ennhurst State School & Hos?rcal,

Wilber Hobbs, Dep'y Sec'y for Southeastern Region, Russell Rice, Jr., Commissionei

of Mental Health Retardation for the Southeastern Region, C. Duane Younberg,

Superintendant'of Pennhurst School ¾ Hosp.,Aldo¯Colautti, Exec. Dep'y Sec y,

Dept. of Public Welfare of the Commonwealth of ?enna, Frank 3. Seal, Stanley

Meyers", filed

19 Appearance of Peter Glascott, Ssq for the defts* George M. ì·:eõzer, Z`.`Roger Bowers :·: Joseph v. Catania ¾ Peter Hoder.heimer, filed

23 Appearance of Thomas F. 3cliilpp, Esq for the defts' CoC¡îr;issior.er3 of

the County of Delaware 5c Paul 3urrichter,¯ filed

92

25 Firit interrogatories of plff-interveners, Penn. Assoc. for Ret«nded Citizens,

et al to defts1 Pennhurst State School & Hosp., Dept of Public Welfare of the

Commonwealth of Penna., Frank S. Beal, Sec*y of Dept of Public Welfare, Stanley

Meyers, Dep'y Sec'y of Mental Retardation; Dept of Public Welfare, Aldo Cola4tti,

‡bcecutive Dep'y Sec'y, Dept of Public Welfare, Wilbur Hobbs, Dep'y Sec'y for the

Southeastern Region, Dçpt. of Public Welfare, Russell Rice, Jr., Commissioner of

Mental Retardation for Southeastern Region, Dept of Public Welfare, C. Duane

Youngberg, Superintendent of Pennhurst State School &Hosp., filed

93

26 Entry of appearance of Thomas M. Kittredge, Esq. for the defts' Robert

Strebl, Earl Baker & Leo McDennott, Commissioners for Chester County &

William A. McKendry; Mental Health/Mental Retardation for Chester County,

filed

-,.^/Ï

==7

UBH^

DC-1I1A (Rev. 1/75

DOCKET CONTINUATION SHEET \ITIFF
TERRI L. HALDERMAN et al
NR.

£jB
DEFENDANT
Pennhurst State School et al
PROCEEDINGS

DOCKET NO. _Ç_JL·_7J

PAGEj^2_OF

PAGES
r

27 Defts' Mayor Frank L. Rizzo, City Counsel of Phila & Leon Soffer answers to amended complaint, filed

27 Entry of appear·nce of Roger M. Reynolds, Mont. County Solicitor for the defts' A. Russell Parkho»se, Frank W. Jenkins & Lawrence H. Curry, Commissioners

of Mont. County A Hermann A. Roether, Mental Health/Mental Retardation Admin.,

filed

27

Defts' Russell Parkhouse, Frank W. Jenkins & Lawrence H. Curry & Hermann A.

Roether answers to comaplint ¾ amended complaint, filed

8 Stipulation extending time oo 3/15/76 for the defts' to answer, plead or otherwise

move the amended complaint, with approval thereof, filed

RJB

15 Defts' Robert Strebl, Earl Baker. Leo McDermott & William McKehdry request

for oral argument, motion to dismiss the complaint, memorandum, certificate

& notice, filed 15 Answers of Geo. Mè*zer, R. Bowers & Jos. Catania & Peter Bodenheimer, filed 18 Defts'. Pennhurst State School & Hosp., Dept of Public Welfare of the

Commonwealth of Pa., Frank S. Beal, Stanley Meyers, Aldo Colautti, Wilbur Hobbs,

Russell Rice, Jr. & Duane C. Ypungberg's motion for Order enlarging time,

26

memorandum, certificate & notice, filed Memorandum in opposition to state defts1 Motion to enlarge time to respond

to amended complaint of plff-interveners, Penna. Assoc. for Retarded Citizens,

30

et al, filed

Defts' Pennhurst State School & Hosp.,.Dept. of Public Welfare of the Commonwealth

of Pa., Frank S. Beal, Stanley Meyers, Aldo Colautti, Wilbur Hobbs, Russell Rice,

Jr,o & C. Duane Youngberg's motion for and Order enlarging time to answer

30 interrogatories, memorandum, certificate & notice, filed Defts' Pennhurst State School & Hosp., et al objections to interrogatories of

31 plff-intervenors, Panna. Assoc. for Retarded Citizens (P.A.R.C.), et al, filed Plff's motion for leave to file ^second amended complaint, memorandum, certificate

Apr | 5

& notice, filed- Lcf: `- A->¯:¯¯V^?· . £?IVípü-o\;7 £TTrvj i/¾) Defts1 Pennhurst State School & Hosp.,-Dept of Pubilc Welfare of the Commonwealth

of Pa.', Frank 3. 3eál, Stanley Meyers, Aldo Colautti, Wilbur Hobbs, Hussell

Rice, Jr., & C. Duane Youngberg's motion to dismiss or, in the alternative,

¦to strike the amended complaint in intervention of P.A.R.C., memorandum,

certificate & notice, filed Defts1 motion to dismiss plff-intervencr P.A.R.C. complaint iniintervention

as ?mended by stipulation of counsel, ememorandtci, certificate & notice,

filed

Defts' memorandum in opposition to plff*s motion for leave to file a second

c

amended complaint, certificate, filed Affidavit of C. Luane Youngberg, filed

Motion for and Order to compel defts' to answer first interrogatories of plff-

interveners, Penn. :\ssoc. for Retarded Citzens, et al, memoramdum & notice,

filed

Defts' amended answer to interrogatory # 52 of plff-intervener, ?.A.R.Cí's

first set on interrogatories to Commonwealth defts'., filed

27 Affidavit of Jeffery Cooper, filed Stipulation & ORDER that time is extended for plff's to file their supplemental

memorandum in support of motion for leave to file a second amended complaint

until plff's counsel, Daivd Ferleger, Esq. returns to Phila and confers and

agrees upon a future date with defts' counsel, Jeffery Cooper, Esq., provided

that defts' shall have 15 days from the serving of said supplemental memorandum

in support of motion for leave to file second amended complaint to respond to

the supplemental memorandum, filed

entered ¾ cot>ies mailed

v/lL DOCKET CONTINUATION SHEET 'LAINTIFF
ÏERRI

DATE

NR.

DEFENDANT jRGï STATE SCHOOL, et al
PROCEEDINGS

C.Â.
DOCKET NO.
PAGE o .OF

PAGES

.12 Apr llU May
.16 "
L17 " 118 "

.20

II

.21 !t

.22 !t

-23 It .2k II

If
•25
.26 It

127 It

.28 M L29 II 130 I I
131 "

132 " 133 "

Affidavit cf C. £uane Youngberg, £d.D., filed Defts1 motion for a protective Order, memorandum, certificate, notice &

affidavit of C. Duane Youngberg, Ed.D., filed Stipulation & Order dated V30/76 th»t t h e tíme within the plff-interveners

may move for a certification as a class is extended to such time as may be

agreed upon the decision of the Court on defts' motion to dismiss, filed

RJB

5/5/76 entered & copies mailed ORDER dated 5/6/76 that defts1 shall produce immediately, materials provided in

response to interrogatories # 8, 9, 10, 11 & 12 for the purpose of inspection

& copying, etc., filed

**JB

5/lO/76 entered & copies mailed 11 Plffs1 and plff-interveners, Penna. Assn. for Retarded Citizens, et al motion

for class action determination, memorandum , certificate & notice, filed

12 ORDER dated 5/ll/76 that trial to commence on IO/S8/76, final pre-trial

conference to be held on 9/20/76 and ruling on various discovery motions,

etc., filed

RJB

5/13/76 entered & copies mailed 12 Defts1 answer to interrogatoried 8, 9, 10, 11, 12 of p l f f s set of interrogatories

regarding plffs George Sortos, filed

12 Defts' answer to interrogaotries 8, 9, 10, 11, 12 of plffs' set of interrogatories

regarding Linda Taub, filed 12 Defts1 answer to interrogatories 8, 9, 10, 11, 12 of p l f f s set of interrogatories

regarding plffs Lawrence Taylor, filed

12 Beits' answer to interrogatories 8, 9, 10, 11, 12 of plffs' set of interrogatöires

regarding pifí"3 Kenneth Taylor, filed

12 Defts' answer to interrogaotires 8, 9, 10, 11, 12 of p l f f s set of interrogatories

regarding plffs Robert Sobetsky, filed 12 Defts1 answet to interrogatories 8, 9, 10, 11, 12 of p l f f s set of interrogaotries
regarding plffs Teresa Sobetsky, filed

12 Defts' answer to' interrogaotries, 8, 9, 10, 11, 12 of p l f f s set of interrogatorie,

regarding plffs Terri Lee Halderman, filed

12 Befts' answer to interrogatories 8, 9, 10, 11, 12 of p l f f s set of interrogatories

regarding p l f f s Nancy Beth Bowman, filed

13 Certificate of service of Jeffery Cooper, Deputy Attorney General re; served
defts' responses to interrogatories # 8, 9» 10, 11,¾2 of p l f f s set of -interrogatories to defts1 on counsel for plffs' on 5/U/76, filed 17 Commonwealth defts1 response to motion for class action determination &

certificate, filed

18 Defts' first set of interrogatories to plff-intervenor Penna. Assn. for

Retarded Citizens,filed

21 Motion of plff-intervenors, Penna. Assoc. for Retarded Citizens, et al to join
deft parties, certificate & notice, filed 21 Memorandum in opposition to Commonwealth defts1 motions to dismiss the complaint

and amended complaint of plff-intervenors, Penna. Assoc. for Retarded Citizens,

et al, filed

2k Commonwealth defts* notice of taking deposition of Winfred Halderman &

certificate, filed 27 Entry of appearance of Jeffrey Cooper, Dep. Att'y General for the defts1,

Pennhurst State School and Hospital. Dept. of Public Welfare, Prank S.

Beal, Aldo Colautti, Wilbur Hobbs, Russell Rice, Jr. and C. Duane Youngberg,

filed

DC-111A (Rev. 1/75)

DOCKET CONTINUATION SHEET NTIFF
ZERRI LEE HALDERMAN, et al
NR.

!
DEFENDANT PENNHURST STATB SCH3OL , e t a l
PROCEEDINGS

C.A. 7^
DOCKET NO.
PAGE 7 OF

PAGES
f

Commonwealth defts* memorandum in opposition to motion of plff-intervenors, Penna. Assn. for Retarded Citizens, et al to join deft parties & certificate, filed Defts' Rizzo, City Counsel of Phila. and Leon Soffer; Mental Health/Mental Retardation Adm. motion to dimiss the complaint, memorandum, certificate & notice, filed
9 Plff's motion to hold defts* in contempt of this Court & certificate, filed
10 Defts' supplemental response to plff's discovery request, certificate, filed 10 Defts* answers to interrogatories #1.1,1.9, 1.22, 1.26, 1.32 (Supplemental)
2,If,7, (Supplemental); 8-lU, 25, 28, 32, 33 and 35-50 of the first interrogatories of plff-intervenors Penna. Assn. for Retarded Citizens, et al, to Commonwealth t defts'., certificate, filed 11 Answer of plff-intervenors, Penna. Assn. for Retarded Citizens, et al to motion to dismiss of Chester County Defts1, Strebl, Baker, McDermott, County Commissioners of Chester County and McKendry, Mental Ifealth/Mental Retardation Administrator of Chester County, memorandum & certificate, filed 11 Answer of plff-intervenors, Penna. Assn. for Retarded Citizens, et al, to motion to dismiss of Phila. County defts', Rizzo & City Council of Phila. as authorities for Phila. County, Soffer, Mental Ifealth/Mental Retardation Adminsitrator for Phila. County, memorandum & certificate, filed ik Memorandum amicus curiae of Robert P. Kane, Attorney General of the Commonwealth of Penna., in support of defts' motion to dismiss petition & certificate, filed
23 Commonwealth defts' motion for a protective Order to seal all discovery, memorandum, certificate & notice, filed
25 Commonwealth defts* motion to stay discovery, msamorandum, certificate & notice, filed
30 Commonwealth defts' response to plffs' motion to hold defts' in contempt of Court, affidavits & certificate, filed
13 United States' opposition to defts' motion to stay discovery, filed. 28 Answers of plff-interveners, Penna* Assn. for retarded Citizens, et al to
Commonwealth defts' first set of interrogatories, filed Plff-intervenors', Penna. Assn. for retarded Citizens, et al first request 28 for production ¢f documents to defts' Pennhurst State School & Hosp., Dept. of Public Welfare of Commonwealth of Pa., Beal, Meyers, Colautti, Hobbs, Rice & Youngberg, filed
Plff-intervenors, Penna. Assn. for Retarded Citizens, et al second set of 28 interrogatories to defts', Pennhurst State School & Hosp., Dept. of Public
Welfare of Commonwelath of Pa., Beal, Meyers, Colautti, Hobbs, Rice & Youngberg, filed Plíf-intervenors·, Penna. Assn. for Retarded Citizens, et al first request for production of documents to defts*, Rizzo, City Counsel of Phila., Soffer, filed Plff-intervenors*,Penna. Assn. for Retarded Citizens, et al first request for production of documents to defts' Parkhoose, Jenkins, Curry, Roether, filed Plff-intervenors*, Penna. Assn, for Retarded Citizens, et al first request for production of documents to defts* Whittlesey, Keeler, Springer, Burrichter, filed Plff-intervenors*, Penna. Assn. for Retarded Citizens, et al first request for production of deocuments to defts* Strebl, Baker, McDermott, McKendry, filed Plff-intervenors.',Penna. Assn. for Retarded Kitizens, et al first request foe production of documents to defts', Metzger, Catania, Bowers, Bodenheimer,

VIL DOCKET CONTINUATION SHEET
^LAINTIFF
TERRI LEE BÄLDBRMAH, e t a l

DEFENDANT
PEMNHURST STATE SCHX)L & «>SP.
et al

C.A.
DOCKET NO.
PAGE 8 OF

PAGES

DATE

NR.

PROCEEDINGS

1976

I5¼ Aug 2 -55 " 2

Plff-intervenors*, Peana. Assn. for Retarded Citizens, e t al first interrogatories
to defts' Rizzo, City Counsel of Phil·a., So£fer, filed Plff-intervenors* Penna. Assn. for Retarded Citizens, et a l first interrogatories to defts' Parkhouse, Jenkins, Curry, Roether, filed

L56 " 2 157 " 2

Plff-intervenors*, Penna. Assn. for Retarded Citizans, et al first interrogatories to defts' Metzger, Catania, Bowers, Bodenheimer, filed Plff-intervenors', Penna. Assn. for Retarded Citizens, et al first interrogatories to defts' Strebl, Baker, McDennott, McKendry, filed

158 " 2 Plff-intervenors' Penna. Aasn. for Retarded Citizens, et al first interrogatories to defts* Whittlesey, Keeler, Spingler, Burrichter, filed

L59 " 9 Conmonwealth Defts' notion to stay a l l discovery, memorandum, certificate &

160

n 20

notice, filed Piff-Bitervenor U.S.A.'s notice of taking deposition of Most Senior Direct

Care Worker/Attendant, first shift, ward C-7, First shift, ward 52, first shift,

ward C-3, first shift, ward T-2, second shift, ward K-l, filed

161 " 23 Eefts·, Pennhurst State School & Hosp.'s motion to dispense ¶îith the requirements of Local Rule 36, motion for a protective Order, memorandum

in support of motion for a protective order & certificate, filed

162 " 2k Objections of the Chester County defts* t o plff-intsrvenors' first interrogatorie and requests for production of documents, filed

153 " 26 Commonwealth defts' motion to compel •&tt-iiitexV3n!OX9P.A>.B..C. to answer Commonwealth defts' f i r s t set on interrogatories, memorandum in support of motion,

certificate & noitce, filed

.ík Sept

Plff-intervenor, ?enna. Assn. for retarded Citizens, et a l second interrogatories

to defts' ?arkhouse,Jenkins, Curry & Roether, f i l e d

-65 "

Plff-intervenor, Penna. Assn. for Retarded Citizens, et al third set of

interrogatories t o derts* Pennhurst State & School & I¾sp., Seal, Meyers,

Colautti.Hobbs, Rice & Youngerberg, filed ?lff-intervenors', ?enna. Assn, for Retarded Citizens, et al secind interroga^orxí to deí`ts' Mayor Rizzo and the City Council of Phila., Soffer, filed

Plff-intervenors*, Penna. Åssn. for Retarded Citizens, et al second

interrogatories t o defts1 Strebì, Baker, 2fcDersott & MeXeadry, Tiled

L63

7 ?lff-intervene* Penna. Assn. for Retarded Citizens, e t a l second interrogatories

to defts' Whittlasey, Xeeler,3pingler & 3urriohter, filed

?lff-intervenor,?enna. Assn. for Retarded Citizens, a¯i a l second interrogatories

to defts' Metzger, Catania, Bowers & 3odenheimer, filed

170 " 13 P l f f s notice of depositions of the physician on duty on 9-5-76,

171 " 172 "
173 Oct

28

at Pennhurst State School and Hospital et a l , filed. Commonwealth Defts1 objections to Plff-intervenors',

Pa. Asso. for Retarded Citizens, et a l , f i r s t request

28

for production of documents, filed. Commonwealth Defts· objections to Plff-intervenors1

Pa. Asso. S>r Retarded Citizens, et a l , second set of

interrogatories, filed.

Objections of the Chester County defts' to the plff-intervenors' second

interrogatories, filed

Defts' motion to dispense with the requirements of local rule 36, motion & r a protc`!:`'vp order, memorandum in support of motion for
¤rotective order, with c e r t i f i c a t e of service, filed.

DC-11 1A (Rev. 1/75)

>OCKET CONTINUATION SHEET ITIFF
:I LEE HALDERMAN, e t a l
NR.

DEFENDANT
PENNHURST STATE SCHX)L & HSSP., et al
PROCEEDINGS

C.A.

DOCKET NO.

PAGE

.OF

PAGES

ORDER dated lo/U/76 that all discovery in the matter be stayed pending this

Court's determination of the outstanding motions in this case, that this

Court intends to act on these motions by 19/18/76, filed

RJB

IO/6/76 entered & copses mailed

Nov

Copy of Letter to Broderick, J. from Jeffrey Cooper, Esq. re:

copy of decision of U.S. vs Fresno Unified School District sub-

mitted as supplemental reference for Defts' Motion to Dismiss the

U.S. in this matter, filed. 30 ORDER dated ll/29/76 that upon ruling on various motions to dismiss & discovery

motions and that leave is GRANTED for the plff to file a second amended

complaint, etc., that in accordance with Rule 23(c), F.R.C.P. this litigation

shall be maintained as a class action, etc., that the Court's Order of

lO/k/76 is VACATED, fixing 12/8/76 at 9:00 A.M. in Chambers for the purpose

of determining dates for the completition of a pre-trial Order and the trial

of this case, filed

RJB

l2/l/76 entered & copies mailed

30 Plffs' second amended complaint, filed

30 SIMONS EXIT on second amended complaint.

6 Commonwealth defts' motion to amend interlocutory order to include statement

prescribed by 28 U.S.C. 1292(b), memorandum, certificate & notice, filed

Motion of plff-intervenors, Penna. Assn. for Retarded Citizens, et al for

preliminary injunction and the appointment of a special master, memorandum & notice, filed

Defts' Pennhurst State School & Kcsp·, et al motion to dispense with the requirements of Local Rul.î yò ¡ motion for Order enlarging time to answer

complaints, memorandum in support of Commonwealth defts' motion to enlarge

time to answer complaints & certificate, filed

9 Answers to interrogatories 1.10, 1.12, 12a, 25a and 50a of plff-intervenor
?.A.R.C.'s first sex of interrogatories to Commonwealth defts1., filed

Ik ORDER dated 12/13/76 that Commonwealth defts1 motion to amend interlocutory

Order to include statements prescribed by 28 U.S.C. 1292(b) is DENIED,

filed

RJB

I2/15/76 entered & copies mailed
Ik ORDER dated 12/13/76 that the Commonwealth deftsf are permitted to file
their motion for an order enlarging time to answer the complaints without

regard to the requirements of Rule 36, requiring 5-day notice of such

motions, filed

RJB

I2/15/76 entered & copies mailed
Ik ORDER dated 12/13/76 that the Commonwealth defts1 motion for order
enlarging time to answer complaints is GRANTED, FURTHER ORDERED that

the time in which the defts' may answer the complaint is enlarged to 12/23/76, filed

RJB

I2/15/76 entered & copies mailed

23 ANSWER of defts1, Robt. Strebl, Earl Baker, Leo McDermott and

Wm. A. McKendry, of Chester Co. to the Amended Complaint of

PARC, et al, in Intervention, filed 27 ANSWER of Burrichter, Whittlesey, Kèeler, Spingler, Comm. for the County

of Delaware to the complaint and amended complaints of plffs' and plff-

intervenoES, filed 27 ANSWER of Commonwealth defts' to the complaint in intervention of U.S.A.,

filed

^-

VIL DOCKET CONTINUATION SHEET 'LAINTIFF

TERRI L. HALDERMAN, et al

DATE

NR.

KJD
DEFENDANT
PENNHURST STATE SCHOOL & HOSP., _e¿_aJ
PROCEEDINGS

DOCKET NO. _ PAGE 1 0 OF

PAGES

1976

185 Dec. 27 ANSWER of Commonwealth defts' to amended complaint of Penna. Assn..
for Retarded Citizens, et al in intervention, filed
.86 " 27 ANSWER of Commonwealth defts' to seo·nd amended complaint, filed

1977, LÖ7 Jari

¯"lff's motion for temporary restraining order, filed.

Defts' Rizzo, et al answers to plff's request for first interrogatories,

filed

,89 "

I Defts' Rizzo, et al answer to plff's request for second interrogatories,

190 "

filed
h Defts1 Rizzo, et al answer to plff's request for production of documents,

L9l "

filed
k ORDER that the defts' are hereby enjoined from altering or removing anything

from any records at Pennhurst State School & Hosp. which are subject to

discovery by the U.S., etc., filed

RJB

l/5/77 entered & copies mailed

192 " I 7 Defts1 Robert Strebl, et al certification of notice 45iven of Judge

i

Broderick's Order of l/U/77, filed

-93 V I 12 I Entry of appearance of Ward A. Cotton, Esq. for the Montgomery County
¦defts' Commissioners Parkhouse, Jenkins, Curry & Roether, filed
.9k " ¡ 12 j Affidavits of C. D. Youngberg, Joseph N. Foster, Richard Matthew &

Bruce Yoppi, filed

-95

12 Affidavit of C. D. Youngberg, re; answers to interrogatory #1.11 of

Penna. Assn. for Retarded Citizens, et al to derts'., filed

L96

18 Certified copy from U.S.C.A. of Order that the petition for a writ of

mandamus or in the alternative for a writ of prohibition is DISMISSED,

¡ filed

U.S.

•

l/i9/77 entered & copies mailed

-97 Feb 3 I Letter to Judge Broderick from concerned relatives of Pennhurst, filed

.98 " 3 ¦ Letter to Judge Broderick from concerned relatives of Pennhurst, filed

•99 " 3 I Letter to Judge Broderick from concerned relatives of Pennhurst, filed

00 "

¡ ORDER that the trial of this action on the merits is advanced and i consolidated with the hearing on the motion, which is scheduled for

U/l8/77 at 9:30 A.M. in Courtroom 10-B of the U.S. Courthouse, Phila,

I Pa., etc. proposed findings of fact and conclusions of law with briefs

¡ in support to be filed, in duplicate by U/l8/77, all discovery to be

¡ completed by 3/l5/77, the final pre-trial conference to befatldon

I V5/77 at 9:00 A.M. in Chambers, the final pre-trial Order to be

i filed by h/l/T7 in Chambers, etc., filed

RJB

I

2/7/77 entered & copies mailed

:oi " ! 7 ! Defts1 A. Russel Parkhouse, et al answers to plff's first set of

• interrogatories, filed

?O2 "

7 I Defts' A. Russell Parkhouse, et al answers to plff's second set of
I interrogatories, filed
7 Defts1 A. Russell Parkhouse, et al answers to plfffs request for

production of document, filed

10 Govt's notice of taking deposition of P. KLick, Georgia Nagle, Alice

Barton, Lorrie Lewis, Elizabeth Uphold, James Lowrie & Paul Metzger,

•05 "

16

filed Entry of appearance of Frank, Margolis, Edelstein & Scherlis for the

defts* Margaret Green, Betty Uphold, Alice Barton, P.E. KLick, Dr.

Parocca and Helen Francis, filed

Over...

#//

DC-111A (Rev. 1/75)

DOCKET CONTINUATION SHEET NTIFF
`JRRI L . HALDERMAN, e r a l
NR.

/I .A.
DEFENDANT
PENNHURST STATE SCHX>L & HOSP., e t a l DOCKET NO. PAGE 1 1 OF
PROCEEDINGS

PAGES
I

22 22 2k
25 25 25 25 28
2 2 3 7 7 7
8
10
10

Govt's motion to compel discovery, notice, memorandum of law and

affidavit in support and certificate of service, filed.

Response of additional defts, Rizzo, et al to intervenor-plff,

USA's motion to compel discoveiy and certificate of service, filed.

Plff-intervenor, U.S·A.'s notice of taking deposition of Mary Williams, Esther Schneck, D. Turner, G. Myrick, A. Bonner, Ann Boyle, Frank Rossi, Katherine Shaw, Carol Scott, Vivian Hilker, Delbert Smith, Dr. Simon Gold, Helen Francis. Dr. Lee. Hedrov, Dr. Simon Cole, William Ruddick, Dr. James Hirst, Dr. James Brodry, Catherine Clark, Mary Lou Friedhafer, Elaer McSurdy, Joseph Foster & Dr. Duane Youngberg, filed

Entry of appearance of Edward A. Stutman, Esq., P.I.L.CO.P. for the plffintervenors, Penna. Assn. for Retarded Citizens, Moskowitz, Hight, Preusch

& DiNolfi, filed Plff.-intervenors, Penna. Assn. for Retarded Citizens, et al*s notice of taking deposition of S. Kenneth Thurman, Alexander Hersh & Valaida Walker,

filed

Letter to Judge Broderiek from concerned citizens of Pennhurst, filed

Letter to Judge Broderiek from concerned relatives of Pennhurst, filed

Plff-intervenor U.S,A.'s amended notice of taking deposition of Scott Weekly,

Mary Williams, Donald LaPish, D. Turner, G. Myrick, A. Bonner, Ann Boyle,

Frank Rossi, Delbert Smith, Katherine Shaw, MaryLou Fredhofer, William Ruddick,

Dr. Simon Gold, Helen Francis, Dr. Lee. Hedson, De. Simon Cole, Carol Scott,

Vivian Hilker, Dr. James Hirst, Catherine dark, Dick Matthews, Elmer McSurdy,

Joseph Foster, Dr. Duane Youngberg & Russell Rice,filed

Defts* Pennhurst State School & Hosp., et al motion to waive the requirement

of Local Rule 3¤¯ > memorandum & certificate y filed Defts1 Pennhurst State School & Hosp., et al motion for a protective order and to

quash subpoena duces tecum, memorandum & certificate , filed

Commonwealth defts' motion to enlarge time for discovery & certificate, filed

Withdrawal of apse arance of Michael N. Silver, Asst. City Sol. as counsel

for the defts* Rizzo, et al and entry of appearance of Paul Sacks, Asst. City

Solicitor for the defts* Rizzo, et al, filed

Plff-intervenors Penna. Assn. for Retarded Citizens, et al third interrogatories

to Commonwealth defts *., filed

Reply of Plff-intervenors Penna. Assn. for Retarded Citizens, et al to

Commonwealth defts* motion for protective order and to quash subpoena duces

tecum, memorandum & certificate, filed

Plff-intervenors Penna. Assn. for Retarded Citizens, et al notice of taking

deposition of Mel Knowlton, filed

ORDER dated 3/9/77 that the time for discovery in this action is enlarged

until and including 3/29/77, filed

RJB

3/11/77 entered & copies mailed

ORDER that the Commonwealth defts1 motion for protective order and to quash

subpoena duces tecum is GRANTED without prejudice as to plff-intervenor

Penna. Assn. for Retarded Citizens to submit to this Court within 7 days

an affidavit showing the exceptional circumstances under which it is

impracticable for it to obtain facts or opinions on the same subject,

Commonwealth defts' shall have 7 days from the date of receipt of affidavit

to submit counter-affidavit if they deem it appreciate, filed

RJB

3/11/77 entered & copies mailed

:)CKET CONTINUATION SHEET TIFF
¾RI LEE HALDERMAN, et al
NR.

C.A.

DEFENDANT
PENNHURST STATE SCHOOL & HOSP., et al
PROCEEDINGS

DOCKET NO. _

PAGE

OF

PAGES

lU Ik
17 18
21 21 23 25
25 25 28 28 29 29 29
1
" k k h
7 7

Plff-intervenor Penna. Assn. for Retarded Citizens, et al motion to dispense

with the requirements of Local Rule 36 & certificate, filed

Plff-intervenor Penna. Assn. for Retarded Citizens, et al motion to compel

discovery & certificate, filed

Commonwealth defts' response to plff-intervenor Penna. Assn. for Retarded

Citizens, et al motion to compel discovery , filed

ORDER dated 3/l7/77 that Penna. Assn. for Retarded Citizens, et al motion compelling the Commonwealth defts1 to permit two mental retardation

professional retained as experts by P.A.R.C. to enter Pennhurst Center for

the purpose of inspection and surveying the facilities and mental retardation

programs operated at Pennhurst Center under the control of Commonwealth defts'

is GRANTED, such inspection to proceed on 3/l9/77, filed

RJB

3/21/77 entered & copies mailed Defts1 Green, uphold, Barton, KLick, Parocca & Prances interrogatories to

plffs., filed

Letter to Judge Broderick from concerned citizens of Pennhurst, filed Defts1 Green, uphold, Barton, KLick, Parocca & Francis motion to compel

discovery, memorandum, certificate & notice, filed Defts1 Metzger, Bowers, Catania, Commissioners for Bucks County and Reinhard,

Adm. , Mental/Health- Bucks County answers to plff's first set of interrogatories,

filed Defts· Metzger, Bowers, Catania & Reinhard1s answers to plff*s second set of

interrogatories, filed

Defts' MetzgEr» Bowers, Catania & Reinhard•s answers to plff*s request for

production of documents, filed Defts1 Green, uphold, Barton, KLick, Parocca & Francis response to motion

to compel discovery pursuant to Rule 33> filed

Commonwealth defts· motion to stay further participation of the United States

of America, memorandum, certificate & notice, filed

Entry of appearance of Frank, Margolis, Edelstein & Scherlis for the defts'

C. Duane Youngberg, Robert S¿ilovitz and Joseph Foster, filed

Defts' C. Duane Youngberg, et al demand for a jury trial, filed

Answers of plff.-intsrvenors, P.A.R.C., et al to Commonwealth defts' first

set of interrogatories, filed

ORDER that defts' examine these interrogatories and eliminate those which

have been answered by the pre-trial order, FURTHER ORDERED that plff. to

answer those interrogatories addresses to the question of plff•s damages

RJB

within 30 cays, filed

k/h/T7 entered & copies mailed

ORDER that Commonwealth's motion to stay further participation of the United RJB
States of America is DENIED,filed

k/k/TÌ entered & copies mailed Defts1 Rizzo, Council of the City of Phila. & Soffer's first set of

interrogatories,filed Plffs1 response to defts1 motion to stay further participation of the

United States
Plffs1 response to Commonwealth deits1 demand for jury t r i a l , filed Plffs' motion to strike portions of pre-trial order purportedly submitted on behalf of "individual defts"1 & certificate, filed Defts1 Youngberb, et al answers to plf£s' motion to strike portions of pre-trial order, filed Defts1 Rizzo, et al answers to plff-intervenors, P.A.R.C. first

set of interrogatories # 3,4,5,6,7,8 & 14, filed

VIL DOCKET CONTINUATION SHEET PLAINTIFF
TEERI LEE. HALDERMAN, e t a l

DATE

NR.

KJtS

C.A.

DEFENDANT

PENNHURST STATE SCHDOL AND

HDSP., et al

___

PROCEEDINGS

DOCKET NO. _

13

PAGE

OF

PAGES
r\

1977 U2 A p r . 12 Plff-intervenor United States of America's motion to strike Commonwealth
defts1 exhibit and witness lists, memorandum, certificate & notice, filed

>l+3 " 2Uh "
2U5 "
2i+6 " 2U8 " 250 " 251 " 252 " 253 "it
11 11 ti 11 >t it
6k 11 65 ti
66 11 67 11 68 ti
269 it
270 tt 271 it 272 ti 273 11 271* it

Commonwealth defts' response to the motion to strike Commonwealth defts'

exhibit and witness lists,filed

ll+ Letter to Judge Broderick from Karen Christensen, Esq. re; U.S. Dept. of

Justice to move to Main Justice Bldg. from their present address in

Washington, filed

15 Deposition of Katherine Shaw, filed

15 Deposition of Paul Metzger, filed

15 Deposition of Sergearant William Ruddick, filed

f~

15 Deposition of James A. Lowrle, filed

*

15 Deposition of Dorothy Jane Turner, filed

15 Deposition of Ann Carlin Boyle, filed

15 Deposition of Alice L. Barton, filed

15 Deposition of Georgia Nagle,filed

15 Deposition of Darlene KLick, filed

15 Deposition of Donald Paul LaPish, filed

15 Deposition of Delbert Smith, filed

15 Deposition of Betty Uphold,filed

18 Deposition of Dr. Lee Hedson, filed

1 8 Deposition of Dr. James Clifford Hirst, filed

1 8 Deposition of Frederic L. Girardeau, Ph. D., filed

1 8 Deposition of Robert L. Sprague, filed

1 8 Letter to Judge Broderick from James M. McNamara, Asst. County Solicitor re; the Bucks County defts1 will not be represented by counsel during the first

phase of this trial, etc.,filed 18 Letter to Judge Broderick from Delaware County defts* counsel re; that they

will be bound by the findings of fact in the preliminary stages as to liability

in this case., etc.,filed

18 Certified copy of ORDER from U.S.C.A. that petitioner's application for stay

of all further participation of plff-intervenor, U.S.A. pending final action

by the Supreme Court is DENIED, filed 18 Commonwealth defts1 answers to plff-intervenors PARC's third set of

U.S.C.

interrogatories, filed

i

18 Plff-lntervenor PARC's memorandum contra Commonwealth defts' evidentiary

'*"''

objections to certain exhibits of plff-intervenor PARC, et al and to certain

witnesses,filed 18 Defts1 Margaret Green et al motion to dismiss, memorandum, certificate &

notice, filed

18 CIVIL NON-JURY TRIAL, witnesses sworn, Thomas Kittredge moves for the

dismissal of the Chester County defts', etc.,filed 18 MEMORANDUM & ORDER that defts' demand for a jury trial is striel:en and plffs'

motion is GRANTED, filed

RJB

1+/19/77 entered & copies mailed
19 Plffs1 designation of previously unidentified defts', filed
19 Plffs1 opening brief of original plffs1,filed 19 Pre-trial memorandum o f the United States, filed 19 TRIAL RESUMES, witnesses sworn & testified, filed

i `¯· —'

21 Plffs submission of two points for ruling during trial, filed

21 Plffs' supplement to designation of defts1 previously filed, and motion

to amend under Rule 15(c) in response to defts' motion to dismiss nominal

parties, memorandum & certificate, filed

DC-111A (Rev. 1/75)

)OCKET CONTINUATION SHEET ITIFF
:RRI L . HALDERMAN, e t a l
NR.

• %l

(

C.A. 7½-l3*+5

DEFENDANT PENNHURST STATE SCHOOL & HOSP., et al
PROCEEDINGS

DOCKET NO.
PAGE Ik OF

PAGES

Apr. 21

ii

22

it

22

TRIAL RESUMES, Witnesses sworn & testified, filed TRIAL RESUMES, witnesses sworn,filed Letter to Arthur Peabody, J., Esq., from Albert Monick, Cou±t Reporter re; the deposition of Darlene KLick should be the deposition of Pauline KLick,

it

22

it

22

•t

22

281 ' 25

32 ' 25

:t

25

It

25

tt

25

It

25

It

25

It

25

tt

25

It

25

tt

25

tt

25

pages of the corrected deposition attached, etc., filed Commonwealth defts' memorandum regarding depositions of non-defts1, filed Memorandum of law in support of defts1 resistance to plff-intervenors* subpoenas and subpoenas duces tecum, filed Affidavit of service of Suzanne E. Bockenbrock, filed Deposition of Dr. Russell Gordon Rice, Jr., filed Deposition of Robert L. Sprague, filed Deposition of Dr. James Clifford Hirst, filed Deposition of Robert Scott Weekley, filed Deposition of Catherine Clark, filed Deposition of Lori Lewis, filed Deposition of George W. Myrick, filed Deposition of Ann Marie Bonner, filed Deposition of Vivian Hilker, filed Deposition of Helen E. Francis,filed Deposition of Joseph Nathanial Foster, filed Further memorandum of plff-intervenors P.A.R.C, et al concerning the testimony of experts Hersh, Thruman and Walker and the production of their

300 page report, filed

25 Defts' Margaret Green, et al reply to plffs' motion for a ruling on the

statute of limitations, filed

25 Defts' Margaret Green, et al supplement to motion to drop parties,filed

26 Letter to Judge Broderick from concerned relatives from Pennhurst, filed

26 Defts· Margaret Green, et al proposed findings of fact, filed 26 Defts1 Margaret Green, et al proposed conclusions of law, filed
26 TRIAL RESUMES, witnesses sworn & testified, filed

27 Letter from Jeffrey Cooper, Deputy Attorney General re; corrected pages of the transcript of deposition of Pauline KLick sent to him from the

Court Reporter, filed

27 TRIAL RESUMES, witnesses sworn, filed

28 TRIAL RESUMES, witnesses called & sworn, filed

28 TRIAL RESUMES, witnesses called & sworn, filed

29 Deft., U.S,A.'s memorandum in support of admission of depositions,filed

2

Answers of plffs1 Terri Halderman, Larry Taylor, Kenneth Taylor, Robert

Sobetsky, Theresa Sobetsky, Nancy B. Bowman & Geo. Sorotos to interrogatories

addressed by defts' Green, et al, filed

3

TRIAL RESUMES, witnesses called & sworn, filed

t

3 TRIAL RESUMES, Judge made ruling re; admitting èepositions of certian defts

into substantive evidence, witnesses sworn,filed

TRIAL RESUMES, filed.

Letter to Judge Broderick from Mrs. Anna H. Storlazzi mother of a child

presently a patient at Pennhurst State Hospital, filed.

TRIAL RESUMES, Judge ruled on defts' motion to quash subpoenas duces tecum

is Granted; motion to retestimony of experts-Denied, witnesses called &

sworn, filed

5 Deposition of Frank T. Rossi, filed 5 Deposition of Mary Williams, filed 5 Deposition of Simon Gold, M.D., filed

VIL DOCKET CONTINUATION SHEET 'LAINTIFF
TEERI L . HALDERMAN, e t a l

DATE

NR.

KJB

C.A.

DEFENDANT

PENNHURST STATE SCHOOL & HDSP., et al
PROCEEDINGS

DOCKET NO.
PAGE 15 OF

PAGES
r`

}I3 May
315 " Îl6 " 317 " 318 "
19 " 20 "
321 "
322 11 323 it 32k it 325 ti 326 it
'ÌOT Í (
3J<2- 8I it 329 it 330 it 331 it 332 11 333 it )3h ti 335 it

5 Deposition of Simeon James Cole, Jr., filed 5 Deposition of James Prank Brody, filed

9 Letter to Judge Broderick from concerned citizens of Pennhurst, filed 9 Letter to Judge Broderick from concerned employee of Pennhurst, filed 9 Plffs1 motion for temporary restraining order and for preliminary and
final injunction in this matter,filed

10 Entry of appearance of Patricia H. Jenkins, Esq. for the defts· Whittlesey,

Keeler, Spingler, Commissioners of Delaware County & Burrichter, filed

10 Defts· Whittlesey, et al motion for involuntary dismissal pursuant to Rule

Ul-B of the F.R.C.P., filed

10 TRIAL RESUMES, witnesses sworn, Commonwealth moved for directed verdict

(

under Rule Ul and moved for re-certification of class, Mr. Goldberg moved

for dismissal of damages claims against individual defts', filed

11 TRIAL RESUMES, Mr. Sacks moved for directed verdict on behalf of Phila.

County. Mr. Kittredge addresses the Court on behààf of Chester Cty. M.H. and

M.R. Adm., et al motion for directed verdict and also made motions for Del.

Cty. Adms., Judge denied all motions except granted earlier motion to dismiss

John Doe without prejudice, witnesses sworn, filed

12 TRIAL RESUMES, witnesses sworn,filed 12 TRIAL RESUMES, Witnesses sworn, filed

13 Deposition of Philip Roos,filed

13 Letter to Judge Broderick from concerned relatives from Pennhurst, filed 13 Plff-intervenor P·A.R.C.,et al proposed findings of fact and conclusions

of law, filed

13 ?lff-interveaor ?·A.S.C, et al certificate of service.filed 16 Plffs. further responses to interrogatories 8,13,3^,35,36,37,*<·2,U3,6?,66,
75,77»78,99 & 100 submitted by defts. Green et al, filed.

17 TRIAL RESUMES, witnesses called & sworn, filed 17 Commonwealth defts1 findings of fact and conclusions of law, filed

18 Letter to Judge Broderick from concerned parents of Pannhurs*, filed

18 TRIAL RESUMES, witnesses sworn, filed 18 TRIAIi RESUMES,witnesses sworn & testified, filed

20 TRIAL RESUMES, witnesses sworn & testified, filed

2k TRIAL RESUMES, witnesses sworn& testified, filed

336 11 337 11 338 tt 339 11
3^0 it
341 it
3U2 Jun
3i+3 11
3UU tt 3^5 11 3½ 11 3U7 it

25 Letter to Judge Broderick from concerned parents of Pennhurst, filed 25 Letter to Judge Broderick from concerned parents of Pennhurst, filed 26 TRIAL RESUMES, witnesses sworn and testified, filed 26 TRIAL RESUMES, witnesses sworn, filed
27 TRIAL RESUMES, filed
31 TRAIL RESUMES, filed. 1 Letter to Judge Broderick from concerned parents of Pennhurst, filed 1 Letter to Judge Broderick from concerned citizens of Pennhurst, filed
2 TRIAL RESUMES, witnesses sworn,filed 3 TRIAL RESUMES, witnesses resumes, filed 7 TRIAL RESUMES, filed 8 TRIAL RESUMES, witnesses sworn, Judge advised re; ruling on deft's film,
film will be shown, Commonwealth defts' videotape of programming at
Pennhurst shown filed
TRIAL RESUMES, witnesses sworn, objections made regarding video tapes by plff.-U.S.A. and plff. PHRC, Commonwealth offered stipulation re; filming, filed

ÓSZ ?A&IÏ •#¯ /C?

DC-11 1A (Rev. 1/75)

OCKET CONTINUATION SHEET
TIFF 3RI L. HALDERMMí, et al
NR.

KJö

C.A. 73-13^5

DEFENDANT
PENNHURST STATE SCHOOL & HDSP., et al
PROCEEDINGS

DOCKET NO. _

16

PAGE

OF

PAGES

10 TRIAL RESUMES, witnesses sworn,filed

13 TRIAL RESUMES, exhibits offered into evidence for Montgomery County, trial liability concluded except for oral argttment to be scheduled, C.A.V., filed
13 Defts1 Rizzo, et al motion to dismiss, filed 13 Defts1 Parkhouse, et al motion to dismiss, filed 13 Defts1 Whittlesey, et al t¢otion for involuntary dismissal pursuant to

to Rule UlB, filed

13 Defts' Green, et al motion for dismissal of plffs' damage claims under

Rule l+l(b), filed

Ik Letter to Judge Broderick from concerned parents of Pennhurst, filed

Ik Letter to Judge Broderick from concerned parents of Pennhurst,filed

Ik Letter to Judge Broderick from concerned citizens of Pennhurst,filed

Ik Letter to Judge Broderick from concerned citizens of Pennhurst, filed

Ik ORDER that within 2 weeks of receipt of the notes of testimony, all

parties shall file any additional requests for findings of fact and

conclusions of law and briefs in connection thereof, the date for oral

argument will be set when the notes of testimony are completed, filed

RJB

6/l5/77 enterd & copies mailed

20 Letter for Judge Broderick from concerned parents of Pennhurst,
filed.
20 Letter for Judge Broderick from concernred parents of Pennhurs.,
filed.
23 Letter t o Judge Broderick from concerned citizens of Pennhurst, filed
27 Letter to Judge Broderick from Concerned Citizens of Pennhurst,
filed. 27 Letter to Judge Broderick from Concerned Citizens of Pennhurst,
filed. 27 Renewal of motion under Rule 41 of defts Parkhouse, Jankins, Curry

and Roether, filed. 29 Entry of appearance as co-counsel, Thomas Kittredge for the defts' Whittlesey,

" 29

Keeler & Spingler & Burrichter, filed Renewal of motion under Rule kl of defts' Whittlesey, Keeler, Spingler &

29

Burrichter, filed Renewal of motion under

Rule

kl of defts'

Struble, Baker, McDermott

& McKendry,

30

filed Renewal

of motion

under

Rule

kl of defts1

Rizzo, City

Council

of Phila. &

Soffer, filed

7
7
7
7 7 7

Letter to Judge Broderick from concerned citizens of Pennhurst, filed Letter to Broderick, J. from concerned parents of Pennhurst, filed Letter to Judge Broderick from concerned parents <fif Pennhurst, filed Letter to Judge Broderick from concerned citizens of Pennhurst, filed Letter to Judge Broderick from concerned parents of Pennhurst,filed

Letter to Judge Broderick from concerned citizens of Pennhurst, filed

Letter from Judge Broderick to Mr. John A. Thiers re; letter of 6/30/77

concerning the trial of subject case, lied 8 Deposition of Mel Knowl·ten, filed 12 Transcript of testimony, filed (8-vols)

OVER

VIL DOCKET CONTINUATION SHEET >LAINTIFF

HALDERMA.N

DATE

NR.

1977

DEFENDANT
PENNHURST
PROCEEDINGS

CA
DOCKET NO. _
PAGE¿Z_OF

PAGES

86 Julj 19 Letter to Judge Broderick from concerned citizens of Pennhurst,

filed.

87 !i 19 Letter to Judge Broderick from concerned citizens of Pennhurst,

filed.

383 » 19 Letter to Judge 3roderick from concerned citizens of Pennhurst,, filed.
389 it 22 Letter to Judge Broderick from concerned relatives of Pennhurst,filed

^90 " $91 ii >92 "
ì93 tt \9h 595 rf Ì96 II
397 Aug

22 Deposition of Marilou Friedhofer, filed 26 Letter to Judge Broderick from concernec parents of Pennhurst, filed 26 Letter to Judge Broderick from concerned parents of Pennhurst, filed
28 Transcript of testimony held on U/2O/77, filed 28 Transcript of testimony held on U/2l/77, filed 28 Transcript of testimony held on U/25/77,filed '• 28 Transcript of testimony held on U/26/77,filed 1 Deposition of Clarence Duane Youngberg,filed

f~~~

98 11

10

399-409 1 17 410-412 1 30

413 Sep 8

+14

8

415 T1

8

rl6¯42l " 15

422 1 T

15

423

22

Deposition of Richard Matthews,filed

Transcript of testimony, (11-vols.), filed

Transcript of testimony, (3-vols.), filed. Letter to Judge Broderick from Board of Trustees-Pennhurst Center concerning citizens of Pennhurst,filed Letter to Judge Broderick from concerned citizens of Pennhurst, filed Letter to Judge Broderick from concerned citizens of Pennhurst, filed Transcript of testimony (6-vols.),filed

ORDER that oral argument to be heard on the issue of l i a b i l i t y

in this action on 10/14/77 at 9:30 A.M. in Courtroom 10-B,

filed

RJB

9/16/77 entered & copies mailed

ORDER dated 9/22/77 that the oral argument on the issue of

liability previously scheduled for 10/14/77 is rescheduled

·

to 10/18/77 at 9:30 A.M., Courtroom

l·O-B,filed

RJB -

9/23/77 entered & copies mailed

424 f f 425 ! 1 426 IT

28 Plff-intervenors's motion for an extension of time within which to submit a brief & certificate,filed
28 Closing brief and proposed findings of fact of original plffs', filed
30 Motion of the Commonwealth Defts for enlargement of time within which to file post-trial brief and proposed findings of fact and
certificate of service, filed

427 Oc : . 3

428 i:

3

Post trial memorandum of the United States and certificate of

service, filed.

.

Post trial proposed Findings of Fact of the United States and w

certificate of service, filed.

¿> _=—

ÃP·

DC-111A (Rev. 1/75)

VIL DOCKET CONTINUATION SHEET ^LAINTIFF

HALDEMAN

DATE

NR.

DEFENDANT
PENNHURST
PROCEEDINGS

DOCKET NO.
PAGE 18 OF

PAGES

1977
2'`J C C

O¯'`¤e t h a plffs-?lff-Intervenors shall file any additional

RJ:

requests for fine ings of fact, conclusions of laT.\r and "briefs

by 10/7./77í etc., FIXING 10/18/77 st 9:30 A.M. in Courtroorr.

10-2 for oral argument in connection with issue of Liability,

+30 11 +31 ft +32 11 433 IT
434 1 f 435 11 436 437 11

f '• l e d
10/'4/77 entered and copies nailed. 5 Plffs' response to state defts' motion for enlargement of time
to file brief,filed 11 Commonwealth defts' post-trial proposed findings of fact and
legal arguments & certificate,filed 11 Defts' Green, et al individual supplemental findings of fact
and conclusions of law & certificate,filed 12 Brief of plff-intervenor PARC, et al in support of their proposed
Order and their requests for findings of fact and conclusions of law,filed 12 Certificate of service of the brief of PARC in support of their proposed order served on 10/12/77, filed 12 Brief of defts' A. Russell Parkhouse, et al as to the issue of liability,filed 12 Defts' Parkhouse, et al proposed findings of fact and conclusions
of law, filed 12 Proposed findings of fact and conclusions of law of plff-intervenor
PARC, et al ,filed

438 11 439 11 40 11

14 The Chester County defts' proposed findings of fact and conclusions
of law,filed 14 The Delaware County defts' proposed findings of fact and conclusion
of law,filed 18 ORAL ARGUMENT, closing arguments re; liability, requested that

Phila. City Council be dismissed as defts' C.A.V., etc., filed 441 Nov 23 Transcript of oral argument on post-trial motions held on

10/18/77,filed

442 Dec . 22 Letter from David Ferleger to Judge Broderick re: damages

sought by plffs, filed.

.

443

23 OPINION & ORDER. Broderick, J. that the Court having found that

th*» constitutional and statutoty rights of the retarded

residents at Pennhurst have been violated, a hearing is set tor

1/6/78 at 9:00 A.M. in Courtroom 10-B for the purpose of

RJB

determining the appropiate relief to be granted,filed

12/27/77^entered & copies mailed

1978

444 Jan 4 |445 " 4 I
(444)"
446 "

Commonwealth defts1 motion to waive requirements of Local Rule

36 memorandum & certificate,filed Commonwealth defts1 motion to amend interlocutory order pursuant

to 28 U.S.C. §1292(b).memorandum, certificate & notice,tiled

ORDER dated 1/5/78 that the motion of commonwealth defts' to waive Local Rule 36 requirements are waived and defts1 motion to

amend interlocutory order may be filed on 1/6/78,filed

RJB

1/9/78 entered & copies mailed

HEARING RE' relief to be granted, Judge granted commonwealth defts'

motion to waive notice and allowed filing of motion to amend

(interlocutory appeals), Judge ordered parties to work out consent

decree on 1/16/78 at 9:00 A.M., etc.,filed

y PÄ-IIJA (Rev. 1/75)

DOCKET CONTINUATION SHEET !NTIFF
rí ALDERMAN
NR.

f
DEFENDANT
PENNHURST, et al
PROCEEDINGS

\ 74-1345
DOCKET NO. P A G Ë I 9 OF

PAGES

Jan 10 Supplemental brief of Montgomery County defts',filed ii 16 HEARING RE: plans submitted: Judge suggested that plans be submitted to-implement the Court's decision, parties to submit their suggested plans and plff. are to comment on all of the plans within one week,filed ii 16 Statement of Montgomery County as to relief,filed II 24 Original, plffs1 memorandum regarding appropiate relief,filed 11 24 Statement of Bucks County defts' as to relief,filed 11 24 Objections of Chester County and Delaware County defts1 to plffs1 requested relief,filed
. 25 Memorandum of City of Phila., filed 11 25 Memorandum of plff-intervenor PARC, et al in support of plffs'
jointly proposed order,filed
II 27 Commonwealth defts' response to Draft Order purposed by all plffs',filed
n 27 Entry of appearance of Walter S. Batty, Jr., Esq., Asst. U.S. Attorney for the plff-intervenor U.S.A.,filed
II 30 Memorandum of The United States upon Relief, filed

Mar 3 Order that parties shall submit to Court any recommendations within 7 days, filed.
3/6/78 entered & copies mailed M 17 Memorandum Broderick, J. & Order that judgment is entered in favor of plffs &
against deft's & granting injunctive relief etc., filed. 3/20/78 entered & copies mailed
it 27 Motion of Jeffrey Cooper, Deputy Att'y Gen. for leave to withdraw as counsel for the Commonwealth defts' & Certificate, filed.

30 Motion of defts' to Dispense with the Requirements of Local Rule 36 which would

normally require 5 days notice of Defts Application for a Stay Pending Appeal: & defts1 request for immediate consideration of their Application to Stay the

Judgment & Order Pending Appeal; & cert, of service,filed.

30 Defts' application for a stay of judgment & order pending appeal, memorandum, filejd7 30 Order dated 3/29/78 that the following corrections be made in the Court's Order

filed 3/17/78: 1. Page 4, paragragh 6(e), line 5 should read: "arrangements and

other connmunity services to them" 2. Page 6, paragraph 10, line 9 should read:

"ther enjoined from providing a residence and/or habilitation at Pennhurst to any

filed.

y

3/31/78 entered & copies mailed.

RJB

31 Final Pre-Trial order, Broderick, J. and expert reports, filed.
4 Order Granting motion of Jeffrey Cooper, Esq. to withdraw as counsel for Comnon-

wealth deft's, filed.

RJB

4/6/78 entered & copies mailed

4 Order dated 4/4/78 that a hearing shall be held on deft's application for stay off
judgment & Order pending appeal on Thursday, April 13, 1978 at 9:30 a.m. in

(courtroom 10 B),filed.

4/6/78 entered & copies mailed

CONT. ON PAGE # 20

CIVIL DOCKET CONTINUATION SI- -T PLAINTIFF
HALDERMAN

DATE

NR.

DEFENDANT
PENNHURST, et al
PROCEEDINGS

TPI-MI 3 M - 7 S - 5 O M - 3 5IÎ

DOCKET NO. 7 4 - 1 3 4 5

PAGE 2 0 QF

PAGES

1978

465 Apr 11 466 ii 11 467 ii 11

468 II 11 469 II 13 470 11 13 471 n 13
472 M 13

473 II 13 474 II 13 475 It 13 476 II 14

477 II 14 478 11 21

479 1 T

O "<

¿- i.

480 II 25

- ]Vlay 1 481 May 4

482 "

483 " 18

Appearance of Joseph M. Davidson, Marc H. Myers & Howland W. Abramson as

additional counsel for Mayor Frank L. Rizzo et al, filed.

Memorandum of U. S. in opposition to Commonwealth deft's application for stay,

filed.
Notice of appeal of Phila. Deft's received 4/11/78 at 11:00 a.m., filed. 4/12/78 copies to: D. Ferlerger, P.I.L.C.O.P., N.J. Watkins,
J. M. McNamara, J. Goldberg, T. Schilpp, P. Jenkins, T. Kittredge, W. A. Cotton, & J. Cooper. Copy of Clerk's notice to U.S. Court of Appeals, filed. Plff's brief opposing Deft's request for a stay, filed. Deft's motion to quash subpoenas, filed. Argued sur: deft's application r e : Stay of Judgment, filed. Motion of intervene as parties by Eric J. 6t Sheldon H. Cohen, memorandum, ceritificate of service, filed.

Motion of Eric Cohen et a l to dispense with requirements of Local Rule 36, filed. Coirmonwealth deft's notice of appeal received 4/13/78, 3:00 p.m., filed.(78-149p) Copy of Clerk's notice to U.S. Court of Appeals, filed. Bucks, Chester,Delaware and Montgomery County's notice of appeal received 4/14/78, 3:00p.m., filed. (No. 78-1564) Copy of Clerk's notice to U.S. Court of Appeals, filed.

Appearance of Thomas •M. Kittredge, Esq., as Co-Counsel on Behalf of the Bucks
County Deft's, filed. Appearance of Thomas M. Kittredge, Esq., as Co-Counsel on Behalf of the Montgomery County Deft's, filed.
Memorandum in opposition to motion of Pennhurst Parents/Staff Association to intervene as party plff., filed.

Original record transmitted to U.S.C.A.

Memorandum of original Plff's regarding Motion to intervene by parents and

Staff Association, filed.

Memorandum Broderick, J. & Order that motion of Commonwealth Deft's for stay of

Order 3/17/78 i s DENIED, filed.

RJB

5/9/7,8 entered & copies mailed

Plff's request to each of the state and the County Deft's for production of

documents under Rule 34, filed.

484 " 31 Transcript of hearing 4/13/78, filed. 485 Jun 16 Letter to Judge Broderick from John A. Thiers, r e : Amendment of Order, filed.

486

21 MEMORANDUM, Broderick, J . and ORDER dated 6-21-78 t h a t t h e p e t i t i o r

of Pennhurst Parents-Staff A s s o c i a t i o n ' s motion to intervene i s

DISMISSED, f i l e d .

RJB

6-21-78 entered and copies mailed.

487 " 30 Order appointing Robert H. Audette as Special Master, & he shall have the power and the duty, as set forth in the Order of March 17, 1978, filed.

488 JUL 10

6/30/78 entered & copies mailed Pennhurst Parents - Staff Association, et a l ' s Notice of Appeal received 7/10/78 at 3:00 P.M., filed. (No. 78-1899)
1/11/12, copies to: D. Ferlerger, P.I.L.C.O.P., N.J.Watkins, J.M. McNamara, J. Goldberg, T. Schilpp, P. Jenkins, T. Kittredge, P. Sacks, & W. A. Cotton, J. Cooper

OVER.

DC-I M A REV. ( 1/75)

iL DOCKET CONTINUATION SHEET MNTIFF
LDERMAN
NR.

DEFENDANT
PEMNHURST
PROCEEDINGS

FPI·Ml 3 -14

DOCKET NO. 74-1345

PAGE 21.OF,

.PAGES

r

JUL 10 I I 18 Tt 21

Tl

26

1T

27

I t

27

31 8 9
10
18
18 18 18

18

23
23 23

Copy of Clerk's Notice of Appeal to U.S.Court of Appeals, filed.

First Supplemental transmitted to U.S. Court of Appeals.

Order dated July 20, 1978 that a hearing shall be held in connection therewith

in Courtroom 10B of this U.S. Courthouse July 27, 1978 at 10:30 a.m., filed.

7/21/78 entered & copies mailed Pennhurst Parents, et al Motion for Leave to Intervene & Motion to Dispense with Requirements fo Local Rale 36, & certificate of service, filed.

Hearing re: Order of Special Master, 7'/27'/78 ; Parties to submit response to motion to intervene within 10 days, C.A.V., filed.

f

Order that Special Master Staff shall consist of not more than 8 Professional

Staff & 2 Support Staff Members etc., the expenses of the office shall not

exceed $84,135 for period beginning 1/1/1% & ending 10/31/78 etc., filed.

7/28/78 entered & copies mailed

Appearance of Joseph M. Davidson, & Marc H. Myers, as additional counsel for

Deft's Mayor Frank L. Rizzo, et al, filed.

Response to Second Motion to Intervene by Parents-Staff Association, filed.

Deft's Memorandum in opposition to The Pennhurst Parents' Motion to Intervene

filed.

United States of America's Memorandum in Opposition to motion to intervene of

Pennhurst Parents/Staff Association, filed.

Letter dated 8/15/78 from Robert H. Audette Special Master to Hon. Raymond J.

Broderick, re: error in the total for the projected cost for the month of August

1978 for the office of the Special Master, filed.

Projected Costs for the Month of August, 1978, filed.

Projected Costs for the Month of September, 1978 , filed.

Order that the Commonwealth of Penna. shall pay to the registry of this court the

amount of $21,238.00., this amount reflects cost estimates for operation of the

Office of the Special Master from August 1, 1978 to August 31, 1978; pursuant to

the Court's Order of July 27, 1978 the Clerk of the Court shall not disburse said

monies to the Master until he recieves an Order from the Court approving the

distribution of said funds on the basis of Vouchers submitted to the Court by the

Special Master, filed.

, .

RJB

8/18/78 entered & copies mailed

Order that the Commonwealth of Penna. shall pay to the registry of this court the

amount of $25,686.00, this amount reflects cost estimates for operation of the

Office of the Special Master from September 1, 1978 to September 30, 1978,

pursuant to the Court's Order of 7/27/78 the Clerk of the Court shall not disburs

said monies to the Master until he receives an Order from the Court approving

the distribution of said funds on the basis of vouchers submitted to the Court

by the Master, filed.

RJB

8/18/78 entered & copies mailed

Commonwealth Deft's response to plff's request for production of documents ,

Affidavit in support thereof, & certificate of service, filed.

Vouchers Submitted by the Office of the Special Master, etc., filed. Order that the Commonwealth of Pennsylvania shall pay to the registry of this

\

Court the amount of $13,529.78. This amount covers the actual expenses incurred by

the Special Masters office from 7/1/78 to 7/31/78, filed.

RJB

8/23/78 entered & copies mailed

cont. on page # 22

DC- I 1 1 A REV. ( 1/75 )

CIVIL DOCKET CONTINUATION SH f PLAINTIFF

HALDERMAN

DATE

NR.

DEFENDANT
PENNHURST
PROCEEDINGS

FPI • M I 3 1 4 - 7 5 5 O M . 3 5 H

DOCKET NO. 74-1345

P A G E ¿ ¿ OF

.PAGES

1978

06 AUG 23 07 SEP 508 " 18
)O9 OCT 10 10 " 17 LI " 18 L2 " 18
13 " 18 14 " 18 15 " 20 16 " 20

Order that the Clerk of the Court shall deliver a check payable to Robert H.

Audette, Special Master, in the amount of $13,529.78 for payment of the

operational costs incurred from 7/1/78 to and including l/yi/l^, filed. RJB

8/23/78 entered & copies mailed

Order that the registry of the court shall pay to the Office of the Special

Master the amount of $21,420.48., this amount covers the actual expenses incurred

by the Special Master's Office from August 1, 1978 through August 31, 1978,

filed.

RJB

9/7/78 entered & copies mailed

Order that the Commonwealth of Pennsylvania shall pay to the registry of this

Court the amount of $24,020.08; this arrount reflects cost estimates for operation

of the Office of the Special Master from 10/1/78 through 10/31/78; pursuant to the

Court's Order of July 27, 1978, the Clerk of the Court shall not disperse said

monies to the Master untel he receives an Order from Court approving the distribu-

tion of said funds, etc., filed.

RJB

9/19/78 entered & copies mailed

Order that the Clerk of the Court shall pay to the Office of the Special Master

the amount of $24,802.83, this amount covers the actual expenses incurred by the

Special Master's Office from September 1, 1978 through September 30, 1978,

filed.

KJB

10/10/78 entered & copies mailed

Order that the Court's Order dated July 27, 1978 is amended adding certain

paragraph's, etc., filed.

RJB

10/17/78 entered & copies mailed

Order dated 10/17/78 that the Order of this Court dated July 27, 1978, as amended

10/16/78 shall be further Amended as to paragraph 3 (a), etc., filed.

RJB

10/18/78 entered & copies mailed

Order dated 10/17/78 that the Conmonwealth of Pennsylvania shall pay to the

Registry of this Court the rsmount of $49,441.14, this amount reflects cost

estimates for operation of the Office of the Special Master from 11/1/78 through

11/30/78 ($49,780.00) less the excess remaining form the prior budget period

July 1 through October 31, 1978 ($338.86), etc., filed.

RJB

10/18/78 entered & copies mailed

Order dated 10/17/78 that the Registry of the Court shall pay to the Office of

the Special Master the amount of $24,371.91, this amount covers the expenses of

the Special Master's Office for the period 10/1/78 through 10/31/78, filed. RJB

10/18/78 entered & copies mailed

Order that the Clerk of the Court shall pay to the Office of the Special raster

the amount of $10.00, filed.

RJB

10/19/78 entered & copies mailed

Order that the Conmonwealth of Pennsylvania pay to the Registry of this Court the

balance due of $441.34, filed.

RJB

10/20/78 entered & copies mailed

Order that in compliance with the Order of this Court dated 10/17/78 the Registry

of the Court shall pay to the Office of the Special Master the amount of

$24,279.43, the balance of $92.48 to be paid to the Office of the Special Master

when it is received by the Registry of the Court form the Commonwealth of

Pennsylvania pursuant to this Court's Order dated 10/20/78, filed.

RJB

10/20/78 entered & copies mailed

OVER.

DC-l I 1A REV. ( 1/75)

IL DOCKET CONTINUATION SHEET AINTIFF
HALDERMAN
NR.

DEFENDANT
PENNHURST STATE SCHOOL
PROCEEDINGS

FPI-MI 3-14-7 5-5OM-3 5!I

DOCKET NO. 7 4 ~ I 3 4 5

PAGE23_OF

PAGES

16
17 22 •22 22 22 6
8

13

11

15

1!

15

f I

15

11

15

11 18

11

19

f 1 26

II

26

79

4

Order that the Registry of the Court shall pay to the Office of the Special

Master the amount of $49,780.00; this amount covers the expenses of the Special

Master's office for the period 11/1/78 through 11/30/78, filed.

RJB

11/3/78 entered &. copies mailed

Order that the Commonwealth of Pennsylvania shall on or before the first day of

December 1978 pay to the Registry of this Court the amount of $49,780.00, this

amount reflects cost estimates for operation of the Office of the Special Master

from December 1, 1978 through December 31, 1978, etc., filed.

RJB

11/16/78 entered & copies mailed

Secondsupplemental to U.S.C.A.

Copy of Report of Office of Special Master re: Pennhurst, filed.

Letter to Special Master from Deloitte, Haskins & Sells re: payments, filed.

Copy of costs of Special Master from 10/1 - thru 10/31/78 , filed.

Report of Office of Special Master re: month of September, filed.

Office of the Special Master rei Plan for the Interim Operation of Pennhurst,

filed.

Letter dated 12/6/78 from Robert H. Audette, Master, to Hon. Judge Raymond

Broderick re: resignation as Special Master, etc., filed.

ORDER THAT CARLA S. M)RGAN IS APPOINTED ACTING SPECIAL MASTER, FILED. RJB

12/8/78 ENTERED & COPIES MAILED

ORDER THAT ANY PARTY HAVING COMMENTS, SUGGESTIONS, OR OBJECTIONS CONCERNING THE

PLAN SHALL SUBMIT THEM TO THIS COURT IN WRITING ON OR BEFORE 12/15/78; AND THATN

ANY PARTY WISHING TO PRESENT ORAL ARGUMENT CONCERNING THE COMMENTS, ETC., CAN DO

SO ON 12/18/78 AT 2:30 P.M. IN COURTROOM 10B, FILED.

RJB

12/8/78 ENTERED & COPIES MAILED

ORDER DATED 12/12/78 THAT THE REGISTRY OF THE COURT SHALL PAY TO THE OFFICE OF

THE SPECIAL MASTER THE AMOUNT OF $49,780.00, THIS AMOUNT COVERS THE EXPENSES OF

THE SPECIAL MASTER'S OFFICE FOR THE PERIOD 12/1/78 THROUGH 12/31/78; IT IS

FURTHER ORDERED THAT THIS PAYMENT BE MADE BY CHECK DRAWN TO THE ORDER OF CARLA

S. MORGAN, ACTING SPECIAL MASTER, FILED.

RJB

12/14/78 ENTERED & COPIES MAILED

Original plff's comments on Master's plan for interim operation of pennhurst, filed.

Objections of City of Phila. to plan for the interim operation of Pennhurst dated 12/4/78, filed.

Suburban County deft's objections to the proposed plan for the Interim Operation

of Pennhurst, filed.

Comments of Plff's Pare, et •al, on the plan for the Interim Operation of

Pennhurst, filed.

Commonwealth Deft's objections to proposed order regarding interim operation of

Pennhurst, & certificate of service, filed.

Argued sur: re: Interim Plan of Special Master; Court granted plff, Intervenor

Cohen, et al extension until 12/26/78 to comment in writing on plan; comments &

suggestions made on various submissions by parties, C.A.V., filed. Plff-Intervenor United States' proposed modifications to the plan for

the

interim t

operation of Pennhurst, filed.

Comments of Pennhurst Parents - Staff Association, Inc. on the plan for the interim operation of Pennhurst, filed.

Third supplemental to U.S.C.A.

Cont..
DC-I 1 1A REV. < 1/75)

PLAINTIFF HALDERMAN

CIVIL DOCKET CONTINUATION SHc.iT DEFENDANT
PENNHURST

DOCKET NO. PAGE 2 4 _j,p

.PAGES

DATE

NR.

PROCEEDINGS

1979

536 Ja|i. 9 537 JAN 18

538 FEB 12

539 " 22

540

22

541 " 27

542 MAR 1

543 f ¡

1

544 î ï

2

545 "

546 "

547

ORDER DATED 1-8-79 THAT THE COMMONWEALTH OF PENNSYLVANIA SHALL, ON

OR BEFORE 1-12-79 PAY TO THE REGISTRY OF THE COURT THE AMOUNT OF

$70,000, ETC., FILED.

I

RJB

1-9-79 entered and copies mailed.

ORDER THAT THE REGISTRY OF THE COURT SHALL PAY TO THE OFFICE OF THE SPECIAL MASTEf

THE AMOUNT OF $70,000.00, THIS AMOUNT COVERS THE EXPENSES OF THE SPECIAL MASTERS

OFFICE FOR THE PERIOD 1/1/79 THROUGH 1/31/79, IT IS FURTHER ORDERED THAT THIS

PAYMENT SHALL BE MADE BY CHECK DRAWN TO THE ORDER OF CARLA MORGAN, ACTIONG

SPECIAL MASTER, FILED.

RJB

1/18/79 ENTERED & COPIES MAILED

ORDER DATED 2/9/79 THAT THE COMMONWEALTH OF PENNSYLVANIA SHALL ON OR BEFORE

2/20/79 PAY TO THE REGISTRY OF THIS COURT THE AMOUNT OF $67,079.28; THIS AMOUNT

REFLECTS COST ESTIMATES FOR OPERATION OF THE OFFICE OF THE SPECIAL MASTER FROM

2/1/79 THROUGH 2/28/79, ETC., FILED.

RJB

2/12/79 ENTERED & COPIES MAILED

ORDER THAT THE GEGISTRY OF THE COURT SHALL PAY TO THE OFFICE OF THE SPECIAL

MASTER THE AMOUNT OF $67,078.28; THIS AMOUNT COVERS THE EXPENSESOF THE SPECIAL

MASTER'S OFFICE FOR THE PERIOD 2/1/79 T HROUGH 2/28/79, ETC., FILED.

RJB

2/22/79 ENTERED & COPIES MAILED

ORDER THAT THE COMMONWEALTH OF PENNSYLVANIA SHALL ON OR BEFORE THE FIRST DAY OF

MARCH PAY TO THE REGISTRY OF THE THIS COURT THE AMOUNT OF $80,628.46, THIS AMOUNT

REFLECTS COST ESTIMATES FOR OPERATION OF THE OFFICE OF THE SPECIAL MASTER FROM

3/1/79 THROUGH 3/31/79, ETC., FILED.

RJB

2/22/79 ENTERED & COPIES MAILED

Copy of Budget for the Office of the Special Master re: Month of January, 1979, filed.
Report of Office of Special Master for Month of December, 1978, filed. Copy of Report of Office of Special Master for Month of January, 1979, filed. ORDER THAT THE REGISTRY OF THE COURT SHALL PAY TO THE OFFICE OF THE SPECIAL MASTER THE AMOUNT OF $80,628.46, THIS AMOUNT COVERS THE EXPENSES OF THE SPECIAL MASTER'S OFFICE FOR THE PERIOD MARCH 1, 1979 THROUGH MARCH 31, 1979, FILED. RJB
3/2/79 ENTERED & COPIES MAILED

ORDER THAT THE PLAN FOR THE INTERIM OPERATION OF PENNHURST DATED MARCH 5, 1979,

IS ADOPTED & SHALL BE IMPLEMENTED FORTHWITH IN ACCORDANCE WITH THIS COURT'S ORDER

OF MARCH 17, 1978, FILED.

RJB

3/6/79 ENTERED & COPIES MAILED

ORDER THAT ANY PARTY HAVING COMMENTS, SUGGESTIONS, OR OBJECTIONS CONCERNING THE

PLAN SHALL SUBMIT THEM TO THIS COURT IN WRITING ON OR BEFORE NOON ON MARCH 12,

1979, AN ANY PARTY WISHING TO PRESENT ORAL ARGUMENT CONCERNING COMMENTS, ETC. ,

WHICH THEY SUBMITTED SHALL HAVE AN OPPORTUNITY TO DO SO AT 2:00 P.M. ON MARCH 13,

1979, IN COURTROOM 10B, FILED.

RJB

3/6/79 ENTERED & COPIES MAILED

ORDER DATED 3/8/79 THAT THE COMMONWEALTH OF PENNSYLVANIA SHALL PAY TO THE REGISTRY

OF THIS COURT THE ÄMXMT OF $72,482.50, THIS AM3UNI REFLECTS COST ESTIMATES FOR

OPERATION OF THE OFFICE OF THE SPECIAL MASTER FROM APRIL 1 THROUGH APRIL 30, 1979,

ETC., FILED.

^

3/9/79 ENTERED & COPIES MAILED

OVER.

\
75)
\INTIFF
LDERMAN, ET AL

ATE

NR.

C.\/IL DOCKET CONTINUATION SHEET DEFENDANT
PENNHURST, ET AL
PROCEEDINGS

FPI-M»H 3 . 7 - 7 8

DOCKET NO. 74-1345

PAGE_25-OF_

.PAGES
f

ORDER THAT THE EXPENSES OF THE OFFICE OF THE SPECIAL MASTER, INCLUDING PERSONNEL,

CONSULTANTS, RENTAL, STAFF, TRAVEL & MISCELLANEOUS EXPENSES SHALL NOT EXCEED

$217,447.49 FOR THE PERIOD BEGINNING APRIL 1, 1979 & HIDING JUNE 30, 1979, ETC. ,

FILED.

RJB

3/9/79 ENTERED & COPIES VAILED

12 Comnonwealth deft's objections to proposed order regarding plan to provide

r information & services to Pennhurst employees, filed.
14 Hearing re: Plan to provide information & services to Pennhurst Employees, etc. ,

filed.

23 Transcript of Hearing, 12/18/78, filed.

23 DEFT'S FRANK L. RIZZO, ET AL'S MOTION FOR STAY OF THE JUDGMENT & ORDER ENTERED

MARCH 5, 1979 PEÎ1DING APPEAL, MEMORANDUM OF LAW, &. CERTIFICA.TE OF SERVICE, FILED.

23 PHILA. DEFT'S MOTION TO DISPENSE WITH THE REQUIREMENTS OF IOCAL RULE 36, AND .

CERTIFICATE OF SERVICE, FILED.

27 Report of the Office of the Special Master for the Month of February, 1979, filed

2 Commonwealth of Pennsylvania deft's Pennhurst State School & Hospital, et al's

notice of appeal received 4/2/79 at 10:45 a.m., filed, (No. 79-1628)

4/2/79 notice to: David Ferleger, P.I.L.CO.P., Stephen A.

Sheller, Wilbur E. Hobbs, Joseph Goldberg, James M. McNamara, Joseph M.

Davidson, Thomas Schilpp, Patricia Jenkins, Thomas Kittredge, Jeffrey Cooper,

Ward A. Cotton, Paul Sacks, Walter S. Batty, Robert Nelkin & Carla S. Morgan

2 Copy of Clerk's notice to U.S.C.A., filed.

2 Deft's Mayor Frank L. Rizzo, et al's notice of appeal received 4/2/79 at 4:00 p.m

filed.(79-1467) 4/3/79 notice to: David Ferleger, Edward Stutman, Norman J.

Watkins, Stephen A. Sheller, Carla S. Morgan, Wilbur Hobbs, Joseph Goldberg,

James M. McNamara, Thomas Schilpp, Patricia Jenkins, Thomas Kittredge,

Jeffrey Cooper, Ward A. Cotton, Paul Sacks, Walter S. Batty, Robert Nelkin

2 Copy of Clerk's notice to U.S.C.A., filed.

2 MOTION OF BUCKS, CHESTER, & DELAWARE COUNTIES FOR MODIFICATION, ENFORCEMENT AND/

OR STAY OF THE ORDER DATED MARCH 5, 1979, NOTICE, FILED.

ORDER THAT THE REGISTRY OF THE COURT SHALL PAY TO THE OFFICE OF THE SPECIAL

MASTER THE AMOUNT OF $72,482.50, THIS AMOUNT COVERS THE EXPENSES OF THE SPECIAL

MASTER'S OFFICE FOR THE PERIOD APRIL 1, 1979 THROUGH APRIL 30, 1979, FILED. RJB

4/4/79 ENTERED & COPIES MAILED

4 ORDER THAT THE REGISTRY OF THE COURT SHALL PAY TO THE OFFICE OF THE SPECIAL MASTER

THE AMOUNT OF $72,482.50, THIS AMOUNT COVERS THE EXPENSES OF THE SPECIAL MASTER'S

OFFICE FOR THE PERIOD MAY 1, 1979 THROUGH MAY 31, 1979, FILED.

RJB

4/4/79 ENTERED & COPIES MAILED

4 MEMORANDUM & ORDER THAT THE MOTION OF FRANK L. RIZZO, ET AL FOR STAY OF THE

COURT'S ORDER OF MARCH 5, 1979 IS DENIED, FILED.

RJB

4/4/79 ENTERED & COPIES MAILED

4 Deft's George M. Metzger, et al's notice of appeal received 4/4/79 at 10:52 a.m.,
filed. (No. 79-1630)
4/4/79 notice to: David Ferleger, Edward Stutman, Norman Watkins, Wilbur E. Hobbs, Carla S. Morgan, Stephen A. Sheller, Joseph M. Davidson, James M. McNamara, Joseph Goldberg, Patricia Jenkins, Thomas Schilpp, Paul Sacks, Ward A. Cotton, Jeffrey Cooper, Robert Nelkin, Walter S. Batty
4 Bond for costs on appeal in the sum of $250.00 with Fidelity & Deposit Company
of Maryland as surety, filed.

cont. on page # 25

X 111A Rev. 1/75)
PLAINTIFF
HALDERMAN, ET AL

f
CIVIL DOCKET CONTINUATION Sh¿¿T DEFENDANT
PENNHURST, ET AL

DOCKET NO. 74-1345

OF

PAGES

DATE

NR.

PROCEEDINGS

1979

564 APR 4 Copy of Clerk's notice to U.S.C.A., filed.

5 565 " 12

Fourth supplemental to U.S.C.A. ORDER THAT A HEARING SHALL BE HELD ON DEFT'S MOTION FOR MODIFICATION, ENFORCEMENT, AND/OR STAY OF THE COURT'S ORDER OF MARCH 5, 1979 ON APRIL 19, 1979 AT 10:00 A.l·¢!

IN COURTROOM 10B, FILED.

RIB

566 "

4/12/79 ENTERED & COPIES MAILED 16 Conmonwealth deft's brief in opposition to suburban counties' motion for

modification for enforcement and/or stay of Order of March 5, 1979, filed.

567 " 19 ORDER THAT THE HEARING PREVIOUSLY SCHEDULED FOR APRIL 19, 1979 IS HEREBY

RESCHEDULED TO APRIL 27, 1979 AT 9:30 A.M. IN COURTROOM 10B, ETC. , FILED. RIB

4/19/79 ENTERED & COPIES MAILED 568 " 19 ORDER THAT THE COMMONWEALTH OF PENNSYLVANIA SHALL ON OR BEFORE THE FIRST DAY OF

MAY, 1979 PAY TO THE REGISTRY OF THIS COURT THE AMOUNT OF $72,482.50, THIS AMOUNT

REFLECTS COST ESTIMATES FOR OPERATION OF THE OFFICE OF THE SPECIAL MASTER FROM

MAY 1, 1979 THROUGH MAY 31, 1979, FILED.

RJB

4/19/79 ENTERED & COPIES MAILED

569 " 570 "

23 ¢bninonwealth Deft's application for a partial stay pending appeal, filed. 23 Connonwealth deft's brief in support of application for partial stay pending
appeal, filed.

23 ORDER DATED APRIL 20, 1979 THAT THE REGISTRY OF THE COURT SHALL, ON MAY 1, 1979

PAY TO THE OFFICE OF THE SPECIAL MASTER THE AMOUNT OF $72,482.50, ETC., FILED. RJB

4/23/79 ENTERED & COPIES MAILED

26 ORDER THAT THE PLAN TO PROVIDE INFORMATION AND SERVICES TO PENNHURST EMPLOYEES IS ADOPTED AND SHALL BE IMPLEMENTED FORTHWITH IN ACCORDANCE WITH THIS COURT'S ORDER

OF MARCH 17, 1978, FILED.

RJB

4/26/79 ENTERED & COPIES MAILED

27 Response of the Pennsylvania Association for retarded citizens, Jo Suzanne Moskowitz, et al & the plff. Class to state deft's application for a partial

stay, filed.

574 " 27 Response of Pare, et al to Motion of Bucks, Chester, & Delaware Counties for

modification, enforcement and/or stay of Order of March 5, 1979, filed.

575 " 27 HEARING RE: DEFTS (COUNTIES) REQUEST FOR STAY OF ORDER

Witnesses Sworn;

Memorandums t o be s u b m i t t e d by 4/30/79

C.A.V., filed

30 MEMORANDUM OF CITY OF FHHA., IN SUPPORT OF MDTIONroR MODIFICATION, ENFORCEMENT

AND OR/ STAY OF ORDER DATED MARCH 5 , 1979, OF BUCKS, CHESTER AND DELAWARE COUNTIE:

FILED.

577 MY

Plff Pare e t a l memorandum i n support of t h e i r proposed order, f i l e d .

579 " 4 580 " 4

ORDER DATED 5-2-79 THAT THE COMMONWEALTH OF PENNSYLVANIA SHALL, ON OR BEFORE

THE FIRST DAY OF JUNE, 1979, PAY TO THE REGISTRY OF THIS COURT THE Al·OTT OF

$72,482.49, ETC., FILED.

RJB

5-4-79 entered and copies mailed.

United States supplemental memorandum regarding issues r a i s e d a t the April 27,

1979 Hearing, f i l e d .

Copy of Report regarding the A c t i v i t i e s of the Office of the Special Master f o r

the month of March, 1979, filed.

OVER,

MNTIFF
LDERMAN
NR.

C,v\L· DOCKET CONTINUATION SHEET DEFENDANT
PENNHURST
PROCEEDINGS

FPI·MAR 3 · 7 - 7 8

DOCKET NO. 74-1345

PAGE_27¤F.

.PAGES
f

MOTION OF COUNCIL 13, AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES AND ITS DISTRICT COUNCIL 88 TO INTERVENE AS PAETIES-PLFF. , MEMORANDUM & CERTIFICATE OF SERVICE, FILED. (COMPLAINT ATTACKED)

MOTION OF COUNCIL 13, AMERICAN FEDERATION OF STATE, COUNTY, & MUNICIPAL EMPLOYEES AND ITS DISTRICT COUNSIL 88 FOR RECONSIDERATION, FILED.

8 MEMDRANDUM & ORDER THAT THE PLAN FOR THE INTERIM OPERATION OF PENNHURST IS

r ADOPTED BY ORDER DATED 3/5/79 & IS AMENDED, ETC., FILED.

RJB

5/8/79 ENTERED & COPIES MAILED

8 MEMORANDUM & ORDER THAT THE MOTION OF COMMONWEALTH DEFT'S FOR STAY OF THE COURT'S

ORDER OF MARCH 5, 1979 IS DENIED, FILED.

RJB

5/8/79 ENTERED & COPIES MAILED

10 Plff's notice of deposition & subpoena duces tecun of the Custodian of Records for

Phila. County Deft's, filed. 10 Plff's notice of deposition & subpoena duces tecum of the Custodian of Records of
Bucks County, filed. 11 Public Interest Law Center of Phila.'s notice of deposition & subpoena duces tecun:
of Council 13 of the American Federation of State, County & Municipal Enployees

14

and its District Council 88, filed. THE COMMISSIONERS & THE MENTAL HEALTH/MENTAL RETARDATION AOÍENISTRATOR FOR BUCKS

15

COUNTY MOTION FOR PROTECTIVE ORDER & NOTICE, FILED. Objections of Philadelphia deft's to plff.-intervenors' notice of deposition &.

18

subpoena duces tecum, filed. ORDER THAT THE COURT WILL HEAR ORAL ARGUMENT ON THE PROPOSED OPDER AT 3:00 P.M. ON

MAY 23, 1979 IN COURTROOM 10B, FILED.

RJB

23

5/18/79 ENTERED & COPIES MAILED Oral argument re: Special Master's Report on School - Age residents, Judge

ordered ConTnonwealth to submit a proposed plan re: school age residents, hearing

23

scheduled for 6/1/79 at 9:00 a.m., filed. Commonwealth of Pennsylvania deft's Pennhurst State School c: Hospital, et al,

notice of appeal received 5/23/79 at 4:13 p.m., filed. (No. 79-1842)

5/24/79 notice to: David Ferleger, Edward Stutman, Stephen A.

Sheller, Carla S. Morgan, Wilbur E. Kobbs, Joseph M. Davidson,

James M. Mcl!amara, Joseph Goldberg, Thomas Kittredge, Patricia

Jenkins, Thomas Schilpp, Paul Sacks, Ward A. Cotton, Jeffrey

Cooper, Robert Nelkin, & Alexander Éwing 23 Copy of Clerk's notice to U.S.C.A., filed.

24 Memorandum of the Untied States in opposition to motion of Council 13, American

Federation of State, County & Municipal Employees & its District Council 88, to

intervene, filed.

25 Transcript of May 23, 1979, filed.

29 Î1EM3RANDUM & ORDER THAT THE PLAN TO PROVIDE INFORMATION & SERVICES TO PENNHURST

EMPLOYEES, ADOPTED BY ORDER OF THIS COURT DATED APRIL 26, 1979 IS AMENDED, ETC.,

FILED.

PJB

5/30/79 ENTERED & COPIES FAILED

31 ORDER THAT THE EXPENSES OF THE OFFICE OF THE SPECIAL MASTER SHALL NOT EXCEED

$219,791.96 FOR THE PERIOD BEGINNING JULY 1, 1979 & El·lDING SEPTEMBER 30, 1979,

ETC., FILED.

RJB

6/1/79 ENTERED & COPIES VAILED

cont. on Page :¦¦- 28

(Rev. 1/75) PLAINTIFF
TERRI LEE HALDERMAN, ET AL

CIVIL DOCKET CONTINUATION SH_£T
DEFENDANT
PENtHURST STATE SCHOOL, ET AL

DOCKET NO. 74-1345

OQ
i_OF

PAGES

DATE

NR.

1979

PROCEEDINGS

598 Jill

ORDER THAT THE CCMO3WEÄLTH OF PENNSYLVANIA SHALL PAY TO THE REGISTRY OF THIS

COURT THE AMOUNT OF $73,263.98 ON OR BEFORE THE FIRST DAY OF JULY, 1979, THIS

AMOUNT REFLECTS COST ESTIMATES FOR OPERATION OF THE OFFICE OF THE SPECL½L MASTER

FROM JULY 1, 1979 THROUGH JULY 31, 1979, ETC., FILED.

RJB

6/1/79 ENTERED & COPIES MATT .FT)

599 "

ORDER THAT THE REGISTRY OF THE COURT SHALL PAY TO THE OFFICE OF THE SPECIAL

MASTER THE AM3UNT OF $72,482.49, THIS AMOUNT COVERS THE EXPENSES CF TEE SPECIAL

MASTER'S OFFICE FOR THE PERIOD JUNE 1, 1979 THROUGH JUNE 30, 1979, FILED. RJB

6/1/79 ENTERED & COPIES MATTEn

600 " 1 Hearing re: Special Master's Report on School-Age Children; hearing continued to

6/4/79 at 6:30 p.m., filed.

601 "

4 Copy of Report regarding the Activities of the Office of the Special Taster for the Month of April, 1979, filed.

602 Jun
603 " 5
604 " 6 605 " 6
606 " 6
607 " 7

HEARING ON 6/4/79 re- SPECIAL MASTER'S REPORT ON SCHOOL AGE CHILDREN , witnesses, filed.
HEARING RESUMES ON 6/5/79— Witnesses, filed.
Hearing resumes, 6/6/79; filed. Original Plff's post-hearing co¤ments on proposed Order regarding School-Age Plff's, filed. Halderman Plff's response to Motion to intervene by Employee Union Council 13 of AFSCME, filed.

608 " 8 Transcript of Hearing June 1, 1979, filed.

ORDER THAT DEFT'S MAKE EVERYGOOD EFFORT TO ACCOMPLISH WITH AVAILABILITY OF FUNDS,

LIVING ARRANGEMENTS WITHIN 5 DAYS OF THIS ORDER, ETC., FILED.

RJB

609 " 11

6/8/79 ENTERED & COPIES MAILED

U 610 ;; 11 Transcript of Hearing, June 6, 1979, filed.

6ÏÏ "

Transcript of Hearing. June 4, 1979, filed.

Fifth supplemental to U.S.C.A.

Certified copy of Order U.S.C.A. that appellants' Frank L. Rizzo, et al's motion

612

14 for stay of Judgment & Order of the District Court dated March 5, 1979 pending

appeal is denied, filed.

Certified copy of Order U.S.C.A. that appellants' United States of America, Plff.

Intervenor's application for partial stay pending appeal of the District Court 613 " 15 order entered March 5, 1979 is denied, filed.

614 " 15 Transcript of Hearing, April 27, 1979, filed.

ORIGINAL PLFF'S MOTION FOR CONTEMPT AGAINST STATE & COUNTY DEFT'S MEMORANDUM OF 615 " 29 LAW & CERTIFICATE OF SERVICE, FILED.

Answer of Conmonwealth deft's to original plff's motion for contempt against 616 " 29 State & County deft's, filed.

Commonwealth deft's brief in opposition to original plff's motion for contempt,

617 JUL

filed.
ORDER THAT THE GCM¢HWEÄLTH OF FEMSYLVANIA SHALL ON OR BEFORE THE FIRST DAY

OF AUGUST, 1979, PAY TO THE REGISTRY OF THIS COURT THE AMOUNT OF $73,263.98, THIS

AMOUNT REFLECTS COST ESTIMATES FOR OPERATION OF THE OFFICE OF THE SPECIAL MASTER

FROM AUGUST 1, 1979 THROUGH AUGUST 31, 1979, ETC., FILED.

RJB

7/2/79 ENTERED & COPIES MAILED

OVER.

'75)
MNTIFF
EERRI LEE HALDERMAN , ET AL
NR.

C,vIL DOCKET CONTINUATION SHEET DEFENDANT
PENNHURST, ET AL
PROCEEDINGS

FP(-MAR 3-7-78

DOCKET NQ74-1345

29_QF

r PAGES

ORDER THAT THE REGISTRY OF THE COURT SHALL PAY TO THE OFFICE OF THE SPECIAL MASTER THE AMOUNT OF $73,263.93., THIS AMOUNT COVERS THE EXPENSES OF THE SPECIAL MASTER'S OFFICE FOR THE PERIOD JULY 1, 1979 THROUGH JULY 31, 1979, ETC., FILED. F|JB
7/2/79 ENTERED & COPIES MAILED

6 Certified copy of Order U.S.C.A. that the Clerk of this Court list cases for

rehearing, etc., filed. 6 Deft's Mayor Frank L. Rizzo, et al's notice of appeal received 776/79 at 3:45 p.m.

filed, (NO. 79-2092)

,

f

1/9/19 notice to: David Ferleger, Edward Stutman, Norman Watkins,

Carla S. Morgan, Wilbur E. Hobbs, Joseph Goldberg, James M.

McNamara, Thomas Schilpp, Patricia Jenkins, Thomas Kittredge,

Jeffrey Cooper, Ward A. Cotton, Paul Sacks, Robert Nelkin, Alexandejr

6

Ewing, Robert C. Cohen, Stephen A. Sheller Copy of Clerks' notice to U.S.C.A., filed.

10 Pennhurst Parents-Staff Association, et al's notice of appeal received 7/10/79 at

3:00p.m., filed. (No. 79-2093)

7/10/79 notice to: David Ferleger, Edward Stutman, Norman Watkins,

Carla S. Morgan, Wilbur E. Hobbs, Joseph Goldberg, James M.

McNamara, Joseph M. Davidson, Thomas Schilpp, Patricia Jenkins,

Thomas Kittredge, Jeffrey Cooper, Ward A. Cotton, Paul Sacks,

Robert Nelkin, Alexander Ewing, Robert C. Cohen 10 Copy of Clerk's notice to U.S.C.A., filed.

11 Sixth Supplemental to U.S.C.A.

Response to conments made by Stephen Sheller, Esq. on behalf of parents of plff`s

19 23

Sorotos, Taylors, & Halderman, filed. Plff's notice of deposition of George A.

Kopchick,

Jr. Superintendent

Pennhurst

Center, filed.

24

CCM-DNWEALTH DEFT'S MOTION TO QUASH SUBPOENA, MEMORANDUM IN SUPPORT, & CERTIFICATE OF SERVICE, FILED.

25 Report of the Special Master's Office re: Compliance Review - July 18-24, 1979, filed.

25

Report of the Special Master's Office regarding the activities of the Office of the Special Master for the Month of May, 1979, filed.

1 ORDER DATED 8/01/79 THAT THE REGISTRY OF THE COURT SHALL PAY TO THE OFFICE OF THE SPECIAL MASTER THE AMOUNT OF $73,263.98 BY CHECK DRAWN TO THE OPDER OF

CARLA S. MORGAN, FILED.

KJB

8/01/79 entered and copies mailed.

ORDER DATED 8 / 0 1 / 7 9 THAT THE COMMONWEALTH OF PENNA. SHALL PAY TO THE REGISTRY OF

THIS COURT THE AMOUNT OF $ 7 3 , 2 6 4 . 0 0 ON OR BEFORE THE FIRST DAY OF SEPTEMBER, 1979

FILED.

^

8/01/79 entered and copies mailed.

Certified copy of Order from U.S.C.A. that the district court's order of June 8, 1979 is stayed to the extent that it shall not apply to transfers out of Pennhurst of any resident whose parents or guardian fails to sign a written consent to such transfer, etc., filed.

cont. on page #30

)C 111A Rev. 1/75)
PLAINTIFF

CIVIL DOCKET CONTINUATION Sh.,.-T DEFENDANT

TERRI LEE HALDERMAN, ET AL

PENNHURST, ET AL

DOCKET NO. 7 4 - 1 3 4 5

PAGE3O OF

PAGES

DATE

NR.

PROCEEDINGS

1979

632 AUG 16
633 " 16 634 " 22
635 " 31
636 31
637 Sept 18 638 OCT 1 639 " 1 640 " 1
641 "

542

18

543

29

544

29

545

30

546

30

Copy of Report to the Court: the Progress of Chester, Delaware, Montgomery, and Phila. County deft's and the Conmonwealth of Pennsylvania deft's toward implementation of the Court Order of June 8, 1979, filed. Complete question & answer packet submitted to the Office of the Special Master by the Phila. Office of Mental Health/Mental Retardation, filed.

ORDER THAT THE EXPENSES OF THE OFFICE OF THE SPECIAL MASTER, ETC., SHALL NOT

EXCEED $219,668.85. FOR THE PERIOD BEGINNING 10/1/79 & ENDING 12/31/79, FILED. RJJB

8/23/79 ENTERED & COPIES MAILED

ORDER THAT THE COMMONWEALTH OF PENNSYLVANIA SHALL ON OR BEFORE THE FIRST DAY

OF OCTOBER, 1979, PAY TO THE REGISTRY OF THIS COURT THE AMOUNT OF $59,998.63.,

THIS AMOUNT REFLECTS COST ESTIMATES FOR OPERATION OF THE OFFICE OF THE SPECIAL

MASTER FROM OCTOBER 1 THROUGH OCTOBER 31, 1979, ETC., FILED.

RJB

8/31/79 ENTERED & COPIES MAILED

ORDER THAT THE REGISTRY OF THE COURT SHALL PAY TO THE OFFICE OF THE SPECIAL

MASTER THE AMOUNT OF $73,264.00, THIS AMOUNT COVERS THE EXPENSES OF THE SPECIAL

MASTER'S OFFICE FOR THE PERIOD SEPTEMBER 1 THROUGH SEPTEMBER 30, 1979, ETC.,

FILED.

8/31/79 ENTERED & COPIES MAILED

Report of Special Master on Compliance with Court's March 17,

1978 and March 5, 1979 Orders, filed

Financial Reports of 2/6/79, 3/1/79, 4/17/79, 5/2/79 & 5/18/79, filed.

Sumnary of the Special Master for the period ended December 6, 1978, filed.

ORDER THAT THE REGISTRY OF THE COURT SHALL PAY TO THE OFFICE OF THE SPECLAL MASTEl·

THE AMOUNT OF $59,998.63, THIS AMOUNT COVERS THE EXPENSES OF THE SPECIAL MASTER'S

OFFICE FOR THE PERIOD OCTOBER 1 THROUGH OCTOBER 31, 1979, FILED.

RJB

10/1/79 ENTERED & COPIES MAILED

ORDER THAT THE COMMONWEALTH OF PENNSYLVANIA SHALL PAY TO THE REGISTRY OF THIS

COURT THE AMOUNT OF $59,998.63, BY THE FIRST DAY OF NOVEMBER, 1979, THIS AMOUNT

REFLECTS COST ESTIMATES FOR OPERATION OF THE OFFICE OF THE SPECIAL MASTER FROM

NOVEMBER 1 THROUGH NOVEMBER 30, 1979, ETC., FILED.

RJB

10/1/79 ENTERED & COPIES MAILED

Report of the Office of the Special Master to the Court for the month of

September, 1979, filed.

ORIGINAL PLFF'S MOTION FOR FINDING OF CONTEMPT, FILED.

ORIGINAL PLFF'S MOTION FOR CONTEMPT AGAINST G¤f*DNWEALTH & PENNHURST STATE

SCHOOL & HOSPITAL DEFT'S, FILED.

ORDER THAT THE COMM3NWEALTH OF PENNSYLVANIA SHALL PAY TO THE REGISTRY OF THIS

COURT THE AMOUNT OF $59,998.62, THIS AMOUNT REFLECTS THE COST ESTIMATES FOR

OPERATION OF THE OFFICE OF THE SPECIAL MASTER FROM DECEMBER 1, THROUGH DECEMBER

31, 1979, ETC., FILED.

Rjß

10/30/79 ENTERED & COPIES MAILED

ORDER THAT THE REGISTRY OF THE COURT SHALL PAY TO THE OFFICE OF THE SPECIAL MASTEI

THE AMOUNT OF $59,998.63, THIS AMOUNT COVERS THE EXPENSES OF THE SPECIAL MASTERS

OFFICE FOR THE PERIOD NOVEMBER 1 THROUGH NOVEMBER 30 1979 ETC FTLED

10/30/79 ENTERED & COPIES MAILED

' ' RJB

75)
AINTIFF

C. „ II- DOCKET CONTINUATION SHEET
DEFENDANT

TERRI LEE HALDERMAN. ET AL

PENNHURST STATE HOSPITAL, ET AL

NR.

PROCEEDINGS

FPI-MAR—-3-7-78

DOCKET NO. 74-1345

PAGE_3L OF.

.PAGES
r

F i n a n c i a l r e p o r t f o r t h e month ended May 3 1 , 1979, f i l e d . PHILA. DEFT'S MOTION TO EXTEND TIME TO ANSWER WITH PESPECT TO ORIGINAL PLFF'S MOTION FOR FINDINGS OF CONTEMPT, & CERTIFICATE OF SERVICE, FILED.

ORDER THAT THE TIME FOR FILING A RESPONSIVE PLEADING TO ORIGINAL PLFF'S MOTION

FOR FINDING OF CONTEMPT BE EXTENDED UNTIL NOVEMBER 22, 1979, FILED.

RJB

11/5/79 ENTERED & COPIES MAILED

19 Appearance of Penelope A. Boyd, Esq. on b e h a l f of o r i g i n a l p l f f ' s , f i l e d .

19 PLFF'S MOTION TO DISPENSE WITH NOTICE UNDER LOCUL RULE 36, FILED. 19 O r i g i n a l p l f f ' s i n t e r r o g a t o r i e s & r e q u e s t s t o produce r e g a r d i n g abuse &

r

employment a t Pennhurst, f i l e d .

19 ORIGINAL PLFF'S MOTION TO SHORTEN TIME FOR RESPONSE TO DISCOVERY REQUESTS AND

MEMORANDUM OF LAW, FILED.

19 Copy of r e p o r t r e g a r d i n g a c t i v i t i e s of t h e Office of t h e S p e c i a l Master f o r

the Month of J u l y , 1979, f i l e d .

19 Report of t h e Office of t h e S p e c i a l Master f o r t h e Month of October, 1979, f i l e d .

21 ORDER DATED 11/20/79 THAT MOTION OF ORIGINAL PLFF'S TO SHORTEN TIME FOR RESPONSE

BY COMMONWEALTH DEFT'S TO ORIGINAL PLFF'S INrERROGATORIES & REQUESTS FOR

PRODUCTION OF DOCUMENTS I S GRANTED, COMMONWEALTH DEFT'S SHALL RESPOND ON OR

BEFORE DECEMBER 10, 1979, FILED.

RJB

11/21/79 ENTERED & COPIES MAILED

21 Answer of Phila. D e f t ' s t o motion f o r contempt of Original p l f f ' s , f i l e d .

21 Delaware County d e f t ' s response t o o r i g i n a l p l f f ' s motion f o r Finding of Contempt

filed.

21 ORDER THAT THE EXPENSES OF THE OFFICE OF THE SPECIAL MASTER, INCLUDING PERSONNAL,

CONSULTANTS, ETC., SHALL NOT EXCEED $219,971.43 FOR THE PERIOD BEGINNING JANUARY

1, 1980 & ENDING MARCH 3 1 , 1980, FILED.

RJB

11/23/79 ENTERED & COPIES MAILED

23 DEFTS' O'BANNON AND KOPCHICK'S MOTION TO REQUIRE FILING OF BRIEF IN COMPLIANCE WITH LOCAL RULE 3 6 , CERT. OF SERVICE, FILED
23 BRIEF OF COMMONWEALTH DEFTS IN SUPPORT OF MOTION TO ENFORCE COMPLIANCE WITH LOCAL RULE 36 AN IN PRELIMINARY OPPOSITION TO PLFFS'
CONTEMPT MOTION F I L E D

23 COMMONWEALTH DEFTS' MOTION TO DISPENSE WITH NOTICE REQUIREMENTS OF LOCAL R u l e 36 WITH CERT. OF SERVICE, FILED
26 Memorandum by o r i g i n a l p l f f s on c o n t e m p t , r i l e d .

30 ORDER THAT COMMONWEALTH OF PENNSYLVANIA ON OR BEFORE THE FIRST DAY
OF JAN. 1980 PAY TO THE REGISTRY OF THIS COURT $ 7 3 , 3 2 3 . 8 1 , E T C . , F I L E I
11/30/79 entered and copies mailed.
30 ORDER THAT THE REGISTRY OF THE COURT SHALL PAY TO THE OFFICE OF

THE SPECIAL MASTER THE AMOUNT OF $ 5 9 , 9 9 8 . 6 2 . THIS AMOUNT COVERS THE EXPENSES OF THE SPECIAL MASTER'S OFFICE FOR THE PERIOD DEC. 1 THROUGH DEC. 3 1 , 1 9 7 9 . PAYMENT SHALL BE MADE BY CHECK DRAWN TO THE ORDER OF CARLA S. MORGAN, ACTING

SPECIAL MASTER, FILED 1 2 / 3 / 7 9 ENTERED & COPIES MAILED
4 Copy of deposition of Edward J . Keller, f i l e d .

RJB

cont. on, nape #32

>C 111A Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN, e t a l

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
PENNHURST STATE SCHOOL, et al

DOCKET NO. 74-1345

PAGE 32 L ¤ F

.PAGES

DATE

NR.

1979

PROCEEDINGS

666 DEC 10 Response of "Comnonwealth" deft's to original plff's interrogatories & requests to produce regarding abuse & employment at Pennhurst, filed.
667 " 18 PLFF'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS & RESPONSES TO INTERROGATORIES REGARDING ABUSE & EMPLOYMENT AT PENNHURST, & CERTIFICATE OF SERVICE, FILED.
11 18 PLFF'S MOTION TO COMPEL ANSWERS TO INTERROGATORIES & TO COMPEL PRODUCTION OF DOCUMENTS, FILED.
)68 " 24 Brief of "Commonwealth Deft's" in opposition to original plff's motion to compel answers to interrogatories, filed.
1980

569 JAN 4 ORDER DATED 1/3/80 THAT THE REGISTRY OF THE COURT SHALL PAY TO THE OFFICE OF THE SPECIAL MASTER THE AMOUNT OF $73,323.81, THIS AMOUNT COVERS THE EXPENSES OF THE

SPECIAL MASTER'S OFFICE FOR THE PERIOD JANUARY 1 THROUGH JANUARY 31, 1980, ETC.,

FILED.

RJB

570 "

1/4/80 ENTERED & COPIES MAILED 4 ORDER THAT THE COMMONWEALTH OF PENNSYLVANIA SHALL PAY TO THE REGISTRY OF THIS
COURT, BY THE FIRST DAY OF FEBRUARY, 1980, THE AMOUNT OF $70,998.93, THIS AMOUNT

REFLECTS COST ESTIMATES FOR OPERATION OF THE OFFICE OF THE SPECIAL MASTER FROM

FEBRUARY 1, 1980 THROUGH FEBRUARY 29, 1980, FILED.

RJB

1/4/80 ENTERED & COPIES MAILED

571 "

4 Report of the Office of the Special Master to the Court for the month of Noveniber,
1979, filed.

572 " 4 ORDER THAT THE EXPENSES OF THE OFFICE OF THE SPECIAL MASTER, INCLUDING PERSONNEL,

ETC., SHALL NOT EXCEED $212,996.78 FOR THE PERIOD BEGINNING JANUARY 1, 1980 &

AND ENDING MARCH 31, 1980, ETC., FILED.

RJB

673 " 674 "

1/4/80 ENTERED & COPIES MAILED
7 Certified copy of Order U.S.C.A. that the judgment of the District Court entered
June 21, 1978, is hereby affirmed, costs taxed against appellants, filed.
7 Certified copy of Order U.S.C.A. that the judgment of the District Court filed
March 17, 1978, is hereby affirmed with the exception of the order to find alternative employment for all Pennhurst employees, the order directing the eventual closing of Pennhurst, and the order banning all future admissions to Pennhurst, & the cause is remanded for further proceedings, all parties to bear their own costs, filed.

675 it 23 Report of the Office of the Special Master to the Court for the month of November, 1979, filed.

676 it 23 Report of the Office of the Special Master to the Court for the month of December, 1979, filed.

677 rr 24 ORDER THAT ORIGINAL PLFF'S MOTION TO COMPEL DISCOVERY, IS GRANTED; & COMMONWEALTH DEFT'S SHALL WITHIN TWENTY (20) DAYS PRODUCE ALL REQUESTED DOCUMENTS, & PROVIDE

COMPLETE ANSWERS TO ALL INTERROGATORIES, ETC., FILED.

RJB

1/24/80 ENTERED & COPIES MAILED

678 11 24 Application of PARC, et al, for Temporary Restraining Order, certification & verification, filed.
679 n 25 Financial Report of the Office of the Special Master for the month ended July 31,

1979, filed.

OVER.

1TIFF
RRI LEE HALDERMAN, e t a l
NR.

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
PENNHURST STATE SCHOOL, et al
PROCEEDINGS

DOCKET NO. 7 4 - 1 3 4 5

PAGE _33_OF

r PAGES

o_

3

ORDER THAT THE REGISTRY OF THE COURT SHALL PAY TO THE OFFICE OF THE SPECIAL MASTEF

THE AMOUNT OF $70,998.93, THIS AMOUNT COVERS THE EXPENSES OF TIE SPECIAL MASTER'S

OFFICE FOR THE PERIOD FEBRUARY 1 THROUGH FEBRUARY 29, 1980, FILED.

RJB

2/5/80 ENTERED & COPIES MAILED (given to Financial Dept)

ORDER THAT THE COMt·DNWEALTH OF PENNA. SHALL PAY TO THE REGISTRY OF THIS COURT THE

AMOUNT OF $70,998.93 BY THE FIRST DAY OF MARCH, 1980, THIS AMOUNT REFLECTS COST

ESTIMATES FOR OPERATION OF THE OFFICE OF THE SPECIAL MASTER FROM MARCH 1, THROUGH

MARCH 31, 1980, ETC., FILED.

RJB

2/5/80 ENTERED & COPIES MAILED (given to Financial Dept.)

PETITION OF-MONTGOMERY COUNTY MENTAL HEALTH MENTAL RETARDATION OFFICE TO SHOW

CAUSE WHY THE DUE PROCESS HEARING FOR JORDON ROTH SHOULD NOT BE STAYED, NOTICE,

AND CERTIFICATE OF SERVICE, FILED.

11 ORDER THAT THE PETITION OF MONTGOMERY COUNTY DEFT'S TO SHOW CAUSE WHY THE HEARING
FOR JORDON ROTH SHOULD NOT BE STAYED IS GRANTED, & THE HEARING FOR JORDON ROTH IS

STAYED UNTIL THIS COURT ADOPTS PROCEDURES FOR INDIVIDUAL DETERMINATIONS AS TO THE

APPROPRIATE SETTING FOR THE KABILITATION OF EACH PENNHURST RESIDENT, FILED. RJB

2/11/80 ENTERED & COPIES MAILED

12 Certified copy of Order U.S. Court of Appeals that appellants' Cornnonwealth of

Pennsylvania Deft's Pennhurst State School & Hospital, et al's, motion for

voluntary dismissal of appeal is granted, filed.

20 Appearance of Pamela P. Cohen, Esq. & Sandra Swenson, Esq. for applicants for

intervention Pennhurst Parents-Staff Association, filed.
20 ORDER DATED 2/19/80 THAT THE COMD-DNWEALTH PAY TO THE REGISTRY OF THIS COURT Œ OR

BEFORE MARCH 1, 1980 THE Al·DUNT OF $68,674.04 FOR THE EXPENSES OF THE OFFICE OF

THE SPECIAL MASTER FROM MARCH 1 THROUGH MARCH 31, 1980, AMENDING THIS COURT'S

ORDER DATED FEBRUARY 4, 1980, ETC., FILED.

RJB

2/20/80 ENTERED & COPIES MAILED

21 Commonwealth Deft's interrogatories to plff's regarding contempt motion, filed.

22 Commonwealth deft's answer ot interrogatories & request to produce regarding

abuse and employment at Pennhurst, filed.

22 MEMORANDUM BRODERICK, J. , & ORDER THAT COURT WILL HEAR OBJECTIONS TO CERTAIN PROPOSED AMENDMENTS TO MEMORANDUM DATED 3/17/78, 3/5/79, 4/26/79 & 6/8/79 ON

MARCH 6, 1980 AT 10:00 A.M. IN COURTROOM 10B, ETC., MOTION TO INTERVENE BY

PENNHURST PARENT-STAFF ASSOCIATION IS GRANTED, MOTION TO INTERVENE BY ERIC J.

COHEN, ET AL, IS DENIED, FILED.

2/22/80 ENTERED & COPIES MAILED

22 ORDER THAT THE EXPENSES OF THE OFFICE OF THE SPECIAL MASTER SHALL NOT EXCEED

$195,755.02, FOR THE PERIOD BEGINNING APRIL 1, 1980 & ENDING JUNE 30, 1980, ETC.,

FILED.

2/22/80 ENTERED & COPIES MAILED
22 Reply of the Bucks County deft's to original plff's motion for finding of contempt

filed.
25 ORDER THAT THE MOTION TO INTERVENE AS A PARTIES PLFF. ON BEHALF OF THE PENNHURST

PARENT-STAFF ASSCIAITON, ET AL, IS DENIED, IT IS FURTHER ORDERED THAT THE

PENNHURST PARENT-STAFF ASSOCIATION IS PERMITTED TO INTERVENE FOR THE SOLE PURPOSE

OF PARTICIPATING IN THE RELIEF STAGES OF THIS LITIGATION, ETC., FILED.

RJB

2/26/80 ENTERED & COPIES MAILED

cont. on page #34

DC 111A (Rev. 1/75)
PLAINTIFF

CIVIL DOCKET CONTINUATION SHEET DEFENDANT

TERRI LEE HALDERMAN, e t a l

PENNHURST STATE SCHOOL, et al

DOCKET NO. 74-1345

PAGE•:34 O F

.PAGES

DATE

NR.

1980

PROCEEDINGS

693 FEB 25 ORDER THAT ORDER DATED 2/22/80 WHICH SET 3/6/80 AT 10:00 A.M. FOR TIME TO HEAR

OBJECTIONS IS AMENDED SIR SPONTE, ETC. , FILED.

RJB

2/26/80 ENTERED & COPIES MAILED

694 " 26 ORIGINAL PLFF'S MOTION FOR FINDING OF CONTEMPT, NOTICE, MEMORANDUM OF LAW, &

ŒRTIFICATE OF SERVICE, FILED.

695 " 29 Deft's supplemental responses to plff's interrogatories, filed.

696 MAR 3 Financial Report for the month ended September 30, 1979, filed.

697 " 3 Financial Report for the month ended October 31, 1979, filed.

698 " 3 Financial Report for the month ended November 30, 1979, filed.

'699 " 3 Report to the Court of the Office of the Special Master for the month of January,

1980, filed.

700 •"

Certified copy of Order U.S.C.A. that the mandate of this court is hereby

recalled for the sole purpose of considering the motion to intervene, ordered that

the motion to intervene for the purpose of filing a petition for certiorari to

the United States Supreme Court is granted, filed.

701 "

"Commonwealth" deft's response to proposed amendments to orders of March 17 1978

March 5, April 26, and June 8, 1979, filed.

702 " 6 Hearing re: Pennhurst Parents-Staff Assn. request for stay - denied, etc., filed.

703 "

6 Certified copy of Order U.S.C.A. that the judgment of the District Court, filed March 17, 1978 is hereby affirmed with the exception of the order to find

alternative employment for all Pennhurst employees, the order directing the

eventual closing of Pennhurst, and the order banning all future admissions to

Pennhurst, and the cuase is remanded to the said district court for further

proceedings consistent with the opinion of this Court, filed.

704 " 6 Certfied copy of Order U.S.C.A. that the mandate reissue forthwith upon the entry

of the order granting the motion of Pennhurst Parent-Staff Association to

intervene, filed.

705 " 6 ORIGINAL PLFF'S TEN CONTEMPT AND IMPLEMENTATION MOTIONS, MEMORANDUM OF LAW, AND

MOTION TO DISPENSE WITH NOTICE REQUIREMENTS OF LOCAL RULE 36, & ORDER THAT THE

NOTICE REQUIREMENTS OF LOCAL RULE 36 ARE SUSPENDED FOR PURPOSES OF THIS MOTION,

IT IS FURTHER ORDERED THAT THE TIME PERIOD WITHIN WHICH DEFT'S MAY RESPOND IS

TEN (10) DAYS FROM THIS DATE, FILED.

RJB

3/7/80 ENTERED & COPIES MAILED

706 "

ORDER THAT THE REGISTRY OF THE COURT SHALL PAY TO THE OFFICE OF THE SPECIAL MASTER

THE AMOUNT OF $68,674.04, THIS AMOUNT COVERS THE EXPENSES OF THE SPECIAL MASTER'S

OFFICE FOR THE PERIOD OF MARCH 1 THROUGH MARCH 31, 1980, ETC., FILED. RJB

3/7/80 ENTERED & COPIES MAILED

707

ORDER THAT THE COMMONWEALTH OF PENNA. SHALL PAY TO THE REGISTRY OF THIS COURT BY

THE FIRST DAY OF APRIL, 1980, THE AMOUNT OF $65,251.67, THIS AMOUNT REFLECTS COST

ESTIMATES FOR OPERATION OF THE OFFICE OF THE SPECIAL MASTER FROM APRIL 1 THROUGH

APRIL 30, 1980, ETC., FILED.

RJB

3/7/80 ENTERED & COPIES MAILED

708 "
709 "

7 Original plff's comments on proposed order, filed. 7 United State's recommended changes to the order of February 22, 1980 as modified
February 25, 1980, filed.

over.

TIFF
I LEE HALDERMAN, ET AL
NR.

CIVIL DOCKET CONTINUATION SHEET
DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL,

DOCKET NO. 74-1345

PAGE 35 O F

.PAGES

PROCEEDINGS

10 Memorandum of Pennhurst Parents-Staff Association, and proposed order, filed. 10 FENNHURST PARENTS-STAFF ASSOCIATION'S ÏDTION FOR STAY & MEMORANDUM OF LAW, &

CERTIFICATION OF SERVICE, FILED.

10 Response of Phila. deft's to proposed orders dated 2/22/80 & 2/26/80, filed. 11 Original plff's request for an expedited hearing, filed. 11 ORIGINAL PLFF'S MOTION FOR A TEMPORARY RESTRAINING ORDER, AFFIDAVIT IN SUPPORT,
r MEMORANDUM OF LAW, AND CERTIFICATE OF SERVICE, FILED.
11 Appearance of Richard Kirschner, Esq. for Applicant for Intervention, Council 13,
American Federation of State, County, & Municipal Employees, AFL-CIO, filed.

13 Final Report of the Office of Employee Services, January, 1980, filed.

13 Memorandum of United States in opposition to certain suggested changes to Court's

proposed order of February 22, 1980, modified February 25, 1980, filed.

14 Memorandum of PARC, et al, concerning proposed order of 2/22/80 as modified

2/25/80, filed.

17 Appearance of Adjoa A. Burrow, Esq. for the United States of America, plff.-

intervenor, filed. 17 Reply of Bucks County deft's to original plff's ten contempt & implementation

17 motions, filed. Reply of Delaware County deft's to original plff's ten contempt & implementation

17 motions, filed.

17 "Conmonwealth" deft's answer to plff's contempt & implementation motions, filed.

Coninonwealth deft's comments to proposed amendments of Original plff's, United

18 States, & Parents-Staff Association, filed.

Stipulation between Bucks County deft's & Pennhurst Parents Staff Association re:

21 circumstances relating to deaths of clients, filed.

ORDER THAT A HEARING SHALL BE HELD ON THE ORIGINAL PLFF'S MOTION FOR A PRELIMINARY

INJUNCTION WITH RESPECT TO THE IMPENDING FURLOUGH OF EMPLOYEES AT PENNHURST STATE

SCHOOL & HOSPITAL ON APRIL 3, 1980 AT 9:30 A.M. IN COURTROOM 10B, FILED. RJB

24

3/24/80 ENTERED & COPIES MAILED

Report of the Office of the Special Master to the Court for the Month of February, 25 1980, filed. 25 Supplemental comments of Original plff's to Court's proposed order, filed.

25 ORIGINAL PLFF'S MOTION ON PENNHURST STAFFING, FILED.

1 Transcript of Agreement 3/13/80, filed.

MEMORANDUM & ORDER THAT THE MOTION TO INTERVENE AS PARTIES PLFF. FILED BY

COUNCIL 13, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO,

IS DENIED, FILED.

RJB

4/1/80 ENTERED & COPIES MAILED

ORDER THAT THE COMMONWEALTH OF PENNSYLVANIA SHALL PAY TO THE REGISTRY OF THIS

COURT BY MAY 1, 1980 THE AMOUNT OF $65,251.67, THIS AMOUNT REFLECTS COST ESTIMATES

FOR OPERATION OF THE OFFICE OF THE SPECIAL MASTER FROM MAY 1 THEOUGH MAY 31, 1980,

ETC., FILED.

RJB

4/2/80 ENTERED & COPIES MATT .FT)

cont. on page #36

3C 111A Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN, et al

f CIVIL DOCKET CONTINUATION S H L ¿ T
DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL

DOCKET NO. 74-1345

PAGE 36 OF

PAGES

DATE

NR.

1980

PROCEEDINGS

732 APR
735 11 736 i i 737 • I I
739 " 740 "
741 " 742 " 743 " 744 " 745 " 746 " 747 " 748 " 749 "

ORDER THAT THE REGISTRY OF THE COURT SHALL PAY TO THE OFFICE OF THE SPECIAL

MASTER THE AMOUNT OF $65,251.67, THIS AMOUNT COVERS THE EXPENSES OF THE SPECIAL

MASTER'S OFFICE FOR THE PERIOD APRIL 1 THROUGH APRIL 30, 1980, FILED. RJB

4/2/80 ENTERED & COPIES MAILED

Memorandum of United States in opposition to application of Pennhurst Parents-

Staff Association for a stay of all orders, filed.

Commonwealth deft's memorandum in opposition to plff's motion on Pennhurst

Staffing, filed.

3 Answer of Commonwealth deft's to plff's motion of Pennhurst Staffing, filed.

4 Plff's memorandum of law in opposition to Parent-Staff Association motion for

stay pending certiorari, filed.

4 ORIGINAL PLFF'S MOTION FOR CONTEMPT AGAINST DELAWARE COUNTY DEFT'S, MOTION TO

DISPENSE WITH NOTICE REQUIREMENTS OF LOCAL RULE 36, & CERTIFICATE OF SERVICE,

FILED.

MEMORANDUM BRODERICK, J . , & ORDER THAT THE MOTION FOR STAY OF THIS COURT'S ORDERS

FILED BY PLFFS-INrERVENORS THE PENNHURST PARENTS-STAFF ASSOCIATION IS DENIED,

FILED.

RJB

4/7/80 ENTERED & COPIES MAILED

ORDER THAT THE REQUIREMENTS OF LOCAL RULE 36 ARE SUSPENDED FOR PURPOSES OF THIS

MOTION, FILED.

RJB

4/7/80 ENTERED & COPIES MAILED

ORDER DATED 4/4/80 THAT DELAWARE COUNTY DEFT'S CEASE & DESIST FROM ANY ACTION TO

HAVE PAUL G. ADMITTED TO PENNHURST, ETC., IT IS FURHTER ORDERED THAT SAID

DELAWARE COUNTY DEFT'S SHOW CAUSE WHY THEY SHOULD NOT BE HELD IN CONTEMPT OF THE

ORDERS OF THIS COURT AT A HEARING TO BE HELD ON APRIL 14, 1980 AT 9:30 A.M. IN

COURTROOM 10B, FILED.

RJB

4/7/80 ENTERED & COPIES MAILED

Î4emorandum of law in support of motion of plff's PARC, et al, for contempt

against Delaware County Deft's, filed.

10 ORDER THAT THE HEARING PREVIOUSLY SCHEDULED TO BE HELD ON APRIL 14 1980 IS HEREBY RESCHEDULED TO APRIL 21, 1980 AT 9:30 A.M. IN COURTROOM 10B FILED. RJB 4/11/80 ENTERED & COPIES MAILED

11 Pennhurst Parents-Staff Association's memorandum re: proposed Pennhurst Furloughs filed.
16 Hearing of 4/3/80 re: Original plff's motion for preliminary injunction, witness sworn, hearing will resume in a period after 90 days, etc., filed.

17 Transcript of Hearing, 3/6/80, filed.
18 MEMORANDUM, BRODERICK, J. AND ORDER THAT PLFFS' MOTION TO ENJOIN THE TWENTY-EIGHT PERSONNEL ACTIONS AT PENNHURST PLANNED BY THE COMMONWEALTH IS DENIED, FILED. 4-18-80 Entered and copies mailed.

18 Answer of the Delaware County deft's to plff's motion for contempt, filed. 21 Hearing re: Plff's motion to hold Delaware County in contempt, filed.

22 Plff's application for prosecution of Delaware County deft's for criminal and civil contempt, & certificate of service, filed.

OVER.

75)

\INTIFF

,RRI LEE HALDERMAN, et al

ATE

NR.

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
PENNHURST STATE SCHOOL, et al
PROCEEDINGS

FPI-MAR 3-7-78

DOCKET NO. 74-1345

PAGE 37 QF

r .PAGES

'80

APR 24 ORDER THAT THIS COURT'S ORDERS OF 3/17/78, 3/5/79, 4/26/79 AND 6/8/79 ARE AMENDE! THAT Œ)MKONWEALTH & COUNTY DEFT'S, ETC., ARE PERMANENTLY ENJOINED TO PROVIDE,

SUITABLE COMMUNITY LIVING ARRANGEMENTS FOR THE RETARDED RESIDEïTTS OF PENNHURST,

ET AL, THE ORDER OF 3/5/79 IS AMENDED THAT THE PENNHURST LIAISON FROM THE OFFICE

OF THE SPECIAL MASTER SHALL HAVE AN OFFICE AT PENNHURST, SAID PERSON SHALL

REPRESENT THE OFFICE OF THE SPECIAL MASTER ON ALL MATTERS RELATING TO PENNHURST

& CARRYING OUT OF THE COURT ORDER, ETC. , THE ORDER OF 4/26/79 IS VACATED, THE

ORDER OF 6/8/79 IS AMENDED THAT THE COMMONWEALTH, AS HERETOFORE ORDERED, SHALL

NOTIFY CHESTER, DELAWARE, MONTGOMERY & PHILADELPHIA COUNTIES OF THE AVAILABILITY

OF FUNDS TO DEVELOP & MAINTAIN NECESSARY LIVING ARRANGEMENTS & SERVICES FOR

SCHOOL-AGE RESIDENTS FROM PENNHURST TO APPROPRIATE COMMUNITY LIVING ARRANGEMENTS

DEFENDS UPON DEVELOPMENT OF INDIVIDUAL HABILITATION PLANS, ETC. , FILED. RJB

4/24/80 ENTERED & COPIES MAILED

24 ORDER APPOINTING CARLA S. MORGAN SPECIAL FASTER, MS. MORGAN SHALL HAVE THE POWER AND DUTY, AS SET FORTH IN THE ORDER OF MARCH 17, 1978, AS AMENDED APRIL 24, 1980

TO PLAN, ORGANIZED, THE IMPLEMENTATION OF THE ORDERS OF THIS COURT, FILED. RJB

4/24/80 ENTERED & COPIES MAILED

24 ORDER APPOINTING MICHAEL S. LOTTMAN, ESQ. , HEARING MASTER, EFFECTIVE MAY 5, 1980,

MR. LOTTMAN SHALL AHVE THE POWERS & DUTIES AS SET FORTH IN THE ORDER OF THIS

COURT DATED APRIL 24, 1980, FILED.

RJB

4/24/80 ENTERED & COPIES MAILED

25 Report to the Court from the Office of the Special Master for the Month of March, 1980, filed.

) " I 25ORDER THAT DELAWARE COUNTY LEFT'S SHOW CAUSE WHY THEY SHOULD NOT BE HELD IN CRIMINAL CONTEMPT, FIXING MAY 21, 1980 AT 1:30 P.M. FOR HEARING, ETC., FILED. RJB

4/25/80 ENTERED & COPIES MAILED

MAY

Special Master's Report on Delaware County deft's non-conpliance with orders of

the Court, April 10, 1980, filed.

ORDER THAT THE REGISTRY OF THE COURT SHALL PAY TO THE OFFICE OF THE SPECLAL MASTER

THE AMOUNT OF $ 6 5 , 2 5 1 . 6 7 , THIS AMOUNT COVERS THE EXPENSES OF THE SPECIAL MASTER'S

OFFICE FOR THE PERIOD OF MAY 1 THROUGH MAY 3 1 , 1 9 8 0 , E T C . , FILED.

RJB

5/5/80 ENTERED & COPIES MAILED

ORDER THAT THE COMMONWEALTH OF PENNSYLVANIA SHALL PAY TO THE REGISTRY OF THIS

COURT THE AMOUNT OF $65,251.68, ON OR BEFORE THE FIRST DAY OF JUNE, 1980, THIS

AMOUNT REFLECTS COST ESTIMATES FOR OPERATION OF THE OFFICE OF THE SPECIAL MASTER

FROM JUNE 1 THROUGH JUNE 30, 1980, ETC., FILED.

RJB

5/5/80 ENTERED & COPIES MAILED

7 DEFT'S MOTION TO COMPEL ANSWERS TO TMERROGATORIES NOTICE, & CERTIFICATE OF

SERVICE, FILED.

9 Deft. P. Paul Burrichter's notice of depositions of Carla S. Morgan, filed.

12 ORDER THAT DEFT'S P. PAUL BURRICHTER, ET AL, SHALL NOT TAKE THEDEPOSITION OF

SPECIAL MASTER CARLA MORGAN UNTIL THE COURT RULES ON PLFF'S & PROSECUTORS' MOTION

FOR PROTECTIVE ORDER, DEFT'S BURPJCHTER, ET AL, ARE DIRECTED TO RESPOND BY

MAY 16, 1980, FILED.

RJB

5/13/80 ENTERED & COPIES MAILED

CONT. ON PAGE #38

CIVIL DOCKET CONTINUATION S H í _ r PLAINTIFF
TEHRI LEE HALDERMAN, e t a l
NR.

DEFENDANT
PENNHURST STATE SCHOOL, et al
PROCEEDINGS

DOCKET NO. 7 4 - 1 3 4 5 PAGE38 OF PAGES

13 Certified copy of Order U.S.C.A. that the motion of Pennhurst Parents-Staff Association for partial stay of district court orders pending certiorari is denied, filed.
13 Pennhurst compliance Report, May 7, 1980, filed.

13 Memorandum of the United States of America in response to plff's, The Penna. Association for Retarded Citizens, et al, motions for civil and criminal contempt against Delaware County deft's, filed.
14 Appearance of John Rogers Carroll, Esq. for deft. Patricia Jenkins, Esq., filed.

14 Appearance of Pamela P. Cohen, Esq. for original plff's Terri Lee Halderman, et al, filed.

15 MOTION OF RESPONDENT PATRICIA JENKINS, ESQ., FOR CONTINUANCE, FILED.

16 Response of deft. P. Paul Burrichter to plff's motion for protective order, to

strike notice of deposition & for leave to dispense with Local Rule 36, filed.

16 MOTION OF P. PAUL BURRICHTER FOR A CONTINUANCE, NOTICE, FILED.

16 ORDER THAT COMMONWEALTH DEFT'S MOTION TO COMPEL ANSWERS TO INTERROGATORIES IS

GRANTED & PLFF'S SHALL FILE RESPONSES TO DEFT'S INTERROGATORIES WITHIN TEN (10)

DAYS, FILED.

RJB

5/19/80 ENTERED & COPIES MAILED

16 ORDER THAT THE HEARING ON THE PENDING CIVIL & CRIMINAL CONTEMPT MATTERS IS

CONTINUED PENDING RESOLUTION OF THE MOTIONS IN CONNECTION WITH THE DEPOSITION OF

THE S?ECAIL MASTER; IT IS FURTHER ORDERED THAT ORAL ARGUMENT SHALL BE HEARD ON

THE MOTIONS IN CONNECTION WITH THE DEPOSITION OF THE SPECIAL MASTER IN COURTROOM

10B ON MAY 21, 1980 AT 1:30 P.M., FILED.

RJB

5/19/80 ENTERED & COPIES MAILED

21 RULE TO SHOW CAUSE FIXING MAY 27, 1980 AT 2:00 P.M. IN COURTROOM 10B FOR HEARING

FOR DEFTS. MAY SHOW CAUSE WHY AN ORDER SHALL NOT BE SIGNED BY THE COURT, FILED.

5/21/80 entered & copies mailed

21 Argued sur: Motion to depose Special Master - briefs to be submitted by

May 26, 1980 - C.A.V., filed.

21 Parc's interrogatories and request for production of documents, filed.

22 Supplementary memorandum on deposition of Special Master, filed.

22 PLFF'S PARC MOTION TO SHORTEN TIME FOR RESPONSE TO PARC DISCOVERY REQUESTS, FILED.

22 ORDER THAT THE TIME FOR COMMONWEALTH DEFT'S TO ANSWER INTERROGATORIES, &

PRODUCTION OF DOCUMENTS IS HEREBY SHORTENED TO MAY 27, 1980, 12:00 NOON, FILED.

5/22/80 ENTERED & COPIES MAILED

RJB

23 Withdrawal of appearance of Ward A. Cotton, Esq. for Montgomery County Deft's,

filed. 23 Appearance of R. Stephen Barrett, Asst. Solicitor for Montgomery County deft's,

filed.

23 Report to the Court from the Office of the Special Master for the month of

April 1980, filed.

23 PLFF'S TERRI LEE HALDERMAN, ET AL, MOTION FOR PRELIMINARY INJUNCTION & MOTION FOR

TEMPORARY RESTRAINING ORDER AGAINST PHILA. COUNTY DEFT'S, MEMORANDUM OF LAW,

AFFIDAVIT IN SUPPORT & CERTIFICATE OF SERVICE, FILED.

OVER.

DC-I 1 1A REV. ( 1/75)

IL DOCKET CONTINUATION SHEET AINTIFF
RRI LEE HALDERMAN, e t a l
NR.

DEFENDANT
PENNHURST STATE SCHOOL, et al
PROCEEDINGS

DOCKET NO. 7 4 - 1 3 4 5

PAGE 3_9__¤F

PAGES
r

23 Transcript of hearing, 4/21/80, filed. 27 Pl££'s response to Comnonwealth interrogatories regarding motion for contempt,

filed.

27 Commonwealth deft's response to PARC'S request for documents, filed.

27 Pennhurst Parents-Staff Association, intervening plff's notice of appeal, filed.

5/28/80 Notice to: David Ferleger, Thomas Gilhool, Carla s/Morgan,

Wilbur E. Hobbs, James M. McNamara, Patricia Jenkins, Thomas Kittredge,

Alexander Ewing, Penelope A. Boyd, Adjoa A. Burrow, Robert B. Hoffman,

John Rogers Carroll, Thomas A. îiasterson, R. Stephen Barrett, U.S.C.A.

27 Copy of Cleric's Notice to U.S. Court of Appeals, filed. (U.S.C.A. No. 80-1827)

5/28/80 Notice to: David Ferleger, Thomas Gilhool, Carla S. Morgan,

Wilbur E. Hobbs, James M. McNamara, Patricial Jenkins, Thomas Kittredge,

Alexander Ewing, Penelope A. Boyd, Pamela P. Cohen, Adjoa A. Burrow,

Robert B. Hoffman, John Rogers Caroll, Thomas A. Masterson, R. Stephen

Barrett, U.S.C.A., Judge Broderick, Dan Spitz, Lynne T. Attardi, Court Reporter
28 Show Cause Hearing 5/27/80 re: Order on CIA's & Services, witnesses sworn, filed. 28 Comnonwealth deft's supplemental response to PARC'S request for documents, filed.

29 ORDER THAT THE EXPENSES OF THE OFFICE OF THE SPECIAL MASTER, INCLUDING PERSONNEL,

ETC., SHALL NOT EXCEED $199,206.11 FOR THE PERIOD BEGINNING JULY 1, 1980 & ENDING

SEPTEMBER 30, 1980, ETC., FILED.

RJB

5/30/80 ENTERED & COPIES MAILED
29 ORDER THAT THE ORDER OF THIS COURT DATED APRIL 24, 1980 IN CONNECTION WITH

"INDIVIDUAL DETERMINATIONS" PARAGRAPH 8 IS AMENDED, ETC., FILED.

RJB

5/30/80 ENTERED & COPIES MAILED

ORDER THAT PLFF'S REQUEST THAT CCM-BNWEALTH DEFT'S PRODUCE CERTAIN DOCUMENTS IS

GRANTED IN PART AND DENIED IN PART, AND COMMONWEALTH DEFT'S SHALL ON OR BEFORE

JUNE 9, 1980 PRODUCE FOR INSPECTION ALL REQUESTED DOCUMENTS WITH THE EXCEPTION OF

THOSE INTERNAL MEMORANDA WHICH CONTAIN Il·TTRAGOVERNMFlJTAL ADVISORY OPINIONS OR

RECOMMENDATIONS RELATING TO POLICY-MAKING, FILED.

RJB

6/2/80 ENTERED & COPIES MAILED

Pennhurst Parents-Staff Association's response to proposed order of May 21, 1980,

filed.

Response of the Bucks, Chester and Delaware County deft's to the rule to show

cause dated 5/20/80, filed.

Certified copy of Order U.S.C.A. that the appeal of Pennhurst State School &

Hospital, et al's, appeal is dismissed by agreement of parties, filed.
9 Seventh Supplemental to U.S.C.A.

11 Received document number 745 from U.S.C.A.

11 ORDER DATED 6/10/80 THAT THE COMMONWEALTH OF PENNA. SHALL PAY TO THE REGISTRY OF

THIS COURT BY THE FIRST DAY OF JULY, 1980, THE SUM OF ?15,274.00, THIS AMOUNT

REFLECTS COST ESTIMATES FOR OPERATION OF THE OFFICE OF THE HEARING MASTER FROM

MAY 5, 1980 THROUGH JUNE 30, 1980, PURSUANT TO THE COURT'S ORDER OF JUNE 10, 1980,

FILED.
6/12/80 ENTERED & COPIES MAILED

CONT. ON PAGE #40
¤C-I 1 1 A REV. ( 1/75 )

îev. 1/75) PLAINTIFF
TERRI LEE HALDERMAN, et al

CIVIL DOCKET CONTINUATION SH· T
DEFENDANT
PENNHURST STATE SCHOOL, et al

DOCKET NO 74-1345 PAGEÌt¤_OF PAGES

DATE

NR.

1980

PROCEEDINGS

791 JUN 11 ORDER DATED 6/10/80 THAT THE REGISTRY OF THE COURT SHALL PAY TO THE OFFICE OF THE

HEARING MASTER THE AMOUNT OF $15,274.00, THIS AMOUNT COVERS THE EXPENSES OF THE

HEARING MASTER'S OFFICE FOR THE PERIOD MAY 5, 1980 THROUGH JUNE 30, 1980, ETC. ,

FILED. (Financial Dept.)

RJB

6/12/80 ENTERED & COPIES MAILED

792

11 ORDER DATED 6/10/80 THAT THE HEARING MASTER STAFF SHALL CONSIST OF NOT MORE THAN

TWO PARAPORFESSIONAL AND/OR SUPPORT PERSONNEL, INCLUDING A HEARING ASSISTANT TO

MANAGE THE DAY-TO-DAY OPERATIONS OF THE HEARING MASTER'S OFFICE, ETC. , AND ANY

ADDITIONAL PERSONNEL WHICH THE COURT MAY IN THE FUTURE DETERMINE TO BE NECESSARY,

ETC. , THE EXPENSES OF THE HEARING MASTER SHALL NOT EXCEED $15,274.00 FOR THE

PERIOD BEGINNING MAY 5 AND ENDING JUNE 30, 1980, ETC., FILED.

RJB

6/12/80 ENTERED & COPIES MAILED

793 I.I 13 Transcript of Hearing May 27, 1980, filed.

16 Transcript number 745 received from official Court Reporter for Judge Broderick

and forwarded to U.S. Court of Appeals.

794 it

18 ORDER THAT OOMMDNWEALTH OF PENNA. BEFORE 7/1/80 PAY INTO REGISTRY OF THIS COURT THE AMOUNT OF $66,402.30 FOR OPERATION OF THE OFFICE OF SPECIAL MASTER FROM 7/1/ through 7/31/80, FILED.

795 796 ii 797 "

6/18/80 entered & copies mailed - Original to fiscal dept. 18 ORDER THAT THE REGISTRY OF COURT SHALL PAY TO THE OFFICE OF SPECIAL MASTER THE
AMOUNT OF $65,251.68 FOR PERIOD OF 6-1 through 6-30-80, FILED. 6/18/80 entered & copies mailed - Original to fiscal dept.
18 ORDER THAT COMMONWEALTH OF PENNA. BEFORE July 1, 1980 PAY TO REGISTRY OF COURT $8,806.00 FOR OPERATION OF THE OFFICE OF SPECIAL MASTER FROM 7/1 through 7/31/80 FILZD.
6/18/80 entered & copies mailed original to Fiscal dept. 18 ORDER THAT EXPENSES OF THE^ OFFICE OF THE HEARING MASTER SHALL NOT EXCEED
$25,065.00 FOR THE PERIOD BEGINNING 7/1/80 AND ENDING 9/30/80, FILED.
6/18/80 entered & copies mailed

798 "
799 " 300 "

18 Response of the United States of America to Commonwealth & County deft's responses to the Court's proposed implementation order, filed.
19 Report to the Court from the Hearing Master, filed. 19 Report of the Office of the Special Master's Office to the Court for the month of
May, 1980, filed.

301 "

24 Letter dated 6/23/80 from William A. McKendry to Clerk of the Court re: certain exceptions of Chester County Mental Health & Mental Retardation Board to the report of individual determination, filed.

302 " 25 Report to the Court from the Office of the Special Master for the Month of May, 1980, filed.
303 " 26 Report to the Court from the Hearing Master, filed.

304 JUL 2 ORDER THAT THE COMMONWEALTH OF PENNSYLVANIA SHALL PAY TO THE REGISTRY OF THIS

COURT THE SUM OF $66,402.03, BY THE FIRST DAY OF AUGUST, 1980, THIS AMOUNT

REFLECTS COST EXTIMATES FOR OPERATION OF THE OFFICE OF THE SPECIAL MASTER FROM

AUGUST 1 THROUGH AUGUST 31, 1980, ETC., FILED.

RJB

7/3/80 ENTERED & COPIES MAILED

OVER.

DC 111A (Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN

C , 1L DOCKET CONTINUATION SHEET
DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL

FPI-HAR 3 · 7 - 7 8

DOCKET NO. 74-1345

PAGE

OF_ .PAGES

DATE

NR.

1980

PROCEEDINGS

805 JUL
806
807 "
808 1! 809 1 T 810 1! 811 tl 812 11 813 11
814 " 815 " 816 "
817 " 818 " 819 "

ORDER THAT THE REGISTRY OF THE COURT SHALL PAY TO THE OFFICE OF THE SPECIAL

MASTER THE SUM OF $ 6 6 , 4 0 2 . 0 3 , THIS AMOUNT COVERS THE EXPENSES OF THE SPECIAL

MASTERS OFFICE FOR THE PERIOD JULY 1 THROUGH JULY 3 1 , 1980, FILED. RJB

7/3/80 ENTERED & COPIES MAILED (given t o F i n a n c i a l Dept.)

ORDER THAT THE COMMONWEALTH OF PENNSYLVANIA SHALL PAY TO THE REGISTRY OF THIS

COURT THE AMOUNT OF $ 8 , 8 0 6 . 0 0 , BY THE FIRST DAY OF AUGUST, 1980, THIS AMOUNT

REFLECTS COST ESTIMATES FOR OPERATION OF THE OFFICE OF THE HEARING MASTER FROM

AUGUST 1, THROUGH AUGUST 3 1 , 1980, FILED.

RJB

7/3/80 ENTERED & COPIES MAILED

ORDER THAT THE REGISTRY OF THE COURT SHALL PAY TO THE OFFICE OF THE HEARING

MASTER THE SUM OF $ 8 , 8 0 6 . 0 0 , THIS AMOUNT COVERS THE EXPENSES OF THE HEARING

MASTERS OFFICE FOR THE PERIOD JULY 1 THROUGH JULY 3 1 , 1980, FILED.

RJB

7/3/80 ENTERED & COPIES MAILED (given t o F i n a n c i a l Dept.)

Memorandum o f PARC, e t a l , concerning proposed o r d e r o f May 2 0 , 1980, f i l e d .

7 Appearance of Herbert B. Newberg, Esq. as co-counsel f o r p l f f ' s Parents and
Family Association of Pennhurst, e t a l , filed.

7 P e t i t i o n o f David F e r l e g e r , Esq. f o r Award of i n t e r i m counsel fees and c o s t s ,

filed.

7 Brief of David Ferleger, Esq. in support of petition for an interim award of

counsel fees and costs, filed.

7 Affidavit of David Ferleger, Esq. in support of petition for an interim award

of counsel fees and costs, filed.

8 ORDER THAT THE EXCEPTION FILED BY CHESTER COUNTY DEFT'S TO THE HEARING MASTER'S

REPORT OF INDIVIDUAL DETERMINATION RE: W.C., IS HEREBY DISMISSED AS PREMATURE,

ON THE GROUND THAT THE HEARING MASTER HAS SCHEDULED A FURHTER HEARING, FOR

MODIFICATION OF THE HEARING MASTER'S ORDER OF 6 / 1 6 / 8 0 , ETC., FILED. RJB

7/8/80 ENTERED & COPIES MAILED

9 F i n a n c i a l Report f o r t h e Month ended December 3 1 , 1979, f i l e d .

9 F i n a n c i a l Report f o r t h e Month ended January, 1980, f i l e d .

C e r t i f i e d Copy o f Order Received from U.S. Court o f Appeals d a t e d 7/7/80 that the motions in 79-2092 and 79-2093 to f i l e b r i e f s 30

days a f t e r Supreme Court Decisiions in S.C. Nos. 79-1404, 79-1408,

79-1414 and 79-1489 are Granted; Motion by Plff. Appellees, Haiderman e t a l to Dismiss Appeals i s Denied, f i l e d .

7/10/80 Entered. 11 ORIGINAL PLFF'S MOTION TO AMEND OPINION OF DECEMBER 2 3 , 1 9 7 7 , NOTICE, BRIEF I N

SUPPORT, & ŒRTICATE OF SERVICE, FILED.

15 ORDER THAT THE COURT WILL HOLD A HEARING, RECEIVE MEMDRANDA & HEAR ORAL ARGUMENT

ON JULY 2 1 , 1980 AT 1 0 : 3 0 A.M. IN COURTROOM 10B, E T C . , FILED.

RJB

7 / 1 5 / 8 0 ENTERED & COPIES MAILED

15 ORDER THAT NO RESIDENT OF PENNHURST SHALL BE TRANSFERRED TO A COMMUNITY LIVING

LIVING ARPvANGEMENT IN ACCORDANCE WITH PRIOR ORDERS OF THIS COURT UNLESS & UNTIL

THE HEARING MASTER HAS DETERMINED THAT SUCH TRANSFER I S VOLUNTARY, E T C . , FILED.

7 / 1 5 / 8 0 ENTERED & COPIES MAILED

RJB

OONT. ON PAGE # 2

)ev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN

I CIVIL. DOCKET CONTINUATION SHi- T
DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL

DOCKET NO. 74-1345

PAGE 42;,O F

.PAGES

DATE

NR.

1980

PROCEEDINGS

320 JUL 15 821 " 15 322 " 15
323 " 15

l·ÜTION OF ALFRED PITTS FOR PRELH·ŒNARY INJUNCTION AND MEMORANDUM OF LAW, FILED. Plff's request concerning pending contempt motion on deaths, filed. Terri Lee Haldermn, et al's, response to motion for an amendment of the Court's Opinion of December 23, 1977, filed. Report of Visit to Pennhurst Center by Jaems D. Clements, M.D. and John W. Cooledge, M.D., filed.

324 " 15 Letter dated 7/10/80 from Thomas K. Gilhool to Deputy Secretary for Mental

325 " ._ "

Retardation re: paragraph 20 of the Court's order of 3/17/78 and 4/24/80, filed. 16 Letter dated 7/16/80 from Clerk to T.F. Quinn re: request document number 729,
Transcript of Agreement dated 3/15/80, filed. 16 Document number #729 returned to Official Court Reporter.

16 Document number #729 forwarded to U.S. Court of Appeals.

326 " 17 MEMORANDUM & ORDER THAT PLFF'S MOTION FOR PROTECTIVE ORDER IN CONNECTION WITH THE

DEPOSITION OF THE SPECIAL MASTER. IS DENIED; IT IS FURTHER ORDERED THAT THE HEARING

28 1 ! 329 11 330 1 1 331 1 I 832 It 833 1 1
834 t 1

ON THE CIVIL & CRIMINAL CONTEMPT CHARGES AGAINST P. PUAL BURRICHTER AND

PATRICIA H. JENKINS SHALL BE HELD ON SEPTEMBER 25, 1980 AT 9:30 A.M. IN

COURTROOM 10B, FILED.

RJB

7/18/80 ENTERED & COPIES MAILED 18 ORDER THAT A HEARING SHALL BE HELD ON PLFF. ALFRED PITTS' MOTION FOR

PRELIMINARY INJUNCTION ON JULY 23, 1980 AT 3:15 P.M. IN COURTROOM 10B, FILED.

7/18/80 ENTERED & COPIES MAILED

RIB

18 Report to the Court from the Office of the Special Master for the month or

21

June, 1980 re: Pennhurst Compliance Review, filed. Memorandum of PARC, et al, concerning the scope & limitations of the partial

21

stay gratned by the U.S. Supreme Court, filed. Original Plff's memorandum on effect of Supreme Court's Order of June 30, 1980

21

filed. Commonwealth deft's Pennhurst Staffing Plan, filed.

21 jPlff's memorandum of law in support of contempt sanctions against Delaware

County deft's, filed. 21 PLFF'S MOTION FOR PROTECTIVE ORDER, TO STRIKE NOTICE OF DEPOSITION AND FOR LEAVE

TO DISPENSE WITH LOCAL RULE 36, MEMORANDUM OF LAW, FILED.

21 Certificate of service of Virginia Raymond re: 7/17/80 served copies of

motion for preliminary injunction on all parties, filed. 835 I | 22 Argued Sur: Supreme Court "Stay" request permission to put testimony on - denied,

836 T I 23 for today to be heard at hearing next Tuesday - C.A.V., filed.

337 It

23

United States of America's memorandum regarding implementation of stay, filed. PETITION OF TERRI LEE HALDERMAN, ET AL, FOR WRIT OF HABEAS CORPUS & ORDER THAT

A WRIT OF HABEAS CORPUS AD TESTIFTCANDUM IS DIRECTED TO BE ISSUED, RETURNABLE

THE 23RD OF JULY 1980 AT 3:15 P.M. REQUIRING THOMAS RAPONE TO PRODUCE THE BODY

OF ALFRED PITTS FOR THE PURPOSES OF TESTIFYING, ETC., FILED.

RJB

338 "

7/23/80 ENTERED & COPIES MAILED 23 ORDER THAT DEFT'S JENNIFER HOWSE & GEORGE KOPGHICK & ACTING PENNHURST MEDICAL

DIRECTOR WILLIAM DORRANŒ APPEAR AUGUST 4, 1980 AT 10:00 A.M. IN COURTROOM 10B

TO SHOW CAUSE. WHY THEY SHOULD NOT BE HELD IN CIVIL CONTEMPT FOR VIOLATION OF

CERTAIN PROVISIONS OF ORDERS OF THIS COURT, IT IS FURTHER ORDERED THAT SAID

DEFT'S SHOW CAUSE WHY THE RECOMMENDATIONS MADE BY DRS. CLEMENTS & COOLEDGE SHOULE

NOT BE ADOPTED AS ORDERS OF THIS COURT, ETC., FILED.

RJB

7/23/8Ö ENTERED & COPIES MAILED

OVER

DC 111A (Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN, et al

C.*II_ DOCKET CONTINUATION SHEET
DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL,

FPI-MAR 3 . 7 - 7 B

DOCKET NO. 74-1345

PAGE 4 3 OF

PAGES

DATE

NR.

PROCEEDINGS

1980

839 JUL 23 Response of Pennhurst Parents-Staff Association to Order of July 14, 1980, filed

840 " 24 Commonwealth defts' brief regarding implementation of stay, filed.

841 Jul 24
842 " 24
843 " 24
844 " 24 845 " 28 846 " 28

Hearing Re: Motion for Preliminary Injunction(7/23/80)
Continued indefinitely, filed.
DEFT'S MOTION FOR SPECIFICIATION & CLARIFICATION OF FACTUAL AVERMENTS REGARDING PENDING CIVIL CONTEMPT PROCEEDINGS, CERTIFICATE OF SERVICE, FILED DEFT'S MOTION TO DISPENSE WITH NOTICE REQUIREMENT OF LOCAL RULE 36, CERTIFICATE OF SERVICE, FILED DEFT'S NOTICE OF DEPOSITION OF WESLEY PERKINS, CERTIFICATE OF SERVICE, FILED Report to the Court from the Hearing Master, filed. Certified copy of Order U.S.C.A. that the appeal of Pennhurst Parents-Staff Assoc. is dismissed under Rule 42(b), filed.

847 "

29

MEMORANDUM BRODERICK, J., THAT THE COURT SEES NO NEED TO FURTHER MODIFY ITS ORDERS OF JULY 14, 1980, AS A RESULT OF THE SUPREME COURT STAY ORDER, FILED.

7/30/80 ENTERED & COPIES MAILED

RIB

848 "

30 Response of original plff's to deft's Howse, Kopchick, & Dorrance's motion for specification and clarification of factual averments regarding pending civil contempt proceedings, filed.

849 " 850 "

30 Deft. P. Paul Burrichter's notice of deposition of Carla S. Morgan, filed.
30 Appendix to Report of Visit to Pennhurst Center from James D. Clements, M.D., et al, filed.

851 " 30 ORDER THAT THE COMM)NWEALTH OF PENNSYLVANIA SHALL PAY TO THE REGISTRY OF THIS COURT THE SUM OF $7,453.00, BY THE FIRST DAY OF SEPTEMBER, 1980, THIS AMOUNT

852 " 853 "

REFLECTS COST ESTIMATES FOR OPERATION OF THE OFFICE OF THE HEARING MASTER FROM

SEPTEMBER 1 THROUGH SEPTEMBER 30, 1980, ETC., FILED.

RJB

7/31/80 ENTERED & COPIES MAILED

30 ORDER THAT THE REGISTRY OF THE COURT SHALL PAY TO THE OFFICE OF THE HEARING

MASTER THE SUM OF $8,806.00, THIS AMOUNT COVERS THE EXPENSES OF THE HEARING

MASTER'S OFFICE FOR THE PERIOD OF AUGUST 1, THROUGH AUGUST 31, 1980, ETC., FILED.

7/31/80 ENTERED & COPIES MAILED

RJB

30 ORDER THAT THE COMMONWEALTH OF PENNSYLVANIA SHALL PAY TO THE REGISTRY OF THIS

COURT THE SUM OF $66,402.05, BY THE FIRST DAY OF SEPTEMBER, 1980, THIS AMOUNT

REFLECTS COST ESTIMATES FOR OPERATION OF THE OFFICE OF THE SPECIAL MASTER FROM

SEPTEMBER 1 THROUGH SEPTEMBER 30, 1980, ETC., FILED.

RJB

7/31/80 ENTERED & COPIES MAILED

854

30 ORDER THAT THE REGISTRY OF THE COURT SHALL PAY TO THE OFFICE OF THE SPECIAL

855 " 31
856 AUG 1 857 " r4

MASTER THE SUM OF $66,402.03, THIS AMOUNT COVERS THE EXPENSES OF THE SPECIAL

MASTER'S OFFICE FOR THE PERIOD AUGUST 1 THROUGH AUGUST 31, 1980, ETC., FILED.

7/31/80 ENTERED & COPIES MAILED

RJB

Pl·ff's notice of deposition of Russell Rice, filed.

Plff's notice of deposition of George Kopchick, filed.

Response of Pennhurst Parents-Staff Association to first draft of Pennhurst

Center Staffing Study, filed.

858 "

Hearing re: Show Cause, parties continue to work toward settlement, etc., filed.

CONT. ON PAGE. #44

C 111A )ev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN

í CIVIL DOCKET CONTINUATION SHi_iT
DEFENDANT
PENNHURST STATE SCHOOL

DOCKET NO.74-1345

PAGEZ¯L OF

.PAGES

DATE

NR.

PROCEEDINGS

1980

859 AUG

PL·FF'S MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION WITH

REGARD TO DEATHS, ABUSE AND OTHER DANGEES AT PENNHURST & rMPLEMENTATTON OF THE

COURT'S DECREES, FILED.

860 "

ORIGINAL PLFF'S, ET AL, MOTION TO AMEND ORDER TO SHOW CAUSE OF JULY 22, 1980

TO ADD ADDITIONAL COMMONWEALTH DEFT. HELEN O'BANNON, FILED.

861 "

Notice and report of hearing master Re: reconroendation that County MH/MR Adminis-

trator of Montgomery County is authorized and directed to proceed with the pro-

posed comnunity placement of Pennhurst resident C.K. etc, filed.

862 " 7 Deposition of Wesley Perkins, filed.

863 " 7 Exhibits in support of deposition of Wesley Perkins, filed.

864 " 12 Response of the suburban county deft's to original plff's motion to amend

opinion of December 23, 1977, filed.

365 " 13 "Commonwealth" deft's Helen O'Bannon, et al's, notice of Appeal, filed. (80-2341)

8/14/80 Notice to: David Ferleger, Esq., Thomas Gilhool, Esq. Carla S. Morga‡i,

James M. McNamara, Esq., Patricia Jenkins, Esq., Thomas Kittredge, Esq.,

Alexander Ewing, Esq., Penelope A. Boyd, Esq., Pamela P. Cohen, Esq.,

Adjoa A. Burrow, Esq., John Rogers Carroll, Esq., Thomas A. Masterson, Esq.,

R. Stephen Barrett, Esq., Michael S. Lottman, Esq., Russell Rice,

Dr. Jennifer Howse, Herbert B. Newberg, Esq., Marc H. Myers

366

13 Copy of Clerk's Notice to U.S. Court of Appeals, filed.

8/14/80 Notice to: David Ferleger, Esq., Thomas Gilhool, Esq.,

Carla S. Morgan, James M. McNamara, Esq., Patricia Jenkins, Esq.,

Thomas Kittredge, Esq., Alexander Ewing, Esq., Penelope A. Boyd, Esq.,

Pamela P. Cohen, Esq., Adjoa A. Burrow, Esq., Robert B. Hoffman, John

Rogers Carroll, Esq., Thomas A. Masterson, Esq., R. Stephen Barrett, Esq.,

Michael S. Lottman, Esq., Russell Rice, Dr. Jennifer Howse, Herbert B.

Newberg, Esq., Marc H. Myers, Esq., U.S. Court of Appeals, Judge Broderick,

Dan Spitz, Lynne T. Attardi, Court Reporter

367 11 14 Transcript of Hearing of July 21, 1980, filed.

368 II 14 Transcript of Hearing of August 4, 1980, filed.

869 II 15 Memorandum of Cornrc>nwealth deft's in opposition to original plff's motion to

370 II 371 II 372 11

amend opinion of December 23, 1977, filed. 15 Report to the Court from the Office of the Special Master for the Month of
June, 1980, filed.
18 Response of Commonwealth deft's to motion for temporary restraining order and preliminary injunction with regard to death, abuse, and other dangers at Pennhurst and implementation of the court's decrees, filed.
18 Original plff's response to deft's memoranda on motion to amend opinion of

373
"
374 875

December 23, 1977, filed. 18 Notice & Report of the Hearing Master , filed.

20 Eighth Supplemental to U.S. Court of Appeals.

22 Report to the Court of the Hearing Master, filed.

' •

25 Commonwealth defts' response to motion to amend order to show cause of 7-22-80

to add additional Caimonwealth Deft, Helen O'Bannon, filed.

25 Stipulation of counsel re: plff. George Sorotos has left the Pennhurst Institutior and since 8/11/80 has been living in a supervised apartment in Delaware County, etc. filed. (72-2272)

OVER

DC 111A (Rev. 1/75)
PLAINTIFF
TERRI LEE HAIDERMAN, e t a l

CiVII_ DOCKET CONTINUATION S H E E T DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL,

FPI-KAR

3-7·76

DOCKET NO. 74-134!

.45
PAGE.

_OF_

.PAGE

DATE

NR.

PROCEEDINGS

1980

876 AUG 27
877 SEP 4 87S " 4 879 " 4 880 " 4 881 " 4 882 " 5

Original plff's response to Pennhurst Staffing Study, filed. Report to the Court from the Hearing Master re: placement of E.M., filed. Report to the Court from the Hearing Master re: placement of L.B., filed. Report to the Court from the Hearing Master re: placement of R.S., filed. Report to the Court from the Hearing Master re: placement of S.P., filed. Report to the Court from the Hearing Master re: placement of W.H. , filed. ORDER THAT THE EXPENSES OF THE OFFICE OF THE HEARINGl·IASTERINCLUNDING PERSONNEI ETC., SHALL NOT EXCEED $35,309.00, FOR THE PERIOD BEGINNING JULY 1, 1980 AND

ENDING SEPTEMBER 30, 1980, FILED.

RJB

883 "

9/5/80 COPIES MAILED - 9/8/80 ENTERED

ORDER THAT THE EXPENSES OF THE OFFICE OF THE HEARING MASTER, INCLUDING PERSONNEI

ETC. , SHALL NOT EXCEED $29,715.00 FOR THE PERIOD BEGINNING OCTOBER 1, 1980 AND

ENDING DECEMBER 31, 1980, ETC., FILED.

RJB

9/5/80 COPIES MAILED - 9/8/80 ENTERED

884

ORDER THAT THE <XIMMONWEALTH OF PENNSYLVANIA SHALL PAY TO THE REGISTRY OF THIS

COURT THE SUM OF $9,905.00, BY THE FIRST DAY OF OCTOBER, 1980, THIS AMOUNT

REFLECTS COST ESTH1ATES FOR OPERATION OF THE OFFICE OF THE HEARING MASTER FROM

OCTOBER 1 THROUGH DECEMBER 31, 1980, FILED.

RJB

9/5/80 COPIES MAILED - 9/8/80 ENTERED

885 "

ORDER THAT THE REGISTRY OF THE COURT SHALL PAY TO THE OFFICE OF THE HEARING MAST THE SUM OF $7,453.00, THIS AMOUNT COVERS THE EXPENSES OF THE HEARING MASTER'S OFFICE FOR THE PERIOD SEPTEMBER 1 THROUGH SEPTEMBER 30, 1980, FILED. RJB

886 "

9/5/80 COPIES MAILED - 9/8/80 ENTERED

ORDER THAT THE COMMONWEALTH OF PENNSYLVANIA SHALL PAY TO THE REGISTRY OF THIS

COURT THE SUM OF $62,372.28, BY THE FIRST DAY OF OCTOBER, 1980, THIS AMOUNT

REFLECTS COST ESTIMATES FOR OPERATION OF THE OFFICE OF THE SPECIAL. MASTER FROM

OCTOBER 1 THROUGH OCTOBER 31, 1980, ETC., FILED.

RJB

9/5/80 COPIES MAILED - 9/8/80 ENTERED

887

ORDER THAT THE REGISTRY OF THE COURT SHALL PAY TO THE OFFICE OF THE SPECIAL

MASTER THE SUM OF $66,402.05, THIS AMOUNT COVERS THE EXPENSES OF THE SPECIAL

MASTER'S OFFICE FOR THE PERIOD SEPTEMBER 1 THROUGH SEPTEMBET 30, 1980, FILED.

9/5/80 COPIES MATT .-FD - 9/8/80 ENTERED

¯

RJB

888

ORDER THAT THE EXPENSES OF THE OFFICE OF THE SPECIAL MASTER, INCLUDING PERSONNEL

ETC., SHALL NOT EXCEED $187,116.86, FOR THE PERIOD BEGINNING OCTOBER 1, 1980

AND ENDING DECEMBER 31, 1980, FILED.

RJB

889 " 890 " 891 "

9/5/80 COPIES MAILED - 9/8/80 ENTERED 9 Report to the Court from the Hearing Master re: placement of D.M., filed.
11 Report to the Court from the Hearing Master re: placement of R.A.P., filed. 11 Report to the Court from the Hearing Master re: placement of N.T. , filed.

892 " 11 ORDER DATED 9/10/80 THAT THE SECOND SENTENCE OF THE ORDER OF SEPTEMBER 4, 1980,

DIRECTING THE œMMDNWEALTH OF PENNSYLVANIA TO PAY TO THE REGISTRY OF THIS COURT

THE SUM OF $9,905.00, FOR OPERATION OF THE OFFICE OF THE HEARING MASTER SHALL BE

AMENDED TO READ: "THIS AMOUNT REFLECTS COST ESTIMATES FOR OPERATION OF THE OFFICE

OF THE HEARING MASTER FROM OCTOBER 1 THROUGH OCTOBER 31, 1980, FILED. RJB

9/11/80 ENTERED & COPIES MAILED 893 " 12 Report to the Court from the Hearing Master re: placement of J.H., filed.

CONT. ON PAGE #46

¾ev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN

ì
CIVIL DOCKET CONTINUATION Sl·ll it DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL

DOCKET NO. 7 4 - 1 3 4 5

PAGE.46_QF

PAGES

DATE
1980 394 SEP 395 T 1 896 1 | 897 i i 398 î t 399 i i 900 i t 01 II 902 II 903 ( i 904 II
905 II 906 OCT
907 "
908 "
910 " 911 " )I2 " 913 " 914 " 915 "

NR.

PROCEEDINGS

12 Deft. P. Paul Burrichter's notice of deposition of Jane Middleton, filed.
15 Conmonwealth deft's exceptions to Hearing Master's Report, filed. 17 Report to the Court from the Hearing Master re: placement of M.R., filed. 17 Report to the Court from the Hearing Master re: placement of M.Z., filed. 19 ORIGINAL PLFF'S, ET AL'S, MOTION FOR AN ORDER OF REFERENCE, MEMORANDUM OF LAW,
AND CERTIFICATE OF SERVICE, FILED.

22 Commonwealth deft's exceptions to Hearing Master's Report, filed. 24 Commonwealth deft's exceptions to Report of the Hearing Master, filed.
29 COMMONWEALTH DEFT'S MOTION TO AMEND ORDERS OF 9/4/80, CERTIFICATE OF SERVICE,

FILED. 29 Conmonwealth deft's brief in support of Motion to amend orders of 9/4/80,
certificate of service, filed. 29 Orginial Plff's response to Conmonwealth Defts1 exceptions to Hearing Master's
report, filed. 29 Conmonwealth Defts' exceptions to Hearing Master's "Standing Order regarding
attendance of Conmonwealth witnesses" or in the alternative, Motion to Vacate,
certificate of service, filed. 30 Conmonwealth Deft's response in opposition to motion for order of reference,
filed.

l · ORDER THAT THE COMMONWEALTH OF PENNSYLVANIA SHALL PAY TO THE REGISTRY OF THIS

COURT THE SUM OF $62,372.29, BY THE FIRST DAY OF NOVEMBER, 1980, THIS AMOUNT

REFLECTS COST ESTIMATES FOR OPERATION OF THE OFFICE OF THE SPECIAL MASTER FROM

NOVEMBER 1 THROUGH NOVEMBER 30, 1980, ETC., FILED.

RJB

10/2/80 ENTERED & COPIES MAILED

ORDER THAT THE REGISTRY OF THE COURT SHALL PAY TO THE OFFICE OF THE SPECIAL

MASTER THE SUM OF $62,372.28, THIS AMOUNT COVERS THE EXPENSES OF THE SPECIAL

MASTER'S OFFICE FOR THE PERIOD OCTOBER 1 THROUGH OCTOBER 31, 1980, ETC., FILED.

10/2/80 ENTERED & COPIES MAILED

RJB

ORDER THAT THE COMMONWEALTH OF PENNSYLVANIA SHALL PAY TO THE REGISTRY OF THIS

COURT THE SUM OF $9,905.00, BY THE FIRST DAY OF NOVEMBER, 1980, THIS AMOUNT

REFLECTS COST ESTIMATES FOR OPERATION OF THE OFFICE OF THE HEARING MASTER FROM

NOVEMBER 1 THROUGH NOVEMBER 30, 1980, ETC., FILED.

RJB

10/2/80 ENTERED & COPIES MAILED ORDER THAT THE REGISTRY OF THIS COURT SHALL PAY TO THE OFFICE OF THE HEARING MASTER THE SUM OF $9,905.00, THIS AMOUNT COVERS THE EXPENSES OF THE HEARING MASTER'S OFFICE FOR THE PERIOD OCTOBER 1 THROUGH OCTOBER 31, 1980, ETC., FILED.

10/2/80 ENTERED & COPIES MAILED

RJB

9 Report to the Court from the Hearing Master re: placement of P.T., filed. 14 COMMONWEALTH DEFT'S MOTION TO AMEND ORDERS OF SEPTEMBER 30, 1980, BRIEF IN
SUPPORT, & CERTIFICATE OF SERVICE, FILED.

16 Response of Mr. & Mrs. R.M., Parents of D.M. to Conmonwealth deft's exceptions

to Hearing Master's Report, filed. 17 Report to the Court from the Hearing Master re: placement of S.P., filed. 17 Report to the Court from the Hearing Master re: placement of R.A.P., filed. 17 Report to the Court from the Hearing Master re: admission of D.M., filed.

OVER.

DC 111A (Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN

C.*ll_ DOCKET CONTINUATION SHEET
DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL

FPI-HAR 3 . 7 - 7 8

74-1345
DOCKET NO.

47
PAGE. OF

. PAGES

DATE

NR.

PROCEEDINGS

1980

916 OCT 917 " 918 " 919 " 920 " 921 "
922 " 923 "
924 "
925 ii 926 it 927 it 928 ii 929 T1 930 11
931 N0V 932 ii 933 11 934 ii 935 N0V 936 "
937

20 Report to the Court from the Hearing Master re: placement of G.W. filed. 20 Exceptions of P.T. to Report of Hearing Master, filed.

21 Exceptions of Mr. & Mrs. F.T. to report of the Hearing Master re: proposed placement of P.T., filed.
22 Report to the Court from the Hearing Master re: placement of J.S., filed. 22 Commonwealth deft's exceptions to Hearing Master's Report or in the alternative
Motion to strike, filed. 22 Certificate of Service of Virgina Raymond re: 10/21/80 served copies of the
exceptions to the Report of the Hearing Master in the matter of P.T. to counsel, filed. 23 Report to the Court from the Hearing Master re: placement of W.P., filed. 23 Letter dated 10/22/80 from Penelope A. Boyd, Esq. to Michael E. Kunz, Clerk re: typographical error in support of exceptions to the Hearing Master's report on behalf of P.T., filed.
24 COl·MDNWEALTH DEFT'S MOTION TO STRIKE RESPONSE TO EXCEPTIONS, & CERTIFICATE OF SERVICE, FILED.
27 Delaware County deft's exceptions to Hearing Master's Report, filed. 27 Chester County deft's exceptions to the Hearing Master's Report re: placement
of G.W., filed.

27 Exceptions to Report of the Hearing Master by Mr. R.W. & Mrs. C.Y., filed.

31 Penrihurst Center compliance report of the Office of the Speciall·lasterfor the Month of September, 1980, filed.
31 Pennhurst Center compliance Report of the Office of the Special Master for the Month of August, 1980, filed.
31 R.W. & C.Y.'S MOTION FOR STAY, NOTICE, MEMORANDUM OF LAW, & CERTIFICATE OF SERVICE, FILED.

3 Report to the Court from the Hearing Master re: placement of R.G., filed,

6 íalderman, et al's, notice of deposition of Dr. Jennifer Howse, filed.

10 Report to the Court from the Hearing Master re: placement of M.J., filed. 10 Report to the Court from the Hearing Master re: placement of D.O., filed.

12 DEFT. JENNIFER HOWSE'S MOTION FOR A PROTECTIVE ORDER, & CERTIFICATE OF SERVICE

FILED.

13 ORDER THAT THE COMMONWEALTH OF PENNA. SHALL PAY TO THE REGISTRY OF THIS COURT THE

Sill OF $62,372.29, BY THE FIRST DAY OF DECEMBER 1980, THIS AMOUNT REFLECTS COST

ESTIMATES FOR OPERATION OF THE OFFICE OF THE SPECIAL MASTER FROM DECEMBER 1

THROUGH DECEMBER 31, 1980, ETC., FILED.

RJB

11/13/80 ENTERED & COPIES MATT .ED

13 ORDER THAT THE REGISTRY OF THE COURT SHALL PAY TO THE OFFICE OF THE SPECIAL

MASTER THE SUM OF $62,372.29, THIS AMOUNT COVERS THE EXPENSES OF THE SPECIAL

MASTER'S OFFICE FOR THE PERIOD NOVEMBER 1 THROUGH NOVEMBER 30, 1980, ETC., FILED.

11/13/80 ENTERED & COPIES MAILED

RJB

CONT. ON PAGE 7J/48

DC H1A (Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN, e t a l

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL,

DOCKET NO. 74-1345

PAGE 4 8 OF

PAGES

DATE

NR.

PROCEEDINGS

1980

938 NOV
939 "
940 "
941 "
942 "
943 "
944 " 945 " 946 "
it
947 " 948 "
949 " 950 " 951 " 952 " 953 " 954 " 955 it 956 ti 957 Dec 958 " 959 960

13 ORDER THAT A HEARING SHALL BE HELD IN CONNECTION WITH EXCEPTIONS TO THE REPORT

OF THE HEARING MASTER IN THE PROPOSED COMMUNITY PLACEMENT OF L.B. ON NOVEMBER 19,

1980 AT 10:00 A.M. IN COURTROOM 10-B, FILED.

RJB

11/13/80 ENTERED & COPIES MAILED

13 ORDER THAT A HEARING SHALL BE HELD IN CONNECTION WITH EXCEPTIONS TO THE REPORT

OF THE HEARING MASTER IN THE PROPOSED ADMISSION TO WOODHAVEN CENTER OF D.M.,

ON NOVEMBER 19, 1980 AT 11:30 A.M. IN COURTROOM 10-B, FILED.

RJB

11/13/80 ENTERED & COPIES MATT,ED

13 ORDER THAT A HEARING SHALL BE HELD IN CONNECTION WITH EXCEPTIONS TO THE REPORT

OF THE HEARING MASTER IN THE PROPOSED COMMUNITY PLACEMENT OF N.T. ON NOVEMBER 20

1980 AT 10:00 A.M., IN COURTROOM 10-B, FILED.

RJB

11/13/80 ENTERED & COPIES MAILED

13 ORDER THAT A HEARING SHALL BE HELD IN CONNECTION WITH EXCEPTIONS TO THE REPORT

OF THE HEARING MASTER IN THE PROPOSED COMMUNITY PLACEMENT OF P.T ON NOVEMBER 20.

1980 AT 11:30 A.M. IN COURTROOM 10-B, FILED.

RJB

11/13/80 ENTERED & COPIES MAILED

13 ORDER THAT A HEARING SHALL BE HELD IN CONNECTION WITH EXCEPTIONS TO THE REPORT

OF THE HEARING MASTER AND MOTION FOR A STAY OF MR. R.W. & MRS. C.Y. ON

NOVEMBER 21, 1980 AT 10:00 A.M. IN COURTROOM 10-B, FILED.

RJB

11/13/80 ENTERED & COPIES MAILED

14 ORDER THAT THE TOTAL SUM OF $16,144.00 NOW IN THE REGISTRY OF THIS COURT SHALL BE

PAID TO THE OFFICE OF THE HEARING MASTER AND A HEARING SHALL BE HELD ON

NOVEMBER 21, 1980 AT 11:30 A.M. IN COURTROOM 10B, ETC., FILED.

RJB

11/14/80 ENTERED & COPIES MAILED

19 Response of Original plff's to Conmonwealth' s exceptions regarding Hearing Master

Order in case of L.B., No. 80-P-8, filed.

19 Hearing re: Hearing Master's Report re: L.B.- CAV, filed.

19 Hearing re: Hearing Master's Report re: D.M.- CAV, filed.

20 Hearing re: Hearing Master's Report on N.T.- CAV, filed.

20 Hearing re: Hearing Master's Report on P.T.- CAV, filed.

20 Response of Original plff' s to Oxmonwealth exceptions regarding Hearing Master

Order in case of N.T., filed.

24 Hearing re: Hearing Master's Expenses (Comnonwealths motion to Amend Orders of 9/4 & 9/30/80)- CAV, filed.
24 Hearing re: Hearing Master's Report on G.W. -CAV, filed, 24 rranscript of Voluntariness hearing of September 16, 1980, filed. 24 Transcript of Hearing of September 29, 1980, filed. 24 Transcript of Hearing re: proposed placement of G.W., 9/30/80, filed. 24 Transcript of Hearing re: proposed placement of P.T., 10/1/80, filed. 24 Transcript of Hearing re: proposed placement of G.W., 10/7/80, filed. 25 Comments regarding the placement of G.W., filed. 25 Plff's response to motion for stay regarding placement of G.W., filed. 25 Plff's brief on appointment of counsel, filed.
2 REPORT! OF HEARING MASTER RE D.M., filed. .,

P L F F S ' MOTION FOR ORDER TO SHOW CAUSE AND PRELIMINARY INJUNCTION AND MEMORANDUM OF LAW IN SUPPORT, FILED 4 Report of theHearing Master, as to P.G., filed. 4 Report of t h eHearing Master, as to A.P., filed.
cont

C 111A íev. 1/75)
PLAINTIFF
TERRI HA1DERMAN

CIVIL DOCKET CONTINUATION SHEET
DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL

DOCKET NO. 7/|-X3/|5

PAGE _4§OF

PAGES

DATE

NR.

PROCEEDINGS

1980 961 DEC
962 "
963 "
964 " 965 "
966 " 967 "
968 "
969
970 " 971 " 972 " 973 "

4 ORDER THAT THE EXPENSES OF THE OFFICE OF THE SPECIAL MASTER SHALL NOT EXCEED $122,787.33 FOR THE PERIOD 1 / 1 / 8 1 - 3 / 3 1 / 8 1 , AND SHALL BE MADE IN ACCORDANCE WITH THE BUDGET ATTACHED TO THIS ORDER, ETC., FILED. 12/5/80 entered & copies made

ORDER THAT THE COMMONWEALTH OF PENNA. SHALL ON JANUARY 1, 1981

PAY TO THE REGISTRY OF THIS COURT THE AMOUNT O F $ 4 0 , 9 2 9 . 1 1 ETC.

FILED

12/5/80 entered & copies mailed.

RJB

ORDER THAT THE REGISTRY OF THE COURT SHALL PAY TO THE OFFICE OF THE

SPECIAL MASTER THE AMT. OF $ 6 2 , 3 7 2 . 2 9 , THIS AMT. COVERY THE EXPENSES

OF THE SPECIAL MASTER'S OFFICE FOR THE PERIOD 1 2 / 1 / THROUGH 1 2 / 3 1 / 8 0 ,

PAYMENT SHALL BE MADE BY CHECK DRAWN TO THE ORDER OF "CARLA S . MORGAl·

SPECIAL MASTER", FILED. ( o r i g . t o F i s c a l / J o h n Zingo)

RJB

12/5/80 entered & copies mailed-

10 Report t o t h e Court from t h e Hearing Master r e : proposed placement o f J . S . , f i l e d . 12 ORDER THAT THE COMMONWEALTH OF PENNSYLVANIA SHALL PAY TO THE REGISTRY OF THIS
COURT THE SUM OF $ 9 , 9 0 5 . 0 0 , THIS AMOUNT REFLECTS COST ESTIMATES FOR OPERATION OF
THE OFFICE OF THE HEARING MASTER FROM DECEMBER 1 THROUGH DECEMBER 3 1 , 1980, ETC.,

FILED.

RJB

12/15/80 ENTERED & COPIES MAILED

18 B r i e f o f Commonwealth d e f t ' s on scope o f c o u r t o r d e r s w i t h r e s p e c t t o former Evans1 School residents, filed.

19 ORDER THAT THE EXPENSES OF THE OFFICE OF THE HEARING MASTER, INCLUDING PERSONNEL,

ETC., SHALL NOT EXCEED $29,715.00 FOR THE PERIOD BEGINNING JANUARY 1 , 1981 AND

ENDING MARCH 3 1 , 1981, ETC., FILED.

RJB

12/22/80 ENTERED & COPIES MAILED

19

ORDER THAT THE COMMONWEALTH OF PENNA. SHALL, BY THE TENTH DAY OF JANUARY, 1981, PAY TO THE REGISTRY OF THIS COURT THE SUM OF $ 9 , 9 0 5 . 0 0 , THIS AMOUNT REFLECTS COST

ESTIMATES FOR OPERATION OF THE OFFICE OF THE HEARING MASTER FROM JANUARY 1,

THROUGH JANUARY 3 1 , 1981, ETC., FILED.

RJB

12/22/80 ENTERED & COPIES MAILED

19

ORDER THAT THE REGISTRY OF THE COURT SHALL PAY TO THE OFFICE OF THE HEARING MASTER THE SUM OF $ 9 , 9 0 5 . 0 0 , THIS AMOUNT COVERS THE EXPENSES OF THE HEARING

MASTER'S OFFICE FOR THE PERIOD DECEMBER 1 , THROUGH DECEMBER 3 1 , 1980, ETC., FILED.

12/22/80 ENTERED & COPIES MAILED

RJB

22 Report o f t h e Hearing Master t o t h e Court r e : proposed admission o f J . M . , f i l e d .

24 MOTION FOR STAY OF R.W. & C.Y., NOTICE, MEt·©RANDUM, & CERTIFICATE OF SERVICE FILED.

31 Report t o t h e Court from t h e Hearing Master r e : proposed admission of D.M., f i l e d 31 MOTION OF FLFF'S HALDERMAN, ET AL, FOR TEMPORARY RESTRAINING ORDHR AND

PRELIMINARY INJUNCTION OR IN THE ALTERNATIVE AN IMPLEMOTTATION ORDER REGARDING

STAFFING AND DEATHS AT PENNHURST, FILED.

CONT. ON PAGE #50

DC UlA (Rev. 1/75)
PLAINTIFF
T£RRI LEE HALDERMAN, et al

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
PENNHURST STATE SŒOOL & HOSPITAL

FPI-MAR 7-|4-BO-7OM-43 9 6
DOCKET NO. 74-1345

PAGE

OF_ .PAGES

DATE

NR.

PROCEEDINGS

1981

974 JAN
975 "
976 " 977 " 978 " 979 "
980 " 981 " 982 "
983 " 984 " 1985 " 986 "

ORDER THAT THE GCÄMMEALTH OF PENNA. SHALL PAY TO THE REGISTRY OF THIS COURT THE

SUM OF $9,905.00, BY THE FIRST DAY OF FEBRUARY 1981, THIS AMOUNT REFLECTS COST

ESTIMATES FOR OPERATION OF THE OFFICE OF THE HEARING MASTER FROM FEBRUARY 1

THROUGH FEBRUARY 28, 1981, ETC., FILED.

RJB

1/7/81 ENTERED & COPIES MAILED

ORDER THAT THE COMMONWEALTH OF PENNA. SHALL PAY TO THE REGISTRY OF THIS COURT THE

SUM OF $40,929.11, BY THE FIRST DAY OF FEBRUARY, 1981, THIS AMOUNT REFLECTS COST

ESTIMATES FOR OPERATION OF THE SPECIAL MASTER FROM FEBRUARY 1 THROUGH FEBRUARY 28

1981, ETC., FILED.

RJB

1/7/81 ENTERED & COPIES MAILED ORDER THAT THE REGISTRY OF THE COURT SHALL PAY TO THE OFFICE OF THE SPECIAL MASTE THE SUM OF $40,929.11, THIS AMOUNT COVERS THE EXPENSES OF THE SPECIAL MASTER'S OFFICE FOR THE PERIOD JANUARY 1 THROUGH JANUARY 31, 1981, FILED. RJB

1/7/81 ENTERED & COPIES MAILED

9 Pennhurst Parents-Staff Association's response to motion for temporary restraint order re: Medical care, filed.

12 ORDER THAT THE SUM OF $8,072.00 NOW IN THE REGISTRY OF THIS COURT SHALL BE PAID

TO THE OFFICE OF THE HEARING MASTER, FILED.

RJB

1/13/81 ENTERED & COPIES MAILED

16 ORDER THAT A HEARING WILL BE HELD ON FEBRUARY 17, 1981 AT 10:00 A.M. IN COURTROOM 10-B, IN CONNECTION WITH THE REQUEST FOR PRELIMINARY INJUNCTION

CONCERNING IMPLEMENTATION ORDER DIRECTING THE COMMDNWEALTH TO REFRAIN FROM TRANSFERRING TEN PROFESSIONAL STAFF POSITIONS OUT OF PENNHURST TO OTHER

INSTITUTIONS, FILED.

RJB

1/16/81 ENTERED & COPIES MAILED

21 Report to the Court from the Hearing Master, re: proposed admission of J.M., file·

22 ORDER THAT THE SUM OF $8,072.00 NOW IN THE REGISTRY OF THIS COURT SHALL BE PAID

TO THE OFFICE OF THE HEARING MASTER, FILED.

RJB

1/23/81 ENTERED & COPIES MAILED

22 MEMORANDUM & ORDER THAT THE MOTIONS OF THE COMMONWEALTH DEFT'S TO AMEND THIS

COURT'S ORDERS OF SEPTEMBER 4, 1980 AND SEPTEMBER 30, 1980 ARE DENIED, IT IS

FURTHER ORDERED THAT THE COMMONWEALTH OF PENNSYLVANIA SHALL PAY INTO THE REGISTRY

OF THIS COURT WITHIN TWENTY (20) DAYS THE SUM OF $5,500 AS HERETOFORE ORDERED BY

THIS COURT IN ITS ORDERS OF SEPTEMBER 4, 1980, SEPTEMBER 30, 1980 AND

DECEMBER 12, 1980, FILED.

RJB

1/23/81 ENTERED & COPIES MAILED

26 Answer of "Commonwealth" deft's to motion for temporary restraining order and

preliminary objection or, in the alternative, an implementation order regarding

staffing and deaths at Pennhurst, filed.

28 Report to the Court from the Hearing Master re: proposed admission of D.M., filed

28 ORDER THAT PAGE 4 LINES 15 AND 16 OF THIS COURT'S MEMORANDUM OF JANUARY 22, 1981,

SHALL BE AMENDED, ETC., FILED.

RJB

1/29/81 ENTERED & COPIES MAILED

29 Amended decision and Order of the Hearing Master to the Court re: proposed admission of J.M. , filed.

OVER.

)C 111A Rev. 1/75)
PLAINTIFF
TEKRI LEE HALDERMAN, et al

CIVIL DOCKET CONTINUATION SHEET
DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL,

FPI—MAR 7 - 1 4 · 8 0 - 7 0 M - 4 3 9 6

DOCKET NO. 74-1345

PAGE 5 1 QF

PAGES

DATE

NR.

1981

PROCEEDINGS

987 FEB
988 "
989 "
>9O "
ì9l " 992 "
993 "
994 " 995 " 596 "
}97 "
998 " 999 "
1000 " L001 "

2 Agreement of Counsel regarding placement of Sharon L., filed.
2 COMÆ)NWEALTH DEFT'S MOTION FOR CONTINUANCE, AND CERTIFICATE OF SERVICE, FILED.

3 Report to the Court from the Hearing Master re: proposed placement of M.M., filed
4 Report to the Court from the Hearing Master re: proposed placement of L.M., filed 4 Report to the Court from the Hearing Master re: proposed placement of J.D., filed 6 ORDER THAT THE CO*BNWEALTH OF PENNSYLVANIA SHALL PAY TO THE REGISTRY OF THIS
COURT THE SUM OF $40,929.11, BY THE FIRST DAY OF MARCH, 1981, THIS AMOUNT REFLECT!

COST ESTIMATES FOR OPERATION OF TíE OFFICE OF THE SPECIAL FASTER FROM MARCH 1

THROUGH MARCH 31, 1981, ETC., FILED.

RIB

2/9/81 ENTERED & COPIES MAILED

ORDER THAT THE REGISTRY OF THïï, COURT SHALL PAY TO THE OFFICE OF TIE SPECIAL MASTER

THE SUM OF $40,929.11, THIS AM)UNT COVERS THE EXPENSES OF THE SPECIAL MASTER'S

OFFICE FOR THE PERIOD FEBRUARY 1 THROUGH FEBRUARY 28, 1981, FILED.

RJB

2/9/81 ENTERED & COPIES MAILED

9 Conmomwealth deft's Report on Medical Care, filed.

10 Report to the Court from the Hearing Master re: proposed placement of J.R., filed.

10 ORDER THAT THE COMMONWEALTH OF PENNSYLVANIA SHALL PAY TO THE REGISTRY OF THIS
COURT THE SUM OF $8,072.00, BY THE FIRST DAY OF MARCH, 1981, THIS AMOUNT REFLECTS

COST ESTIMATES FOR OPERATION OF THE OFFICE OF THE HEARING MASTER FROM MARCH 1

THROUGH MARCH 31, 1981, ETC., FILED.

RJB

2/10/81 ENTERED & COPIES MAILED

10 ORDER THAT THE HEARING PRESENTLY SCHEDULED FOR FEBRUARY 17, 1981 IS CONTINUED, IT IS FURTHER ORDERED THAT A CONFERENCE SHALL BE HELD ON FEBRUARY 24, 1981 AT

4:00 P.M., IN CHAMBERS (ROOM 10613), FOR THE PURPOSE OF DETERMINING THE DATE ON

WHICH TIE HEARING SHALL TAKE PLACE, ETC., FILED.

RJB

2/10/31 ENTERED & COPIES MAILED

11 ORDER THAT THE SUM OF $8,072.00 NOW IN THE REGISTRY OF THIS COURT SHALL BE PAID

TO THE OFFICE OF THE HEARING MASTER, FILED.

RJB

2/11/81 ENTERED & COPIES MAILED

11 ORDER THAT THIS COURT'S ORDER OF DECEMBER 19, 1980 SHALL BE AMENDED TO DELETE THE

$5,500.00, BUDGETED FOR ATTORNEYS' FEES, ETC., AND THAT THE EXPENSES OF THE

OFFICE OF THE HEARING MASTER, INCLUDING PERSONNEL, ETC., SHALL NOT EXCEED

$24,215.00, FOR THE PERIOD OF JANUARY 1, 1981 At© ENDING MARCH 31, 1981, IT IS

FURTHER ORDERED THAT THIS COURT'S ORDERS OF DECEMBER 19, 1980 AND JANUARY 7, 1981,

SHALL BE AMENDED TO DELETE FROM EACH ORDER THE AMOUNT OF $1,833.00 BUDGETED FOR

ATTORNEY'S FEES, SO THAT THE AMOUNT ORDERED BY THE COURT TO BE PAID IN EACH OF

THE AFORESAID ORDERS SHALL BE REDUCED FROM $9,905.00 TO $8,072.00, FILED. RJB

2/11/81 ENTERED & COPIES MAILED

12 Certified copy of Order U.S.C.A. that appellants' Commonwealth deft's Helen

O'Bannon, et al's motion to discontinue appeal is granted, each party to bear its

own costs, filed.

13 First supplemental affidavit by David Ferleger, Esq. with regard to motion for fees and costs, filed.

Cant, on Page #52

DC 111A (Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN, e t a l

CIVIL DOCKET CONTINUATION SHEET DEFENDANT

F PI-MAR 7-14-80- 7 ÛM-43 98
DOCKET NO 74-1345

PENNHURST STATE SCHOOL & HOSPITAL, PAGE 52 OF PAGES

DATE

NR.

1981

PROCEEDINGS

1002 FEB 20 MEMORANDUM & ORDER, BRODERICK, J. , THAT THE REPORT OF THE HEARING MASTER RE:

PROPOSED ADMISSION OF D.M. IS ADOPTED AND THE COMMONWEALTH DEFT'S EXCEPTIONS TO

THE REPORT OF THE HEARING MASTER ARE DISMISSED, FILED.

RJB

2/23/81 ENTERED & COPIES MAILED

1003 " 20 MEMORANDUM & ORDER, BRODERICK, J., THAT THE REPORT OF THE HEARING MASTER RE:

PROPOSED PLACEMENT OF N.T. IS ADOPTED AND THE COMMONWEALTH DEFT'S EXCEPTIONS TO

THE REPORT OF THE HEARING MASTER ARE DISMISSED, FILED.

RJB

2/23/81 ENTERED & COPIES MATT FT)

1004 " 20 MEMORANDUM & ORDER, BRODERICK, J., THAT THE REPORT OF THE HEARING MASTER RE:

PROPOSED PLACEMENT OF L.B. IS ADOPTED AND THE COMMONWEALTH DEFT'S EXCEPTIONS TO

THE REPORT OF THE HEARING MASTER ARE DISMISSED, FILED.

RJB

2/23/81 ENTERED & COPIES MAILED

1005 " 20 MEMORANDUM & ORDER, BRODERICK, J., THAT THIS CASE IS RETURNED TO THE HEARING

MASTER FOR A HEARING AS TO WHETHER THE TRANSFER IS VOLUNTARY, SUCH HEARING TO BE

HELD AFTER THE SPECIAL MASTER HAS GIVEN FINAL APPROVAL TO THE INDIVIDUAL

HABILITATION PLAN, RE: PROPOSED PLACEMENT OF G.W., FILED.

RJB

2/23/81 ENTERED & COPIES MAILED

1006 " 20 MEMORANDUM & ORDER, BRODERICK, J. THAT THIS CASE IS RETURNED TO THE HEARING

MASTER FOR A HEARING AS TO WHETHER THE TRANSFER IS VOLUNTARY, SUCH HEARING TO BE

HELD AFTER THE SPECIAL MASTER HAS FINALLY APPROVED THE INDIVIDUAL HABILITATTON

PLAN RE: PROPOSED PLACEMENT OF P.T., FILED.

RJB

1007 MAR 2 1008 " 2

2/23/81 ENTERED & COPIES MAILED Report to the Court from the Hearing Master re: proposed admission of D.M., filed ORDER THAT THE DEFT'S SHALL PROVIDE COMMUNITY LIVING ARRANGEMENTS TOGETHER WITH ALL THE SERVICES REQUIRED BY THE RETARDED PERSON'S INDIVIDUAL HABILITATION PLAN FOR CERATIN PENNHURST RESIDENTS AND OTHER RETARDED PERSONS IN THE SOUTHEAST REGION OF PENNSYLVANIA INCLUDING MEMBERS OF THE PLFF. CLASS DURING THE FISCAL YEAR COMMENCING JULY 1, 1980 AND CLOSING JUNE 30, 1982; WITHIN 20 DAYS THE COMMDNWEALTH AND COUNTY DEFT'S SHALL EACH PREPARE & SUBMIT TO THIS COURT SPECIFIC PLANS (INCLUDING BUT NOT LIMITED TO TIMETABLES, IDENTIFICATION OF THE RETARDED PERSONS FOR WHOM COMMUNITY LIVING ARRANGEMENTS AND SERVICES WILL BE PROVIDED, ETC) , FOR COMPLYING WITH PARAGRAPH 1 OF THIS ORDER, ETC., FILED. RJB

1009 "

3/3/81 ENTERED & COPIES MAILED

MEMORANDUM, BRODERICK, J., RE: DEFT'S PROVIDE COMMUNITY LIVING ARRANGEMENTS FOR

THE CURRENT RESIDENTS OF PENNHURST AND FOR OTHER RETARDED PERSONS IN THE

SOUTHEAST REGION OF PENNSYLVANIA DURING THE FISCAL YEAR COMMENCING JULY 1, 1980

AND ENDING ON JUNE 30, 1981, ETC., FILED.

RJB

3/3/81 ENTERED & COPIES MAILED

1010 "

Report to the Court from the Special Master re: Individuals who moved from

Pennhurst March 17, 1978 - November 30, 1980, filed.

1011 " 4 Report to the Court from the Hearing Master re: proposed admission of J.M., filec

1012 " 1013 "

5 COMMDNWEALTH DEFT'S MDTION FOR RECONSIDERATION, FILED. 5 Comnonwealth deft's interrogatories to original plff's regarding pending
motion for attorney's fees, filed.

OVER.

DC 111A (Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN, e t a l

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
PENNHURST, et al

FPI-MAR 7-14-eO-7OM.4398

74-1345
DOCKET NO.

PAGE

OF_ .PAGES

DATE

NR.

1981

PROCEEDINGS

1014 MAE
1015 "
1016
1017 "
1018 "
1019 "
1020 11 1021 11 1022 11 1023 It 1024 1025 !1 1026 II 1027 1 1
l·O28 II
1029 11

ORDER THAT THE EXPENSES OF THE OFFICE OF THE HEARING MASTER SHALL NOT EXCEED THE

SUM OF $24,440.00, FOR THE PERIOD BEGIMSTING APRIL 1, 1981 AND ENDING JUNE 30,1981,

ETC. , FILED.

RJB

3/6/81 ENTERED & COPIES MAILED

ORDER THAT THE COMMONWEALTH OF PENNSYLVANIA SHALL PAY TO THE REGISTRY OF THIS

COURT THE SUM OF $59,562.22, BY THE FIRST DAY OF APRIL 1981, THIS AMOUNT REFLECTS COST ESTIMATES FOR OPERATION OF THE OFFICE OF THE SPECIAL MASTER FROM APRIL 1,

THROUGH APRIL 30, 1981, ETC., FILED.

RJB

3/6/81 ENTERED & COPIES MAILED

ORDER THAT THE COMMONWEALTH OF PENNSYLVANIA SHALL PAY TO THE REGISTRY OF THIS

COURT THE SUM OF $8,146.67, BY THE FIRST DAY OF APRIL 1981, THIS AMOUNT REFLECTS

COSTS ESTIMATES FOR OPERATION OF THE OFFICE OF THE HEARING MASTER FROM APRIL 1,

THROUGH APRIL 30, 1981, ETC., FILED.

RJB

3/6/81 ENTERED & COPIES MAILED ORDER THAT THE REGISTRY OF THE COURT SHALL PAY TO THE OFFICE OF THE HEARING

MASTER THE SUM OF $8,072.00, THIS AMOUNT COVERS THE EXPENSES OF THE HEARING

MASTER'S OFFICE FOR THE PERIOD OF MARCH 1 THROUGH MARCH 31, 1981, FILED. RJB

3/6/81 ENTERED & COPIES MAILED

ORDER THAT THE REGISTRY OF THE COURT SHALL PAY TO THE OFFICE OF THE SPECIAL

MASTER THE SUM OF $40,929.11, THIS AMOUNT COVERS THE EXPENSES OF THE SPECIAL

MASTER'S OFFICE FOR THE PERIOD OF MARCH 1, THROUGH MARCH 31, 1981, FILED. RJB

3/6/81 ENTERED & COPIES MAILED

ORDER THAT THE EXPENSES OF THE OFFICE OF THE SPECIAL MASTER SHALL NOT EXCEED THE

SUM OF $178,686.65, FOR THE PERIOD BEGINNING APRIL 1, 1981 & ENDING JUNE 30, 1981

ETC., FILED.

RJB

3/6/81 ENTERED & COPIES MAILED

11 Report to the Court from the Office of the Hearing Master re: proposed placement of R.N., filed.
11 COMyDNWEALTH DEFT'S MOTION TO AMENDED AND/OR ALTER THIS COURT'S ORDER OF
MARCH 2, 1981, BRIEF IN SUPPORT & CERTIFICATE OF SERVICE, FILED. 11 MOTION OF PHILADELPHIA COUNTY DEFT. FOR RECONSIDERATION, MODIFICATION AND/OR

STAY OF THE ORDER DATED MARCH 2, 1981, NOTICE, FILED.

11 MOTION OF THE BUCKS, CHESTER, AND DELAWARE COUNTY DEFT'S FOR RECONSIDERATION

MODIFICATION AND/OR STAY OF THE ORDER DATED MARCH 2, 1981, NOTICE & CERTIFICATE
OF SERVICE, FILED. 12 MOTION OF MONTGOMERY COUNTY DEFT'S FOR RECONSIDERATION, MODIFICATION AND/OR STAY
OF THE ORDER DATED MARCH 2, 1981, NOTICE, & CERTIFICATE OF SERVICE, FILED.

16 "Commonwealth" Deft's exceptions, filed. 18 Report to the Court from the Hearing Master re: proposed placement of L.M., filed. 18 Report to the Court from the Hearing Master re: proposed placement of J.D., filed.

19 Commonwealth deft's notice of deposition of Carla Morgan, filed.

23 Montgomery County's Plan for complying with paragraph 1 of the Court Order dated March 2, 1981, filed.

cant, on page #54

DC 111A (Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN, et al

DATE

NR.

1981

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL,
et al
PROCEEDINGS

F PI —MAR 7 - l 4 - 8 0 - 7 0 M - 4 3 9

DOCKET NO. 74-1345

PAGE 54 OF

PAGES

1030 MAR 26 Response of Original plff's to the Conmonwealth's motion for reconsideration filed.
1031 ii 26 COMMONWEALTH DEBT'S MOTION FOR A STAY, & CERTIFICATE OF SERVICE, FILED. 1032 T 1 27 Response of J.M. to Comronwealth deft's exceptions, filed. 1033 II 27 Certificate of Service of Robert B. Hoffman re: 3/25/81 served Commonwealth
deft's plan in response to Order of March 2, 1981 by first class mail upon
counsel of record, filed. 1034 APR 1 COMMONWEALTH DEFT'S MOTION TO COMPEL TESTIMONY, FILED. 1035 11 1 Brief in support of "Ccmnonwealth" deft's motion to compel testimony, and
certificate of service, filed.

1036 11 1 Report to the Court from the Hearing Master re: proposed admission of J.T., filed

1037 ft 1 1038 " 1039 " 1040

ORDER THAT THE COMMONWEALTH OF PENNSYLVANIA SHALL PAY TO THE REGISTRY OF THIS

COURT THE SUM OF $8,146.67, BY THE FIRST DAY OF MAY, 1981, THIS AMOUNT REFLECTS

COST ESTIMATES FOR OPERATION OF THE OFFICE OF THE HEARING MASTER, FILED. RJB

4/2/81 ENTERED & COPIES MATT,ED

ORDER THAT THE REGISTRY OF THE COURT SHALL PAY TO THE OFFICE OF THE HEARING

MASTER THE SUM OF $8,146.67, THIS AMOUNT COVERS THE EXPENSES OF THE HEARING

MASTER'S OFFICE FOR THE PERIOD OF APRIL 1 THROUGH APRIL 30, 1981, ETC., FILED.RJB

4/2/81 ENTERED & COPIES MAILED

ORDER DATED 4/1/81 THAT THE œMMONWEALTH OF PENNSYLVANIA SHALL PAY TO THE

REGISTRY OF THIS COURT THE SUM OF $59,562.22, BY THE FIRST DAY OF MAY, 1981,

THIS AMOUNT COVERS COST ESTIMATES FOR OPERATION OF THE OFFICE OF THE SPECIAL

MASTER FROM MAY 1 THROUGH MAY 31, 1981, FILED.

RJB

4/3/81 ENTERED & COPIES MAILED

ORDER DATED 4/1/81 THAT THE REGISTRY OF THE COURT SHALL PAY TO THE OFFICE OF THE

SPECIAL MASTER THE SUM OF $59,562.22, THIS AMOUNT COVERS THE EXPENSES OF THE

SPECIAL MASTER'S OFFICE FOR THE PERIOD APRIL 1 THROUGH APRIL 30, 1981, FILED.

4/3/81 ENTERED & COPIES MAILED

RJB

1041 Tl 1042 !l

6 Response of plff's to Conmonwealth interrogatories regarding fees, filed. ç Joinder of the Bucks, Chester and Delaware County deftrs in the Ccmronwealth' s
motion to compel testimony, filed.

1043 t 1 10 Report to the Court from the Hearing Master re: proposed admission of J.M., filed. 1044 11 10 Exceptions of the Delaware County deft's to the hearing master's report re:
proposed admission of J.T., filed.

1045 1 1 16 1046 1 T 24
1047 MAY 4
1048 1 T 7 1049 I t 7 1050 It 8

Report to the Court from the Hearing Master re: proposed admission of S.J., filed. Report to the Court from the Hearing Master re: proposed placement of A.J., filec Report ot the Court from the Hearing Master re: proposed admission of J.T., filed. Deposition of Dr. Russell G. Rice with Exhibits in support thereof, filed. Deposition of George A. Kopchick with Exhibits in support thereof, filed. COMMONWEALTH DEFT'S MOTION FOR STAY PENDING APPEAL, MEMORANDUM OF LAW, & CERTIFICATE OF SERVICE, FILED.

OVER.

iC 111A 3ev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
PENNHURST STATE SŒCX)L & HOS.

FPI—MAR 7 · l 4 - 8 0 - 7 O M - 4 3 9 8

DOCKET NO. 74-1345

PAGE 55 QF

PAGES

DATE

NR.

PROCEEDINGS

1981

L051 MAY
uO52 "
LO53 "
LO54 "
1055 " 1056 " 1057 " 1058 " 1059 " 1060 " L061 " 1062
1063 " 1064 " 1065 " 1066 "

ORDER THAT THE COMMONWEALTH OF PENNSYLVANIA SAHLL PAY TO THE REGISTRY OF THIS

COURT THE SUM OF $8,146.66, BY THE FIRST DAY OF JUNE, 1981, THIS AMOUNT REFLECTS

COSTS ESTIMATES FOR OPERATION OF THE OFFICE OF THE HEARING MASTER FROM JUNE 1

THROUGH JUNE 30, 1981, ETC., FILED.

RJB

5/11/81 ENTERED & COPIES MAILED

ORDER THAT THE REGISTRY OF THE COURT SHALL PAY TO THE OFFICE OF THE HEARING

MASTER THE SIM OF $8,146.67, THIS AMOUNT COVRES THE EXPENSES OF THE HEARING

MASTER'S OFFICE FOR THE PERIOD OF MAY 1 THROUGH MAY 31, 1981, FILED. RJB

5/11/81 ENTERED & COPIES MAILED

ORDER THAT THE COMMONWEALTH OF PENNSYLVANIA SHALL PAY TO THE REGISTRY OF THIS

COURT THE SUM OF $59,562.21, BY THE FIRST DAY OF JUNE, 1981, THIS AMOUNT REFLECTS

COST ESTIMATES FOR OPERATION OF THE OFFICE OF THE SPECIAL MASTER FROM JUNE 1

THROUGH JUNE 30, 1981, ETC., FILED.

RJB

5/11/81 ENTERED & COPIES MAILED

ORDER THAT THE REGISTRY OF THE COURT SHALL PAY TO THE OFFICE OF THE SPECIAL

MASTER THE SUM OF $59,562.22, THIS AMOUNT COVERS THE EXPENSES OF THE SPECIAL

MASTER'S OFFICE FOR THE PERIOD MAY 1 THROUGH MAY 31, 1981, FILED.

RJB

5/11/81 ENTERED & COPIES MAILED

11 Report to the Court from the Hearing Master re: proposed admission of J.M., filed
12 Exceptions of the Delaware County Deft's the Hearing Master's report re: proposed admission of J.T., filed.

13 Report to the Court from the Hearing Master re: proposed admission of S.J., filed.
15 Pennhurst State School & Hospital's notice of deposition of Carla Morgan, filed. 18 "Œ)MMONWEALTH DEFT'S MOTION FOR EXTENSION OF TIME TO FILE IMPLEMENTATION PLAN, &
CERTIFICATE OF SERVICE, FILED. 18 Report to the Court from the Hearing Master re: proposed admission of J.T., filed.

20 ORDER DATED 5/19/81 THAT PLFF'S & PLFF-INTERVENORS SHALL RESPOND TO THE

COMMONWEALTH DEFT'S MOTION FOR STAY PENDING APPEAL BY JUNE 5, 1981, FILED.

5/20/81 ENTERED & COPIES MAILED

RJB

21 ORDER THAT A CONFERENCE TO DISCUSS THE STATUS OF MATTERS SHALL BE HELD IN ROOM

10613 ON MAY 28, 1981 AT 12:00 NOON, FILED.

RJB

5/22/81 ENTERED & COPIES MAILED

22 "Commonwealth" deft's exceptions re: Hearing Master's report of May 11, 1981 S.J., filed.

27 Certified copy of Order U.S.C.A. that application by appellants for a stay of

the district court's order of March 2, 1981, pending final disposition of this

matter is denied, filed.

27 Plff's response to cornnonwealth's motion to extend time to file plan required

by March 2, 1981 order, filed.

28 ORDER DATED 5/27/81 THAT THIS COURT'S ORDERS OF FEBRUARY 23, 1981 REMAIN IN FULL

FORCE AND EFFECT, FILED.

RJB

5/29/81 ENTERED & COPIES MAILED

CONT. ON PAGE #56

DC U1A (Rev. 1/75)
PLAINTIFF
TERRI LEE HALDEEMAN

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL

FPl-MAR—7-14-ao.7OM.43<ln
DOCKET NO. 74-134Jì_ PAGE 56 OF PAGES

DATE

NR.

PROCEEDINGS

1981

1067 MAY 29 1068 " 29 1069 " 29
1070 JUN

1071 Jun

1072

5

1073 1 T 5 1074 1 1 5

1075 " 1076 " 1077 "

1078 " 1079 " 1080 "

Report to the Court from the Hearing Master re: proposed placement of R.N. , filed

Report to the Court from the Hearing Master re: proposed admission of J.M., filed

ORDER DATED 5/28/81 THAT ORAL ARGUMENT SHALLL BE HELD ON JUNE 18, 1981 AT 2:00

P.M. IN COURTROOM 10B, IT IS FURTHER ORDERED THAT BRIEFS IN CONNECTION THEREWITH

SHALL BE FILED BY JUNE 15, 1981, FILED.

RJB

6/1/81 ENTERED & COPIES MAILED

ORDER THAT THE PLANS REQUIRED BY THE ORDER OF MARCH 2, 1981, PARAGRAPHS 5 AND,6

WHICH PLANS WERE REQUIRED TO BE FILED BY JUNE 1, 1981, ORDERS THAT PLANS SHALL

BE FILED BY JUNE 15, 1981, FILED.

RJB

6/2/81 ENTERED & COPIES MAILED .

Montgomery County's plan for<eønplyirïgwith paragraph 2 of the Court Order dated March 2, 1981, filed.

Report to the Court from the Hearing Master re: proposed placement of P.J.J.,

filed.

Plffs1 response to Comnonwealth's motion for stay pending appeal, filed.

ORDER DATED 6/4/81 THAT THE COMMONWEALTH OF PENNSYLVANIA SHALL PAY TO THE

REGISTRY OF THIS COURT THE SUM OF $59,152.74. BY THE FIRST DAY OF JULY 1981,

THIS AMOUNT REFLECTS COSTS ESTIMATES FOR OPERATION OF THE OFFICE OF THE SPECIAL

MASTER FROM JULY 1 THROUGH JULY 31, 1981, ETC., FILED.

RJB

6/5/81 ENTERED & COPIES MAILED

ORDER DATED 6/4/81 THAT THE REGISTRY OF THE COURT SHALL PAY TO THE OFFICE OF THE

SPECIAL MASTER THE SUM OF $59,562.21, THIS AMOUNT COVERS THE EXPENSES OF THE

SPECIAL MASTER'S OFFICE FOR THE PERIOD JUNE 1 THROUGH JUNE 30, 1981, FILED.

6/5/81 ENTERED & COPIES MAILED

RJB

ORDER DATED 6/4/81 THAT THE REGISTRY OF THE COURT SHALL PAY TO THE OFFICE OF THE

HEARING MASTER THE SUM OF $8,146.66, THIS AMOUNT COVERS THE EXPENSES OF THE

HEARING MASTER'S OFFICE FOR THE PERIOD JUNE 1 THROUGH JUNE 30, 1981, FILED.

6/5/81 ENTERED & COPIES MAILED

RJB

ORDER DATED 6/4/81 THAT THE COMMONWEALTH OF PENNSYLVANIA SHALL PAY TO THE

REGISTRY OF THIS COURT THE SUM OF $8,593.34, BY THE FIRST DAY OF JULY 1981,

THIS AMOUNT REFLECTS COST ESTIMATES FOR OPERATION OF THE OFFICE OF THE HEARING

MASTER FROM JULY 1 THROUGH JULY 31, 1981, ETC., FILED.

RJB

6/5/81 ENTERED & COPIES MAILED

ORDER DATED 6/4/81 THAT THE EXPENSES OF THE OFFICE OF THE SPECIAL MASTER,

INCLUDING PERSONNEL, ETC., SHALL NOT EXCEED $177,458.22, FOR THE PERIOD BEGINNING

JULY 1, 1981 AND ENDING SEPTEMBER 30 1981, ETC., FILED.

RJB

6/5/81 ENTERED & COPIES MAILED

ORDER DATED 6/4/81 THAT THE EXPENSES OF THE OFFICE OF THE HEARING MASTER

INCLUDING PERSONNEL, ETC., SHALL NOT EXCEED $25,780.00, FOR THE PERIOD BEGINNING

JULY 1, 1981 AND ENDING SEPTEMBER 30 1981, FILED.

RJB

6/5/81 ENTERED & COPIES MAILED

ORDER DATED 6/4/81 THAT ORAL ARGUMENT ON THE COMMONWEALTH DEFT'S MOTION FOR STAY

PENDING APPEAL (OF ORDERS ENTERED BY THIS COURT ON 4/24/80, 5/28/80 & 7/14/80)

ON JUNE 25, 1981 AT 2:00 P.M. IN COURTROOM 10B, FILED.

RJB

6/5/81 ENTERED & COPIES MAILED

OVER.

DC 111A (Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN, et al

CIVIL DOCKET CONTINUATION SHEET
DEFENDANT
PENNHURST STATE SCHOOOL & HOSPITAL

FPI-MAR 7-14-80-70M-43 9
DOCKET NO. 74-1345
PAGE • ' ' O F . .PAGES

DATE

NR.

PROCEEDINGS

1981

1081 JUN 5 Joinder of Pennhurst Parents-Staff Association in Coimcmwealth's petition for stay of March 2nd 1981 order, filed.

1082 " 9 Memorandum of the United States in opposition to commonwealth deft's motion for

stay pending appeal, filed.

1083 " 9 Response of PARC et al, to state deft's motion for stay, and certificate of

1084 " 1085 " 1086 "
1087 "
1088 "

service, filed.

11 11 11

Report to the Court from the Hearing Master re: proposed admission of S.J., filed. Report to the Court from the Hearing Master re: proposed placement of H N filed ORDDR DATED 6/8/81 THAT JUDY GREENWOOD, ESQ. OF PHILADELPHIA IS APPOINTED TO

REPRESENT THE INTERESTS OF J.T. IN THE ADMISSION PROCEEDINGS (NO 81-A-1) NOW

PENDING BEFORE THE HEARING MASTER, ETC., FILED.

RJB

11

6/11/81 ENTERED & COPIES MAILED Certified copy of Order U.S.C.A. that motion by intervenor Pennhurst Parent-

Staff Association for an order clarifying that Pennhurst Parent-Staff Association

is a party to the continuing proceedings and permitting Pennhurst Parent-Staff

Association to intervene is granted, filed.

11 ORDER THAT THE REGISTRY OF THE COURT SHALL PAY TO THE OFFICE OF THE HEARING

MASTER THE SUM OF $5,500.00, FILED.

RJB

6/12/81 ENTERED & COPIES MAILED

1089 " 12 ORDER THAT THE ORAL ARGUMENT ON THE CCMÆ)NWEALTH DEFT'S MOTION FOR STAY PENDING APPEAL (OF ORDERS ENTERED BY TIS COURT ON APRIL 24, 1980, MAY 28, 1980, AND JULY

14, 1980) SCHEDULED FOR JUNE 25, 1981 IS HEREBY RESCHEDULED FOR JULY 1, 1981

AT 2:00 P.M. IN COURTROOM 10B, FILED.

RJB

6/12/81 ENTERED & COPIES MAILED

1090 "

12 Joinder of the Phila. deft, in the Commonwealth's and suburban counties briefs opposing petition of David Ferleger, Esq. for award of interim counsel fees and
costs, filed.

1091 " 15 Commonwealth deft's brief on interim award of attorney's fees, filed. 1092 " 15 Comnonwealth deft's plan in response to order of March 2, 1981, filed.

1093 "

15 Brief of David Ferleger, Esq. in support of entitlement to interim award of counse fees and costs, filed.

1094 " 15 Second supplemental affidavit by David Ferleger, Esq. with regard to motion for fees and costs, filed.

ilO95 "
1096 " 1097 "

16 Joinder of Bucks, Chester and Delaware County deft's in the Comnonwealth's brief

16

opposing an interim award of attorney's fees, filed. Deposition of Carla Morgan, filed.

17 Brief in opposition to the petition of David Ferleger, Esq., counsel for plff's

for an interim award of attorney's fees, filed.

1098 " !IO99 "

18 Report to the Court from the Hearing Master re: proposed placement of V.L., filed 18 Second supplemental affidavit of David Ferleger, Esq. with regard to motion for
fees and costs, filed.

:noo

19 Argued sur: petition of David Ferleger, Esq. for interim attorney's fees and costs, filed.

CONT. ON PAGE #58

DC 111A (Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN

CIVIL DOCKET CONTINUATION SHEET
DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL

FPl-MAR 7 - 1 4 - 8 0 - 7 0 M - 4 3 9 l

DOCKET NO. 74-1345

PAGE 5 8 OF

PAGES

DATE

NR.

PROCEEDINGS

1981

1101 JUN 24 Report to the Court from the Hearing Master re: proposed placement of M.F., file 1102 " 25 Report to the Court from the Hearing Master re: proposed placement of J.S., file· 1103 " 29 Copy of certified copy of Order Supreme Court of the United States that the
judgment the the United States Court of Appeals for the Third Circuit is reversed with costs and causes are remanded to the U.S. Court of Appeals for further proceedings, etc., filed.

1104 " 30 Plff's P.A.R.C., et al's, request for production of documents, filed.

1105 JUL 1 Plff's request for continued proceedings with regard to Medical Practices at

Pennhurst and affidavit of Dr. Basil Selden in support thereof, filed.

1106 "

PETITION OF PLFF'S PARC ET AL, FOR FINDING OF CONTEMPT AND LEVY OF CIVIL FINE

AGAINST STATE DEFT'S AND BUCKS, DELAWARE, MONTGOMERY & PHILA. COUNTY DEFT'S,

MEMORANDUM OF LAW, & CERTIFICATE OF SERVICE, FILED.

1107 "

Memorandum of law in support of application for order to show cause, and

application, filed.

1108 " 1 Report to the Court from the Hearing Master re: proposed placement of L.G., filed.

1109 " 1 Report to the Court from the Hearing Master re: proposed placement of A.C., filed.

1110 " 2 1111 " 2

Report to the Court from the Hearing Master re: proposed admission of J.M., filed Argued sur: motion for stay pending appeal of orders dated 4/24/80, 5/28/80, and 7/14/80, filed.

1112 " 1113 "

Conmonwealth deft's answer to petition for finding of contempt and levy of civil fine against state deft's and Bucks, Delaware, Montgomery and Phila. County deft' filed. Commonwealth deft's answer to application for order to show cause regarding Special and Hearing Masters, filed.

1114 " 1115 "
1116 JUL 1117 "

ORDER THAT A HEARING SHALL BE HELD ON JULY 23, 1981 AT 9:30 A.M. IN COURTROOM

NO. 10B, TO SHOW CAUSE WHY THE COMMONWEALTH DEFT'S AND BUCKS, DELAWARE,

MONTGOMERY AND PHILA. COUNTIES SHOULD NOT BE HELD IN CIVIL CONTEMPT FOR THEIR

FAILURE TO COMPLY WITH PARAGRAPH 1 OF THIS COURT'S ORDER OF MARCH 2, 1981, FILED.

7/8/81 ENTERED & COPIES MATT,FT)

RJB

ORDER THAT A HEARING SHALL BE HELD ON JULY 24, 1981 AT 9:30 A.M. IN COURTROOM

NO. 10B TO SHOW CAUSE WHY THE COMMONWEALTH DEFT'S SHOULD NOT BE HELD IN CIVIL

CONTEMPT IN CONNECTION WITH ITS FAILURE TO COMPLY WITH THIS COURT'S ORDER OF

JUNE 5, 1981 TO PAY $67,746.08 INTO THE REGISTRY OF THIS COURT ON OR BEFORE

JULY 1, 1981 FOR THE PURPOSE OF DEFRAYING THE COSTS OF THE SPECIAL MASTER AND THE

HEARING MASTER, FILED.

RJB

7/8/81 ENTERED & COPIES MAILED

9 Report to the Court from the Hearing Master re: proposed placement of L.S., filec

10 Report to the Court from the Hearing Master re: proposed admission of L.M., file

1118 "
1119 "
1120 " 1121 "

10 United States' notice of deposition of Paul Burrichter, et al, filed.

10 Plff's interrogatories and requests to State deft's for production of documents,

filed. 13 PTXCOP's Notice of deposition of Patricia Sweigert, et al, filed.

15 ORDER DATED 7/14/81 THAT THE COMMONWEALTH OF PENNSYLVANIA SHALL PAY TO THE

REGISTRY OF THIS COURT THE SUM OF $8,593.33 BY THE FIRST DAY OF AUGUST, 1981,

THIS AMOUNT REFLECTS COST ESTIMATES FOR OPERATION OF THE OFFICE OF THE HEARING

MASTER FROM AUGUST 1 THROUGH AUGUST 31, 1981, ETC., FILED.

RJB

7/16/81 ENTERED & COPIES MAILED

OVER

; IIIA ev. 1/75) PLAINTIFF
TERRI LEE HALDERMAN

CIVIL DOCKET CONTINUATION SHEET

FPL—MAR 7 · U - e o - 7 O M - 4 3 9 6

DEFENDANT

DOCKET NO. 74-1345

PENNHURST STATE SCHOOL & HOSPITAL PAGE59 OF PAGES

DATE

NR.

PROCEEDINGS

1981

122 JUL 15
L123 " 16 L124 " 16 .125 " 16

ORDER DATED 7/14/81 THAT THE Œ)MMOIWEALTH OF PENNSYLVANIA SHALL PAY TO THE

REGISTRY OF THIS COURT THE SIM OF $59,152.74, BY THE FIRST DAY OF AUGUST, 1981,

THIS AL`ÐUNT REFLECTS COST ESTIMATES FOR OPERATION OF THE OFFICE OF THE SPECIAL

MASTER FROM AUGUST 1 THROUGH AUGUST 31, 1981, ETC., FILED.

RJB

7/16/81 ENTERED & COPIES MAILED

Conmonwealth deft's interrogatories to plff's and pl·ff-intervenors, fil·ed.

Report to the Court from the Hearing Master re: proposed admission of S.J., filed.

Report to the Court from the Hearing Master re: proposed admission of J.T., filed.

126 " 16 3RDER THAT THE SUM OF $35,00.00 NOW IN THE REGISTRY OF THIS COURT SHALL BE PAID

IO THE OFFICE OF THE SPECIAL MASTER, FILED.

RJB

7/17/81 ENTERED & COPIES MAILED

127 11 1128 l¶
1129 ì ï

20 3ounty of Phila's notice of deposition of Steven Warren, filed.
21 PLFF'S MOTION TO COMPEL THE PRESENSE OF DEFT. HELEN O'BANN¤N AT THE CONTEMPT HEARINGS ON JULY 23 AND 24, 1981, & CERTIFICATE OF SERVICE, FILED.
22 Phila. deft's answers and defenses to petition for finding of contempt and levy of civil fine against State deft's, et al, filed.

-130 11 1131 11
L132 11 L133 11 L134 i t 1135 11
Ll·36 11
1137 1! .138 M L139 I 1 L140 I l
M
Ll·4l·
L142 "
L143 "
1144 "

23 Commonweal·th deft's answers and objections to interrogatories, fil·ed.

23 Answers of the United States of America to Commonweal·th deft's interrogatories,

filed.

24 Hearing re: show cause - civil contempt (Court's order of 3/2/8l·) Commonweal·th's motion for sanctions - denied, witnesses sworn, 7/23/8l·, fil·ed.

24 Brief of Commonweal·th deft's regarding pending contempt motions, fil·ed.
24 Pl·ff' s memorandum of l·aw in support of motion for contempt for fail·ure to pay costs of the Masters, fil·ed.

24 Hearing re: show cause (civil· contempt -Order of 3/2/8l·)resumes, witnesses sworn,
fil·ed.

27 Show Cause hearing re: Civil· Contempt re: funding, witnesses sworn, CAV, fil·ed.

28 Report to the Court from the Hearing Master re: proposed pl·acement of E.L., filed
28 Transcript of hearing of July 23,l·98l·,fil·ed. 28 Transcript of hearing of July 24,l·98l·,Vol·. I, fil·ed. 28 Transcript of hearing of Jul·y 24,l·98l·,Vol·. II, filed.

29 Pl·ff's proposed findings regarding contmept for fail·ure to pay costs of masters,

fil·ed.

30 ORDER THAT THE CONTEMPT HEARING WHICH COMMENCED ON JULY 23, I98l· SHALL CONTINUE

ON AUGUST 4,l·98l·IN COURTROOM l·OB, FILED.

RJB

7./30/81 ENTERED & COPIES MAILED

30 fOTION OF DAVID FERLEGER AND PENELOPE A. BOYD FOR FEE AWARD AS PART OF PLFF'S ETITION FOR CONTEMPT AGAINST COMMONWEALTH DEFT'S, MEMORANDUM IN SUPPORT AND

CERTIFICATE OF SERVICE, FILED. 30 Affidavit of David Ferl·eger in support of motion for fee award as part of plf£s1
petition for contempt against Commonweal·th deft's, fil·ed.

L145 " 31 Phil·a. County's notice of deposition of Dr. Stuart Shapiro, et al, fil·ed.

CONT. ON PAGE #60

DC 111A (Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN, ET AL

CIVIL DOCKET CONTINUATION SHEET
DEFENDANT
PENNHURST STATE S Œ 0 0 L & HOSPITAL

FPl—MAR—7-1 4-80-70 M-4398
DOCKET NO. 74-1.345 PAGE 60 OF PAGES

DATE

NR.

1981

PROCEEDINGS

1155 AUG
1156 " 3 1157 " 4
1158 " 4
1159 " 5 1160 " 6 1161 " 6 1162 " 6
1163 "

Answer of the Bucks and Delaware County def¢'s to the PARC and Halderman plff's petition for finding of contempt and levy of civil fine, filed.
Phil·a. County's notice of deposition of Steven Warren, et al, filed.
Appearance of Joseph P. Green, Jr., Esq. for W.P. & R..G., filed. PLFF'S W.P. & R.G. 'S MOTION FOR IMPLEMENTATION ORDER AND FOR ASSESSMENT OF DAMAGES, AND MEMORANDUM OF LAW, FILED. Hearing re: Contempt of Order of 3/2/81, witnesses sworn, filed.

Report to the Court from the Hearing Master re: proposed placment of R.N., filed.

Report to the Court from the Hearing Master re: proposed placement of J.A., filed

Commonwealth deft's post-trial brief and findings of fact regarding contempt

as to payments to Special and Hearing Master, filed.

MEMORANDUM & ORDER BRODERICK, J., DATED 8/5/81, THAT DEFT'S MOTION TO STAY

THIS COURT'S ORDERS IS DENIED, FILED.

RJB

1164 " 1165 " 1166 " 1167 " 1169 "

11 ''Connonwealth^¾eft^s Helen. C¾annon, et al's, Notice of Appeal regarding(81-2448)

payments for operation of the Hearing Master, filed.

ö/ll/81 Notice to: David Ferleger, Thomas Gilhool, Carla S. Morgan,

James M. McNamara, Patricia Jenkins, Alexander Ewing, Adjoa A. Burrow,

John Rogers Carroll, Thomas A. Masterson, R. Stephen Barrett, Michael S.

Lottman, Russell Rice, Dr. Jennifer Howse, Herbert B. Newberg, Marc H. Myers,

11

Penelope A. Boyd, Pamela P. Cohen, James C. Everett, Joseph P. Green, U.S.C.A. Copy of Clerk's Notice to U.S. Court of Appeals, filed.

8/11/81 Notice to: David Ferleger, Thomas Gilhool, Carla S. Morgan,

James M. McNamara, Patricia Jenkins, Thomas Kittredge, Alexander Ewing,

Adjoa A. Burrow, Robert B. Hoffman, John Rogers Carroll, Thomas A. Masterson,

Russell Rice, Michael S. Lottman, R. Stephen Barrett, Dr. Jennifer Howse,

Herbert B. Newberg, Marc H. Myers, James C. Everett, Pamela P. Cohen,

Penelope A. Boyd, Joseph P. Green, U.S.C.A., Judge Broderick, Dan Spitz,

Lynne T. Attardi, Court Reporter 11 1'Commonwealth1' deft's Helen O'Bannon, et al's, Notice of Appeal regarding

payments for operation of the Special Master, filed. (81-2449)

8/11/81 Notice to: David Ferleger, Thomas Gilhool, Carla S. Morgan,

James M. McNamara, Patricia Jenkins, Thomas Kittredge, Alexander Ewing

Adjoa A. Burrow, John Rogers Carroll, Thomas A. Masterson, R. Stephen Barrett

Michael S. Lottman, Russell Rice, Dr. Jennifer Howse, Herbert B. Newberg,

Marc H. Myers, James C. Everett, Pamela P. Cohen, Penelope A. Boyd,

Joseph P. Green, U.S.C.A. 11 Copy of Clerk's Notice to U.S. Court of Appeals, filed.

8/11/81 Notice to: David Ferleger, Thomas Gilhool, Carla S. Morgan,

Jame¾ M. McNamara, Patricia Jenkins, Thomas Kittredge, Alexander Ewing,

Adjoa A. Burrow, Robert B. Hoffman, John Rogers Carroll, Thomas A. Masterson,
R. Stephen Barrett, Michael S. Lottman, Russell Rice, Dr. Jennifer Howse,

Herbert B. Newberg, Mark H. Myers, James C. Everett, Pamela P. Cohen,

Penelope A. Boyd, Joseph P. Green, U.S.C.A., Judge Broderick, Dan Spitz,

Lynne T. Attardi, Court Reporter

12- ""Report to the Court from the Hearing Master re: proposed placement of E.J., filec 12 Order of the Hearing Master scheduling status conference and requiring attendance

of Commonwealth witnesses, filed.

OVER

Z 111A ;ev. 1/75)
PLAINTIFF
TERR1 LEE HALDERMAN, ET AL

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL

FPI — M A R 7-14-80-70M-43 9 8

DOCKET NO. 74-1345

PAGE 61 QF

PAGES

DATE

NR.

PROCEEDINGS

1981

170 AUG 171 It L172 11 1173 11 1174 11 1175 1! .176 I | -177 1 í -178 1 t
-179 "
.180 " -181 " — AUG .182 " -183 " 1184 " 1185 " 1186 " -187 "

12 Hearing re: Contempt of Court's order of 3/2/81, witnesses sworn, 8/11/81, filed. 12 Hearing re: contempt of 3/2/81 Order, continues, C.A.V., filed. 14 Original plff's supplemental memorandum of law in support of finding of contempt
and imposition of sanctions, filed.
17 Exceptions of the Fniladelphia County defts to the Hearing Master s Report re: Proposed Comnunity Placement of R.N. No. 31-P-4 dated 8/3/81;&cert.of service,filed

18 Report to the Court from the Hearing Master re: proposed placement of P.P.P. , filed
19 Affidavit of Penelope A. Boyd, Esq. re: hours spent on preparation and presentation of motion for contempt, filed.

20 Plff's proposed findings of fact and conclusions of law concerning plff's motion

for contempt and civil fines for violation of March 2 order, paragraph 1, filed.

20 Bucks and Delaware Counties' requests for findings of fact and conclusions of

law, and memorandum in support, filed.

20 ORDER THAT THE COMMONWEALTH OF PENNSYLVANIA SHALL PAY TO THE REGISTRY OF THIS

COURT THE SUM OF $59,152.74, BY THE 8TH DAY OF SEPTEMBER, 1981, THIS AMOUNT

REFLECTS COSTS ESTIMATES FOR OPERATION OF THE OFFICE OF THE SPECIAL MASTER FROM

SEPTEMBER 1 THROUGH SEPTEMBER 30, 1981, ETC., FILED.

RJB

8/21/81 ENTERED & COPIES MAILED

20 ORDER THAT THE COMMONWEALTH OF PENNSYLVANIA SHALL PAY TO THE REGISTRY OF THIS

COURT THE SUM OF $59,152.74, BY THE 8TH DAY OF SEPTEMBER 1981, THIS AMOUNT

REFLECTS COST ESTIMATES FOR OPERATION OF THE OFFICE OF THE SPECIAL MASTER FROM

SEPTEMBER 1 THROUGH SEPTEMBER 30, 1981, ETC., FILED.

RJB

8/21/81 ENTERED & COPIES MAILED

21 Comrcmwealth deft's post-hearing proposed fact findings and conclusions of law

regarding implementation of the order of March 2, 1981, filed.

21 Order of Hearing Master postponing status conference, filed.

21 Ninth Supplemental Record to U.S. Court of Appeals.

21 Transcript of Hearing of August 11, 1981, Volume I, filed.
21 Transcript of Hearing of August 12, 1981, Volume II, filed. 21 Request of PARC, et al, to Conmonwealth deft's request for production of document;

filed. 24 Montgomery County deft's proposed findings of fact & conclusions of law, 24 Plff's reply to Bucks & Delaware County deft's memorandum and requests, filed.

25 MEMORANDUM & ORDER, BRODERICK, J. , THAT THE DEPARTMENT OF PUBLIC WELFARE AND THE

HONORABLE HELEN O'BANNON, SECRETARY OF THE DEFT. OF PUBLIC WELFARE, SHALL PAY

INTO THE REGISTRY OF THIS COURT CIVIL FINES TOTALLING $10,000 PER DAY FOR EACH

DAY AFTER SEPTEMBER 2, 1981, THAT FULL PAYMENT HAS NOT BEEN MADE PURSUANT TO THIS

COURT'S ORDERS OF JUNE 4, 1981 AND JULY 14, 1981, IN THE EVENT THE DEPT. OF

PUBLIC WELFARE, ET AL, DO NOT MAKE FULL PAYMENT BY SEPTEMBER 2, 1981, PLFF'S

SHALL TAKE SUCH STEPS LEGALLY NECESSARY TO ADD THE HON. R. BUDD DWYER, TREASURER

OF THE COMMONWEALTH OF PENNA. , AS PARTY DEFT., THE DEPT. OF PUBLIC WELFARE, ET AT,

SHALL APPEAR BEFORE THIS COURT ON OCTOBER 15, 1981 AT 9:30 A.M. IN COURTROOM 10B

TO SHOW CAUSE WHY THE COURT SHOULD NOT IMPOSE ON THEM A COMPENSATORY FINE IN AN

AMOUNT SUFFICIENT TO COMPENSATE THE PLFF'S FOR COSTS & COUNSEL FEES INCURRED IN

THE PREPARATION & TRIAL OF THESE CONTEMPT PROCEEDINGS, ETC., FILED

RJB

8/26/81 ENTERED & COPIES MAILED

OONT. ON PAGE #62

>C 111A Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN, ET AL

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL

FPI-MAR 7·14·aO-7 0M-4398

DOCKET NO. 74-1345

PAGE 62 OF

PAGES

DATE

NR.

1981

PROCEEDINGS

1188 AUG 26

ORDER THAT A HEARING SHALL BE HELD ON OCTOBER 15, 1981 AT 2:00 P.M. IN COURTROOM

10-B FOR THE PURPOSE OF DETERMINING WHAT, IF ANY, SERVICES BEING PERFORMED BY

THE SPECIAL MASTER ARE DUPLICATING WORK BEING PERFORMED BY ANY DEFT. , FILED.

8/26/81 ENTERED & COPIES MAILED

RIB

1189 "

27 Deft's Helen O'Bannon and Department of Public Welfare's Notice of Appeal,filed.

8/27/81 Notice to: David Ferleger, Thomas Gilhool, Carla S. Moran, James M.

McNamara, Patricia Jenkins, Thomas Kittredge, Alexander Ewing, Adjoa A.

Burrow, John Rogers Carroll, Thomas A. Masterson, R. Stephen Barrett,

Michael S. Lottman, Russell Rice, Dr. Jennifer Howse, Herbert B. Newberg,

Marc H. Myers, James C. Everett, Pamela P. Cohen, Penelope A. Boyd,

Joseph P. Green, U.S. Court of Appeals

(81-2381)

1190 "

27 Copy of Clerk's Notice to U.S. Court of Appeals, filed. 8/27/81 Notice to: David Ferleger, Thomas Gilhool, Carla S. Morgan, James M. McNamara, Patricia Jenkins, Thomas Kittredge, Alexander Ewing, Adjoa A. Burrow, Robert B. Hoffman, John Rogers Carroll, Thomas A. Masterson, R. Stephen Barrett, Michael S. Lottman, Russell Rice, Dr. Jennifer Howse, Herbert B. Newberg, Marc H. Myers, James C. Everett, Pamela P. Cohen, Penelope A. Boyd, Joseph P. Green, Judge Broderick, Dan Spitz, Lynne T. Attardi, Court Reporter

1191 " 27 Exceptions of the Phila. County deft's to the Hearing Masters' Report re:

proposed Community Placement of P.P.P., filed. 1192 " 27 Transcript of Testimony of July 6, 1981, filed. 1193 " 27 Transcript of Testimony of August 4, 1981, Volume III, filed. 1194 SEP 2 Answer to motion for implementation order regarding W.P. and R.G., filed.

1195 " 1196 "
1197 " 1198 "

3 Report to the Court from the Hearing Master re: proposed placement of R.N., filed 8 Amended report to the Court from the Hearing Master re: proposed placement of
P.P.P., filed. 8 Notice of suspension of Hearings from the Hearing Master, filed. 8 Certified copy of Order U.S.C.A. that appeallants motion for a stay of an order
holding Helen O'Bannon, et al in contempt is denied, etc., filed.

1199 "

Certified copy of Order U.S.C.A. that the motion by Commonwealth deft's, et al, for a stay of district court order dated 4/24/80, 5/28/80 and 7/14/80 pending finá

resolution of the appeals is denied, filed.

11 Tenth Supplemental to U.S. Court of Appeals.

1200 "

11 MEMORANDUM & ORDER, BRODERICK, J., THAT THE BUCKS COUNTY DEFT'S, THE DELAWARE COUNTY DEFT'S, AND THE MONTGOMERY COUNTY DEFT'S SHALL PAY REASONABLE COUNSEL

FEES AND COSTS TO THE PLFF'S IN CONNECTION WITH THE PREPARATION AND TRIAL OF

THESE CONTEMPT PROCEEDINGS, FILED.

RJB

9/14/81 ENTERED & COPIES MAILED
1201 " 14 Report to the Court from the Hearing Master re: proposed admission of L.M., filed
1202 " 14 Exceptions of the Phila. County deft's to the Hearing Master's Report re:

proposed community placement of R.N. No. 81-P-4, dated 9/1/81, filed.

OVER.

DC 111A Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN, ET AL

CIVIL DOCKET CONTINUATION SHEET

FPI-MAR 7 - M - e 0 - 7 0M-43 9

DEFENDANT

DOCKET NO. 74-1345

PENNHURST STATE SCHOOL AND HOSPITAL

P A G E 6 3 OF

.PAGES

DATE

NR.

1981

PROCEEDINGS

1203 SEP 1204 " 1205 "
1206 "
.1207 " ! 1208 " ¡l·2O9 " 1210 "
1211

16 ORDER THAT THE EXPENSES OF THE OFFICE OF THE SPECIAL MASTER, INCLUDING PERSONNEL

ETC. , SHALL NOT EXCEED $177,453.22, FOR THE PERIOD BEGINNING OCTOBER 1 1981 AND

ENDING DECEMBER 31, 1981, FILED.

RJB

9/17/81 ENTERED & COPIES MAILED

16 ORDER THAT THE EXPENSES OF THE OFFICE OF THE HEARING MASTER, INCLUDING PERSONNEL,

ETC. , SHALL NOT EXCEED $25,780.00, FOR THE PERIOD BEGINNING OCTOBER 1 1981 AND

ENDING DECEMBER 31, 1981, FILED.

RJB

9/17/81 ENTERED & COPIES MAILED 16 ORDER THAT THE OOMl·DNWEALTH OF PENNSYLVANIA SHALL PAY TO THE REGISTRY OF THIS

COURT THE SUM OF $59,152.68, BY THE FIRST DAY OF OCTOBER, 1981, THIS AMOUNT

REFLECTS COST ESTIMATES FOR OPERATION OF THE OFFICE OF THE SPECIAL MASTER FROM

OCTOBER 1, 1981 THROUGH OCTOBER 31, 1981, ETC. , FILED.

RJB

9/17/81 ENTERED & COPIES MATT,FT)

16 ORDER THAT THE COMMONWEALTH OF PENNSYLVANIA SHALL PAY TO THE REGISTRY OF THIS

COURT THE SUM OF $8,594.00, BY THE FIRST DAY OF OCTOBER, 1981, THIS AMOUNT

REFLECTS COST ESTIMATES FOR OPERATION OF THE OFFICE OF THE HEARING MASTER FROM

OCTOBER 1, 1931 THROUGH OCTOBER 31, 1981, ETC., FILED.

RJB

9/17/81 ENTERED & COPIES MATTED

17 "Conmonwealth" exceptions to Hearing Master's report on R.N. filed 9/3/81, filed.

18 Exceptions of the Phila. County deft's to the Hearing Master's report re:

proposed community placement of L.M., filed.

21 Certified copy of Order Supreme Court of the United States that the temporary

stay heretofore entered on September 3, 1981, is hereby vacated, the application

for stay i s in a l l respects, denied, filed.

21 "Commonwealth deft's Helen O'Bannon, e t a l ' s Notice of Appeal regarding payments for operation of the Hearing Master, filed. (USCA 81-2613)

9/22/81 Notice to: David Ferleger, Thomas Gilhool, Carla S. Morgan, James

M. McNamara, Patricia Jenkins, Thomas Kittredge, Alexander Ewing, Adjoa A.

Burrow, Thomas A. Masterson, R. Stephen Barrett, Michael S. Lottman, Russell

Rice, Dr. Jennifer Howse, Herbert B. Newberg, Marc H. Myers, James C. Everett,

Pamela P. Cohen, Penelope A. Boyd, Joseph P. Green, John Rogers Carroll,

U.S.C.A.

21 Copy of Clerk's Notice to U.S. Court of Appeals, filed.

9/22/81 Notice to: David Ferleger, Thomas Gilhool, Carla S. Morgan, James M.

McNamara, Patricia Jenkins, Thomas Kittredge, Alexander Ewing, Adjoa A.

Burrow, Robert B. Hoffman, Thomas A. Masterson, R. Stephen Barrett, Michael

S. Lottman, Russell Rice, Dr. Jennifer Howse, Herbert B. Newberg, Marc H.

Myers, James C. Everett, Pamela P. Cohen, Penelope A. Boyd, Joseph P. Green, Ji

John Rogers Carroll, U.S.C.A., Judge Broderick, Dan Spitz, Lynne T. Attardi,

Court Reporter

CONT. ON PAGE

DC 1UA (Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN, ET AL

CIVIL DOCKET CONTINUATION SHEET
DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL,

FPI-M*R 7-M-BO·7OM-439S
DOCKET NO. 74-1345 PAGE 6 4 OF PAGES

DATE

NR.

PROCEEDINGS

1981

1212 SEP 21 11 Commonwealth'1 deft's Helen O'Bannon, et al's, Notice of Appeal regarding payments for operation of the Special Master, filed. (USCA 81-2614)
9/22/81 Notice to: David Ferleger, Thomas Gilhool, Carla S. Morgan, James M. McNamara, Patricia Jenkins, Thomas Kittredge, Alexnader, Ewing, Adjoa A. Burrow, Thomas A. Masterson, R. Stephen Barrett, Michael S. Lottman, Russell Rice, Dr. Jennifer Howse, Herbert B. Newberg, Marc H. Myers, James C. Everett Pamela P. Cohen, Penelope A. Boyd, Joseph P. Green, Jr., John Rogers Carroll, U.S.C.A. 1213 " 21 Copy of Clerk's Notice to U.S. Court of Appeals, filed. 9/22/81 Notice to: David Ferleger, Thomas Gilhool, Carla S. Morgan, James M. McNamara, Patricia Jenkins, Thomas Kittredge, Alexander Ewing, Adjoa A.
Burrow, Robert B. Hoffman, Thomas A. Masterson, R. Stephen Barrett, Michael S. Lottman, Russell Rice, Dr. Jennifer Howse, Herbert B. Newberg, Marc H. Myers, James C. Everett, Pamela P. Cohen, Penelope A. Boyd, Joseph P. Green, Jr., John Rogers Carroll, U.S.C.A. Judge Broderick, Dan Spitz, Lynne T.

Attardi, Court Reporter — SEP 25 Eleventh Supplemental to U.S. Court of Appeals.

1214 " 28 PLFF'S HALDERMAN, ET AL'S MOTION TO ADD DEFT., & MEMORANDUM OF LAW, FILED.
1215 " 28 Transcript of Hearing of July 1, 1981, filed. 1216 " 29 PLFF'S MOTION TO SHORTEN TIME FOR RESPONSE, FILED.
29 PLFF'S MOTION FOR APPLICATION OF FUNDS OF SETTLEMENT, MEMORANDUM OF LAW, &
CERTIFICATE OF SERVICE, FILED. 1217 " 30 United States notice of deposition of Dorothy Rowe, filed.

1218 OCT 1 Affidavit of David Ferleger regarding cumulative hours on contempt for failure

1219 "
1220 " 1221 "

to pay Master's costs, filed. 1 PLFF'S HALDERMAN, ET AL'S PETITION FOR APPLICATION OF A PORTION OF THE COURT FUND
FROM CIVIL FINES, & MEMORANDUM OF LAW, FILED. 1 PLFF'S HALDERMAN, ET AL'S MOTION TO SHORTEN TIME, FILED. 1 PLFF'S HALDERMAN, ET AL'S MOTION FOR FINDING OF CONTEMPT, MEMORANDUM OF LAW, &
CERTIFICATE OF SERVICE, FILED.

1222 "

ORDER THAT ANY PARTY TO THIS LITIGATION OBJECTIONG TO THE GRANTING OF PLFF'S

MOTION REQUESTING THIS COURT TO ORDER THAT THE $10,000 PAID BY DEFT. COUNTY OF

ÎHILA. INTO THE REGISTRY OF THE COURT FOR THE BENEFIT OF PLFF. CLASS BE TRANSFERRE

TO THE SPECIAL MASTER FOR THE PURPOSE OF PAYING THE COSTS OF OPERATING OF THE

OFFICES OF THE SPECIAL MASTER AND HEARING MASTER, ETC. , SHALL FILE THIS OBJECTION

WITH THE COURT BY OCTOBER 7, 1981, FILED.

RJB

10/1/81 ENTERED & COPIES MAILED

1223 " 2 Report to the Court from the Hearing Master re: proposed admission of J.T., file-. 1224 " 2 Affidavit of Penelope A. Boyd in support of Attorney's Fees, filed.

OVER.

DC 111A ;Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL

FPl—MAR 7 l 4 · 8 0 - 7 Û M - 4 3 9 8

DOCKET NO. 7 4 - 1 3 4 5

PAGE 65 OF

PAGES

DATE

NR.

T98T

PROCEEDINGS

1225 OCT

ORDER THAT IN CONNECTION WITH THE HEARING TO BE HELD BY THIS COURT ON OCTOBER 15,

CONCERNING ANY POSSIBLE DUPLICATION OF COMMONWEALTH FUNCTIONS BY THE OFFICE OF

THE SEPCIAL MASTER, COMt·DNWEALTH DEFT'S SHALL BY OCTOBER 9, 1981, DELIVER TO

PLFF'S A COPY TO BE FILED WITH THE COURT, A STATEMENT SETTING FORTH THE NAMES OF

WITNESSES WHOSE TESTIMONY THEY INTEND TO PRESENT TOGETHER WITH A LIST OF DOCUMENT$

THEY INTEND TO INTRODUCE INTO EVIDENCE AT THE HEARGING, IT IS FURTHER ORDERED

THAT PLFF'S SHALL BY OCTOBER 13, 1981, DELIVER TO THE COMMONWEALTH DEFT'S A COPY

TO BE FILED WITH THE COURT A STATEMENT SETTING FORTH THE NAMES OF WITNESSES

WHOSE TESTIMONY THEY INTEND TO PRESENT TOGETHER WITH A LIST OF DOCUMENTS THEY

INTEND TO INTRODUCE INTO EVIDENCE AT THE HEARING, FILED. `

RJB

10/2/81 ENTERED & COPIES MATT,ED

,226 11 1227 11 1228 11 1229 ! 1 1230 t 1 1231 1 1 1232 It 1233 11 -234 1 t .235 I ! .236 11 -237 1 1 -238 11 239 1 I
1240 "
1241 "

7 Attachment in support of motion to add deft., filed.

7 Phila. County deft's objections to the proposed order, filed.
9 Corrrronwealth deft's response to motion to add deft. , filed. 9 Deft's statement of witnesses and documents, filed. 13 Response of R. Budd Dwyer State Treasurer of the Commonwealth of Pennsylvania
to plff's motion to add deft, and motion to dismiss, filed.
13 Brief in support of motion to vacate order of July 14, 1980, filed. 13 COMMONWEALTH DEFT'S MOTION TO VACATE ORDER OF JULY 14, 1980, & CERTIFICATE OF
SERVICE, FILED.

14 Memorandum of law in opposition to petition for application of Court fund, filed.

14 PETITION OF PARC, ET AL, FOR COUNSEL FEES, & CERTIFICATE OF SERVICE, FILED.

15 PLFF'S MOTION FOR FINDING OF CONTEMPT AND SUPPLEMENTAL SANCTIONS, MEMORANDUM OF LAW, & CERTIFICATE OF SERVICE, FILED.

15 Affidavit of Herbert B. Newberg in support of motion for award of reasonable

counsel fees in connection with contempt notion against conrnonwealth deft's, filec. 15 Deposition of Dorothy J. Rowe, filed.

15 Exhibits in support of deposition of Dorothy J. Rowe, filed.
19 Hearing re: duplication of services by Special Masters Office, witnesses sworn, filed.

20 ORDER THAT THE MASTER'S OFFICES SHALL RESUME FULL-SCALE OPERATIONS ON OCTOBER 22,

1981, $87,314.40 OF THE SUM PRESENTLY IN THE REGISTRY OF THIS COURT, AS A RESULT OF THE COMMONVJEALTH'S PAYMENT OF CIVIL CONTEMPT FINES SHALL BE PAID TO THE SPECIAI MASTER IN THIS CASE, $13,695.60 OF THE SUM PRESENTLY IN THE REGISTRY OF THIS

COURT SHALL BE PAID TO THE HEARING MASTER IN THIS CASE, ETC. , IT IS FURTHER ORDERED THAT THIS COURT'S ORDERS OF JUNE 4, 1981, ET AL, REMAIN IN FULL FORCE AND

EFFECT, FILED.

RJB

10/21/81 ENTERED & COPIES MAILED

21 MEMORANDUM, BRODERICK, J. , RE: CONTEMPT FUND MAY BE USED TO COMPENSATE THE

MASTERS, FILED.

RJB

10/22/81 ENTERED & COPIES MAILED

COOT. ON PAGE #66

DC 111A (Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN

CIVIL DOCKET CONTINUATION SHEET
DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL

FPI—MAR 7 · l 4 - 8 0 - 7 0 M - 4 3 9 8

DOCKET NO. 74-1345

PAGE 66 OF

PAGES

DATE

NR.

PROCEEDINGS

1981

1242 OCT 21 ORDER THAT THE SPECIAL MASTER IS AUTHORIZED BY THE COURT TO MAKE DISBURSEMENTS

ON OCTOBER 23, 1981 IN THE SUM OF $5,930.18, ETC., FILED.

RJB

10/22/81 ENTERED & COPIES MAILED

1243 " 22 Plff's response to motion to vacate order of July 14, 1980, filed.

1244 " 22 ORDER THAT THE COMMONWEALTH OF PENNSYLVANIA SHALL PAY TO THE REGISTRY OF THIS

COURT THE SUM OF $8,594.00, BY THE FIRST DAY OF NOVEMBER 1981, THIS AMOUNT

REFLECTS THE COST ESTIMATES FOR OPERATION OF THE OFFICE OF THE HEARING MASTER

FROM NOVEMBER 1, 1981 THROUGH NOVEMBER 30, 1981, ETC., FILED.

RJB

10/23/81 ENTERED & COPIES MATT,ED

1245 " 22 ORDER THAT THE COMMONWEALTH OF PENNSYLVANIA SHALL PAY TO THE REGISTRY OF THIS

COURT THE SUM OF $59,152.68, BY THE FIRST DAY OF NOVEMBER 1981, THIS AMOUNT

REFLECTS COST ESTIMATES FOR OPERATION OF THE OFFICE OF THE SPECIAL MASTER FROM

NOVEMBER 1, 1981 THROUGH NOVEMBER 30, 1981, ETC., FILED.

RJB

10/23/81 ENTERED & COPIES MAILED

1246 " 26 ORDER THAT THE HEARING MASTER IS AUTHORIZED BY THE COURT TO MAKE DISBURSEMENTS ON

OCTOBER 26, 1981 IN THE SUM OF $1,732.74, ETC., FILED.

RJB

10/26/81 ENTERED & COPIES MAILED

1247 II 27 Plff's proposed findings of fact, filed.

1248 II 1249 11 1250 11
1251 11
1252 ! |
1253 II 1254 1 I
1255 M

28 Report to the Court from the Hearing Master re: proposed placement of R.N., filed

28 Coirrnonwealth deft's answer to motion for finding of contempt and supplemental

sanctions, filed.

28 Second supplemental affidavit of David Ferleger and Penelope A. Boyd regarding

application for fees in connection with contempt for failure to pay costs of

Masters, filed.

28 ORDER THAT THE HEARING MASTER IS AUTHORIZED BY THE COURT TO MAKE DISBURSEMENTS ON

OCTOBER 30, 1981 IN THE SUM OF $1,488.49, FILED.

RJB

10/28/81 ENTERED & COPIES MAILED

28 ORDER THAT THE SPECIAL MASTER IS AUTHORIZED BY THE COURT TO MAKE DISBURSEMENTS ON

OCTOBER 30, 1981, IN THE SUM OF $10,801.16, FILED.

RJB

10/28/81 ENTERED & COPIES MAILED

29 COMMONWEALTH DEFT'S MOTION TO MODIFY, CERTIFICATE OF SERVICE, FILED.

29 Supplemental affidavit of Herbert B. Newberg in support of motion for award of

reasonable counsel fees in connection with contempt motion against Comnonwealth

deft's, filed.

29 Response of PARC, et al, to State deft's motion to vacate order of July 14, 1980,

filed.

1256 It 30 Hearing re: Attorney's fees for contempt, and on failure to fund Masters Office,

1257 NOV 2 1258 í t 3 1259 II 5

filed.
Amended Certificate of Service of Penelope A. Boyd, Esq., re: 10/30/81 served proposed findings of fact on other counsel, filed. PLFF'S HALDERMAN, ET AL'S, MOTION FOR FINDING OF CONTEMPT, MEMORANDUM OF LAW, & CERTICATE OF SERVICE, FILED. Pltfs' response to motion to modify, certificate of service, filed.

OVER

C 111A lev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN

RJB
CIVIL DOCKET CONTINUATION SHEET DEFENDANT
PENNHURST STATE SCHOOL AND HOSPITAL

FPI—MAR 7-14-8O-7OM -4398

DOCKET NO. 7 4 - 1 3 4 5

PAGE 67 o p

PAGES

DATE

NR.

PROCEEDINGS

1981 1260 Nov L26l " L262 "
1263 " 1264 11 1265 It 1266 11 1267 11 268 11 .269 11 1270 If 1271 11
1272 11 1273 it
1274 "

6 Report of the Hearing Master re: Proposed Admission of J.T. to Woodhaven Center,

filed.

6 ORDER THAT THE HEARING MASTER IS AUTHORIZED BY THE COURT TO MAKE DISBURSEMENTS ON

11-6-81 IN THE AMOUNT OF $2,315.42, FILED.

RJB

11-6-81 Entered and copies mailed.

ORDER THAT THE SPECIAL MASTER IS AUTHORIZED BY THE COURT TO MAKE DISBURSEMENTS ON

11-6-81 IN THE AMOUNT OF $12,401,45, FILED.

RJB

11-6-81 Entered and copies mailed.

Phila. County deft's exceptions to the Hearing Master's report re: proposed community placement of R.N. No. 81-P-4, dated 10-27-81, filed.

9 Comnonwealth deft's report on implementation of FY81-82 placement plan, filed.
9 Comnonwealth deft's reply to PARC and Halderman oppositions to motion vacate ordei
of July 14, 1980, filed. 9 Commonwealth deft's memorandum of law in support of motion to modify, filed. 12 Commonwealth deft's answer to motion for finding of contempt re: November Masters'

12

payments, filed. ORDER THAT THE HEARING MASTER IS AUTHORIZED BY THE COURT TO MAKE DISBURSEMENTS ON

NOVEMBER 13, 1981 IN THE SUM OF $1,382.73, FILED.

RJB

12

11/12/81 ENTERED & COPIES MATT .En ORDER THAT THE SPECIAL MASTER IS AUTHORIZED BY THE COURT TO MAKE DISBURSEMENTS ON

NOVEMBER 13, 1981, IN THE SUM OF $8,228.35, FILED.

RJB

11/12/81 ENTERED & COPIES MAILED 16 Report to the Court from the Hearing Master re: proposed admission of L.M. , filed. 16 ORDER THAT BEVERLY LUCAS, ESQ. IS SUBSTITUTED FOR JUDY GREENWOOD, ESQ. AS COUNSEL

FOR JAMES TAYLOR IN ALL PROCEEDINGS RELATIVE TO HIS COMMUNITY PLACEMENT, FILED.

11/16/81 ENTERED & COPIES MAILED

RJB

18 MEMORANDUM, BRODERICK, J., RE: SPECIAL MASTER DUPLICATING SERVICES PERFORMED BY

COMDNWEALTH AND COUNTY DEFT'S, ETC., FILED.

RJB

11/18/81 ENTERED & COPIES MAILED

18 ORDER THAT THE SPECIAL MASTER SHALL CONTINUE TO MONITOR THE COMPLIANCE OF THE

DEFT'S WITH THIS COURT'S ORDERS, IT IS FURTHER ORDERED THAT THE SPECIAL MASTER

SHALL SUBMIT TO THIS COURT BY DECEMBER 2, 1981, A BUDGET FOR THE OPERATION OF THE

OFFICE OF THE SPECIAL MASTER FOR THE PERIOD COMMENCING JANUARY 1, 1982, WHICH

BUDGET SHALL PROVIDE FOR SUBSTANTIAL REDUCTIONS IN THE COSTS OF OPERATING THE

SPECIAL MASTER'S OFFICE PREDICATED UPON THE COMMONWEALTH DEFT'S CARRYING OUT

THEIR PLAN TO TJMPLEMENT THEIR OBLIGATIONS TO REVIEW THE INDIVIDUAL HABILITATION

PLANS OF PLFF. CLASS MEMBERS, ETC., FILED.

RJB

11/18/81 ENTERED & COPIES MAILED

18 ORDER THAT THE CLERK OF COURT IS AUTHORIZED AND DIRECTED IF HE HAS NOT ALREADY

DONE SO. , 10 TRANSFER THE SUM OF $98,990 TO AN APPROVED INTEREST-BEARING BANK

ACCOUNT AND TO INVEST THE SUM OF $380,000 IN 13-WEEK TREASURY BILLS, SUBJECT TO

FURTHER ORDER OF THIS COURT, ETC., FILED.

RJB

11/18/81 ENTERED & COPIES MAILED

CONT. ON `PAGE #68

DC 111A (Rev. 1,75)
PLAINTIFF
TERRI DEE HALDERMAN, ET AL

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
PENNHURST STATE SŒOOL & HOSPITAL,

DOCKET NO. 74-1345

PAGE 6 8 o p

PAGES

DATE

NR.

1981

PROCEEDINGS

1275 NOV 18 ORDER THAT THE CLERK OF COURT IS AUTHORIZED AND DIRECTED, IF HE HAS NOT ALREADY

DONE SO, TO INVEST THE SAID $50,000 IN 13-WEEK TREASURY BILLS, SUBJECT TO

FURTHER ORDER OF THIS COURT, FILED.

RJB

11/18/81 ENTERED & COPIES MAILED 1276 " 18 ORDER THAT THE COMMDNWEALTH OF PENNSYLVANIA SHALL PAY TO THE REGISTRY OF THIS

COURT THE SUM OF $8,594.00, BY THE FIRST DAY OF DECEMBER, 1981, THIS AMOUNT

REFLECTS COST ESTIMATES FOR OPERATION OF THE OFFICE OF THE HEARING MASTER FROM

DECEMBER 1 THROUGH DECEMBER 31, 1981, ETC., FILED.

RJB

11/18/81 ENTERED & COPIES MAILED

1277 1 f 18 ORDER THAT THE HEARING MASTER IS AUTHORIZED BY THE COURT TO MAKE DISBURSEMENTS ON

NOVEMBER 20, 1981 IN THE SUM OF $1,472.10, ETC., FILED.

RJB

11/18/81 ENTERED & COPIES MAILED

1278 Tt 18 ORDER THAT THE SPECIAL MASTER IS AUTHORIZED BY THE COURT TO MAKE DISBURSEMENTS ON

NOVEMBER 20, 1981 IN THE SUM OF $11,583.36, ETC., FILED.

RJB

11/18/81 ENTERED & COPIES MAILED

1279 11 19 Report to the Court from the Hearing Master re: proposed placement of T.S., filed.

1280 îl 20 ORDER THAT THE AMOUNT SET FORTH ON LINE 16, PAGE 4 OF THIS COURT'S MEMORANDUM OF NOVEMBER 18, 1981 IS AMENDED TO READ $580,000, INSTEAD OF $490,000, FILED.

11/20/81 ENTERED & COPIES MATT .FT)

RJB

1281 I 1 25 ORDER THAT THE HEARING MASTER IS AUTHORIZED BY THE COURT TO MAKE DISBURSEMENTS ON

NOVEMBER 27, 1981 IN THE SUM OF $1,335.32, ETC., FILED.

RJB

11/25/81 ENTERED & COPIES MAILED

1282 f ! 25 ORDER DATED 11/24/81 THAT THE COMMONWEALTH OF PENNSYLVANIA SHALL PAY TO THE

REGISTRY OF THIS COURT THE SUM OF $59,152.68 BY THE FIRST DAY OF DECEMBER, 1981,

THIS AMOUNT REFLECTS COST ESTIMATES FOR OPERATION OF THE OFFICE OF THE SPECIAL

MASTER FROM DECEMBER 1, 1981 THROUGH DECEMBER 31, 1981, ETC., FILED. RJB

11/25/81 ENTERED & COPIES MAILED

1283 " 27 DRDER THAT THE SPECIAL MASTER IS AUTHORIZED BY THE COURT TO MAKE DISBURSEMENTS ON

11-27-81 IN THE AMOUNT OF $10,140.45, FILED.

RJB

11-30-81 Entered and copies mailed.

1284 " 27 United States of America's response to Commonwealth deft's motion to modify,

filed.

1285 " 27 UNITED STATES OF AMERICA'S MOTION TO FILE OUT OF TIME, CERTIFICATE OF SERVICE, FILED.

1286 " 30 Comiünwealth of PA's exceptions to Hearing Masters's report of 11-18-81, filed.
l·287 Dec. 1 Chester County's exceptions to the Report of the Hearing Master Re: Proposed
Community Placement of T.S., No. 81-P-20, certificate, filed.

1288 Dec.

"Conmonwealth" Report on implementation of FY81-82 Placement Plan, certificate, filed.

1239 "

Report of the Hearing Master re: proposed comnunity placement of R.N., filed.

1290 "

ORDER DTD. 12/3/81 THAT THE SPECIAL MASTER IS AUTHORIZED BY THE COURT TO

MAKE DISBURSEMENTS ON 12/4/81, IN THE AMOUNT OF $11,143.00 ETC., FILED RJB

12/4/81 ENTERED & COPIES MAILED

1291 "

ORDER DATED 12/3/81 THAT THE HEARING MASTER IS AUTHORIZED BY THE COURT TO MAKE R

DISVURSEMENT ON 12/4/81 IN THE SUM OF $2,305.05 ETC., FILED.

12/4/81 ENTERED AND COPIES MAILED.

CONT.

>C 111A lev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN, ET AL

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
PENNHURST STATE SŒOOL, ET AL

DOCKET NO. 74-1345
PAGE 69OF .PAGES

DATE

NR.

PROCEEDINGS

1981 292 Dec.
293 Dec.
294 Dec.
L295 "
1296 "

4 DEPARTMENT OF PUBLIC WELFARE AND HELEN O'BANNON"S MOTION TO SHORTEN PERIOD TO RESPOND TO MOTION TO MODIFY, CERTIFICATE, FILED.
4 DEPARTMENT OF PUBLIC WELFARE AND HELEN O'BANNON'S MOTION TO MODIFY THIS COURT'S ORDER OF 8-27-81 AND PURGE DEFENDANTS OF CONTEMPT, CERTIFICATE, FILED.
4 Department of Public Welfare & Helen O'Bannon's Memo, of Law in Support of
their motion to modify this court's order of 8-25-81, certificate, filed.
4 Report of the Haring Master re: proposed community placement of P.M., filed. 7 Amended Certificate of Service of Robert B. Hoffman re: 12/3/81 served copies of

motion to modify this court's order of August 27, 1981 and purge deft's of contempt

1297 " 1298 "
L299 "
L300 "

8

by U.S. Mail, filed. Report to the Court from the Hearing Master re: proposed admission of L.M., filed.

8 ORIGINAL PLFF'S MOTION FOR APPLICATION OF CONTEMPT FINES, MEMORANDUM OF LAW, &

CERTIFICATE OF SERVICE, FILED.

ORDER THAT THE HEARING MASTER IS AUIHORIZED BY THE COURT TO MAKE DISBURSEMENTS

ON DECEMBER 11, 1981 IN THE SUM OF $1,556.62, ETC., FILED.

RJB

12/8/81 ENTERED & COPIES MAILED

ORDER THAT A HEARING AND ORAL ARGUMENT ON THE MOTION TO PURGE OF CONTEMPT THE

DEPT. OF PUBLIC WELFARE, ET AL, SHALL BE HELD ON DECEMBER 21, 1981 AT 9:00 A.M. ,

IN COURTROOM 10B, IT IS FURTHER ORDERED THAT BRIEFS SHALL BE FILED BY ALL

PARTIES BY DECEMBER 18, 1981, FILED.

RJB

12/9/81 ENTERED & COPIES MAILED

1301 " 11 ORDER DATED 12/10/81 THAT THE SPECIAL MASTER IS AUTHORIZED BY THE COURT TO MAKE DISBURSEMENTS ON DECEMBER 11, 1981, IN THE SUM OF $10,143.13, ETC., FILED. RJB

1302 "

12/11/81 ENTERED & COPIES MAILED

11

ORDER THAT $80,371.12 OF THE SUM CURRENTLY ON DEPOSIT IN AN APPROVED INTERESTBEARING BANK ACCOUNT AS A RESULT OF THE CCÎM)NWEALTH1 S PAYMENT OF CIVIL CONTEMPT

FINES SHALL BE PAID TO THE SPECIAL MASTER, $13,588.48 OF THE SUM, SHALL BE PAID

TO THE HEARING MASTER IN THIS CASE, ETC., IT IS FURTHER ORDERED THAT THIS COURT'S

ORDERS OF JUNE 4, 1981, JULY 14, 1981, AUGUST'21, 1981, AUGUST 25, 1981,

SEPTEMBER 16, 1981, & OCTOBER 21, 1981 REMAIN IN FULL FORCE & EFFECT, FILED. RJB

12/11/81 ENTERED & COPIES MAILED

1303

11 ORDER THAT A HEARING SHALL BE HELD ON 12-21-81 AT 9:00A.M. IN COURTROOM l·O-B

TO SHOW CAUSE WHY THE COMMONWEALTH DEFTS SHOULD NOT BE HELD IN CIVIL CONTEMPT

WITH CERTAIN ORDERS OF THIS COURT, FILED.

RJB

12-14-81 Entered and copies mailed.

.304 11 14 Exceptions of W.M. & B.M. to the Hearing Master's report re: proposed community placement of P.M., filed.

1305 11 15 Chester County deft's exceptions to the report of the Hearing Master re: proposed community placement of P.M., filed.

1306 11 L3O7 ï î

16 Response of "Conmonwealth" deft's to motion for application of contempt fines, filed.
16 Report to the Court from the Hearing Master re: proposed community placement of

K.W., filed. L3O8 11 16 Report to the Court from the Hearing Master re: proposed comnunity placement of

C.B., filed.

CONT. ON PAGE #70

DC 111A (Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN, ET AL

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
PENNHURST STATE SŒOOL & HOSPITAL

DOCKET NO. 7 4 - 1 3 4 5

PAGE _ 7 Q D F

PAGES

DATE

NR.

1981

PROCEEDINGS

1309 DEC 18 Plff's response to Coranonwealth deft's motion to modify this court's order of August 27, 1981 and purge deft's of contempt, filed.

1310 " 1311 " 1312 "
1313 "
1316 "

18 Response of PARC , et al, to deft. Dept. and Secretary's motion to purge, filed.

18 PARC, ET AL'S, MOTION FOR ENTRY OF ORDER, MEMORANDUM OF LAW, & CERTIFICATE OF

SERVICE, FILED.

18

ORDER THAT THE SPECIAL MASTER IS AUTHORIZED BY THE COURT TO MAKE DISBURSEMENTS

ON DECEMBER 18, 1981 IN THE SUM OF $10,881.68, ETC., FILED.

RJB

12/21/81 ENTERED & COPIES MAILED

18

ORDER THAT THE HEARING MASTER IS AUTHORIZED BY THE COURT TO MAKE DISBURSEMENTS

ON DECEMBER 18, 1981 IN THE SUM OF $1,357.12, ETC., FILED.

RJB

12/21/81 ENTERED & COPIES MAILED

21

ORIGINAL PLFF'S MOTION FOR IMPLEMEÎ<iTATION OF COMMONWEALTH DEFT'S OBLIGATIONS AND IN SUPPORT OF THE SPECIAL MASTER'S PROPOSED BUDGET, MEMORANDUM OF LAW, &

CERTIFICATE OF SERVICE, FILED. 1317 " 21 Hearing re: purging Comiiuuwealth Deft's from contempt, CAV, filed.

1318 "
1319 " 1320 " 1321 "

23 ORDER THAT THE HEARING MASTER IS AUTHORIZED BY THE COURT TO MAKE DISBURSEMENTS

ON DECEMBER 23, 1981 IN THE SUM OF $1,335.32, ETC., FILED.

RJB

12/24/81 ENTERED & COPIES MATT,ED

23 MOTION OF W.M. & B.M. TO STAY THE TRANSFER OF P.M. FROM PENNHURST TO A

COMMUNITY LINVTNG ARRANGEMENT, MEMDRANDUM OF LAW, & CERTIFICATE OF SERVICE, FILED

29 Transcript of hearing of October 19, 1981, filed.

30 Plff's response to motion for stay of transfer of P.M. from Pennhurst, filed.

1982

1322 JAN 1323 1324 1325 1326 1327

ORDER THAT A HEARING SHALL BE HELD IN CONNECTION WITH EXCEPTIONS FILED BY MR. W.M

AND MRS. B.M., ET AL, AND MOTION FOR STAY ON FEBRUARY 12, 1982 AT 9:30 A.M. IN

COURTFJ3OM 10B, TO THE REPORT OF THE HEARING MASTER, FILED.

RJB

1/6/82 ENTERED & COPIES MAILED

ORDER THAT A HEARING SHALL BE HELD IN CONNECTION WITH EXCEPTIONS FILED BY THE

COMM)NWEALTH DEFT'S TO THE REPORT OF THE HEARING MASTER ON FEBRUARY 12, 1982 AT

10:30 A.M. IN COURTROOM 10B, FILED.

RJB

1/6/82 ENTERED & COPIES MAILED

ORDER THAT A HEARING SHALL BE HELD IN CONNECTION WITH EXCEPTIONS FILED BY THE

DELAWARE COUNTY DEFT'S TO THE REPORT OF THE HEARING MASTER ON FEBRUARY 12, 1982,

AT 11:30 A.M. IN COURTROOM 10B, FILED.

RJB

1/6/82 ENTERED & COPIES MAILED ORDER THAT A HEARING SHALL BE HELD IN CONNECTION WITH EXCEPTIONS FILED BY THE

COMMONWEALTH DEFT'S TO REPORT OF HEARING MASTER REGARDING S.J., ON FEBRUARY 12,

1982 AT 1:30 P.M. , IN COURTROOM 10B, FILED.

RJB

1/6/82 ENTERED & COPIES MAILED ORDER THAT A HEARING SHALL BE HELD IN CONNECTION WITH EXCEPTIONS FILED BY THE

PHILA. COUNTY DEFT'S TO REPORT OF HEARING MASTER REGARDING P.P.P., ON FEBRUARY 12

1982 AT 2:30 P.M.IN COURTROOM 10B, FILED.

RJB

1/6/82 ENTERED & COPIES MAILED

ORDER THAT A HEARING SHALL BE HELD IN CONNECTION WITH EXCEPTIONS FILED BY THE

FHILA. COUNTY DEFT'S TO REPORT OF THE HEARING MASTER REGARDING R.N. ON FEBRUARY

12, 1982 AT 3:15 P.M.IN COURTROOM 10B, FILED.

RJB

1/6/82 ENTERED & COPIES MAILED

OVER.

>C 111A Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL

DOCKET NO. 74¯ l·345

PAGE 7 1 OF

PAGES

DATE

NR.

1982

PROCEEDINGS

1328 JAN
1329 " 1330 " 1331 " 1332 " 7
L333 "
-334 " L335 "

-336 "

ii

8

-337 " 8

338 "

.339 "

ORDER THAT A HEARING SHALL BE HELD IN CONNECTION WITH EXCEPTIONS FILED BY THE

COMÆ)NWEALTH AND CHESTER COUNTY DEFT'S TO REPORT OF HEARING MASTER REGARDING

T.S. ON FEBRUARY 12, 1982 AT 4:00 P.M. IN COURTROOM 10B, FILED.

RJB

1/6/82 ENTERED & COPIES MAILED

ORDER DATED 1/5/82 THAT THE HEARING MASTER IS AUTHORIZED BY THE COURT TO MAKE THE

DISBURSEMENTS DUE JANUARY 1, 1982 IN THE SUM OF $1,347.87, FILED.

RJB

1/6/82 ENTERED & COPIES MAILED

ORDER DATED 1/5/82 THAT THE SPECIAL MASTER IS AUTHORIZED BY THE COURT TO MAKE THE

DISBURSEMENTS DUE JANUARY 1, 1982 IN THE SUM OF $10,927.69, FILED.

RJB

1/6/82 ENTERED & COPIES MAILED

ORDER DATED 1/5/82 THAT THE SPECIAL MASTER IS AUTHORIZED BY THE COURT TO MAKE THE

DISBURSEMENTS DUE DECEMBER 25, 1981 IN TIE SUM OF $8,711.43, FILED.

RJB

1/6/82 ENTERED & COPIES MAILED

PLFF'S MOTION TO REQUIRE DEFT'S HELEN O'BANNON, & DEPT. OF PUBLIC WELFARE TO PAY FINES DUE AND OWING TO THE COURT, MEMORANDUM OF LAW, & CERTIFICATE OF SERVICE, FILED.

ORDER DATED 1/6/82 THAT THE HEARING MASTER IS AUTHORIZED BY THE COURT TO MAKE

DISBURSEMENTS ON JANUARY 8, 1982 IN THE SUM OF $961.54, ETC., FILED.

RJB

1/8/82 ENTERED & COPIES MAILED

ORDER DATED 1/6/82 THAT THE SPECIAL MASTER IS AUTHORIZED BY THE COURT TO MAKE

DISBURSEMENTS ON JANUARY 8, 1982 IN THE SUM OF $9,277.69, ETC., FILED. RJB

1/8/82 ENTERED & COPIES MAILED

MEMORANDUM & ORDER DATED 1/6/82 THAT THE DEPT. OF PUBLIC WELFARE AND THE

HONORABLE HELEN O'BANNON, SECRETARY OF THE DEPT. OF PUBLIC WELFARE SHALL CONTINUE

TO PAY INTO THE REGISTRY OF THIS COURT COERCIVE AND COMPENSATORY CIVIL FINES

TOTALING $10,000 PER DAY FOR EACH DAY THAT FULL PAYMENT HAS NOT BEEN MADE,

PURSUANT TO THIS COURT'S ORDERS OF JUNE 4, 1981, ETC., FILED.

RJB

1/8/82 ENTERED & COPIES MAILED

Canrn¤nwealth cleft's report on implementation of FY81-82 Placement Plan, filed.

Twelfth Supplemental to U.S. Court of Appeals. (Except documents numbered 1184; 1187 thru 1190; 1194; 1198; 1199)

ORDER DATED 1/7/82 THAT THE BUDGET OF THE OFFICE OF THE SPECIAL MASTER FOR THE

PERIOD JANUARY 1, 1982 THROUGH JUNE 30, 1982 IS APPROVED, FILED.

RJB

1/11/82 ENTERED & COPIES MAILED

ORDER THAT THE BUDGET OF THE OFFICE OF THE HEARING MASTER FOR THE PERIOD

JANUARY 1, 1982 THROUGH JUNE 30, 1982 IS APPROVED, FILED.

RJB

1/11/82 ENTERED & COPIES MAILED

MEMORANDUM & ORDER THAT THE COl·f4ONWEALTH DEFT'S ARE ARE AS OF THIS DATE RELIEVED

OF THEIR OBLIGATION TO CONTINUE TO PAY INTO THE REGISTRY OF THIS COURT A COERCIVE

AND COMPENSATORY CIVIL CONTEMPT FINE OF $10,000.00 PER DAY AS ORDERED BY THIS

COURT ON AUGUST 25, 1981, THE COMMONWEALTH OF PENNSYLVANIA DEPT. OF PUBLIC

WELFARE AND ITS SECRETARY, THE HONORABLE HELEN O'BANNON ARE PURGED OF THE CIVIL

CONTEMPT, THE CLERK OF COURT IS AUTHORIZED COMMENCING FEBRUARY 1, 1982 AND ON THE

FIRST DAY OF MARCH, ETC. , TO PAY TO THE SPECIAL MASTER AND HEARING MASTER FROM THE

FUND RESULTING FROM THE PAYMENT OF CIVIL CONTl·l4PT FINES SUCH SUMS AS SHALL BE

ORDERED BY THIS COURT, ETC., FILED.

RJB

1/11/82 ENTERED & COPIES MAILED

CONT. ON PAGE #72

DC 111A (Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN, ET AL

CIVIL DOCKET CONTINUATION SHEET
DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL

DOCKET NO. 74-1345

PAGE _ L r ¤ F .

.PAGES

DATE

NR.

PROCEEDINGS

1982 (82-1097)
1340 JAN 11 Deft's Helen O'Bannon and Dept. of Public Welfare's Notice of Appeal, filed. 1/12/82 Notice to: David Ferleger, Thomas Gilhool, Carla S. Morgan, James M. NcNamara, Patricia Jenkins, Thomas Kittredge, Alexander Ewing, Adjoa A. Burrow, Esq., Thomas A. Masterson, R. Stephen Barrett, Michael S. Lottman, Russell Rice, Dr. Jennifer Howse, Herbert B. Newberg, Marc H. Myers, James C. Everett, Pamela P. Cohen, Penelope A. Boyd, Joseph P. Greer John Rogers Carroll ‰ 5.Q.Û ¿ ¾ à - )O5^¡
1341 " 11 Copy of Clerk's Notice to U.S. Court of Appeals, filed. 1/12/82 Notice to: David Ferleger, Thomas Gilhool, Carla S. Morgan, James M. McNamara, Patricia Jenkins, Thomas Kittredge, Alexander Ewing, Adjoa Æ. Burrow, Allen C. Warshaw, Thomas A. Masterson, R. Stephen Barrett, Michael S. Lottman, Russell Pd.ce, Dr. Jennifer Howse, Herbert B. Newberg, Marc H. Myers, James C. Everett, Pamela P. Cohen, Penelope A. Boyd, Joseph P. Green, John Rogers Carroll, U.S.C.A., Judge Broderick, Dan Spitz, Lynne T. Attardi, Court Reporter
12 Thirteenth Supplemental to U.S. Court of Appeals. (Documents numbered 1337 thru 1341 incl. not included)
1342 " 12 Appearance of Steven M. Coren, Esq. for W.M. & B.M. (Parents of P.M.), filed.

1343 " 14 ORDER DATED 1/13/82 THAT THE SPECIAL MASTER IS AUTHORIZED BY THE COURT TO MAKE

DISBURSEMENTS ON JANUARY 15, 1982 IN THE SUM OF $10,764.62, FILED. RJB

1/15/82 ENTERED & COPIES MAILED

1344 "

ORDER DATED 1/13/82 THAT THE HEARING MASTER IS AUTHORIZED BY THE COURT TO MAKE DISBURSEMENTS CN JANUARY 15, 1982 IN THE STCM OF $1,419.52, FILED. RJB

1/15/82 ENTERED & COPIES MAILED

1345 " 1346 " 1347 " 1348 "

15 ORDER DATED 1/14/82 THAT THE CLERK OF THE COURT SHALL PAY TO THE OFFICE OF THE

HEARING MASTER THE :SUM OF $8,624.00, BY FEBRUARY 1, 1982, THIS AMDUNT COVERS

THE EXPENSES OF THE HEARING MASTER'S OFFICE FOR THE PERIOD FEBRUARY 1, 1982

THROUGH FEBRUARY 28, 1982, ETC.,FILED.

RJB

1/15/82 ENTERED & COPIES MAILED

15 ORDER DATED 1/14/82 THAT THE CLERK OF THE COURT SHALL PAY TO THE OFFICE OF THE

SPECIAL MASTER THE SUM OF $51,204.00, BY FEBRUARY 1, 1982, THIS AM)UNT COVERS

THE EXPENSES OF THE SPECIAL MASTER'S OFFICE FOR THE PERIOD FEBRUARY 1, 1982

THROUGH FEBRUARY 28, 1982, FILED.

RJB

1/15/82 ENTERED & COPIES MAILED

15 Response of "Conmonwealth deft's" to plff's motion to require deft's Helen

O'Bannon and Dept. of Public Welfare to pay fines due and owing to the court,

filed.

18 Copy of Transcript Purchase Order, filed.

1349 " 1350 "

22 ORDER THAT THE HEARING MASTER IS AUTHORIZED BY THE COURT TO MAKE DISBURSEMENTS

ON JANUARY 22, 1982 IN THE SUM OF $1,419.52, FILED.

RJB

1/25/82 ENTERED & COPIES MATT,ED

22 ORDER THAT THE SPECIAL MASTER IS AUTHORIZED BY THE COURT TO MAKE DISBURSEMENTS

ON JANUARY 22, 1982 IN THE SUM OF $9,623.00, FILED.

RJB

1/25/82 ENTERED & COPIES MAILED

OVER

111A •J. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN, ET AL
DATE NR.

CIVIL DOCKET CONTINUATION SHEET
DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL
PROCEEDINGS

DOCKET NO. 74-1
73
PAGE OF PAGES

1982

351 JAN 26

352

26

26 353 " 28
354 " 28
.355 Feb 3

356 " 3 L357 " 3

358

3

359

4

ORDER DATED 1/25/82 THAT A HEARING SHALL BE HELD IN CONNECTION WITH EXCEPTIONS

TO THE REPORT OF THE HEARING MASTER FILED BY DEFT'S COMMONWEALTH OF PENNSYLVANIA

ET AL, REGARDING THE PROPOSED COMMUNITY PLACEMENT OF R.N. ON FEBRUARY 12 1982

AT 3:15 P.M. IN COURTROOM 10B, FILED.

RJB

1/26/82 ENTERED & COPIES MAILED

MEMORANDUM & ORDER THAT THE CLERK OF COURT SHALL, PURSUANTTOTHIS COURT'S ORDER

OF JANUARY 8, 1982, PAY FROM THE SUM PRESENTLY ON DEPOSIT WITH THE REGISTRY OF

THIS COURT AS A RESULT OF THE COMMONWEALTH DEFT'S PAYMENT OF CIVIL CONTEMPT

FINES TO CERTAIN ATTORNEY'S, ETC., FILED.

RJB

1/26/82 ENTERED & COPIES MAILED

to Financial Dept.

ORDER THAT THE SPECIAL MASTER IS AUTHORIZED BY THE COURTTOMAKE DISBURSEMENTS ON

JANUARY 29, 1982 IN THE SUM OF $8,214.31, FILED.

RJB

1/28/82 ENTERED & COPIES MAILED

ORDER THAT THE HEARING MASTER IS AUTHORIZED BY THE COURTTOMAKE DISBURSEMENTS ON

JANUARY 29, 1982 IN THE SUM OF $1,438.47, FILED.

RJB

1/28/82 ENTERED & COPIES MAILED

Notice of appeal of defts Helen O'Bannon & Cornn. of Penna., Dept. of Public (82-|lC Welfare from Order entered 1/6/82,filed.(2/3/82 copies to Judge Broderick U S C A L.T.Attardi,Court Reporter; D.Ferleger;T. Kittredge; R.B.Hoffman; R.S.Barrett Dr.J.Howse;J.C.Everett;J.P.Green,Jr.;S.M.Coren;T.Gilhool;J.M.McNamara· M.S.I^ttman;P.P.Cohen;J.R.Carroll;C.S.Morgan;P.Jenkijis;A.Ewing·A A BurrowT.A.Masterson;R.Rice;M.H.Myers;P.A.Boyd & H.B.Newberg)
Copy of Clerk's notice to U.S.C.A.,filed.(2/3/82 copies to all parties listed on doc.#1355 & Allen C. Warshaw)
Notice of appeal of defts Helen O'Bannon & Corrm. of Penna., Dept. of Public Welfare from Order entered 1/26/82,filed.(2/3/82 copies to:Judge Broderick, U.S.C L.T.Attardi,Court Reporter; D.Ferleger;T.Kittredge; R.B. Hoffman; R.S. Barrett Dr. J.House;J.C.Everett; J.P.Green, Jr.;S.M.Coren; T.Gilhool; J.M.McNamara· · M.S.Lottman;P.P.Cohen; J.R.Carroll; C.A. Morgan; P.Jenkins; A. Ewing; A.A Burrow· T.A.Masterson; R.Rice; M.H.Myers; P.A.Boyd & H.B.Newborg) Copy of Clerk's notice to U.S.C.A.,filed.(2/3/82 copies to all parties listed on doc.#1357 & Allen C. Warshaw)

8 Fourteenth Supplemental to U.S.C.A. (Documents No. 1342 thru 1347 incl. and 1349 thru 1359 incl. not included)
360 " 10 Ctorrrnonwealth deft's report on implementation of FY 81-82 Placement plan, filed. 361 " 10 Brief in support of the exceptions of W.M. and B.M. (Parents of P.M., a minor) to
the Hearing Master's report re: proposed conmunity placement of P.M., filed.
1362 " 11 Report to the Court of the Hearing Master re: proposed admission of K.L. , filed. 1363 " 12 Memorandum of law in support of Conrnonwealth deft's exceptions, filed.

CONT. ON PAGE #74

DC 111A (Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN , et al

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL,

DOCKET NO. 74-1345

74
PAGE

OF

.PAGES

DATE

NR.

PROCEEDINGS

1982

1364 FEB 12 Hearing re: Exceptions to Special Master's reports, CAV, filed. 1365 " 12 Memorandum of law in support of Conrnonwealth deft's exceptions, filed.

1366 " 17 Plff's response to Conmonwealth deft's motion to alter and/or amend this court's order of March 2, 1981, filed.
1367 " 17 Plff's first set of interrogatories and request for production of documents,

1368 " 22

filed. ORDER DATED 2/19/82 THAT THE CLERK OF THE COURT SHALL PAY TO THE OFFICE OF THE

SPECIAL MASTER BY MARCH 1, 1982, THE SUM OF $51,886.00, THIS AMOUNT COVERS THE

EXPENSES OF THE SPECIAL MASTER'S OFFICE FOR THE PERIOD OF MARCH 1, 1982 THROUGH

MARCH 31, 1982, FILED.

RJB

1369 " 22

2/2?>l&l ENTERED & COPIES MAILED

ORDER DATED 2/19/82 THAT THE CLERK OF THE COURT SHALL PAY TO THE OFFICE OF THE

SPECIAL MASTER BY MARCH 1, 1982 THE SUM OF $8,624.00, THIS AMOUNT COVERS THE

EXPENSES OF THE HEARING MASTER'S OFFICE FOR THE PERIOD MARCH 1, 1982 THROUGH

MARCH 31, 1982, FILED.

RJB

1370 " 1371 " 1372 "

23

2/23/82 ENTERED & COPIES MAILED

proposed placement of C.L., filed

23 Report to the Court from the Hearing Master re: proposed placement of R.K., filed

23 Report to the Court from the Hearing Master re: proposed placement of R.M.L.,

Report to the Court from the Hearing Master re:

1373 " 1374 " 1375 "

23 filed.

proposed placement of J.R., filed

23 Report to the Court from the Hearing Master re: proposed placement of W.R., filed

23 Report to the Court from the Hearing Master re:

MOTION OF PHILA. DEFT'S FOR REMITTANCE OF THE PERFORMANCE "FUND, MEMORANDUM IN

1376 " 24 SUPPORT & CERTIFICATE OF SERVICE, FILED. ORDER DATED 2/22/82 THAT THE MOTION OF THE COMMONWEALTH DEFT'S TO VACATE THIS

COURT'S ORDER OF JULY 14, 1980, REQUIRING A 'VOLUNTARINESS" HEARING IN

CONNECTION WITH THE TRANSFER OF EVERY PENNHURST RESIDENT TO A COMMUNITY LIVING

ARRANGEMENT IS GRANTED, AND THE COURT'S ORDER OF JULY 14, 1980 IS VACATED, FILED.

1377 " 1378 "

25 25

2/24/82 ENTERED & COPIES MAILED

RJB

Report to the Court from, the Hearing Master re: proposed placement of M.G., filec

Report to the Court from the Hearing Master re: proposed placement of M.A.K.,

filed. 1379 " 25 Exceptions of the Phila. County deft's to the Hearing Master's report re:

1380 "

26

prposed community placement of W.R., filed. Plff's PARC, et al's, memorandum contra state deft's supplemental motion to

1381 "

26

amend and/or alter the order of March 2, 1981, filed. MEMORANDUM & ORDER THAT THE REPORT OF THE HEARING MASTER RE: PROPOSED COMMUNITY

PLACEMENT OF P.M. IS ADOPTED AND THE EXCEPTIONS TO THE REPORT FILED BY W.M. AND

B.M. AND BY CHESTER COUNTY ARE DISMISSED, FILED.

RJB

1382 MAE

3/1/82 ENTERED & COPIES MAILED ORDER DATED 2/26/82 THAT THE CLERK OF THIS COURT SHALL PAY TO THE SPECIAL MASTER

THE SUM OF $77,358.51 PURSUANT TO THIS COURT'S ORDER OF JANUARY 8, 1982, AND

SHALL PAY TO THE HEARING MASTER THE SUM OF $11,808.17, ETC., FILED. RJB

3/1/82 ENTERED & COPIES MAILED

OVER.

: 111A ev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN, ET AL
NR.

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL,
PROCEEDINGS

DOCKET NO.74-1345
PAGE 75 OF .PAGES

ORDER THAT A HEARING SHALL BE HELD ON APRIL 16, 1982 AT 9:30 A.M. CONCERNING

THE COMONWEALTH DEFT'S SUPPLEl·lENTAL MOTION TO AMEND AND/OR ALTER THIS COURT'S

ORDER OF MARCH 2, 1982, IN COURTROOM 10B, ETC., FILED.

RJB

3/3/82 ENTERED & COPIES MAILED

3 Report to the Court from the Hearing Master re: proposed admission of R.M., filed

5 APPLICATION OF W.M. AND B.M. (PARENTS OF P.M., A MINOR) TO STAY THIS COURT'S

ORDER OF FEBRUARY 26, 1982, PENDING APPEAL, FILED.

Brief in support of the application of W.M. and B.M. to stay this court's order

of February 26, 1982, pending appeal, filed.

Notice of Appeal of W.M. and B.M., filed. (82-1147)
3/8/82 Notice to: David Ferleger, Thomas Gilhool, Carla S. Morgan, James M. McNamara, Patricia Jenkins, Thomas Kittredge, Alexander Ewing, Adjoa A. Burrow, Robert B. Hoffman, Thomas A. Masterson, R. Stephen Barrett, Michael S. Lottman, Russell Rice, Dr. Jennifer Howse, Marc H. Myers, James C. Everett, Pamela P. Cohen, Penelope A. Boyd, Joseph P. Green, Jr., John Rogers Carroll, Herbert B. Newberg, U.S.C.A. 5 Copy of Clerk's Notice to U.S. Court of Appeals, filed.
8 Copy of Transcript Purchase Order, filed. 8 Copy of Transcript Purchase Order, filed. 8 ''Coimionwealth" deft's report on implementation of FY81-82 placement plan, filed. 8 Appearance of Terisa E. Chaw, Esq., for United States of America, plff-intervenor,
filed.
Fifteenth Supplemental to U.S. Court of Appeals, (document No. 1295 only) (Documents 1360 thru 1392 incl. not included)

9 MEMORANDUM & ORDER THAT THE APPLICATION OF W.M. AND B.M. FOR A STAY PENDING APPEAL OF THIS COURT'S ORDER OF FEBRUARY 26, 1982 IS DENIED, FILED. RJB
3/9/82 ENTERED & COPIES MAILED 11 MOTION OF DAVID FERLEGER AND PENELOPE BOYD FOR AWARD OF REASONABLE COUNSEL FEES
PLUS INTEREST AGAINST COUNTY DEFT'S FOUND IN CIVIL CONTEMPT, & CERTIFICATE OF SERVICE, FILED. 11 Deft's Helen O'Bannon and Comnonwealth of PA's Notice of Appeal, filed. (82-1182)
3/12/82 Notice to: David Ferleger, Thomas Gilhool, Carla S. Morgan, James M. McNamara, Patricia Jenkins, Thomas Kittredge, Alexander Ewing, Adjoa A. Burrow, Robert B. Hoffman, Thomas A. Masterson, R. Stephen Barrett, Michael S. Lottman, Russell Rice, Dr. Jennifer Howse, Marc H. Myers, James C. Everett, Pamela P. Cohen, Penelope A. Boyd, Joseph P. Green, Jr., John Rogers Carroll, Herbert B. Newberg, Steven M. Coren, Terisa E. Chaw, U.S.C.A. 11 Copy of Clerk's Notice to U.S. Court of Appeals, filed.

15 Certified copy of Order U.S.C.A. that appellant's application to stay the district court's order of February 26, 1982, effecting the transfer of their minor child from Pennhurst to this proposed community living arrangement pending appeal, is denied, filed.

CONT ON PAGE #76

DC 111A (Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN

CIVIL DOCKET CONTINUATION SHEET
DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL

DOCKET NO. 74-1345

PAGE 7 6 Q F

.PAGES

DATE

NR.

PROCEEDINGS

1982

1398 MAR 15 PLFF'S MOTION FOR ALLOWANCE OF INTEREST EARNED ON FEES AWARDED AGAINST CCMM)NWEALTH DEFT'S UNDER ORDER OF JANUARY 26, 1982, CERTIFICATE OF SERVICE, FILED.
1399 " 17 Conrnonwealth deft's exception to and/or motion to modify the report of March 1, 1982, re: R.M., filed.
1400 " 22 Comronwealth deft's answer to plff's first set of interrogatories and request for production of documents, filed.
1401 " 23 Certified copy of Order U.S.C.A. that the judgment of the Court en bane filed December 13, 1979 is hereby reinstated and the judgment of the district court filed March 17, 1978 is hereby affirmed with the exception of the order to find alternative employment for all Pennhurst employees, the order directing the eventual closing of Pennhurst, and the order banning all future admissions to Pennhurst, and the case is remanded to the district court for furt±ier proceedings consistent with the opinions of this court, all parties shall bear their own costs, filed.
1402 " 23 Certified copy of Order U.S.C.A. that Contïünwealth deft's Helen O'Bannon's, et al's appeals (Nos. 81-2448-49) axe hereby dismissed, costs taxed against appellants, filed.

1403

24 ORDER DATED 3/19/82 THAT THE CLERK OF THE COURT SHALL PAY TO THE OFFICE OF THE

SPECIAL MASTER THE SUM OF $50,404.00, BY A ? m 1, 1982, THIS AMOUNT COVERS THE

EXPENSES OF THE SPECIAL MASTERS' OFFICE FOR THE PERIOD OF APRIL 1, 1982 THROUGH

APRIL 30, 1982, FILED.

RJB

3/25/82 ENTERED & COPIES MATT .FT)

1404 " 24 ORDER DATED 3/19/82 THAT THE CLERK OF THE COURT SHALL PAY TO THE OFFICE OF THE

HEARING MASTER THE SUM OF $8,604.00, BY APRIL 1, 1982, THIS AMOUNT COVERS THE

EXPENSES OF THE HEARING MASTER'S OFFICE FOR THE PERIOD APRIL 1, 1982 THROUGH

APRIL 30, 1982, FILED.

•

RJB

3/25/82 ENTERED & COPIES MAILED

1405 " 24 The Commissioners and Mental Health/Mental Retardation Administrator of Chester

County, Penna., Notice of Appeal, filed. (82-1197)

3/26/82 Notice to: David Ferleger, Thomas Gilhool, Carla S. Morgan, James

M. McNamara, Patricia Jenkins, Alexander Ewing, Adjoa A. Burrow, Robert

B. Hoffman, Thomas A. Masterson, R. Stephen Barrett, Michael S. Lottman,

Russell Rice, Dr. Jennifer Howse, Marc H. Myers, James C. Everett, Pamela P.

Cohen, Penelope A. Boyd, Joseph P. Green, John Rogers Carroll, Herebert B.

Newberg, Steven M. Coren, U.S.C.A.

1406 " 24 Copy of Clerk's Notice to U.S. Court of Appeals, filed.

1407 " 25 Copy of Transcript Purchase Order, filed. 1408 " 29 MOÎTIGOMERY COUNTY DEFT'S MOTION TO ENLARGE TIME IN WHICH TO IMPLEMENT PARAGRAPH
2 OF THE MARCH 2, 1981 ORDER OF THIS COURT, & CERTIFICATE OF SERVICE, FILED. 1409 " 29 ORDER DATED 3/26/82 THAT THE CLERK OF THIS COURT SHALL REMIT TO PHILA. COUNTY
THE $40,000 PERFORMANCE BOND POSTED WITH THE CLERK PURSUANT TO THE CONSENT AGREEMENT ENTERED INTO BETWEEN PHIIA. COUNTY AND THE PLFF'S FILED RJB
3/30/82 ENTERED & COPIES MAILED

OVER.

)C 111A Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL

DOCKET NO. 74-1345

PAGE

OF

.PAGES

DATE

NR.

1982

PROCEEDINGS

1410 MAE 31 1411 " 31

ORDER DATED 3/26/82 THAT DEBT'S THE MENTAL HEALTH/MENTAL RETARDATION

ADMINISTRATOR AND COUNTY COMMISSIONERS OF BUCKS COUNTY, SHALL PAY TO DAVID

FERLEGER, ESQ. AND PENELOPE BOYD, ESQ. ATTORNEY'S FEES IN THE SUM OF $4,000;

DEFT'S THE MENTAL HEALTH/MENTAL RETARDATION ADMINISTRATOR AND COUNTY COMMISSIONER£

OF DELAWARE COUNTY SHALL PAY TO DAVID FERLEGER, ET AL, ATTORNEY'S FEES IN THE SUM

OF $4,000; DEFT'S THE MENTAL HEALTH/MENTAL RETARDATION ADMINISTRATOR, ET AL,

SHALL PAY TO DAVID FERLEGER, ESQ., ET AL, ATTORNEY'S FEES IN THE SUM OF $4,000,

FILED.

`

RJB

3/31/82 ENTERED & COPIES MAILED

Certified copy of Order U.S.C.A. that the judgment of the district court

entered August 26, 1982 is hereby affirmed, filed.

1412 "
1413 APR
1414 " 1415 " 1416 " 1417 "

31 ORDER THAT A HEARING SHALL BE HELD ON APRIL 16, 1982 IN COURTROOM 10-B, ON MOTION

TO ENLARGE TIME IN WHICH TO IMPLEMENT PARAGRAPH 2 OF THIS COURT'S ORDER OF

MARCH 2, 1981, ETC., FILED.

RJB

4/1/82 ENTERED & COPIES MAILED

MEMORANDUM & ORDER THAT THE WORDS "PLAN, ORGANIZE, DIRECT, SUPERVISE AND"

CONTAINED IN SECTION I, PARAGRAPH 5, PAGE 3 LINES 1-2 OF THIS COURT'S ORDER OF

APRIL 24, 1980, ARE DELETED, SECTION i, PARAGRAPH 6 OF THIS COURT'S ORDER OF

APRIL 24, 1980 IS DELETED, FILED.

RJB

4/1/82 ENTERED & COPIES MAILED

5 Commonwealth defts' report regarding FY81-82 implementation plan, filed. 5 Copy of Appellant's transcript purchase order, filed. 7 Copy of Judgment received from U.S. Court of Appeals that the Judgment of the
District Court entered 8/26/81 is Affirmed; Costs taxed against appellants, filed.

8 Original plff's notice of deposition of Jennifer Howse, et al, filed.

1418 " 1419 "
1420 "
1421 " 1422 "

9 Report to the Court from the Hearing Master re: proposed admission of L.M., filed
1 Response of plff's P.A.R.C. and Halderman to Montgomery Countv Motion to dismiss,
filed.
1 Response of plff 's P.A.R.C. and Halderman to Montgomery County Motion to enlarge,
filed.
14 Conmonwealth deft's response to plff's request for production of documents, filed. 14 Copy of transcript purchase order, filed.

1423 " 15 PHILA. DEFT'S MOTION FOR EXTENSION OF TIME FOR THE IMPLEMENTATION OF THE MARCH
2, 1981 ORDER, FILED. 1424 " 16 Report of the Court on the Conmonwealth's proposal for placements in FY82-83, fileþ
1425 " 19 Hearing re: March 2, 1981 Order, 4/16/82, witness sworn, filed. 1426 " 19 Plans of The Bucks, Chester and Delaware County deft's for 1982-83, filed. -427 " 20 Hearing re: Mont. Cos' motion for continuance resumes, 4/19/82, witnesses sworn,
CAV, filed. ,428 " 20 Report to the Court from the Hearing Master re: proposed placement of J.H.,filed.

CONi`. ON PAGE #78

DC 111A (Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN, e t a l

CIVIL DOCKET CONTINUATION SHEET
DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL

DOCKET NO 74-1345

PAGE 78 O F

.PAGES

DATE

NR.

PROCEEDINGS

1982

1429 API. 14 Deft's Helen O'Bannon and Commonwealth of Penna's Notice of Appeal from Order transferring funds to Special Master, filed. (82-1261)

1430 " 1431 "

4/21/82 Notice to: David Ferleger, Thomas Gilhool, Carla S. Morgan, James M. McNamara, Patricia Jenkins, Alexander Ewing, Adjoa A. Burrow, Thomas A. Masterson, R. Stephen Barrett, Michael S. Lottman, Russell Rice, Dr. Jennifer Howse, Marc H. Myers, James C. Everett, Pamela P. Cohen, Penelope A. Boyd, Josep P. Green, John Rogers Carroll, Herbert B. Newberg, Steven M. Coren, Terisa E. Chaw, Thomas M. Kittredge, U.S.C.A. 14 Copy of Clerk's Notice to U.S. Court of Appeals, filed. 14 Deft's Helen O'Bannon and Commonwealth of Penna's Notice of Appeal from Order transferring funds to Hearing Master, filed. (82-1262)

4/21/82 Notice to: David Ferleger, Thomas Gilhool, Carla S. Morgan, James M. McNamara, Patricia Jenkins, Alexander Ewing, Adjoa A. Burrow,

Thomas A. Masterson, R. Stephen Barrett, Michael S. Lottman, Russell Rice, Dr. Jennifer Howse, Marc H. Myers, James C. Everett, Pamela P. Cohen,

Penelope A. Boyd, Joseph P. Green, John Rogers Carroll, Herbert B. Newberg,

Steven M. Coren, Terisa E. Chaw, Thomas M. Kittredge, U.S.C.A.

1432

14 Copy of Clerk's Notice to U.S. Court of Appeals, filed.

1433

23 ORDER THAT THE CLERK OF THE COURT SHALL PAY TO THE OFFICE OF THE SPECIAL MASTER

BY MAY 1, 1982, THE SUM OF $48,355.00, THIS AMOUNT COVERS THE EXPENSES OF THE

SPECIAL MASTER'S OFFICE FOR THE PERIOD MAY 1, 1982 THROUGH MAY 31, 1982, FILED.

4/26/82 ENTERED & COPIES MAILED

RJB

1434

23 ORDER THAT THE CLERK OF THE COURT SHALL PAY TO THE OFFICE OF THE HEARING MASTER,

BY MAY 1, 1982, THE SUM OF $8,604.00, THIS AMOUNT COVERS THE EXPENSES OF THE

HEARING MASTER'S OFFICE FOR THE PERIOD OF MAY 1, 1982 THROUGH MAY 31, 1982,

FILED.

RJB

4/26/82 ENTERED & COPIES MAILED

1435 " 26 Report ot the Court on the plans of the Phila. County deft's for 1982 - 83, filec 1436 " 27 Transcript of testimony of October 29, 1981, filed.

1437 " 27 Hearing re: Phila's motion for continuance, 4/26/82, Court was advised that parties would submit an order for signature containing settlement, etc., filed.

1438 " 28 Report to the Court from the Hearing Master re: proposed admission of R.M., file

1439 " 28 ConmLssioners and Mental Health/Mental Retardation Administrator of Montgomery County, Penna's Notice of Appeal, filed. (82-1279) 4/29/82 Notice to: David Ferleger, Thomas Gilhool, Carla S. Morgan, James M. McNamara, Patricia Jenkins, Alexander Ewing, Adjoa A. Burrow, Robert B. Hoffman, Thomas A. Masterson, Michael S. Lottman, Russell Rice, Dr. Jennifer Howse, Marc H. Myers, James C. Everett, Pamela P. Cohen, Penelope A. Boyd, Joseph P. Green, Jr., John Rogers Carroll, Herbert B. Newberg, Steven M. Coren, Terisa E. Chaw, Thomas M. Kittredge, U.S.C.A.
1440 " 28 Copy of Clerk's Notice to U.S. Court of Appeals, filed.

OVER.

)C 111A Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL

DOCKET NO. 74-1345

PAGE ' " OF

.PAGES

DATE

NR.

1982

PROCEEDINGS

1441 APR 29
L442 " 29 1443 MAY 3 1444 " 1445 " 4

The Cormiissioners, Council members and MHMR Administrators of Bucks and Delaware

Counties, Pennsylvania's Notice of Appeal, filed. (82-1280)

4/30/82 Notice to: David Ferleger, Thomas Gilhool, Carla S. Morgan,

James M. McNamara, Patricia Jenkins, Alexander Ewing, Adjoa A. Burrow,

Robert B. Hoffman, Thomas A. Masterson, R. Stephen Barrett, Michael S.

Lottman, Russell Rice, Dr. Jennifer Howse, Marc H. Myers, James C. Everett,

Pamela P. Cohen, Penelope A. Boyd, Joseph P. Green, Jr., John Rogers Carroll,

Herbert B. Newberg, Steven M. Coren, Terisa E. Chaw, U.S.C.A.

Copy of Clerk's Notice to U.S. Court of Appeals, filed.

ORDER DATED 4/30/82 THAT AN EXTENSION OF TIME UNTIL SEPTEMBER 30, 1982 TO COMPLY

WITH PARAGRAPH 2 OF THIS COURT'S ORDER OF MARCH 2, 1981 IS GRANTED TO PHILA.

COUNTY DEFT'S EXCEPT THAT 40 PERSONS WILL BE PLACED IN COMMUNITY LIVING

ARRANGEMENTS BY PHILA. DEFT'S BY JUNE 30, 1982, FILED.

RJB

5/4/82 ENTERED & COPIES MAILED

Report to the Court on agreements reached between Phila. County deft's,

Co¤iïDnwealth of Pennsylvania Deft's, and plff's Halderman and PARC concerning

Phila's motion for extension of time, filed. "Comrønwealth defts1 proposed Findings of fact and conclusions of law regarding

their supplemental motion to amend and/or alter this court's order of March 2,

1981, filed.

1446 " -447 " L448 " L449 "
.450 May
.451 "
452 May 453 " -454 "

7 Transcript of testimony of February 12, 1982, filed.
10 Conn¤nwealth deft's exceptions, filed.
11 BUCKS AND DELAWARE COUNTIES' MOTION FOR STAY OF EXECUTION UPON APPEAL, FILED. 11 Findings of fact and conclusions of law proposed by PARC, et al, concerning
Commonwealth deft's motion to alter or amend March 2, 1981 Order, Paragraph 3, filed. 13 Helen O'Bannon and Comnonwealth of Pa.'s Notice of Appeal, filed. (82-1307)
5/14/82 Copies to: S. Mrvos, M. Myers, Esq., P. Boyd, Esq., H. Newberg, Esq., T. Kittredge, Esq., R. Rice, T. Masterson, A. Burrow, A. Ewing, P. Jenkins, . C. Morgan, T. Gilhool, J. McNamara, M. Lottman, P. Cohen, J. Carroll, T. Chaw, D. Ferleger, R. Barrett, Dr. J. Howse, J. Everett, J. Green, St. Coren, Judge Broderick, D. Spitz 13 Helen O'Bannon and Corrrnonwealth of PA's Notice of ƒrjpeal, filed. {ti¿-UUü)
5/14/82 Copies to: S. Mrvos, M. Myers, P. Boyd, H. Newberg, T. Kittredge, R. R ce, T. Masterson, A. Burrown, A. Ewing, P. Jenkins, C. Morgan, T. Gilhool, J. McNamara, M. Lottman, P. Cohen, J. Carroll, T. Chaw, D. Ferleger R. Barrett, Dr. J. Howse, J. Everett, J. Green, St. Coren, Judge Broderick D. Spitz 13 Copy of Clerk's Notice to U.S.C.A, filed. 13 Copy of Clerk's Notice to U.S.C.A, filed. 14 Report to the Court from of the Hearing Master re: proposed placement of J.H.,

-455 " 17 .456 " 17 -457 " 17

filed. Report to the Court from the Hearing Master re: proposed admission of K.L., filed Copy of Transcript purchase order, filed. BUCKS COUNTY DEFT'S MOTION FOR A PARTIAL ENLARGEMENT OF TIME, FILED.

C 0 N T P G # 80

DC 111A (Rev. 1/75)
PLAINTIFF

TERRI LEE HALDERMAN

DATE

NR.

RJB
CIVIL DOCKET CONTINUATION SHEET
DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL
PROCEEDINGS

FPI-HÍR

7M·aO-70M-43 9

DOCKET NO, '^^~

PAGE ° ¤ O F

PAGES

19 82

1458 May 21 PARC, et al's interrogatories and request for documents - 5-20-82, filed.

1459 " 24 Transcript of hearing on motions of 12/21/81, filed. 1460 " 24 HALDERMAN PLFFS1 MOTION TO PROCEED IN FORMA PAUPERIS, CERTIFICATE OF SERVICE,

FILED.

1461 " 24 ORDER THAT THE CLERK OF THE COURT SHALL PAY TO THE OFFICE OF THE HEARING MASTER

THE SIM OF $9,062.00, BY JUNE 1, 1982, THIS AMOUNT COVERS THE EXPENSES OF THE

HEARING MASTER'S OFFICE FOR THE PERIOD OF JUNE 1, 1982 THROUGH JUNE 30, 1982,

ETC., FILED.

RJB

5/25/82 ENTERED & COPIES MAILED

1462 " 24 ORDER THAT THE CLERK OF THE COURT SHALL PAY TO THE OFFICE OF THE SPECIAL MASTER,

THE SUM OF $41,093.00, BY JUNE 1, 1982, THIS AMOUNT COVERS THE EXPENSES OF THE

SPECIAL MASTER'S OFFICE FOR THE PERIOD JUNE 1, 1982 THROUGH JUNE 30, 1982, ETC.

FILED.

RJB

5/25/82 ENTERED & COPIES MAILED

1463 " 25 Report to the court from the Office of Special Master re: status of compliance

with June 8, 1979 Court order, filed.

25 Report to the Court from the Office of Special Master re: urge Court to take

1464 "

steps to assure that deft's expedite the development of community services for

persons covered by March 2, 1981, order, etc., filed.

25 Report to the Court from the Office of the Special Master re: first report to the

1465 "

court on the Conmonwealths' assumption of the responsibility to review and

approve Individual Habilitation Plans, etc., filed.

25 Report to the Court from the Office of the Special Master re: working agreeirent

1466 "

between Commonwealth Office of Mental Retardation and the Special Master, filed.

1467 †T 25 Copy of letter from Jennifer L. Howse re: successful negotiations with the Office

of the Special Master, etc., filed.

1468 T T 25 Copy of Letter from Jennifer L. Howse to P. Paul Burrichter re: successful

negotiations with the Office of the Special Master, etc., filed.

1469 IT 25 Copy of letter from Jennifer L. Howse to Stephen Barrett, Esq. re: successful

negotiations with the Office of the Speical Master, etc., filed.

1470 11 25 Copy of letter from Jennifer L. Howse to William A. McKendry re: successful

negotiations with the Office of the Special Master, etc., filed.

1471 ïl 25 Copy of letter from Jennifer L. Howse to Patricia C. Sweigert re: successful negotiations with the Office of the Special Master, etc., filed.

1472 T 1 25 Copy of Transcript purchase order (Hearing Master),filed. 1473 f! 25 Copy of Transcript purchase order (Special Master), filed.

1474 ï 1 25 Report to the Court from the Hearing Master re: proposed admission of R.M., filec

1475 I 1 26 PARC, et al's interrogatories and request for documents May 26, 1982, filed. 1476 T1 27 Commonwealth deft's implementation report, filed.

1477 JUN 1 Report to the court from the Office of the Hearing Master re: proposed placement
of J.H., filed. 1478 T1 1 Transcript of testimony of November 24, 1981, filed.
1479 1 I 4 Report to the Court from the Hearing Master re: proposed admission of L.M., filed

OVER

Z 111A ev. 1/75)
PLAINTIFF
TERRÏ LEE HALDERMAN, ET AL

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
PENNHURST STATE SŒOOL & HOSPITAL

FPI-M*B 7 - U 6 0 - 7 0 M • 4 3 88
DOCKET NO. 74-1345

PAGE _ 8 I O F

PAGES

DATE

NR.

1982

PROCEEDINGS

L48O JUN
1481 " 1482 "
1483 1484 ii -485 ii -486 ii L487 II 1488 II

4 Commonwealth of Pennsylvania, et al's, Notice of appeal re: Hearing Master,
filed. (82-1345)

6/4/82 Notice to: David Ferleger, Thomas Gilhool, Carla S. Morgan,

James M. McNamara, Patrica Jenkins, Alexander Ewing, Adjoa A. Burrow,

Thomas A. Masterson, R. Stephen Barrett, Michael S. Lottman, Russell Rice,

Dr. Jennifer Howse, Marc H. Myers, James C. Everett, Pamela P. Cohen,

Penelope A. Boyd, Joseph P. Green, John Rogers Carroll, Herbert B. Newberg,

4 4

Steven M. Coren, Terisa E. Chaw, Thomas M. Kittredge, U.S.C.A. Copy of Clerk's Notice to U.S. Court of Appeals, filed. Cb¤omonwealth of Pennsylvania, et al's, Notice of Appeal re: Special Master

filed. (82-1346)

6/4/82 Notice to: David Ferleger, Thomas Gilhool, Carla S. Morgan,

James M. McNamara, Patricia Jenkins, Alexander Ewing, Adjoa A. Burrow,

Thomas A. Masterson, R. Stephen Barrett, Michael S. Lottman, Russell Rice,

Dr. Jennifer Howse, Marc H. Myers, James C. Everett, Pamela P. Cohen,

Penelope A. Boyd, Joseph P. Green, Jr., John Rogers Carroll, Herbert B.

Newberg, Steven M. Coren, Terisa E. Chaw, Thomas M. Kittredge, U.S.C.A.

4 7

Copy of Clerk's Notice to U.S. Court of Appeals, filed. Report to the Court from the Hearing Maste- re: Proposed admission of R.M., filed

8 Certified copy of Order U.S.C.A. that the case is hereby dismissed for failure to timely prosecute (81-2614), filed.
8 Certified copy of Order U.S.C.A. that the case is hereby dismissed for failure to timely prosecute (81-2613), filed.

11 Third supplemental affidavit of David Ferleger Esq. regarding attorney's fees, filed.

11 MEMORANDUM, BRODERICK, J., AND ORDER THAT THE MOTION OF DEFTS COMÆ>NWEALTH OF PA

DEPT. OF PUBLIC WELFARE, ET AL TO AMEND AND/OR ALTER THIS COURT'S ORDER OF 3-2-81

FILED WITH THIS COURT ON 2-4-82, IS DENIED, AMENDING PARAGRAPH 3 OF THIS COURT'S

ORDER OF 3-2-81, FILED.

RJB

6-14-82 Entered and copies mailed.

L489 " 1490 " L49l "

15 Report to the Court from the Hearing Master re: proposed placement of M.G., filed. 15 Copy of transcript purchase order (Special Master), filed. 15 Copy of transcript purchase order (Hearing Master), filed.

1492 " 1493 " 1494 "

15 ORDER THAT PLFF. TERRI LEE HALDERMAN, ET AL'S, MOTION TO PROCEED IN FORMA

PAUPERIS IS GRANTED, FILED.

RJB

6/16/82 ENTERED & COPIES MAILED

15 Stipulation between Montgomery County deft's and plff's re: Montgomery County deft's motion to enlarge time in which to implement paragraph 2 of the March 2, 1981 order of this court, filed.

16 Report to the Court from the Hearing Master re: proposed admission of R.M,, filed

CONT. ON PAGE #82

DC 111A (Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN, ET AL

CIVIL DOCKET CONTINUATION SHEET
DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL

FPI-MAR

7-14-80.70 M 439

DOCKET NO. 74-1345 PAGE .82 OF .PAGES

DATE

NR.

PROCEEDINGS

1982

1495 JUN 16 DELAWARE COUNTY DEFT'S MOTION FOR A PARTIAL ENLARGEMENT OF TIME , & CERTIFICATE OF SERVICE, FILED.

1496 "

16 ORDER THAT AN EXTENSION OF TIME UNTIL AUGUST 31, 1982 TO COMPLY WITH PARAGRAPH

2 OF THIS COURT'S ORDER OF MARCH 2, 1981, IS GRANTED TO MONTGOMERY COUNTY

DEFT'S, ETC., FILED.

RJB

6/17/82 ENTERED & COPIES MATT .En

1497 " 22 Fourth supplemental affidavit of David Ferleger, Esq. regarding attorney's fees,

1498 "
1499 "
1500 "
1501 "
1502 If 1503 11 1504 I T 1505 ï I

filed. 22 ORDER THAT THE EXPENSES OF THE OFFICE OF THE SPECIAL MASTER, INCLUDING PERSONNEI
RENTAL, STAFF TRAVEL, ETC. SHALL NOT EXCEED $170,151.00, FOR THE PERIOD

BEGINNING JULY 1, 1982 AND ENDING DECEMBER 31, 1982, ETC., FILED.

RJB

6/22/82 ENTERED & COPIES MAILED 22 ORDER DATED 6/17/82, THAT THE EXPENSES OF THE OFFICE OF THE HEARING MASTER,

INCLUDING PERSONNEL, RENTAL, STAFF TRAVEL, ETC., SHALL NOT EXCEED $48,668.00 FOR

THE PERIOD BEGINNING JULY 1, 1982 AND ENDING DECEMBER 31, 1982, ETC., FILED. RJB

22

6/22/82 ENTERED & COPIES MAILED ORDER DATED 6/17/82 THAT THE CLERK OF THE COURT SHALL PAY TO THE OFFICE OF THE

HEARING MASTER THE SUM OF $8,361.00, BY JULY 1, 1982, THIS AMOUNT COVERS THE

EXPENSES OF THE HEARING MASTER'S OFFICE FOR THE PERIOD JULY 1, 1982 THROUGH

JULY 31, 1982, FILED.

RJB

6/22/82 ENTERED & COPIES MAILED 22 ORDER DATED 6/17/82 THAT THE CLERK OF THE COURT SHALL PAY TO THE OFFICE OF THE

SPECIAL MASTER THE SUM OF $40,217.00, BY JULY 1, 1982, THIS AMOUNT COVERS THE

EXPENSES OF THE SPECIAL MASTER'S OFFICE FOR THE PERIOD JULY 1, 1982 THROUGH JULY

31, 1982, FILED.

RJB

6/22/82 ENTERED & COPIES MAILED `

23 Deft's implementation report, filed. 23 Ctoim¤nwealth deft's exception to and/or motion to modify the report of June 15,
1982, re: R.M., filed.

24 Conrn¤nwealth deft's answer to PARC's interrogatories and request for documents,

dated May 20, 1982, filed. 24 Commonwealth deft's response to PARC's interrogatories and request for

1506 t f 1507 "

production of documents dated May 26, 1982, filed. 28 Comnonwealth of Pennsylvania, et al's, Notice of appeal re: Special Master,
filed. (82-1395) 6/29/82 Notice to: David Ferleger, Thomas Gilhool, Carla S. Morgan, James M. McNamara, Patricia Jenkins, Alexnader Ewing, Adjoa A. Burrow, Thomas A. Masterson, R. Stephen Barrett, Michael S. Lottman, Russell Rice, Dr. Jennifer Howse, Marc H. Myers, James C. Everett, Pamela P. Cohen,
Penelope A. Boyd, Joseph P. Green, John Rogers Carroll, Herbert B. Newberg,
Steven M. Coren, Terisa E. Chaw, Thomas M. Kittredge, U.S.C.A. 28 Copy of Clerk's Notice to U.S. Court of Appeals, filed.

OVER

: niA ev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN

CIVIL DOCKET CONTINUATION SHEET
DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL

FPl-MAR 7-14-e0-70M-439B

DOCKET NO.74-1345-

PAGE 83O F

.PAGES

DATE

NR.

1982

PROCEEDINGS

.508 JUN 28

-509

28

1510 i t

29

1511 JUL 1

L512 11

2

1513 II 12

1514 " 12

1515 " 12 -516 " 14 .517 " 14 1518 " 14
-519 " 15 .520 " 19 .521 " 20 L522 " 20 .523 " 20

Co¤monwealth of Pennsylvania, et al's, Notice of Appeal re: Hearing Master.
filed. (82-1396)
6/29/82 Notice to: David Ferleger, Thomas Gilhool, Carla S. Morgan, James M. McNamara, Patricia Jenkins, Adjoa A. Burrow, Thomas Masterson, R. Stephen Barrett, Michael S. Lottman, Russell Rice, Dr. Jennifer Howse, Marc H. Myers, James C. Everett, Pamela P. Cohen, Penelpe A. Boyd, Joseph P. Green, John Rogers Carroll, Herbert B. Newberg, Steven M. Coren, Terisa E. Chaw, & Thomas M. Kittredge, U.S. Court of Appeals Copy of Clerk's Notice to U.S. Court of Appeals, filed.

Copy of Transcript Purchase Order, filed.
PLFF'S PARC, ET AL'S, MOTION TO ACCEPT THE REPORT OF THE MASTER ON FRIENDADVOCATE AND FOR SUITABLE ORDERS, MEMORANDUM OF LAW, & CERTIFICATE OF SERVICE, FILED.
Deposition of Jennifer L. Howse, filed.
Report to the Court on the observations of fifteen monitoring visits, and a Report on the Commonwealths' compliance with those terms of the 2/2/82 agreement etc., filed. Coimr>nwealth of Pennsylvania, et al's, notice of Appeal, filed. (82-1422)
7/13/82 Notice to: David Ferleger, Thomas Gilhool, Carla S. Morgan, James M. McNamara, Patricia Jenkins, Adjoa A. Burrow, Thomas Masterson R. Stephen Barrett, Michael S. Lottman, Russell Rice, Dr. Jennifer Howse, Marc H. Myers, James C. Everett, Pamela P. Cohen, Penelope A. Boyd, Joseph P. Green, John Rogers Carroll, Herbert B. Newberg, Steven M. Coren, Terisa E. Chase, & Thomas M. Kittredge, U.S. Court of Appeals Copy of Clerk's Notice to U.S. Court of Appeals, filed.

Copy of Transcript Purchase Order re: Hearing Master, filed. Copy of Transcript Purchase Order re: Special Master, filed.

ORDER DATED 7/13/82 THAT THE CLERK OF THE COURT SHALL PAY TO THE OFFICE OF THE

HEARING MASTER THE SUM OF $8,236.00, BY AUGUST 1, 1982, THIS AMOUNT COVERS THE

EXPENSES OF THE HEARING MASTER'S OFFICE FOR THE PERIOD AUGUST 1, 1982 THROUGH

AUGUST 31, 1982, FILED.

RJB

7/15/82 ENTERED & COPIES MAILED

Deft's Implementation Report, filed. PETITION OF PARC, ET AL, FOR COUNSEL FEES, FILED.

Report to the Court from the Hearing Master re: proposed placement of G.W.,
filed. Report to the Court from the Hearing Master re: proposed admission of J.E., filec MOTION OF PLFF. CLASS MEMBER MARK HAMYDND FOR EMERGENCY IMPLEMENTATION RELIEF, MEMORANDUM OF LAW, & CERTIFICATE OF SERVICE, FILED.

CONT. ON PAGE #84

DC 1UA (Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN, ET AL

CIVIL. DOCKET CONTINUATION SHEET DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL,

FPI—MAR 7 · 1 4 · a o - 7 O M - 4 3 9 8

74-1345
DOCKET NO.

84,
PAGE. .OF

.PAGES

DATE

NR.

PROCEEDINGS

1982

(l523)JUL 28 1524 " 28

ORDER THAT THE MOTION BY PLFF. CLASS MEMBER MARK HAMMOND FOR EMERGENCY

IMPLEMENTATION RELIEF IS REFERRED TO THE HEARING MASTER FOR HEARING, DECISION

& ORDER PURSUANT TO THE HEARING AND APPEAL PROCEDURES IN THE ORDER OF APRIL 24,

1980, THE SPECIAL MASTER SHALL PROMPTLY INVESTIGATE THE MATTER AND FILE WITH THE

COURT A REPORT & RECOMMENDATION, ETC., FILED.

RIB

7/29/82 ENTERED & COPIES MAILED

ORDER THAT THE CLERK OF THE COURT SHALL PAY TO THE OFFICE OF THE SPECIAL MASTER

THE SUM OF $37,116.00 BY AUGUST 1, 1982, THIS AMOUNT COVERS THE EXPENSES OF THE

SPECIAL MASTER'S OFFICE FOR THE PERIOD AUGUST 1, 1982 THROUGH AUGUST 31, 1982,

FILED.

RJB

7/29/82 ENTERED & COPIES MAILED

1525 " 29 Certified copy of Order U.S.C.A. that action is dismissed by the Clerk under

Rule 42(b) FRAP, filed.

1526 " 30 Report to the Court from the Hearing Master re: proposed admission of K.K., filed

1527 AUG 2 Memorandum in opposition to motion by Mark Hanmond for emergency implementation relief, filed.

1528 "

Response of the Delaware County deft's to motion by Mark Hammond for emergency relief, filed.

1529 AUG 5 Deft's implementation report, filed.

1530 " 6 Caiux>uwealth of Pennsylvania, et al's, Notice of Appeal re: Hearing Master, filed. (82-1510)
8/9/82 Notice to: David Ferleger, Thomas Gilhool, Carla S. Morgan, James M. McNamara, Patricia Jenkins, Alexander Ewing, Adjoa A. Burrow, Thomas A. Masterson, R. Stephen Barrett, Michael S. Lottman, Russell Rice, Dr. Jennifer Howse, Marc H. Myers, James C. Everett, Pamela P. Cohen, Penelope A. Boyd, Joseph P. Green, Jr., John Rogers Carroll, Herbert B. Newberg, Steven M. Coren, Terisa E. Chaw, Thomas M. Kittredge, U.S.C.A. 1531 " 6 Copy of Clerk's Notice to U.S. Court of Appeals, filed. 1532 " 6 Cornmonwealth of Pennsylvania, et al's, Notice of Appeal re: Special Master, filed. (82-1511) 8/9/82 Notice to: David Ferleger, Thomas Gilhool, Carla S. Morgan, James M. McNamara, Patricia Jenkins, Alexander Ewing, Adjoa A. Burrow, Thomas A. Masterson, R. Stephen Barrett, Michael S. Lottman, Russell Rice, Dr. Jennifer Howse, Marc H. Myers, James C. Everett, Pamela P. Cohen, Penelope A. Boyd, Joseph P. Green, John Rogers Carroll, Herbert B. Newberg, Steven M. Coren, Terisa E. Chaw, Thomas M. Kittredge, U.S.C.A.
1533 " 6 Copy of Clerk's Notice to U.S. Court of Appeals, filed.

1534 " 9 Copy of Transcript Purchase Order, filed.

1535 " 9 Phila. Deft's exception to the report of July 29, 1982, filed.

1536 " 10 Second report to the court from the Special Master re: Commonwealth's assumption of responsibility for case-management related activites, filed.

OVER.

C 111A fev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN, ET AL

CIVIL. DOCKET CONTINUATION S H E E T DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL

f PI—MAR 7 - M · 6 0 - 7 0 M - 4 3 9B
DOCKET NO. 74-1345

PAGE_°¿OF

.PAGES

DATE

NR.

1982

PROCEEDINGS

1537AUG
.538 " 539 " 540 "

12 MEMORANDUM & ORDER THAT THE SPECIAL MASTER SHALL SUBMIT TO THIS COURT BY

AUGUST 30, 1982 A PLAN FDR THE PHASING OUT AND CLOSING OF THE OFFICE OF THE

SPECIAL MASTER BY DECEMBER 31, 1982, FILED.

RJB

8/12/82 ENTERED & COPIES MAILED 12 ORDER THAT THE DEFT'S SHALL SUBMIT TO THIS COURT BY SEPTEMBER 15, B82 THEIR
PLANS TO PROVICE COMMUNITY LIVING ARRANGEMENTS TOGETHER WITH ALL SERVICES REQUIRED BY THE RETARDED PERSON'S INDIVIDUAL HABILITATION PLAN FOR PENNHURST PLFF. CLASS MEMBERS (NOT COVERED BY THE SCHOOL-AGE ORDER) IN THE SOUTHEAST REGION OF PENNSYLVANIA (BUCKS, CHESTER, DELAWARE, MONTGOMERY & PHIIA. COUNTIES) DURING PERIOD COMMENCING OCTOBER 1, 1982 AND CLOSING JUNE 30, 1984, ETC., IT IS FURTHER ORDERED THAT A HEARING SHALL BE HELD ON SEPTEMBER 22, 1982 AT 9:30 A.M. IN COURTROOM 10-B, TO DETERMINE WHETHER THESE PLANS ARE APPROPRIATE & CONSISTENT WITH THE INJUNCTTVE RELIEF PREVIOUSLY ORDERED BY THIS COURT, FILED. RJB

8/12/82 ENTERED & COPIES MAILED

12 ORDER THAT A HEARING ON PLFF-INTERVENOR PENNSYLVANIA ASSOCIATION FOR RETARDED

CITIZENS' MOTION THAT THIS COURT ORDER THE IMPLEMEI^TATION OF THE REPORT &

RECOMMENDATION OF THE SPECIAL MASTER CONCERNING THE PROPOSED CITIZEN-ADVOCATE

PROGRAM SHALL BE HELD ON SEPTEMBER 29, 1982 AT 9:30 A.M. IN COURTROOM 10-B,

FILED.

RJB

8/12/82 ENTERED & COPIES MAILED

12 ORDER THAT A HEARING SHALL BE HELD ON OCTOBER 6, 1982 AT 9:30 A.M. IN COURTROOM

10B FOR THE PURPOSE OF HEARING PROPOSALS AND ARGUMENT CONCERNING AMENDMENT OF

THIS COURT'S ORDER OF APRIL 24, 1980 TO ACCURATELY REFLECT AN ENFORCEMENT

MECHANISM NECESSARY TO REPLACE THE MONITORING FUNCTIONS OF THE SPECIAL MASTER IN

ORDER TO ASSURE ADEQUATE HABILITATION FOR THE MEMBERS OF THE PENNHURST CLASS

FILED.

RJB

Z/12/%¿ ENTERED & COPIES MAILED

13 Deft. Comnonwealth's implementation report, filed. 13 Report to the Court from the Hearing Master re: proposed placement of J.W.,

filed.

16 Report of the "Ccranrnwealth deft's in re: placement of Mark Hammond, filed.

L54l " 17 Report to the Court from the Hearing Master re: proposed placement of T,M., filed

542 " 18 Transcript of Motion for continuance of April 26, 1982, filed. .543 " 18 Transcript of testimony of April 19, 1982, filed. 544 " 18 Transcript of testimony of April 16, 1982, filed.

1545 " 19
1546 " 24 1547 " 31
548 SEP

Report to the Court from the Hearing Master re: proposed admission of J.B.N. filed. Montgomery County deft's exceptions to Hearing Master's report of J.W., filed. Report to the Court from the Hearing Master re: proposed admission of J.B.N. , filed. Report to the Court from the Hearing Master re: placement of M.H., filed.

CONT. ON PAGE #86

DC 111A (Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN, ET AL

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL,

FPI-HAR 7-14-80.7 0 M - 4 3 9 8

DOCKET NO. 74-1345

PAGE 86 OF

PAGES

DATE

NR.

PROCEEDINGS

1982

1549 SEP 1550 "

ORDER DATED 8/27/82 THAT THE CLERK OF THE COURT SHALL PAY TO THE OFFICE OF THE

HEARING MASTER THE SUM OF $6,980.88 BY SEPTEMBER 1, 1982, THIS AMOUNT COVERS

THE EXPENSES OF THE HEARING MASTER'S OFFICE FOR THE PERIOD SEPTEMBER 1, 1982

THROUGH SEPTEMBER 30, 1982, FILED.

RJB

9/2/82 ENTERED & COPIES MAILED

ORDER DATED 8/27/82 THAT THE CLERK OF THE COURT SHALL PAY TO THE OFFICE OF THE

SPECIAL MASTER THE SUM OF $31,895.00, BY SEPTEMBER 1, 1982, THIS AMOUNT COVERS

THE EXPENSES OF THE SPECIAL MASTER'S OFFICE FOR THE PERIOD SEPTEMBER 1 THROUGH

SEPTEMBER 30, 1982, FILED.

RJB

9/2/82 ENTERED & COPIES MAILED

1551 "

Copy of Transcript Purchase Order - Special Master, filed.

1552 " 1553 " 1554 "
1555 "

Copy of Transcript Purchase Order - Hearing Master, filed.

MONTGOMERY COUNTY DEFT'S MOTION FOR A PARTIAL ENLARGEMENT OF TIME AND A MOTION TO COMPEL THE COMMONWEALTH TO PAY AN ADEQUATE RATE OF REIMBURSEMENT FOR THE ICF-MR PROGRAM, FILED:

ORDER THAT THE SUBJECT OF THE HEARING PREVIOUSLY SCHEDULED FOR SEPTEMBER 22, 1982

AT 9:30 A.M. IS CHANGED TO CONSIDERATION OF PLFF-TNTERVENOR PENNSYLVANIA

ASSOCIATION FOR RETARDED CITIZENS' MOTION CONCERNING THE PROPOSED CITIZEN-

ADVOCATE PROGRAM, FURTHER ORDERED THAT THE HEARING PREVIOUSLY SCHEDULED FOR

SEPTEMBER 29, 1982 AT 9:30 A.M. IS CHANGED TO CONSIDERATION OF THE PLANS

SUBMITTED BY THE DEFT'S TO DETERMINE WHETHER THESE PLANS ARE APPROPRIATE AND

CONSISTENT WITH THE INJUNCTIVE RELIEF PREVIOUSLY ORDERED BY THIS COURT, FILED.

9/3/82 ENTERED & COPIES MAILED

RJB

ORDER THAT A CONFERENCE SHALL BE HELD ON SEPTEMBER 29, 1982 AT 4:00 P.M. IN ROOM 10613 CONCERNING THE PROBLEM OF PLACEMENT THROUGH THE NEW SMALL ICF-MR PROGRAM AS STATED IN THE LETTER FROM DEFT. CITY OF PHILA. DATED 8/27/82, FILED. RJB
9/8/82 ENTERED & COPIES MAILED

1556 SEP 9 Report to the Court from the Hearing Master re: proposed placement of T.M., filed 1557 " 9 Memorandum in opposition to Montgpmery County deft's motion for a partial
enlargement of time, filed.

1558 " 1559 "
1560 "

13 Deft's inplementation report, filed. 15 Comronwealth deft's proposed inplementation plan for October 1, 1982 through
June 30, 1984, filed.
15 PHILA. DEFT'S MOTION FOR EXTENSION OF TTME AND OTHER RELIEF IN THE IMPLEMENTATION OF THE MARCH 2, 1981 ORDER, & CERTIFICATE OF SERVICE, FILED.

OVER.

C 111A ?ev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN, ET AL
NR.

CIVIL. DOCKET CONTINUATION SHEET
DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL,

FPi—MAR 7-14-eO-7OM-*3_96_
DOCKET NO.74-1345

PAGE " ' OF

PAGES

PROCEEDINGS

16 Conrnonwealth of Pennsylvania, et al's Notice of Appeal, re: Hearing Master,

filed.

(82-1559)

9/16/82 Notice to: David Ferleger, Thomas Gilhool, Carla S. Morgan,

James M. McNamara, Patricia Jenkins, Alexander Ewing, Adjoa A. Burrow,

Thomas A. Masterson, R. Stephen Barrett, Michael S. Lottman, Russell Rice,

Dr. Jennifer Howse, Marc H. Myers, James C. Everett, Pamela P. Cohen,

Penelope A. Boyd, Joseph P. Green, John Rogers Carroll, Herbert B.

Newberg, Steven M. Coren, Terisa E. Chaw, Thomas M. Kittredge, U.S.C.A.

16 Copy of Clerk's Notice to U.S. Court of Appeals, filed.

16 Comnonwealth of Pennsylvania, et al's Notice of Appeal, re: Special Master,

filed.

(82-1560)

9/16/82 Notice to: David Ferleger, Thomas Gilhool, Carla S. Morgan,

James M. McNamara, Patricia Jenkins, Alexander Ewing, Adjoa A. Burrow,

Thomas A. Masterson, R. Stephen Barrett, Michael S. Lottman, Russell Rice

Dr. Jennifer Howse, Marc H. Myers, James C. Everett, Pamela P. Cohen,

Penelope A. Boyd, Joseph P. Green, John Rogers Carroll, Herbert B.

Newberg, Steven M. Coren, Terisa E. Chaw, Thomas M. Kittredge, U.S.C.A.

16 Copy of Clerk's Notice to U.S. Court of Appeals, filed.

16 Plans of The Bucks, Chester and Delaware County Deft's for 1982-83 and 1983-84, filed.
16 Report to the Court on the Plans of the Phila. County deft's from October 1, 1982 - June, 1984, filed.
17 ConriDnwealth deft's exceptions to the Hearing Master's report dated 9/8/82, filed 17 Report to the Court from the Hearing Master re: proposed admission of J.E., filed 17 Montgomery County deft's Plan pursuant to August 12, 1982 memorandum and order,
filed. 20 Comanonwealth deft's response to Montgomery County deft's motion for a partial
enlargement of time and a motion to compel the Carn¤nwealth to pay an adequate rate of reimbursement for the ICF-MR Program, filed.

21 Response of Phila. County deft's to plff's motion to accept the report of the Master on Friend-Advocate and for suitable orders, filed.

22 Plff's notice of deposition of George A. Kopchick, filed. 22 Phila. Deft's exception to the Report of September 16, 1982 re: J.E., filed.

22 Plff's notice of deposition of Thomas Orr, et al, filed.

23 Hearing re: PARC's motion re: Citizen Advocate Program, witness sworn, filed. 23 Report to the Court from the Hearing Master re: proposed admission of E.F., filed, 23 Response of Commonwealth deft's to "Friend-Advocate" proposal, filed.
27 Conmonwealth deft's implementation report, filed.

28 Copy of Transcript purchase Order re: Hearing Master, filed. 28 Copy of Transcript purchase Order re: Special Master, filed.

CONT. ON PAGE #88

DC 111A (Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN, ET AL

C1VIU DOCKET CONTINUATION SHEET
DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL

f PI-MAR 7 u a 0 - 7 0 M - 4 3 9 8

DOCKET NO. 74-1345

PAGE. 88, OF

.PAGES

DATE

NR.

PROCEEDINGS

1982

1581 SEP

28 ORDER THAT THE HEARING ON DEFT'S PLANS SUBMITTED PURSUANT TO THIS COURT'S

AUGUST 12, 1982 ORDER, PREVIOUSLY SCHEDULED FOR SEPTEMBER 29, 1982 IS HEREBY

CHANGED AND SET FOR OCTOBER 6, 1982 AT 9:30 A.M., IT IS FURTHER ORDERED THAT

THE HEARING PREVIOUSLY SCHEDULED FOR OCTOBER 6, 1982 FOR THE PURPOSE OF

HEARING PROPOSALS CONCERNING THE ENFORCEMENT MECHANISM NECESSARY TO REPLACE

THE MONITORING FUNCTION OF THE SPECIAL MASTER IS CHANGED AND SET FOR OCTOBER 13,

1982 AT 9:30, FILED.

RJB

9/28/82 ENTERED & COPIES MAILED

1582 " 28 ORDER DATED 9/27/82 THAT THIS COURT'S MEMORANDUM OF AUGUST 12, 1982 IS HEREBY

AMENDED, ETC., FILED.

RJB

9/28/82 ENTERED & COPIES MAILED

1583 " 28 ORDER DATED 9/21/&2 THAT THE CLERK OF THE COURT SHALL PAY TO THE OFFICE OF THE

HEARING MASTER THE SUM OF $8,236.00, BY OCTOBER 1, 1982, THIS AMOUNT COVERS THE

EXPENSES OF THE HEARING MASTER'S OFFICE FOR THE PERIOD OCTOBER 1, 1982 THROUGH

OCTOBER 31, 1982, FILED.

RJB

9 / 2 8 / 8 2 ENTERED & COPIES MATT,ED

(to fiscal)

1584 " 28 ORDER DATED 9/27/82 THAT THE CLERK OF COURT SHALL PLACE THE SUM OF $200,000.

RESULTING FROM THE PAYMENT OF COERCIVE & COMPENSATORY CIVIL CONTEMPT FINES

PURSUANT TO THIS COURT'S ORDER OF AUGUST 25, 1982 IN THIRTEEN-WEEK TREASURY

BILLS, ETC., FILED.

RJB

9/28/82 ENTERED & COPIES MAILED

(to fiscal)

1585

28 ORDER DATED 9/27/82 THAT THE CLERK OF THE COURT SHALL PAY TO THE OFFICE OF THE

SPECIAL M4STZR THE Sll·l OF $26,403.00, BY OCTOBER 1. 1982, THIS AMOUNT COVERS

THE EXPENSES OF THE SPECIAL MASTER'S OFFICE FOR THE PERIOD OCTOBER 1, 1982

THROUGH OCTOBER 31, 1982, FILED.

RJB

9/28/82 ENTERED & COPIES MAILED

(to fiscal)

1586 11 29 Montgomery County cleft's exceptions to Hearing Master's report of E.F., filed.

1587 11 1588 II 1589 11

29 Commonwealth deft's response to Phila. deft's motion for extension of time and other relief in the implementation of the March 2, 1981 order, filed.
29 Hearing resumes re: PARC's motion re: Citizen Adtsocate Program, PARC'S witness s¾orn and testified, plff rests, filed.
30 COMMONWEALTH DEFTS' MOTION TO MODIFY THIS COURT'S ORDER OF 6-11-82, MEMORANDUM OI

LAW, CERTIFICATE OF SERVICE, FILED.
1590 OCT 1 ORDER DATED 9/30/82 THAT THE CLERK OF THE COURT SHALL IMMEDIATELY PAY TO THE
OFFICE OF THE SPECIAL MASTER, PURSUANT OT THIS COURT'S ORDER OF JANUARY 8, 1982, THE SUM OF $10,500.00, TO BE USED FOR PAYMENT OF ALL NECESSARY EXPENSES INCURRED BY PROVIDING CERTIFIED ADVOCATES FOR THOSE MEMBERS OF THE PLFF. CLASS FOR WHOM SUCH SERVICES ARE REQUIRED DURING THE PERIOD FROM OCTOBER 1, 1982 THROUGH DECEMBER 31, 1982, FILED. (to fiscal)
10/1/82 ENTERED & COPIES MAILED

OVER.

PLAINTIFF
TERRI LEE HALDERMAN, ET AL
NR,

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL,
PROCEEDINGS

FP¡—MAR 7 - ] 4 - e O - 7 O M - 4 3 9 6
DOCKET NO. 7 4 - 1 3 4 5
89
PAGE. _OF_ .PAGES

ORDER DATED 9/30/82 THAT THE HEARING SCHEDULED FOR OCTOBER 6, 1982 IS HEREBY

CONTINUED, IT IS FURTHER ORDERED THAT A HEARING SHALL BE HELD ON OCTOBER 13,

1982 AT 9:30 A.M. CONCERNING THE ENFORCEMENT MECHANISM NECESSARY TO REPLACE

THE MONITORING FUNCTION OF THE SPECIAL MASTER, FURTHER ORDERED THAT A HEARING

SHALL BE HELD ON OCTOBER 27, 1982 AT 9:30 A.M. FOR THE PURPOSE OF DETERMINING

WHETHER THE DEFT'S FLANS ARE APPROPRIATE AND CONSISTENT WITH THE INJUNCTIVE

RELIEF PREVIOUSLY ORDERED BY THIS COURT, FILED.

RJB

10/1/82 ENTERED & COPIES MAILED

ORDER DATED 9/30/82 THAT THE COMMTOWEALTH DEFT'S SHALL SUBMIT TO THIS COURT BY

NOVEMBER 1, 1982, THEIR PLAN FOR THE INITIATION ON OR BEFORE JANUARY 1, 1983

OF FRIEND-ADVOCATE SERVICES TO THOSE MEMBERS OF THEPLFF. CLASS WHO HAVE NO

FAMILY OR FRIEND TO SPEAK ON THEIR BEHALF, FILED.

RJB

10/1/82 ENTERED & COPIES MATT .FT)

4 Coüinünweal·th deft's exceptions re: no. 82-A-6, filed. 4 Govt's notice of deposition of Charles Burkhouse, •filed.

6 Caimonwealth deft's interrogatories to all plff's - plff-intervenors, filed. 6 HELEN O'BANNON, ET AL'S, MOTION TO STAY PROCEEDINGS AND TO QUASH SUBPOENAS,

CERTIFICATE OF SERVICE, FILED.

Memorandum of law in support of mation to stay proceedings and quash subpoenas,

filed.

ORDER THAT THE HEARING SCHEDULED FOR OCTOBER 13, 1982 AT 9:30 A.M. SHALL BE FOR

THE PURPOSE OF DETERMINING WHETHER THE DEFT'S PLANS ARE APPROPRIATE AND

CONSISTENT WITH THE INJUNCTIVE RELIEF PREVIOUSLY ORDERED BY THIS COURT, IT IS

FURTHER ORDERED THAT A HEARING SHALL BE HELD ON NOVEMBER 3, 1982 AT 9:30 A.M.

CONCERNING THE ENFORCEMENT MECHANISM NECESSARY TO REPLACE THE MONITORING FUNCTION

OF THE SPECIAL MASTER, FILED.

RJB

10/6/82 ENTERED & COPIES MAILED

Transcript of testimony of September 29, 1982,filed.

Affidavits of Jennifer L. Howse and Richard H. Lee in support of motion to stay
proceddings and to quash subpoenas, filed.
7 Report to the Court from the Hearing Master re: proposed placement of A.B., filed 7 Report to the Court from the Hearing Master re: proposed placement of T.M., filed 7 Response of plff's Halderman, et al, to (¾mmonwealth's motion to modify this
court's order of June 11, 1982, filed.

Halderman plff's responses to deft's interrogatories 5-11, filed.

Coiïir¤nwealth of Pennsylvania, et al's Notice of appeal re: Hearing Master, filed. 10/12/82 Notice to: David Ferleger, Thomas Gilhool, Carla S. Morgan, (82-164tø) James M. McNamara, Patricia Jenkins, Alexander Ewing, Adjoa A. Burrow, Thomas A. Masterson, R. Stephen Barrett, Michael S. Lottman, Russell Rice, Dr. Jennifer Howse, Mare H. Myers, James C. Everett, Pamela P. Cohen, Penelope A. Boyd, Joseph P. Green, Jr., John Rogers Carroll, Herbert B. Newberg, Steven M. Coren, Terisa E. Chaw, Thomas M. Kittredge, U.S.C.A.
Copy of Clerk's Notice to U.S. Court of Appeals, filed.

`CONT. ON PAGE #90

DC 111A (Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN, ET AL

CIVIL DOCKET CONTINUATION SHEET
DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL,

FPi-MAR 7·14·BQ-70M-4398

DOCKET NO. 74¯l·345

PAGE _9_O_OF

PAGES

DATE

NR.

1982

PROCEEDINGS

1607 OCT 1608 " 7

Conncmwealth of Pennsylvania, et al's, Notice of appeal re: Special Master, filec

10/12/82 Notice to: David Ferleger, Thomas Gilhool, Carla S. Morgan,

James M. McNamara, Patricia Jenkins, Alexander Ewing, Adjoa A. Burrow,

Thomas A. Masterson, R. Stephen Barrett, Michael S. Lottman, Russell Rice,

Dr. Jennifer Howse, Marc H. Myers, James C. Everett, Pamela P. Cohen,

Penelope A. Boyd, Joseph P. Green, Jr., John Rogers Carroll,

Herbert B. Newberg, Steven M.` Coren, Terisa E. Chaw, Thomas M. Kittredge,

U.S.C.A.

(82-1650)

Copy of Clerk's Notice to U.S. Court of Appeals, filed.

1609 "
1610 " 1611 " 1612 " 1613 " 1614 " 1615 "
1616 " 1617 "
1618 "

14 Hearing re: appropriateness of Coninonwealth. Deft's Plans 0-982-84), 10/13/82,
witness sworn, filed. 14
Transcript of testimony of September 29, 1982, filed. 15
Transcript of testimony of 10/13/82, filed, 15
united States' responses to the Commonwealth deft's interrogatories, filed. 18 Comnonwealth deft's exceptions re: 82-P-21, filed. 18 Commonwealth deft's exceptions re: 82-P-22, filed.
20 P%eport to the Court from the Hearing Master-re: proposed placement of T.M. & A.¯B., filed.
20 Report to the Court from the Hearing Master re: proposed placment of W.A., filed.
20 Hearing re: deft. Commjuwealth's plans for 1982-1984, resumes , witness sworn, filed.
21 Comnonwealth dsft's notice of deposition of Wesley Perkins, et al, filed.

1619 " 1620 "

21 ORDER THAT THE CLERK OF THE COURT SHALL PAY TO THE OFFICE OF THE HEARING MASTER

THE SUM OF $8,396.00, BY NOVEMBER 1, 1982, THIS AMOUNT COVERS THE EXPENSES OF

THE HEARING MASTER'S OFFICE FOR THE PERIOD NOVEMBER 1, 1982 THROUGH NOVEMBER 30,

1982, FILED.

RIB

10/21/82 ENTERED & COPIES MAILED

21 ORDER THAT THE CLERK OF THE COURT SHALL PAY TO THE OFFICE OF THE SPECIAL MASTER

THE SUM OF $19,329.00, BY NOVEMBER 1, 1982, THIS AMOUNT COVERS THE EXPENSES OF

THE SPECIAL MASTER'S OFFICE FOR THE PERIOD NOVEMBER 1, 1982 THROUGH

NOVEMBER 30, 1982, FILED.

RJB

10/21/82 ENEERED & COPIES MAILED

1621 " 1622 " 1623 " 1624 " 1625 " 1626 "

25 Transcript of testimony of 9/20/82, filed. 25 Transcript of testimony of 9/22/82, filed.
26 Copy of Transcript Purchase Order re: (Hearing Master), filed. 26 Copy of Transcript Purchase Order re: (Special Master), filed.
27 Deft's (Commonwealth's implementation Report, filed. 27 Deft. Conroonwealths' exceptions re: No. 82-P-21, fLled.

1627 " 1628 "

28 Hearing of 10/28/82 resumes, witnesses sworn, filed.
29 "COMM)NWEALTH" DEFT'S MOTION FOR EXTENSION OF TIME WITHIN WHICH TO FILE PLAN ON FRIEND-ADVOCATE SERVICES, CERTIFICATE OF SERVICE, FILED.

OVER.

: 111A :ev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN, ET AL

CIVIL DOCKET CONTINUATION SHEET
DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL

FPI-M»R 7-14-80 7 O M ¿ 3 9 8
DOCKET NO. 74-1345 PAGE 9 1 OF PAGES

DATE NR.

PROCEEDINGS

1982

1629 OCX 29 1630 " 29

1631 " 29 1632 " 29

1633 i i 29 1634 NOV 1
1635 i i 1

1636 it

3

1637 11

3

1638 i i

3

1639 i i

3

1640 11

3

L64l 11

8

L642 ! 1 8

L643 11

9

1644 11 9

1645 11

9

1646 11

9

1647 11

9

1648 11

9

1649 1 1 9

1650 11 10

1651

10

Report to the Court from the Hearing Master re: proposed admission of E.F., filec
(Commonwealth of Pennsylvania, et al's, Notice of Appeal re: Hearing Master, filec 11/1/82 Notice to: David Ferleger, Thomas Gilhool, Carla S. Morgan, (82-1699) James M. McNamara, Patricia Jenkins, Alexander Ewing, Adjoa A. Burrow, Thomas A. Masterson, R. Stephen Barrett, Michael S. Lottman, Russell Rice. Dr. Jennifer Howse, Marc H. Myers, James C. Everett, Pamela P. Cohen, Penelope A. Boyd, Joseph P. Green, Jr., John Rogers Carroll, Herbert B. Newber£ Steven M. Coren, Terisa E. Chaw, Thomas M. Kittredge, U.S.C.A.
Copy of Clerk's Notice to U.S. Court of Appeals, filed. Corrnionwealth of Pennsylvania, et al's, Notice of Appeal re: Special Master, filec
11/1/82 Notice to: David Ferleger, Thomas Gilhool, Carla S. Morgan, (82-1700) James M. McNamara, Patricia Jenkins, Alexander Ewing, Adjoa A. Burrow, Thomas A. Masterson, R. Stephen Barrett, Michael S. Lottman, Russell Rice, Dr. Jennifer Howse, Marc H. Myers, James C. Everett, Pamela P. Cohen, Penelope A. Boyd, Joseph P. Green, Jr. , John Rogers Carroll, Herbert B. Newber£ Steven M. Coren, Terisa E. Chaw, Thomas M. Kittredge, U.S.C.A. Copy of Clerk's Notice to U.S. Court of Appeals, filed.
Deft's Commonwealth's i¤plementation report, filed.
Cbnm¤nwealth deft's reply to Halderman plff's response to motion to modify this
court's order of June 11, 1982, filed. Cou¯nr)nwealth deft's exceptions re: no. 82-A-6, filed. United States' responses to Cbmrnonwealth deft's interrogatories 1-4, filed. Report to the Court from the Hearing Master re: proposed placement of L.P., filec Phila. deft's report to the Court on monitoring issues, filed.
Hearing resumes - appropriateness of Commonwealth's Plans witness sworn, filed.
Report to the Court from the Hearing Master re: proposed admission of K.K., filed Report to the Court from the Hearing Master re: proposed admission of G.R., filed
Montgomery County deft's exceptions to Hearing Master's report on E,F. of October 29, 1982, filed. Exceptions of the Delaware County deft's to the Report of the Hearing l·4aster, filed. Transcript of Hearing of October 27, 1982, filed. Transcript of Hearing of Novenber 3, 1982, filed. Transcript of Hearing of October 1, 1982 before Hearing Master, filed. Transcript of Hearing of October 15, 1982 before Hearing Master, filed. Transcript of Hearing of October 26, 1982 before Hearing Master, filed. Report to the Court from the Hearing Master re: proposed placement of D.S., filed
fønmonweal·th deft's exceptions re: L.P., filed.

CONT. ON PAGE #92

DC 111A (Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN, ET AL

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL,

FPI—MAR 7 - M · 8 0 - 7 0 M - 4 3 9 8
DOCKET NO. 74-1345

PAGE_ OF

.PAGES

DATE

NR.

1982

PROCEEDINGS

1652 NOV 10 1653 " 10 1654 " 10 1655 " 10 1656 " 10 1657 " 12

Hearing resumes, (Comnrinwealth's Plan) from 11/3/82, witness sworn, filed. Deposition of George A. Kopchick, filed. Deposition of Thomas P. Orr, filed. Deposition of Dr. Jennifer Howse, filed. Continued deposition of Dr. Jennifer Howse, filed.
Transcript of testimony of November 10, 1982, filed.

1658 " 12 Exceptions of Prospectus Associates, Inc. to Hearing Master's report regarding the proposed community placement of L.P., filed.
1659 " 12 United States' response to Commonwealth deft's motion for extension of time within which to file plan on Friend-Advocate Services, filed,
12 united States' response to Commonwealth deft's motion to modify Court's order of June 11, 1982, filed.

(1628)' L66O NOV

12 ORDER THAT THE "COMÆ>NWEALTH" DEFT'S SHALL SUBMIT TO THIS COURT BY DECEMBER 1

1982 THEIR PLAN FOR THE INITIATION ON OR BEFORE JANUARY 1, 1983 OF FRIEND-

ADVOCATE SERVICES TO THOSE MEMBERS OF THE PLFF. CLASS WHO HAVE NO FAMILY OR

FRIEND TO SPEAK ON THEIR BEHALF, FILED.

RJB

11/15/82 ENTERED & COPIES MAILED

15 "Commonwealth" deft's report on monitoring of comnunity services, filed.

1661 "
1662 " L663 " L664 " 1665 "

15 Exceptions of the Phila. County deft's to the Hearing Master's report of G.R.
filed. 16 Report to the Court from the Hearing Master re: proposed placement of L.P., filec 18 Commonwealth deft's exceptions re: L.P., filed. 18 HELEN O'BANNON, ET AL'S, MOTION TO STAY PROCEEDINGS AND TO QUASH SUBPOENAS,
MEMORANDUM OF LAW, & CERTIFICATE OF SERVICE, FILED. 18 HALDERMAN PLFF'S MOTION TO IMPLEMENT AUTHORITY OF HEARING MASTER TO COMPEL
ATTENDANCE OF WITNESSES AT HEARINGS, FILED.

1666 "

19 ORDER THAT THE HEARING TO DETERMINE WHETHER THE DEFT'S PLANS ARE APPROPRIATE

AND CONSISTENT WITH THE INJUNCTIVE RELIEF PREVIOUSLY ORDERED BY THIS COURT SHALL

CONTINUE ON NOVEMBER 24, 1982 AT 9:30 A.M. IN COURTROOM NO. 10-B IN ORDER THAT

THE FIVE COUNTIES MAY PRESENT ANY EVIDENCE AND/OR ORAL ARGUMENT CONCERNING SAID

PLANS, FILED.

RJB

11/19/82 ENTERED & COPIES MAILED

1667

22 Montgomery County deft's exceptions to Hearing Master's report on D.S., filed.

1668

22 MEMORANDUM & ORDER, BRODERICK, J., THAT THE MOTION TO STAY PROCEEDINGS FILED BY

DEFT'S CCMDNWEALTH OF PENNSYLVANIA DEPARTMENT OF PUBLIC WELFARE AND THE

HONORABLE HELEN O'BANNON IS DENIED, THE COMÆ)NWEALTH DEFT'S MOTION TO QUASH

SUBPOENAS IS DENIED AS TO THE SUBPOENAS OF JENNIFER HOWSE, ET AL, AND IS GRANTEE

AS TO THE SUBPOENA OF THE HONORABLE HELEN O'BANNON, FILED.

RJB

11/23/82 ENTERED & COPIES MAILED

1669

23 ORDER DATED 11/22/82 THAT THE HEARING CONCERNING THE ENFORCEMENT MECHANISM

NECESSARY TO REPLACE THE MONITORING FUNCTION OF THE SPECIAL MASTER SHALL BE

HELD ON DECEMBER 8, 1982 AT 9:30 A.M. IN COURTROOM 10B, FILED.

RJB

11/23/82 ENTERED - COPIES TO COUNSEL AT HEAPING ON 11/24/32

OVER.

; 111A ev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN, ET AL

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL,

FPI-MAR 7 - U - B 0 · 7 0 M · 4 3 9 a

DOCKET NO. 74-1345

PAGE 93_OF

PAGES

DATE

NR.

PROCEEDINGS

1982

L67O NOV 23 Exceptions of Iforman C. Shatz to the Hearing Masters Report #82-P-25,filed.

671 " 672 "

23 ORDER THAT THE CLERK OF THE COURT SHALL PAY TO THE OFFICE OF THE SPECIAL MASTER

THE SUM OF $15,191.00, BY DECEMBER 1, 1982, THIS AMOUNT COVERS THE EXPENSES OF

THE SPECIAL MASTER'S OFFICE FOR THE PERIOD DECEMBER 1, 1982 THROUGH DECEMBER 31,

1982, FILED.

RJB

11/24/82 ENTERED & COPIES MAILED

23 ORDER THAT THE CLERK OF THE COURT SHALL PAY TO THE OFFICE OF THE HEARING MASTER

THE SUM OF $8,496.00, BY DECEMBER 1, 1982, THIS AMOUNT COVERS THE EXPENSES OF THE

HEARING MASTER'S OFFICE FOR HTE PERIOD DECEMBER 1, 1982 THROUGH DECEMBER 31, 1982,

FILED.

RJB

11/24/82 ENTERED & COPIES MAILED

.673 " -674 "
.675 .676 .677 "

24 Hearing re: appropriateness of plans resumes, parties may submit findings

(proposed) and conclusions of law within next week, C.A.V., filed.

24 ORDER THAT COUNSEL FOR THE COMMONEALTH AND COUNTY DEFTS AND COUNSEL FOR THE PLFFS SHALL SUBMIT TO THIS COURT PROPOSED FINDINGS OF FACT AND PROPOSED ORDER CONCERN-

ING THE PROVISION OF COMMUNITY LIVING ARRANGEMENTS TOGETHER WITH ALL SERVICES

REQUIRED FOR THE ADEQUATE HABILITATION OF PENNHURST CLASS MEMBERS DURING THE

1982-83 AND 1983-84 FISCAL YEARS ON OR BEFORE 12/3/82, FILED.

RJB

11/26/82 entered and copies mailed.

26 26

Deft's "Commonwealth" implementation report, certificate, filed. COMMONWEALTH DEFTS1 MOTION TO COMPEL, CERTIFICATE, FILED.

26 Report to the Court from the Hearing Master re: proposed comnunity placement of

T.M. A.B., filed.

678 • 26 Transcript of Hearing of November 24, 1982, filed.

679. DE(:. l Plffs answers to Commonwealth defts1 interrogatories regarding "monitoring",filed 680 1! 2 Montgomery County Defts' exceptions to Hearing Master's Report of T.M. and A.B. of

681 t 1 -682 t 1 .683 t f
1684 t f

11-22-82, filed.

2 Conrnonwealth Defts' proposal on "Friend-Advocacy", filed.

2 2

Copy of transcript purchase order, filed. Copy of transcript purchase order, filed

2 Comnonwealth Defts: Pennhurst; et al's Notice of Appeal re: Hearing Master, file 1.

12/3/82 Notice to: David Ferleger, Thomas Gilhool, Carla S. Morgan, James (82--11797í%)

M. McNamara, Patricia Jenkins, Alexander Ewing, Adjoa A. Burrow, Thomas A. Master

son, R. Stephen Barrett, Michael S. Lottman, Russell Rice, Dr. Jennifer Howse,

Marc H. Myers, James C. Everett, Pamela P. Cohen, Penelope A. Boyd, Joseph

1685 "

P. Green, Jr., John Rogers Carroll, Herbert B. NewBerg, U.S.C.A. 2 Copy of Clerk's notice to US Court of Appeals, filed.

1686 "

2 CoimDnwealth Defts: Penrihurst; et al's Notice of Appeal re: Special Master, filed. '82 12/3/'82 Notice to: David Ferleger, Thomas Gilhool, Carla S. Morgan, James

M. McNamara, Patricia Jenkins, Alexander Ewing, Adjoa A. Burrow, Thomas A. Master

son, R. Stephen Barret, Michael S. Lottman, Russell Rice, Dr. Jennifer Howse,

Marc H. Myers, James C. Everett, Pamela P. Cohen, Penelope A. Boyd, Joseph

P. Green, Jr.. John Rogers Carroll, Herbert B. NewBerg,USCA;

687

Copy of Clerk s notice to US Court of Appeals, filed.

CONT.

DC 111A (Rev. 1/75)
PLAINTIFF

CIVIL DOCKET CONTINUATION SHEET DEFENDANT

TERRI LEE HALDEEMAN, ET AL

PENNHURST STATE SŒOOL

FPI - MAR 7 1 4 - 8 0 - 7 OM 43 9 8

DOCKET NO. 74-1345

PAGE 9^4 OF_

PAGES

DATE

NR.

PROCEEDINGS

!98¾ 1688 Dec 3 1689 " 3 1690 " 3

Report of Hearing Master re: Proposed Community Placement of P.T., filed. Report of Hearing Master re: Proposed Admission of J.E. to Woodhaven Ctr.,filed. Commonwealth Defts' Proposed Findings of Fact and Canclusmons of Law Regarding Proposed Placement Plan for Oct. 1, 1982-June 30, 1984, Certificate of Service, filed.

1691 " 3 Revised report to the Court on the plans of The Phila. County deft's , filed. 1692 " 3 Requests for findings of fact of Bucks, Chester and Delaware Counties, filed.

1693 "
1694 "
1695 "
1696 " 1697 " 1698 " 1699 " 1700 "

6 Plff. PARC'S findings of fact on deft's plans for FY 1982-83 and FY 1983-84, memorandum of law, & certificate of service, filed.
6 Shiloh of Berks County, Inc's (provider) exceptions to Hearing Master's report on T.M. and A.B. of November 22, 1982, filed.
6 Findings of fact and conclusions of law on Montgomery County deft's regarding planned hearings held for Fiscal Years 1982-1983 and 1983-1984, filed. Commonwealth deft's exceptions re: No. 82-P-21 and 82-P-22, filed.
Report to the Court concerning Phila1s exceptions to the orders of the Hearing
Master re: R.N., filed. 9 Hearing of 12/8/82 re: enforcement mechanism, witnesses sworn, filed.
13 Plffs' interrogatories to Conrnonwealth Defts., certificate of service, filed. 14 Plff's post-hearing memorandum, proposed findings, and proposed orders
regarding post-master enforcement, filed.

1701 " 16 Certified copy of order U.S.C.A. that the judgment of the district court is hereby affirmed, filed.

1702 " 16 Corrections to Shiloh of Berks County's exceptions to the Hearing Master's Report on T.M. and A.B., filed.

1703 " 17 Copy of Transcript Purchase Order re: (Hearing Master), filed.

1704 " 17 Copy of Transcript Purchase Order re: (Special Master), filed.

1705 " 20 Deft's implementation report, filed.

1706 " 20 Halderman plffs comænts on Conmonwealth's Citizen-Advocacy "Plan", filed.

1707 " 20 ORDER DATED 12/13/82 THAT THE CLERK OF THE COURT SHALL PAY TO THE OFFICE OF

THE HEARING MASTER THE SUM OF $8,430.00, BY JANUARY 1, 1983, THIS AMOUNT COVERS

THE EXPENSES OF THE HEARING MASTER'S OFFICE FOR THE PERIOD JANUARY 1, 1983

THROUGH JANUARY 31, 1983, FILED.

RJB

12/21/82 ENTERED & COPIES MATT .FT)

1708 " ì 20 STIPULATION & ORDER BETWEEN PLFF'S AND CITY DEFT'S REGARDING AGREEMENT OF THE

ORDER OF JUNE 8, 1979, ETC., FILED.

RJB

12/21/82 ENTERED & COPIES MAILED

1709 " 21 PLFF'S MOTION FOR TEMPORARY RESTRAINING ORDER REGARDING CERTIFIED ADVOCACY,

FILED.

1710 " 23 MEMORANDUM & ORDER DATED 12/22/82 THAT A HEARING SHALL BE HELD ON JANUARY 13,

1983 AT 9:30 A.M. IN COURTROOM 10-B, THE COMM)NWEALTH DEFT'S AND THE

MONTGOMERY COUNTY DEFT'S ARE HEREBY ENJOINED AND ORDERED TO TAKE ANY AND ALL

STEPS NECESSARY TO ENSURE THAT T.M. AND A.B. RECEIVE MINIMALLY ADEQUATE

HABILITATION, ETC., FILED.

RJB

12/27/82 ENTERED - 12/23/82 COPIES MAILED

OVER

: 111A ev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN, ET AL

CIVIL DOCKET CONTINUATION SHEET
DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL,

FPI-MAR 7 -14-80-70M-4 3 9

DOCKET NO. 74-1345

PAGE 9 5 Q F

.PAGES

DATE

NR.

PROCEEDINGS

1982

711 DEC 23 MEMORANDUM & ORDER THAT THE OOl·MDNVíEALTH DEFT'S A?E ENJOINED AND ORDERED TO CONTINUE TO ADMINISTER AN!` ASSURE FUNDING FOR THE CER1TFIED AD\TOCATE PROGRAM

AS CURRENTLY OPERATED, ETC., FILED.

RJB

12/27/82 ENTERED - 12/23/82 COPIES MAILED

712 " 713 " 714 " L715 "

23 Commonwealth cleft's submission on enforcement mechanisms necessary to replace the monitoring of the special master, filed.
23 Report to the Court from the Hearing Master re: proposed admission of J.B.N., filed.
23 PLFF'S MOTION FOR CONTEMPT, IMPLEMENTATION AND TEMPORARY RESTRAINING ORDER,
CERTTFICATE OF SERVICE, FILED. 27 Stipulation of the Pennsylvania Dept. of Public Welfare and Phila. County
concerning Phila. deft's motion for extension of time and other relief in the implementation of the March 2, 1981 order,filed.

1716 " 27 HALDERMAN PLFF'S MOTION FOR INTERIM RELIEF PENDING AMENDMENTS TP· APRIL 24, 1980 ORDER, FILED.

L717 " 28 1718 " 28 1719 " 29 L72O " 29 1721 " 29 1722 " 29
1723 " 30
1724 " 30
1725 " 30
1983
1726 JAN 3 727 "

Plff's reply læm3ranáua on enfcrcetn=nt ir¿-=ch3r-is:n3 , filed. Proposed findings of fact of the United States of America, filed.
Transcript of Hearing 12/2/82 re: proposed placement for L.P., filed. Transcript of Hearing 12/6/82 re: proposed placement for L.P., filed. Transcript of Hearing 12/6/82 re: proposed placement for L.P., filed. Transcript of Hearing 12/6/82 re: T.M., filed.
Report to the Court from the Hearing Master re: proposed admission of R.S., filed. Report to the Court from the Hearing Master re: proposed admission of E.F., filed. Report to the Court from the Hearing Master re: proposed admission of G.R., filed.
Defts1 Pennhurst, et al advocacy proposal, f i l e d Exceptions of parents to report of hearing master re: proposed admission of J.B.N., filed.

— JAN

Sixteenth Supplemental to U.S. Court of Appeals per request of U.S.C.A. (Documents No. 1304, 1446, 1478 only)

1728 " 1729 "
1730 " 1731 " 1732 "

4 Plff's supplemental comments on friend advocacy, filed. 4 PLFF'S MOTION FOR CONTEMPT FOR VIOLATION OF THE DECEMBER 23, 1982 ORDER
REGARDING CERTIFIED ADVOCATES, MEMORANDUM OF LAW, & CERTIFICATE OF SERVICE,
FILED.
4 Deposition of Don Reinhard, filed. 4 Deposition of Don Reinhard, filed. 4 Deposition of Carla Morgan, filed.

CONT. ON PAGE #96

DC U1A (Rev. 1 75)
PLAINTIFF
TERRI LEE HALDERMAN, ET AL

CIVIL DOCKET CONTINUATION SHEET
DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL,

DOCKET NO. 74-1345

PAGE 96 QF

.PAGES

DATE

NR.

PROCEEDINGS

1983

1733 JAN 6 Report to the Court from the Hearing Master re: proposed placement of L.P., filec 1734 " 6 Commonwealth deft's exceptions re: proposed admission of R.S., filed.

1735 " 1736 " 1737 "
1738 " 1739 "

Commonwealth's response to motion for interim relief pending amendments to

April 24, 1980 order, filed.

7 Transcript of testimony of 12/8/82, filed.

7 ORDER DATED 1/6/83 THAT A HEARING SHALL BE HELD ON JANUARY 14, 1983 AT 10:00 A.M.

IN œURTROOM 10-B FOR THE PURPOSE OF DETERMINING WHETHER THE COMMOI<H`EALTH DEFT'S

ADVOCACY PLANS AND ACTIONS SINCE JANUARY 1, 1983 COMPLY WITH THIS COURT'S

MEMORANDUM & ORDER OF DECEMBER 23, 1982, FILED.

RJB

1/7/83 ENTERED & COPIES MATT,ED

7 Investigation by the Special Master of Habilitiation of plff. class members who reside in private licensed facilities, filed.
7 Exceptions of Phila. County deft's to the report of the Hearing Master re: proposed admission of R.S., filed.

1740 " 1741 "
1742 " 1743 f f 1744 t 1 1745 t t
1746 f f 1747 t 1

10 COMÆ)NWEALTH DEFT'S MOTION TO BE PROVIDED ALL WORK PAPERS RELATING TO THE SPECIAL MASTER'S REPORT ON PRIVATE LICENSED FACILITIES, FILED.

10 ORDER THAT THE HEARING SCHEDULED FOR JANUARY 14, 1983 FOR THE PURPOSE OF

DETERMINING WHETHER THE COMMONWEALTH DEFT'S ADVOCACY PLANS AND ACTIONS SINCE

JANUARY 1, 1983 COMPLY WITH THIS COURT'S MEMORANDUM & ORDER OF DECEMBER 23, 1982

IS HEREBY RESCHEDULED TO JANUARY 17, 1983 AT 10:00 A.M. IN COURTROOM NO. 10B,

FILED.

RJB

1/11/83 ENTERED & COPIES MAILED

11 PARENT'S PETITION FOR STAY OF ORDER OF HEARING MASTER, MEMORANDUM IN SUPPORT,

CERTIFICATE OF SERVICE, FILED.

13 Commonwealth deft's exceptions to report of the hearing master re: proposed

placement of L.P., filed. 13 Memorandum of law in support of commonwealth deft's exceptions re: hearing master

13

report dated 11/23/82, filed. Memorandum of "Commonwealth" deft's regarding hearing to determine whether the

commonwealth deft's advocacy plans and actions since January 1, 1983 comply with

this court's memorandum and order of 12/23/82, filed.

13 PETITION OF JERRY HAAS FOR INTERVENTION TO CORRECT FACTUAL ERROS, FILED.

13 Hearing re: exceptions on Hearing Master's report (TM & AB) stipulation of

parties re: agreement as to this matter, Judge accepted settlement agreement,

filed.

OVER.

C 111A :ev. 1/75)
PLAINTIFF
TERRI LEE HALDEKMAN, ET AL

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
PENNHURST STATE SŒOOL & HOSPITAL

DOCKET NO. 74-1345 PAGE 97 OF PAGES

DATE

NR.

PROCEEDINGS

1983 .748 JAN
.749 " .750 " -751 "
752 "
1753 1! 1754 1 t 1755 t T 1756 t ï 1757 It 1758 I 1 L759 1760 "

(83-1042)

13 Commonwealth of Pennsylvania, et al's, Notice of appeal re: Hearing Master, filed. 1/14/83 Notice to: David Ferleger, Thomas Gilhool, Carla S. Morgan, James M. McNamara, Patricia Jenkins, Alexander Ewing, Adjoa A. Burrow, Thomas A. Masterson, R. Stephen Barrett, Michael S. Lottman, Russell Rice, Dr. Jennifer Howse, Marc H. Myers, James C. Everett, Pamela P. Cohen, Penelope A. Boyd, Joseph P. Green, John Rogers Carroll, Herbert B. Newberg, Steven M. Coren, Thomas M. Kittredge, Terisa E. Chaw, Edward Blumstein, U.S.C.A.
13 Copy of Clerk's Notice to U.S. Court of Appeals, filed.

14 Transcript of hearing of January 13, 1983, filed.

14 ORDER THAT A HEARING SHALL TAKE PLACE ON JANUARY 17, 1983 AT 2:00 P.M. IN

COURTROOM 10-B, SAID HEARING TO CONCERN BOTH THE EXCEPTIONS TO THE MASTER'S

REPORT AND THE APPLICATION FOR A STAY, FILED.

RJB

1/14/83 ENTERED & COPIES l·lAILED

14 MEMORANDUM & ORDER THAT DEFT'S SHALL PROVIDE COMMUNITY LIVING FACILITIES,

TOGETHER WITH ALL THE SERVICES REQUIRED BY THE RETARDED PERSON'S INDIVIDUAL

HABILITATION PLAN FOR AT LEAST 143 PENNHURST RESIDENTS FROM THE SOUTHEAST REGION

OF PENNSYLVANIA (NOT COVERED BY THE SCHOOL-AGE ORDER OR THE COURT'S ORDER OF

MARCH 2, 1981) ETC., THE COMMONWEALTH DEFT'S SHALL PROVIDE COMMUNITY LIVING

FACILITIES, ETC. FOR AT LEAST 50 PENNHURST RESIDENTS FROM COUNTIES OUTSIDE THE

SOUTHEAST REGION OF PENNSYLVANIA DURING THE PERIOD FROM THE DATE OF THIS ORDER TO

JUNE 30, 1984, IT IS FURTHER ORDERED THAT WITHIN 60 DAYS THE COMbDNWEALTH AND

COUNTY DEFT'S SHALL EACH PREPARE AND SUBMIT TO THIS OUCRT SPECIFIC PLANS FOR

COMPLYING WITH THIS ORDER, ETC., FILED.

RJB

1/17/83 ENTERED & COPIES MAILED

17 Commonwealth deft's response to interrogatories, filed. 17 Hearing re: deft's advocacy proposal, witnesses sworn, filed. 17 Hearing re: Exceptions to Hearing Master's report on J.B.N., filed.
18 Jerry Haas' amendment to petition for intervention to correct factual errors, filed.
19 Commonwealth deft's implementation report, filed.

19 Shiloh of Berks County, Inc's (provider) exceptions to Hearing Master's report on L.P. issued January 4, 1983, filed.

20 PLFF'S HALDERMAN, ET AL'S, MOTION FOR ATTORNEY'S FEES AGAINST BUCKS AND DELAWARE COUNTY DEFT'S TO CONCLUDE œUNTY CONTEMPT MATTER, AFFIDAVIT AND CERTIFICATE OF
SERVICE, FILED.

20 ORDER THAT THE CLERK OF THE COURT SHALL PAY TO THE OFFICE OF THE HEARING MASTER

THE SUM OF $8,430.00, BY FEBRUARY 1, 1983, THIS AMOUNT COVERS THE EXPENSES OF THE

HEARING MASTER'S OFFICE FOR THE PERIOD FEBRUARY 1, 1983 THROUGH FEBRUARY 28, 1983,

FILED.

RJB

1/21/83 ENTERED & COPIES MAILED

CONT. ON PAGE #95

DC 111A (Rev. l,'75)
PLAINTIFF
TERRI LEE HALDERMAN, ET AL

t
CIVIL DOCKET CONTINUATION SHEET
DEFENDANT
PENNHURST STATE SCHX)L & HOSPITAL

DOCKET NO. 74-1345

PAGE " O F

.PAGES

DATE

NR.

PROCEEDINGS

1983

1761 JAN
1762 "
1763 "
1764 "
1765 "
1766 " 1767 " 1768 " 1769 "

21 Letter to Judge Broderick from Edwin R. Frownfelter, Executive Director of Developmental Disabilities Advocacy Network, Inc. re: Friend Advocacy, filed.

21 Plff's interrogatories and request for production of documents to Conmonwealth deft's, et al, filed.
21 United States' post hearing memorandum on enforcement, filed.

24 Report to the court from the Hearing Master re: proposed placement of J.D.,

filed. 24 Report to the court from the Hearing Master re: proposed placement of W.R.,

filed.

24 24 24

Montgomery County deft's exceptions to hearing master's report on L.P., filed. Transcript of Hearing: 1/17/83 exceptions re: J.B.N., filed. Transcript of Hearing: 1/17/83 re: compliance of Comnonwealth's Advocacy

Plans with the 12/23/82 order, filed.

24 Deposition of George A. Kopchick, filed.

1770 "

24 Connonwealth deft's Pennhurst, et al's, Notice of appeal, filed. (83-1065) 1/25/83 Notice to: David Ferleger, Thomas Gilhool, Carla S. Morgan, James M. McNamara, Patricia Jenkins, Alexander Ewing, Adjoa A. Burrow, Thomas A. Masterson, R. Stephen Barrett, Michael S. Lottman, Russell Rice, Dr. Jennifer Howse, Marc H. Myers, James C. Everett, Pamela P. Cohen, Penelope A. Boyd, Joseph P. Green, John Rogers Carroll, Herbert B. Newberg, Steven M. Coren, Thomas M. Kittredge, Terisa E. Chaw, Edward Blumstein, Jerry Haas, U.S.C.A.

1771 " 24 Copy of Clerk's Notice to U.S. Court of Appeals, filed.

1772 " 1773 "
1774 1

25 ORDER THAT THE EXCEPTIONS TO THE REPORT OF THE HEARING MASTER REGARDING J.B.N.,

FILED BY J.B.N. 'S PARENTS ARE HEREBY MARKED WITHDRAWN WITHOUT PREJUDICE, ETC.,

FILED.

RJB

1/26/83 ENTERED & COPIES MAILED

26 MEMORANDUM & ORDER DATED 1/24/83 THAT THE COMMONWEALTH DEFT'S SHALL TAKE

IMMEDIATE STEPS TO ACHIEVE FULL COMPLIANCE WITH THIS COURT'S MEMORANDUM & ORDER

OF DECEMBER 23, 1982 BY FEBRUARY 15, 1983, THE COMMONWEALTH DEFT'S SHALL FILE

WITH THIS COURT, BY JANUARY 31, 1983, A REPORT OF THEIR ACTIONS TAKEN TO

ACHIEVE FULL COMPLIANCE WITH THIS COURT'S MEMORANDUM AND ORDER OF DECEMBER 23,

1982, ETC., FILED.

RJB

1/27/83 ENTERED & COPIES MAILED

27 Copy of Transcript Purchase order of Conmonwealth deft's, filed.

1775 " 31

1776 FEB 1

1777

3

PLFF'S HALDERMAN, ET AL'S, MOTION FOR ATTORNEY'S FEES REGARDING CERTIFIED
ADVOCACY COMPLIANCE AND CONTEMPT, FILED. PHIIA. COUNTY DEFT'S MOTION TO WITHDRAW EXCEPTIONS TO THE HEARING MASTER'S REPORT RE: PROPOSED COMMUNITY PLACEMENT OF W.R. , FILED. MOTION FOR LEAVE TO FILE "COMMONWEALTH" DEFT'S REPORT CONCERNING CERTIFIED ADVOCATES OUT OF TIME, CERTIFICATE OF SERVICE, FILED. Commonwealth deft's report to the court on compliance with the December 23, 1982 order, filed.

OVER

PLAINTIFF
TERRI LEE HALDEEMAN
NR.

CIVIL. DOCKET CONTINUATION SHEET
DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL
PROCEEDINGS

DOCKET NO. 74-1345

PAGE 99 OF

PAGES

1778 FEB 9 (1776)" 10
11 14

COMMONWEALTH DEFT'S MOTION TO ALTER OR AMEND THE ORDER ENTERED JANUARY 27, 1983, CERTIFICATE OF SERVICE, FILED.

ORDER THAT THE EXCEPTIONS FILED BY THE PHIIA. COUNTY DEFT'S ON FEBRUARY 25,

1982 TO THE HEARING MASTER'S REPORT RE: PROPOSED COMMUNITY PLACEMENT OF W.R.

ARE HEREBY MARKED WITHDRAWN WITHOUT PREJUDICE, FILED.

RJB

2/10/83 ENTERED & COPIES MAILED

Memorandum of law i n support of "Corrironwealth" deft's motion to alter or amend

the order entered January 27, 1983, filed.

Deft's implementation report, filed.

14 ConnDnwealth Deft's Notice of Appeal re: Hearing Master, filed. (83-1115) 2/15/83 Notice to: David Ferleger, Thomas Gilhool, James M. McNamara, Alexander Ewing, Adjoa A. Burrow, Thomas A. Masterson, R. Stephen Barrett, Michael S. Lottman, Russell Rice, Dr. Jennifer Howse, Marc H. Myers, Pamela P. Cohen, Penelope A. Boyd, Joseph P. Green, Jr., John Rogers Carroll, Herbert B. Newberg, Steven M. Coren, Thomas M. Kittredge, Terisa E. Chaw, Edward Blumstein, Jerry Haas, U.S.C.A.
14 Copy of Clerk's Notice to U.S. Court of Appeals, filed. 14 (¾mroonwealth Deft's Notice of Appeal, filed. (83-1114)
2/15/83 Notice to: David Ferleger, Thomas Gilhool, James M. McNamara, Patricia Jenkins, Alexander Ewing, Adjoa A. Burrow, Thomas A. Masterson, R. Stephen Barrett, Michael S. Lottman, Russell Rice, Dr. Jennifer Howse, Marc H. Myers, Pamela P. Cohen, Penelope A. Boyd, Joseph P. Green, Jr., John Rogers Carroll, Herbert B. Newberg, Steven M. Coren, Thomas M. Kittredge, Terisa E. Chaw, Edward Blumstein, Jerry Haas, U.S.C.A. 14 Copy of Clerk's Notice to U.S. Court of Appeals, filed.

16 Copy of Comnonwealth's transcript purchase order, filed. 16 Report to the Court from the Hearing Master re: proposed admission of R.S., filed.

16 ORDER THAT A CONFERENCE SHALL BE HELD IN CHAMBERS (10613) ON FEBRUARY 25, 1983 AT 11:00 A.M. FOR THE PURPOSE OF DISCUSSING THE COMK)NWEALTH DEFT'S REPORT TO THE COURT ON COMPLIANCE WITH THE DECEMBER 23, 1982 ORDER, ETC., FILED. RJB 2/17/83 ENTERED & COPIES MAILED
17 Memorandum in support of motion for attorney's fee regarding certified advocacy compliance and contempt, filed.

22 Amended certificate of service of Theresa A. Barishek re: interrogatories, filed.

23 Copy of transcript purchase order, filed.

23 Response to Comnonwealth deft' s motion to alter or amend the order entered

January 27, 1983, filed.

24 ORDER THAT THE CLERK OF THE COURT SHALL PAY TO THE OFFICE OF THE HEARING MASTER

THE SUM OF $8,430.00 BY MARCH 1, 1983, THIS AMOUNT COVERS THE EXPENSES OF THE

HEARING MASTER'S OFFICE FOR THE PERIOD MARCH 1, 1983 THROUGH MARCH 31, 1983,

FILED.

RJB

2/24/83 ENTERED & COPIES MAILED

25 Copy of Transcript purchase order, filed.

OONT. ON PAGE #100

DC 111A (Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN, ET AL

CIVIL DOCKET CONTINUATION SHEET
DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL,

DOCKET NO. 74¯l·345

PAGEIOO OF

PAGES

DATE

NR.

PROCEEDINGS

1983

1794 FEB 28 COMMONWEALTH DEFT'S MOTION FOR EXTENSION OF TIME TO FILE A PLAN FOR COMPLIANCE WITH THE COURT'S ORDER OF JANUARY 14, 1983, CERTIFICATE OF SERVICE, FILED.

1795 " 28 ORDER THAT A HEARING SHALL BE HELD ON APRIL 13, 1983 AT 2:00 P.M. IN COURTROOM

10B, RE: EXCEPTIONS TO THE REPORT OF THE HEARING MASTER CONCERNING COMMUNITY

PLACEMENT OF L.P., FILED.

BJB

2/28/83 ENTERED & COPIES MATT,ED

1796 MAR

Report to the Court from the Hearing Master re: proposed admission of K.K. , file<

1797 " 1798 " [L799 "

3 Plff's response to notion for extension of tine, certificate of service, filed. 3 Plff's interrogatories regarding out of region placements, filed.
Commonwealth deft's answers to interrogatories and request for production of documents, filed.

1800 "

Response of Comronwealth deft's to motion for attorney's fees regarding certified advocacy compliance and contempt, filed.

(1797) " 10 ORDER THAT THE COMMONWEALTH DEFT'S l·ÜTION FOR EXTENSION OF TIME TO FILE A PLAN FOR COMPLIANCE WITH THIS COURT'S ORDER OF JANUARY 14, 1983 IS GRANTED IN PART,

THEY SHALL SUBMIT TO THE COURT THOSE PLANS REQUIRED BY M A R Œ 13, 1983, ETC.,

FILED.

RJB

3/11/83 ENTERED & COPIES MAILED

1801 T f 11 Transcript of hearing of February-25, 1983, filed. 1802 1 ? 11 Report to the Court on the Plans of the Phila. County Deft's to comply with
January 14, 1983 order, filed.

1803 1 í 14 •Commonwealth deft's report to the court on advocacy proposals, filed.

1804 t T 15 Chester County's plan for implementation of the January 14, 1983 order, filed.

1805 t 1 1806 I t

16 Montgomery County deft's plan pursuant to January 14, 1983 memorandum and order of Honorable Raymond Broderick, filed.
18 Commonwealth deft's implementation report, filed.

1807 II 1808 M

21 Submission of "Commonwealth" deft's in response to order of March 10, 1983, file(
22 Bucks and Delaware Counties' plans for implementation of the January 14, 1983 order, fided.

1809 "

22 ORDER THAT THE CLERK OF THE COURT SHALL PAY TO THE OFFICE OF THE HEARING MASTER

THE SUM OF $8,430.00 BY APRIL 1, 1983, THIS AMDUNT COVERS THE EXPENSES OF THE

HEARING MASTER'S OFFICE FOR THE PERIOD APRIL 1, 1983 THROUGH APRIL 30, 1983,

FILED.

RJB

3/23/83 ENTERED & COPIES MAILED

1810 "

28 Report to the Court from the Hearing Master re: proposed admission of J.E., filed.
28 Seventeenth Supplemental to U.S. Court of Appeals per request of Justice Department, Civil Division. (Documents 1599, 1610, and 1622 only)

OVER.

; 111A ev. 1/75)
PLAINTIFF
CERRI LEE HALDERMAN, ET AL

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL

DOCKET NO.74-1345

PAGE^OF

.PAGES

DATE

NR.

PROCEEDINGS

1983

L8ll APR

Commonwealth cleft's Notice of Appeal, filed. (83-1282)

4/4/83 Notice to: David Ferleger, Thomas Gilhool, James M. McNamara, Patricia

Jenkins, Alexander Ewing, Adjoa A. Burrow, Thomas A. Masterson, R. Stephen

Barrett, Michael S. Lottman, Russell Rice, Dr. Jennifer Howse, Marc H. Myers,

Pamela P. Cohen, Penelope A. Boyd, Joseph P. Green, Jr., John Rogers Carroll,

Herbert B. Newberg, Steven M. Coren, Thomas M. Kittredge, Terisa E. Chaw,

Jerry Haas, U.S.C.A.

LS12 " 4 Copy of Clerk's Notice to U.S. Court of Appeals, filed.

1813 " L814 "

6 Conmonwealth deft's answers to interrogatories regarding out of region placements, filed.
7 Report to the court from the Hearing Master re: proposed admission of E.F., filed.

1815 " 8 MEMORANDUM & ORDER DATED 4/7/83 THAT THE MOTION OF JERRY HAAS TO INTERVENE IN

THIS LITIGATION IS DENIED, FILED.

RJB

4/8/83 ENTERED & COPIES MAILED

1816 " 1817 "
1818 "

13 Copy of Transcript Purchase Order, filed.
13 Coim»nwealth deft's implementation plan for January 14, 1983 through June 30 1983, filed.
13 Memorandum of law in support of Commonwealth's exceptions re: Hearing Master's Report dated January 4, 1983, filed.

1819 11 -820 T I _82l I î .822 T T
1823 T 1 1824 !l
L825 "

13 Hearing re: Exceptions to Hearing Master Report re: L.P.- CAV, filed.

15 Commonwealth deft's exceptions re: No. 82-A-6 Report dated April 5, 1983, filed.

18 Deft's implementation report, filed. 18 Certificate of service of Robert B. Hoffman re: 4/13/83 served copies of
Commonwealth's implementation plan for January 14, 1983 through June 30, 1984 upon counsel of record, filed.

21 Report to the Court from the Hearing Master re: Proposed placement of B.E., filed.

21 ORDER THAT THE CLERK OF THE COURT SHALL PAY TO THE OFFICE OF THE HEARING MASTER

THE SUM OF $8,430.00 BY MAY 1, 1983, THIS AMOUNT COVERS THE EXPENSES OF THE

HEARING MASTER'S OFFICE FOR THE PERIOD OF MAY 1, 1983 THROUGH MAY 31, 1983,

FILED.

RJB

4/22/83 ENTERED & COPIES MAILED 28 Report to the Court from the Hearing Master re: proposed admission of R.S., filed

1826 "

29 ORDER DATED 4/28/83 THAT THE REQUEST OF PLFF. CLASS MEMBER E.W. FOR AN

APPROPRIATE RESIDENTIAL PROGRAM AND PLACEMENT IS HEREBY REFERRED TO THE HEARING

MASTER FOR HEARING, DECISION AND ORDER, ETC., FILED.

RJB

4/29/83 ENTERED & COPIES MAILED

CONT. ON PAGE #102

DC 111A (Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN, ET AL

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
PENNHURST STATE SŒOOL & HOSPITAL,

DOCKET NO. 74¯ 1345 PAGE I O 2 Q F PAGES

DATE

NR.

1983

PROCEEDINGS

1827 APR 29 Commonwealth deft's Notice of Appeal, filed. (83-1333)

5/2/83 Notice to: David Ferleger, Thomas Gilhool, James M. McNamara, Patricia Jenkins, Alexander Ewing, Adjoa A. Burrow, Thomas A. Masterson, R. Stephen Barrett, Michael S. Lottman, Russell Rice, Dr. Jennifer Howse, Marc H. Myers, Pamela P. Cohen, Penelope A. Boyd, Joseph P. Green, Jr., John Rogers Carroll, Herbert B. Newberg, Steven M. Coren, Thomas M. Kittredge, Terisa E. Chaw, U.S.C.A.

1828 " 29 Copy of Clerk's Notice to U.S. Court of Appeals, filed.

1829 Ma} 3 Report of the Hearing Master of 4/25/83, filed.

1830 " 1831 " 1832 "
1833 "

4 Plff's Request to Produce to City of Phila. Defts., filed.
4 Plff's Request to Produce to Commonwealth Defts., filed. 4 PLFFS1 MOTION FOR CONTEMPT AGAINST DEFTS. DR. RUSSELL RICE AND DR. RICHARD SURLF
FILED. 5 TRANSCRIPT OF TESTIMONY, APRIL 13, 1983, FILED

1034 " 1835 "

6 Amendment to Report of the hearing Master filed on 4/26/83, filed. 6 Report of the hearing master pursuant to the order of 4/28/83 concerning an

appropriate program and placement for E.W. a mentally retarded person on the

1836

Pennhurst waiting list, filed.

Exceptions of Phfia. County defts to the report of the Hearing Master

concerning the proposed admission of R.S. to Woodhave Center No. 82-A-8 Civ. ACt.

1837 Tî 1838 t 1
1839 I î 1840 f T

6 No. 741345, filed

11

Conmonwealth Defts' Exceptions re: No. 82-A-8, Report Dated 4/26/83, filed. l·OTION OF DOROTHY KLOCK AND JOHN KLOCK AND SALL KLOCK-WARD FOR APPOINTMENT

11

OF HEARING MASTER, CERTIFICATE OF SERVICE, FILED. Copy of Transcript Purchase Order, filed.

17 DEFT. DR. RUSSELL RICE'S MOTION TO STRIKE PLFF'S MOTION FOR CONTEMPT, BRIEF IN

SUPPORT, & CERTIFICATE OF SERVICE, FILED. 1841 f f 23 Deft's implementation report, filed.

1842 M 24 ORDER THAT THE CLERK OF THE COURT SHALL PAY TO THE OFFICE OF THE HEARING MASTER

THE SUM OF $8,430.00, BY JUNE 1, 1983, THIS AMOUNT COVERS THE EXPENSES OF THE

HEARING MASTER'S OFFICE FOR THE PERIOD JUNE 1, 1983 THROUGH JUNE 30, 1983, ETC.

FILED.

RJB

5/25/83 ENTERED & COPIES MAILED

1843 " 24 ORDER DATED 5/23/83 THAT THE MATTER OF THE PROPOSED RELOCATION OF M.K. IS

REFERRED TO THE HEARING MASTER FOR HEARING, DECISION, & ORDER ETC., FILED. RJB

1844 " 24 (1838) " 24

5/25/83 ENTERED & COPIES MAILED

ORDER DATED 5/23/83 THAT THE REQUEST OF PURPORTED PLFF. CLASS MEMBER C.C. FOR

AN APPROPRIATE RESIDENTIAL PROGRAM AND PLACEMENT IS HEREBY REFERRED TO THE

HEARING MASTER FOR HEARING, DECISION, AND ORDER, ETC., FILED.

RJB

5/25/83 ENTERED & COPIES MAILED

ORDER DATED 5/23/83 THAT MOTION OF PLFF. CLASS MEMBER P.K. FOR AN APPROPRIATE

RESIDENTIAL PROGRAM AND PLACEMENT IS HEREBY REFERRED TO THE HEARING MASTER FOR

HEARING, DECISION & ORDER, FILED.

RJB

5/25/83 ENTERED & COPIES MAILED

OVER.

PLAINTIFF
TERRI LEE HALDERMAN, ET AL
NR.

CIVIL DOCKET CONTINUATION SHEET
DEFENDANT PENNHURST STATE SCHOOL & HOSPITAL,
PROCEEDINGS

DOCKET NO. 7 4 - 1 3 4 5

PAGE!O3OF

PAGES

1845 MAY 26 1S46 ii 27 1847 it 31 1848 JUN 1
6 6
8 8 8

00MM3NWEALTH DEFT'S MOTION FOR COURT APPROVAL OF PLACEMENT PROCEDURES, BRIEF

IN SUPPORT & CERTIFICATE OF SERVICE, FILED.

CHESTER COUNTY DEFT'S MOTION FOR MODIFICATION OF THE JANUARY 14, 1983 ORDER,

AND CERTIFICATE OF SERVICE, FILED.

Report to the Court from the Hearing Master re: proposed placement of P.T.,

filed.

ORDER DATED 5/31/83 THAT A HEARING ON EXCEPTIONS TO THE HEARING MASTER'S REPORT

OF DECEMBER 28, 1982 CONCERNING PLFF. CLASS MEMBER R.S. FILED BY COMMONWEALTH

DEFT'S AND PHILA. COUNTY DEFT'S SHALL BE HELD IN COURTROOM 10-B, ON JUNE 29,

1983 AT 10:00 A.M., FILED.

RJB

6/2/83 ENTERED & COPIES MAILED

Certified copy of Order U.S.C.A. that the judgment of the District Court entered March 1, 1982 is hereby reversed and remanded to the District Court with directions to reconsider the record, etc., filed.

ORDER DATED 6/1/83 THAT THE CLERK OF THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF PENNSYLVANIA SHALL DELETE CERTAIN NAMES FROM THE LIST OF

COUNSEL IN THIS ACTION, ETC., FILED.

RJB

6/2/83 ENTERED & COPIES MAILED

Brief of Cynthia Colona and her parents Mr. & Mrs. William Colona in support of Chester County's motion for modification of the January 14, 1933 order, filed. JOINDER IN SUPPORT OF CHESTER COUNTY'S MOTION FOR MODIFICATION OF THE JANUARY 14, 1983 ORDER, FILED.

Co¤n¤nwealth deft's Notice of Appeal, filed. (83-1397) 6/7/83 Notice to: Robert 0. Baldi, David Ferleger, Thomas Gilhool, Patricia Jenkins, Alexander Ewing, R. Stephen Barrett, Michael S. Lottman, Russell Rice, Dr. Jennifer Howse, Marc H. Myers, Pamela P. Cohen, Penelope A. Boyd, Herbert B. Newberg, Steven M. Coren, Thomas M. Kittredge, Terisa E. Chaw, U.S.C.A.
Copy of Clerk's Notice to U.S. Court of Appeals, filed. Plff's response to Chester County deft's motion for modification of the
January 14, 1983 order, filed.
Commonwealth deft's response to plff's request for production of documents regarding R.S., filed. Plff's response to ConnDnwealth deft's motion for court approval of placement procedures, filed. Certified copy of Order U.S. Court of Appeals that the judgment of the district court entered March 1, 1982 is hereby reversed and remanded to the district court with directions to reconsider the record and give the views of the parents
appropriate weight, filed.

Response of Commonwealth deft's to Chester County deft's motion for modification of the January 14, 1983 order, filed.

CONT. ON PAGE #104

DC 111A (Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN, ET AL

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
PENNHURST STATE SCHOOL, ET AL

DOCKET NO. 7 4 - 1 3 4 5

PAGE I O 4 D F

PAGES

DATE

NR.

PROCEEDINGS

1983

1859 JUN 1860 " 1861 "
1862 "
1863 " 1864 " 1865 " 1866 "
1867 " 1868 "
1869 " 1870 "

9 Answer of Dr. Richard Surles to plff's motion for contempt, filed.

14 Report to the Court from the Hearing Master re: placement of P.K., filed.

15 MEK)RANDUM & ORDER DATED 6/13/83 THAT THE HEARING MASTER'S ORDER OF JANUARY 4, 1983 IS VACATED, THE œMMONWEALTH DEFT'S SHALL TAKE ALL NECESSARY STEPS TO MAKE CERTAIN THAT BY JULY 1, 1983, L.P. RECEIVES THE HABLLITATION SPECIFICALLY PROVIDED IN HIS INDIVIDUAL HABILITATION PLAN, FILED. . RJB 6/15/83 ENTERED & COPIES MAILED

16 ORDER DATED 6/14/83 THAT THE MOTIONS BY MONTGOMERY COUNTY AND PHILADELPHIA

COUNTY DEFT'S TO REQUIRE THE COMMONWEALTH TO PAY AN ADEQUATE RATE OF

REIMBURSEMENT TO INTERMEDIATE CARE FACILITIES FOR THE MENTALLY RETARDED IN

WHICH PLFF. CLASS MEMBERS RESIDE SHALL BE DENIED AS NOW BEING MOOT, THE

COMMONWEALTH DEFT'S ARE DIRECTED TO TAKE IMMEDIATELY ALL STEPS REASONABLY

NECESSARY TO ENSURE THAT MONTGOMERY COUNTY AND PHILA. COUNTY WILL BE ABLE

TO PROVIDE FOR THE CARE, SERVICES AND HABILITATION OF THOSE CLASS MEMBERS

DESIGNATED BY MONTGOMERY AND PHILA. COUNTIES TO BE TRANSFERRED TO THE

COMMUNITY PURSUANT TO THIS COURT'S ORDERS OF MARCH 2, 1981, ETC., FILED.

6/16/83 ENTERED & COPIES MAILED

RJB

17 Report to the Court from the Hearing Master re: proposed admission of W.C.,

filed. 20 Copy of Transcript purchase order, filed.

21 Report to the Court from the Hearing Master re: proposed admission of J.E.,

filed.

21 ORDER THAT A HEARING SHALL BE HELD ON OCTOBER 11, 1983 AT 10:00 A.M. IN

COURTROOM 10-B FOP. THE PURPOSE OF HEARING EVIDENCE AND ORAL ARGUMENT CONCERNING

THE COMMONWEALTH DEFT'S MOTION FOR APPROVAL OF PLACEMENT PROCEDURES AND FOR THE

PURPOSE OF CONSIDERING ANY OTHER PROPOSED REVISIONS OF THIS COURT'S ORDER OF

APRIL 24, 1980, PARTIES SHALL SUBMIT TO THIS COURT ANY ADDITIONAL PROPOSALS FOR

REVISION OF THIS COURT'S ORDER OF APRIL 24, 1980 BY SEPTEMBER 1, 1983, FILED.

6/22/83 ENTERED & COPIES MAILED

RJB

23 Exceptions of The Chester County deft's to the Hearing Master's report re: proposed admission of W.C., filed.

23 ORDER DATED 6/22/83 THAT THE CLERK OF THE COURT SHALL PAY TO THE OFFICE OF THE

HEARING MASTER THE SUM OF $8,430.00 BY JULY 1, 1983, THIS AMOUNT COVERS THE

EXPENSES OF THE HEARING MASTER'S OFFICE FOR HTE PERIOD JULY 1, 1983 THROUGH

JULY 31, 1983, ETC., FILED.

RJB

6/24/83 ENTERED & COPIES MAILED

24 Report to the Court from the Hearing Master re: proposed admission of K.K.,
filed. 27 Coumonwealth deft's exceptions re: report dated 6/15/83, filed.

OVER

Z 111A ev. 1/75)
PLAINTIFF
IERRI LEE HALDERMAN, ET AL

DATE

NR.

CIVIL DOCKET CONTINUATION SHEET
DEFENDANT
PENNHURST STATE SCHCX)L & HOSPITAL,
PROCEEDINGS

DOCKET NO. 74-1345

PAGE105OF

PAGES

1983

1871 JUN 29

872 11

30

-–11

30

873 11

30

374 JUL 1

375 11

1

376 I f

5

377 M

6

878 1 1

7

879 T I

8

880 "

.881 " 11 L882 " 12 833 " 12

884 " 12 885 " 12

886 " 12

Hearing re: Exceptions to Hearing Master's Report re: R.S. - CAV, filed.

Withdrawal of appearance of Terisa Chaw, Esq. as counsel for United States of America, plff.-intervenor, filed. Appearance of Mitchell W. Dale, Esq. for United States of America, filed.

ORDER DATED 6/29/83 THAT THE, CLERK OF THE COURT SHALL PAY TO THE OFFICE OF THE

HEARING MASTER THE SUM OF $8,367.00 BY AUGUST 1, 1983, THIS AMOUNT COVERS THE

EXPENSES OF THE HEARING MASTER'S OFFICE FOR THE PERIOD AUGUST 1, 1983 THROUGH

AUGUST 31, 1983, ETC., FILED.

(to financial clerk)

RJB

6/30/83 ENTERED & COPIES MAILED

Report to the Court from the Hearing Master re: proposed admission of W.C. , filed Report to the Court from the Hearingl·iasterre: proposed
Report to the Court from the Hearing Master re: placement of C.C., filed.

Transcript of testimony of June 29, 1983, filed.

Report to the Court from the Hearing Master re: proposed placement of L.P. , filed

Response of Comnonwealth deft's to Hearing Masters proposed order regarding deft's, filed.

ORDER THAT THE HEARING CONCERNING THE COMÆ)NWEALTH DEFT'S MOTION FOR APPROVAL OF

PLACEMENT PROCEDURES AND FOR CONSIDERING ANY OTHER PROPOSED REVISIONS OF THIS

COURT'S ORDER OF APRIL 24, 1980 HAVING BEEN PREVIOUSLY SCHEDULED FOR OCTOBER 11,

1983 SHALL BE HELD ON JULY 29, 1983 AT 10:00 A.M. IN COURTROOM 10B, ETC., FILED.

7/8/83 ENTERED & COPIES MAILED

RJB

Exceptions of Phila. County deft's to the report of the Hearing Master concerning C.C, filed. Montgomery County's answer to Commonwealth deft's motion for court approval of placement procedures, filed.

Commonwealth deft's Notice of Appeal re: L.P., filed. (83-1506) 7/13/83 Notice to: Robert 0. Baldi, David Ferleger, Thomas Gilhool, Patricia Jenkins, Alexander Ewing, R. Stephen Barrett, Michael S. Lottman, Russell Rice, Dr. Jennifer Howse, Marc H. Myers, Pamela P. Cohen, Penelope A. Boyd, Herbert B. Newberg, Steven M. Coren, Thomas M. Kittredge, John F. Stoviak, Mitchell W. Dale, U.S.C.A.
Copy of Clerk's Notice to U.S. Court of Appeals, filed. Commnwealth deft's Notice of Appeal re: Mont. & Phila. Counties, filed. (83-1507)
7/13/83 Notice to: Robert 0. Baldi, David Ferleger, Thomas Gilhool, Patricia Jenkins, Alexander Ewing, R. Stephen Barrett, Michael S. Lottman, Russell Rice, Dr. Jennifer Howse, Marc H. Myers, Pamela P. Cohen, Penelope A. Boyd, Herbert B. Newberg, Steven M. Coren, Thomas M. Kittredge, John F. Stoviak, Mitchell W. Dale, U.S.C.A.
Copy of Clerk's Notice to U.S. Court of Appeals, filed.

CONT. ON PAGE #106

DC 111A (Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN, ET AL

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL,

DOCKET NO. 7 4 - l·345

PAGE I O 6 Q F

PAGES

DATE

NR.

PROCEEDINGS

1983

1887 JUL 12

1888

12

1889

12

1890 " 12

Commonwealth deft's Notice of Appeal re: Hearing Master (July), filed. (83-1508) 7/13/83 Notice to: Robert 0. Baldi, David Ferleger, Thomas Gilhool, Patricia Jenkins, Alexander Ewing, R. Stephen Barrett, Michael S. Lottman, Russell Rice, Dr. Jennifer Howse, Marc H. Myers, Pamela P. Cohen, Penelope A. Boyd, Herbert B. Newberg, Steven M. Coren, Thomas M. Kittredge, John F. Stoviak, Mitchell W. Dale, U.S.C.A.
Copy of Clerk's Notice to U.S. Court of Appeals, filed. Commonwealth deft's Notice of Appeal re: Hearing Master (August), filed.(83-1509)
7/13/83 Notice to: Robert 0. Baldi, David Ferleger, Thomas Gilhool, Patricia Jenkins, Alexander Ewing, R. Stephen Barrett, Michael S. Lottman, Russell Rice, Dr. Jennifer Howse, Marc H. Myers, Pamela P. Cohen, Penelope A. Boyd, Herbert B. Newberg, Steven M. Coren, Thomas M. Kittredge, John F. Stoviak, Mitchell W. Dale, U.S.C.A.
Copy of Clerk's Notice to U.S. Court of Appeals, filed.

1891 " 1892 " 1893 "

13 Commonwealth deft's exceptions re: No. 83-M-2, Report dated 7/1/83,filed, 13 <¾imonwealth deft's exceptions re: No. 82-P-24, Report dated 7/5/83, filed. 13 MOTION OF W.M. AND B.M. FOR AN ORDER TRANSFERRING THEIR MINOR CHILD FROM HIS
COMMUNITY LIVING ARRANGEMENT TO PENNHURST, MEMORANDUM IN SUPPORT AND
CERTIFICATE OF SERVICE, FILED.

1894 " 1895 " 1896 " 1897 "
1898 "

14 Report to the Court from the Hearing Master re: proposed placement of M.B., filed

18 C.C. response to exceptions by Commonwealth cf Pennsylvania re: No. 83-M-2, filed.

18 C.C. response to exceptions by Phila. County re: No. 83-M-3, filed.

18 Response of Commonwealth deft's to Hearing Master's letter and proposed order

regarding W.D., filed.

19 ORDER THAT THIS MATTER IS REFERRED TO THE HEARING MASTER FOR HEARING, DECISION

AND ORDER PURSUANT TO THIS COURT'S ORDER OF APRIL 24, 1980, FILED.

RJB

7/20/83 ENTERED & COPIES MAILED

1899 " 21 Response of Halderman plff's to motion of W.M. and B.M. to transfer P.M. from a CIA to Pennhurst without a hearing, filed.

1900 " 22 1901 " 22

Plff. PARC, et al's proposals for revision of April 24, 1980 order, filed.
Phila. County deft's response to Corrmonwealth's proposed placement procedures, filed.

1902 " 25
1903 Tl 25 1904 ft 25 1905 ( t 25 1906 H 25

Commonwealth deft's proposals regarding modification of April 24, 1980 order,
filed. Copy of Transcript purchase order, filed. Copy of Transcript purchase order as to Hearing Master, filed. Copy of Transcript purchase order as to Hearing Master, filed.
Copy of Transcript purchase order as to order of 6/15/83, filed.

1907 I 1 25 Joint Bill of Costs of W.M. and B.M. Parents of P.M. , filed.

1908 11 26 PARC, et al's notice of deposition of William McKendry, filed.

OVER.

; 111A ev. 1/75)
PLAINTIFF
^ALDERMAN , ET AL

CIVIL DOCKET CONTINUATION SHEET
DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL

DOCKET NO. 74-1345

PAGEIO7OF

PAGES

DATE

NR.

PROCEEDINGS

1983

L9O9 JUL 1910 1T 1911 II 1912 II 1913 11 1914 II 1915 11
1916 " .917 AUG 1918 " 1919 " 1920 " 1921 " -922 " ,923 " .924 "
L925 "
L926 "

26 PARC, et al's interrogatories and request for production of documents to Chester
County deft's (In re P.M.), filed.
26 PARC, et al's request for production to Montgomery County, filed. 26 PARC, et al's request for production to Bucks, Chester and Delaware Counties,
filed.
26 PARC, et al's interrogatories and request for production of documents to Commonwealth deft's (In re P.M.), filed.

28 Commonwealth's defts Implementation Report, filed. 29 PARC, et al's request for production to Phila. County, filed.

29 MEMORANDUM & ORDER DATED 7/28/83 THAT THE MOTION OF W.M. AND B.M. FOR THK

TRANSFER OF P.M. THEIR CHILD IS REMANDED TO THE HEARING MASTER FOR l·EARING,

DECISION AND ORDER PURSUANT TO THIS COURT'S ORDER OF APRIL 24, 1980, E T C ,

FILED.

RJB

7/29/83 ENTERED & COPIES MAILED

29 Hearing re: Proposed revisions to Order of April 24, 1980 and re: placement procedures, etc., filed.
2 Interrogatories and requests for documents of PARC, et al, to State deft !`·, filed.
3 Phila1s response to Commonwealth's proposed revisions of the order of April 24, 1980, filed.
3 Plff's PARC, et al, response to Canmonwealth deft's proposals regarding

modification of the April 24, 1980 order, filed. 10 Pj£¯>ort to the Court from the Hearing Master re: proposed admissions of K.K. , file<i
10 Commonwealth deft's explanation of differences between placemant procedures and guidelines for case managers, filed.

11 Report to the Court from the Hearing Master re: placement of D.S., filed.
12 Fifth supplemental fee affidavit of David Ferleger, Esq. regarding attorney s fees, filed.

16 ORDER THAT THE COURT'S RULING ON THE EXCEPTIONS TO THE HEARING MASTER'S KKPC¾TS CONCERNING R.S. WILL REMAIN UNDER ADVISEMENT FOR SUCH REASONABLE TIME AS IS

NECESSARY TO TRANSFER R.S. TO THE COMMUNITY LIVING FACILITY DESCRIBED BY THE

PHILA. COUNTY DEFT'S IN ACCORDANCE WITH THEIR LETTER TO THE COURT OF AUGUST 8,

1983, FILED.

RJB

8/16/83 ENTERED & COPIES MAILED

19 Montgomery County Deft's objections to PARC's request for production of documents,

filed.

19 ORDER THAT THE CLERK OF THE COURT SHALL PAY TO THE OFFICE OF THE HEARING MASTER

THE SUM OF $8,335.00 BY SEPTEMBER 1, 1983, THIS AMOUNT COVERS THE EXPENSES OF THE

HEARING MASTER'S OFFICE FOR THE PERIOD SEPTEMBER 1, 1983 THROUGH SEPTEMBI¡K 30,

1983, FILED.
8/19/83 ENTERED & COPIES MAILED

(/t-o- f•*i-·nanci<a-l•> c-•le>r-k)I N

1<JB

CONT. ON PAGE #108

DC 111A (Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN, ET AL

CIVIL DOCKET CONTINUATION SHEET
DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL

DOCKET NO. 74-1345 PAGE IO8DF PAGES

DATE

NR.

PROCEEDINGS

1983

1927 AUG 24 Conmonwealth cleft's exceptions re: No. 83-M-4, Report dated 8/10/83, filed.

1928 1 T 1929
1 1

24 Report to the Court from the Hearing Master re: placement of D.S., filed. 24 MOTION OF DEFT'S WALTER COHEN AND JENNIFER HOWSE TO QUASH SUBPOENAS, BRIEF.IN
SUPPORT & CERTIFICATE OF SERVICE, FILED.

1930 (1 25 Plff's opposition to State Officials' motion to quash subpoenas, filed.

1931 II 26 Report to the court from the Hearing Master re: proposed placement of M.B., filed
1932 1 f 26 Commonwealth deft's Notice of Appeal re: Hearing Master, filed. (83-1658) 8/29/83 Notice to: Robert 0. Baldi, David Ferleger, Thomas Gilhool, Patricia Jenkins, Alexander Ewing, R. Stephen Barrett, Michael S. Lottman, Russell Rice, Dr. Jennifer Howse, Marc H. Myers, Pamela P. Cohen, Penelope A. Boyd, Herbert B. Newberg, Steven Coren, Thomas M. Kittredge, John F. Stoviak Mitchell W. Dale, Ilene W. Shane, U.S.C.A.
1933 " 26 Copy of Clerk's Notice to U.S. Court of Appeals, filed.

1934 " 1935 "

29 ORDER DATED 8/26/83 THAT THIS COURT'S ORDERS OF MARCH 17, 1978 AND APRIL 24, 1980 ARE AMENDED: COMMONWEALTH AND COUNTY DEFT'S, THEIR SUCCESSOR, AND THEIR OFFICERS,

AGENTS, ETC., ARE PERMANENTLY ENJOINED TO PROVIDE SUITABLE COMMUNITY LIVING

FACILITIES FOR THE RETARDED RESIDENTS OF PENNHURST, AND THOSE RETARDED PERSONS ON

ITS WAITING LIST TOGETHER WITH SUCH COMMUNITY SERVICES AS ARE NECESSARY TO

PROVIDE THEM WITH MINIMALLY ADEQUATE HABILITATION UNTIL SUCH TIME AS THE

RETARDED INDIVIDUAL IS NO LONGER IN NEED OF SUCH LIVING FACILITY AND/OR

COMMUNITY SERVICES, CXMCNWEALTH AND COUNTY DEFT'S ARE PERMANENTLY ENJOINED TO

DEVELOP AND TO PROVIDE A WRITTEN INDIVIDUALIZED PROGRAM PLAN, FORMULATED IN

ACCORDANCE WITH PROFESSIONAL STANDARDS, TO EACH CLASS MEMBER TO PROVIDE TO EACH

AN INDIVIDUALIZED HABILITATION PROGRAM IN ACCORDANCE WITH SAID PLAN, ETC.,

IT IS FURTHER ORDERED THAT THE ORDER OF MAY 28, 1980 IS HEREBY AMENDED, THE

ORDERS OF MAY 17, 1978 AND APRIL 24, 1980, AS AMENDED HEREIN, REMAIN IN FULL

FORCE AND EFFECT, ANY PARTY OBJECTING TO ANY PROVISION OF THIS ORDER SHALL FILE

ITS OBJECTIONS IN WRITING ON OR BEFORE OCTOBER 1, 1983, ETC. , FILED. RJB

8/30/83 ENTERED & COPIES MAILED

29 ORDER THAT THE DEFT'S SHALL SUBMIT TO THIS COURT BY OCTOBER 1, 1983 THEIR PLANS

TO PROVIDE COMMUNITY LIVING FACILITIES TOGETHER WITH ALL SERVICES REQUIRED BY THE

RETARDED PERSON'S INDIVIDUAL HABILITATION PLAN FOR PENNHURST PLFF. CLASS MEMBERS

IN THE SOUTHEAST REGION OF PENNSYLVANIA,DURING THE PERIOD COMMENCING JULY 1, 1984

AND CLOSING JUNE 30, 1985, ETC., IT IS FURTHER ORDERED THAT A HEARING SHALL BE

HELD ON OCTOBER 17, 1983 AT 10:00 A.M. IN COURTROOM 10B, CONCERNING THE

AFORESAID PROPOSALS TO DETERMINE WHETHER THESE PLANS ARE APPROPRIATE AND

CONSISTENT WITH THE INJUNCTIVE RELIEF PREVIOUSLY ORDERED BY THIS COURT, FILED.

8/30/83 ENTERED & COPIES MAILED

RJB

1936 SEP

MEMORANDUM & ORDER THAT THE CCM4ONWEALTH DEFT'S MDTION TO QUASH THE SUBPOENA

OF WALTER COHEN IS DENIED, THE COMMONWEALTH DEFT'S MOTION TO QUASH THE SUBPOENA

OF DR. JENNIFER HOWSE IS DENIED, FILED.

RJB

9/2/83 ENTERED & COPIES MAILED

OVER.

DC 111A (Rev. 1 75)
PLAINTIFF
TERRI LEE HALDERMAN, ET AL

CIVIL DOCKET CONTINUATION SHEET
DEFENDANT
PENNHURST STATE SŒOOL & HOSPITAL

DOCKET NO. _7iZA L_¯lr¾ rL

PAGE

PAGES

DATE

NR.

1983

PROCEEDINGS

1937 SEP 2 Report to the Court from the Hearing Master re: placement of D.S., filed.
1938 " 8 Report to the Court from the Hearing Master re: placement of C.C., filed. 1939 " 9 Copy of Appellant's Transcript Purchase Order Form, filed.
1940 " 12 Supplemental memorandum of deft's Walter Cohen and Jennifer Howse in support of motion to quash subpoenas, filed.

1941 "
1942 " 1943 "

12 ORDER THAT THE CLERK OF THE COURT SHALL PAY TO THE OFFICE OF THE HEARING MASTER

THE SUM OF $8,335.00 BY OCTOBER 1, 1983, THIS AMOUNT COVERS THE EXPENSES OF THE

HEARING MASTER'S OFFICE FOR THE PERIOD OCTOBER 1, 1983 THROUGH OCTOBER 31, 1983,

FILED, (given to Financial Clerk)

RJB

9/13/83 ENTERED & COPIES MAILED

14 DELAWARE COUNTY DEFT'S MOTION FOR APPROVAL OF DELAWARE COUNTY'S REVISED PLAN FOR

IMPLEMENTATION OF THE JANUARY 14, 1983 ORDER, CERTIFICATE OF SERVICE, FILED.

15 Report to the Court from the Hearing Master re: proposed placement of N.B., filed

1944 " ;I945 "

19 Comi¤nwealth deft's Notice of Appeal re: Hearing Master, filed. (83-1707) 9/19/83 Notice to: Robert 0. Baldi, David Ferleger, Thomas Gilhool, Patricia Jenkins, Alexander Ewing, R. Stephen Barrett, Michael S. Lottman, Russell Rice, Dr. Jennifer Howse, Marc H. Myers, Pamela P. Cohen, Penelope A. Boyd, Herbert B. Newberg, Steven M. Coren, John F. Stoviak, Mitchell W. Dale, Ilene W. Shane, Thomas M. Kittredge, U.S.C.A.
19 Copy of Clerk's Notice to U.S. Court of Appeals, filed.

il946 " 20 Report to the Court from the Hearing Master re: proposed admission of J.E., filed

| 1947 " 22 Plff's response to Delaware County's notion for approval of revised plan for implementation of the January 14, 1983 order, filed.
i1948 " 26 Commonwealth deft's exceptions re: no. 83-P-5, report dated 9/13/83, filed.

•1949 " 27 Report to the Court from the Hearing Master re: proposed placement of M.R., filed

1950 " 28 Copy of Transcript Purchase Order, filed.

!1951 " 30 Phila. County deft's objections to Order of August 26, 1983, filed.

I 1952 " 30
'1953 OCT 3 i1954 " 3
i
1955 " 3 1956 " 3 1957 " 3 1958 " 3
1959 " 3 1960 " 3

Withdrawal of appearance of Penelope A. Boyd, Esq. for plff's Terri Lee Halderman,
et al, filed. Report to the Court from the Hearing Master re: proposed placement of R.A.L., filed Objections of Bucks, Chester & Delaware County deft's to the Order dated August 26 1983, filed. Plans of the Bucks, Chester, & Delaware County deft's for 1984-85, filed. Montgomery County deft's plan pursuant to August 26, 1983 order, filed. Montgomery County deft's objections to order dated August 26, 1983, filed. Comrønwealth deft's implementation plan pursuant to Order of August 26, 1983, filed.
Commonwealth deft's exceptions to the order of August 26, 1983, filed. Plff. PARC, et al's objections to amendments proposed in court orders of August 26, 1983, filed.

OONT. ON PAGE #110

ì`- .

DC 111A (Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL

DOCKET NO. 7 4 l·345

PAGE•-110Í¤, F

.PAGES

DATE

NR.

PROCEEDINGS

1983

1961 OCT 7 Commonwealth deft's exceptions re: No. 83-P-4, report dated 9/26/83, filed.
1962 " 7 Plans of the Phila. County deft's for 1984-85, filed.
1963 " 14 Report to the Court from the Hearing Master re: proposed admission of S.H.,filed
1964 " 14 Certified copy of Order U.S.C.A. dated 9/20/83 that the judgment of the district
court is hereby affirmed, etc., filed.
1965 " 17 Response of Comnonwealth deft's to motion for approval of Delaware County's
revised plan for implementation of the January 14, 1983 order, filed.

1966 " 1967 "
1968 "

17 Appearance of Alan Held, Esq. for United States of America, plff-intervenor,

filed.

20 ORDER DATED 10/19/83 THAT THE CLERK OF THE COURT SHALL PAY TO THE OFFICE OF THE

HEARING MASTER THE SUM OF $8,335.00 BY NOVEMBER 1, 1983, THIS AMOUNT COVERS

THE EXPENSES OF THE HEARING MASTER'S OFFICE FOR THE PERIOD NOVEMBER 1, 1983

THROUGH NOVEMBER 30, 1983, ETC., FILED. 10/20/83 ENTERED & COPIES MAILED

(to financial clerk)

RJB

21 Report to the Court from the Hearing Master re: proposed placement of R.A.L.,
filed.

1969 " ¦ 25 Report to the Court from the Hearing Master re: proposed admission of G.R.,

i

filed.

Report to the Court from the Hearing Master re: proposed placement of N.B.,
1970 " 25 filed.

Montgomery County defts' Exceptions to Hearing Master's Report on N.B. of
1971. NO^. 3 10/24/83; & Cert, of Service, filed.

1972 "

4 Coranonwealth deft's exceptions to report dated 10/24/83 re: No. 83-P-5, filed.

1973 "
1974 T 1 1975 I ! 1976 I f

7 Conmonwealth Deft's Notice of Appeal re: Hearing Master, filed. (83-1828)
11/7/83 Notice to: Robert 0. Baldi, David Ferleger, Thomas Gilhool, Patricia Jenkins, Alexander Ewing, R. Stephen Barrett, Michael S. Lottman, Russell Rice, Dr. Jennifer Howse, Marc H. Myers, Pamela P. Cohen, Herbert B. Newberg, Steven M. Coren, John F. Stoviak, Mitchell W. Dale, Ilene W. Shane, Thomas M. Kittredge, Alan Held, U.S.C.A. 7 Copy of Clerk's Notice to U.S. Court of Appeals, filed. 10 Report to the Court from the Hearing Master re: proposed placement of M.R., filed
15 Report to the Court from the Hearing Master re: proposed admission of K.K., filed

1977 1 T 16 Delaware County deft's supplement to the motion for approval of Delaware County's
revised plan for implementation of the January 14, 1983 order, filed.

1978 tl 17 Copy of Transcript Purchase Order, filed.

1979 ! 1
1980

21 Commonwealth deft's exceptions re: No. 83-P-4, report dated November 9, 1983, filed.
23 ORDER THAT THE CLERK OF COURT BY 12/1/83 PAY TO THE OFFICE OF THE HEARING MASTER ETC., THE AMT. OF $8,335.00 WHICH COVERS EXPENSES FOR THE PERIOD OF 12/1/83 THRU 12/31/83, ETC., FILED. 11/23/83 entered & copies mailed (original to Fiscal Dept.)

CONT.

:>c 111A Rev. 1/75)
PLAINTIFF

CIVIL. DOCKET CONTINUATION SHEET DEFENDANT

DOCKET NO. 74¯l·345

PAGEUIOF

PAGES

DATE

NR.

PROCEEDINGS

1983

1981 Nov. 28 Coimionweal·th Deft's Implementation Plan pursuant to Order of August 26, 1983,

Certificate of Service, filed.

1982 Dec.

Report of Hearing Master re: Proposed admission of S.H., filed.

1983 "

Comnonwealth Deft's Notice of Appeal re: Hearing Master, filed. (USCA 83-1888) 12/6/33 Notice to: Robert 0. Baldi, David Ferl·eger, Thomas Gilhool,

Patricia Jenkins, Alexander Ewing, R. Stephen Barrett, Michael S. Lottman,

Russell Rice, Dr. Jennifer Howse, Marc H. Myers, Pamela P. Cohen, Herbert B.

Newberg, Steven M. Coren, John F. Stoviak, Mitchell W. Dale, Ilene W. Shane

Thomas M. Kittredge, Alan Held, U.S.C.A.

1984 " 5 Copy of Clerk's Notice to U.S. Court of Appeals, filed.

1985 " 12 Report of Bucks, Chester & Delaware County on the status of implementation of order of 1-14-84, filed.
1986 " 12 Transcript Purchase Order, filed.

12 Commonwealth defts' exceptions to Report of The Hearing Master re: No. 83-A-1,

1987 "

proposed admission of S.H., dated 11-30-83, certificate of service, filed.

12 Exceptions of the Delaware County defts to the hearing master's report dated

1988 "

November 30, 1983 in re: S.H., filed.

IS ORDER DATED 12/14/33 THAT THE REQUEST OF C.L. , A MD`SER OF THE PLFF. CLASS FOR A

1989 "

SUITABLE COMMUNITY PROGRAM AND PLACEMENT IS HEREBY REFERRED TO THE HEARING MASTER FOR HEARING, DECISION, AND ORDER PURSUANT TO THE HEARING AND APPEAL

PROCEDURES SET FORTH IN THE ORDER OF AUGUST 26, 1983, FILED.

RJB

12/15/83 ENTERED & COPIES MAILED

1990

27 Response of Commonwealth deft's to December 13, 1983 letter of Ilene Shane

requiring issuance of order, filed.

! 1984

¦ 1991 JAN 3 CO?M)NWEALTH DEFT'S MOTION TO.DISAPPROVE HEARING MASTER EXPENSES FOR JANUARY,

i

1934, BRIEF IN SUPPORT & CERTIFICATE OF SERVICE, FILED.

1992 "

5 Response of County of Montgomery deft's to December 13, 1983 letter of Ilene Shane requesting issuance of order, filed.

1993 "

13 Comnonwealth deft's exceptions re: 83-A-2 notice of further hearing dated January 3, 1934, filed.

I 1994 1995
¡I996

16 Report to the Court from the Hearing Master re: proposed placement of W.D., filed 16 Report to the Court from the Hearing Master re: proposed admission of W.C., filed

18 ORDER DATED 1/17/84 THAT THE CLERK OF THE COURT SHALL PAY TO THE OFFICE OF THE

HEARING MASTER THE SUM OF $3,829.00 BY JANUARY 20, 1984, THIS AMOUNT COVERS THE

EXPENSES OF THE HEARING MASTER'S OFFICE FOR THE PERIOD OF JANUARY 1 1984

THROUGH JANUARY 31, 1984, ETC., FILED, (to financial clerk)

' RJB

1/18/34 ENTERED & COPIES MAILED
18 Copy of letter to Michael S. Lottman, Esq. from Judge Broderick dated 1/6/84 re:

amount of money authorized for expenses for January, 1984, etc., filed.

CONT. ON PAGE #112

DC 111A (Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN, ET AL

CIVIL DOCKET CONTINUATION SHEET
DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL,

74-1345 DOCKET NO.

PAGE

.PAGES

DATE

NR.

PROCEEDINGS

1984

1997 JAN 1998 "

23 Report to the Court from the Hearing Master re: proposed placement of W.D. ,
filed.
23 Comnonwealth deft's exceptions re: report of the Hearing Master - No. 83-P-6,
dated January 12, 1984, filed.

1999 " 26 Objections of W.D. to report of the Hearing Master re: proposed placement of
W.D., filed.
2000 FEB 3 Report to the Court.from the Hearing Master re: proposed admission of J.E.,
filed.

2001 " 2002 " 2003 "
2004

10 Report to the Court from the Hearing Master re: proposed admission of W.C., filed.
10 Report to the Court from the Hearing Master re: proposed admission of M.R., filed.
10 ORDER THAT THE CLEKR OF THE COURT SHALL, ON OR BEFORE FEBRUARY 15, 1984 PAY TO THE OFFICE OF THE HEARING MASTER THE AMOUNT OF $8,820.00. ETC. PAYMENT SHALL BE MADE BY CHECK DRAWN TO THE ORDER OF "MICHAEL S. LOTTMAN, ESQ. HEARING MASTER", FILED.
2/13/84 Entered and Copies mailed. 13 Report to the Court from the Hearing Master re: poposed placement of P.C., filed

2005

14 Montgomery County deft's report on the status of implementation of the January 14, 1983 Order, filed.

2006
2007 11 2008 11

15 Commonwealth deft's Pennhurst, Dept. of Publis Welfare, et al's, Notice of Appeal, filed. (84-1101) 2/15/84 Notice to: Robert 0. Baldi, David Ferleger, Thomas Gilhool, Patricia Jenkins, Alexander Ewing, R. Stephen Barrett, Michael S. Lottman, Russell Rice, Dr. Jennifer Howse, Marc H. Myers, Pamela P. Cohen, Steven M. Coren, John F. Stoviak, Mitchell W. Dale, Ilene W. Shane, Thomas M. Kittredge, Alan Held, Herbert B. Newberg, U.S.C.A.
15 Copy of Clerk's Notice to U.S. Court of Appeals, filed.
16 Report to the Court from the Hearing Master re: proposed admission of B.B., filed

2009 ft 21 Commonwealth deft's exception re: Report dated 2/8/84, filed.

2010 tl 2011 M

24 Copy of Transcript purchase order, filed. 24 Report to the Court from the Hearing Master re: proposed admission of A.L.,

filed.

2012 " 29 Report to the Court from the Hearing Master re: proposed placement of M.R.,

2013 "

filed. 29 Report to the Court from the Hearing Master re: placement of C.C., filed.

2014 "

29 Copy of Order Supreme Court of the United States that the judgment of the Third Circuit Court of Appeals is reversed, and is remanded to the United

States Court of Appeals for the Third Circuit, filed.

2015 MAR 2 Report to the Court from the Hearing Master re: proposed admission of S.H., filed.

2016 "

7 Report to the Court from the Hearing Master re: proposed placement of P.H., filed.

OVER

C 111A ìev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN, ET AL

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL

DOCKET NO. 7 4 - 1 3 4 5

PAGEUL3OF

PAGES

DATE

NR.

PROCEEDINGS

1984

2017 MAR 2018 "
2019 11 2020 II 2021 II 2022 II 2023 II 2024 11 2025 2026 II 2027 It 2028 II
2029 APR 2030 11 2031 II 2032 11 2033 II 2034 II 2035 II 2036 11 2037 11

Commonwealth deft's exceptions to report of the Hearing Master re: proposed

admission of A.L., dated 2/22/84, filed.

ORDER THAT THE CLERK OF THE COURT SHALL PAY TO THE OFFICE OF THE HEARING MASTER

THE SUM OF $8,959.00 BY MARCH 15, 1984, THIS AMOUNT COVERS THE EXPENSES OF THE

HEARING MASTER'S OFFIECE FOR THE PERIOD MARCH 1, 1984 THROUGH MARCH 31, 1984,

FILED.

Rjß

3/9/84 ENTERED & COPIES MAILED

12 Exceptions of the Delaware County deft's to the Hearing Master's report re: S.H., filed.
15 Commonwealth deft's exceptions to report of the hearing master re: No. 83-A-1, dated 2/29/84, filed.
20 Commonwealth deft's exceptions to report of the Hearing Master re: 84-P-1, filed.

22 Report to the Court from the Hearing Master re: proposed admission of S.F., filed. 22 Exceptions of Parents of P.H. to Hearing Master's report dated 3/5/84 re:
proposed placement, file

26 Report to the Court from the Hearing Master re proposed admission of G.K. filed, 26 Report to the Court from the Hearing Master re proposed placement of P.C. filed.

28 Report to the Court from the Hearing Master re: proposed placement of R.A.L., filed.
28 Report to the Court from the Hearing Master re: proposed admission of W.H., filed.
28 Halderman Plff's exceptions to paragraph 1 of the Hearing Master's decision re: S.F., No. 84-A-4, filed.

2 Commonwealth deft's exceptions to report of the Hearing Master re: 84-A-4,
dated 3/19/84, filed.
2 Halderman pl·ff's exceptions to Paragraph 1 of Hearing Master's decision re G.K.
No. 84-A-3, filed.
4 Certified copy of Order U.S.C.A. dated 4/3/84 that appeal No 82-1059 is
dismissed by the Clerk under Rule 42(b), FRAP, filed.
4 Certified copy of Order U.S.C.A. dated 4/3/84 that appeal No 82-1097 is
dismissed by the Clerk under Rule 42(b), FRAP, filed.
4 Certified copy of Order U.S.C.A. dated 4/3/84 that appeal No 82-1098 is
dismissed by the Clerk under Rule 42(b), FRAP, filed.
4 Certified copy of Order U.S.C.A. dated 4/3/84 that appeal No 82-1182 is
dismissed by the Clerk under Rule 42(b), FRAP, filed.
4 Certified copy of Order U.S.C.A. dated 4/3/84 that appeals Nos. 82-1261, et al,
are dismissed by the Clerk under Rule 42(b), FRAP, filed.
4 Certified copy of Order U.S.C.A. dated 4/3/84 that appeal No. 84-1101 is
dismissed by the Clerk under Rule 42(b), FRAP, filed.
9 Report to the Court from the Hearing Master re: proposed placement of R.A.L.,
filed.

CONT. ON PAGE #114

DC 111A (Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN, ET AL

CIVIL. DOCKET CONTINUATION S H E E T
DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL,

DOCKET NO. 74-1345

PAGE l l 4 p f r

PAGES

DATE

NR.

PROCEEDINGS

1984

2038 APR
2039 " 2040 " 2041 "
2042 MAY 2043 " 2044 " 2045 " 2046 "
2047 " 2048 M 2049 II 2050 II 2051 II 2052 II

13 ORDER THAT A HEARING SHALL BE HELD ON MAY 10, 1984 AT 2:00 P.M. IN COURTROOM

10B, FOR THE PURPOSE OF DETERMINING WHETHER THE COMMONWEALTH DEFT'S ARE

PRESENTLY COMPLYING WITH THIS COURT'S ORDER OF AUGUST 26, 1983, REQUIRING THAT

COMMONWEALTH DEFT'S TO MONITOR ACTIVITIES AT PENNHURST FOR THE PURPOSE OF

MAKING CERTAIN THAT EVERY ALLEGED INCIDENT OF ABUSE, NEGLECT OR MISTREATMENT IS

PROMPTLY INVESTIGATED, ETC., FILED.

RJB

4/16/84 ENTERED & COPIES MAILED

17 Report to the Court from the Hearing Master re: proposed admission of G.R., filed.

25 Report to the Court from the Hearing Master re: proposed admission of W.C.,

filed.

26 ORDER DATED 4/24/84 THAT THE CLERK OF THE CLERK SHALL PAY TO THE OFFICE OF THE

HEARING MASTER THE SUM OF $8,959.00, BY APRIL 30, 1984, THIS AMOUNT COVERS THE

EXPENSES OF THE HEARING MASTER'S OFFICE FOR THE PERIOD APRIL 1, 1984 THROUGH

APRIL 30, 1984, FILED.

RJB

4/26/84 ENTERED & COPIES MAILED

2 Exceptions of the Delaware County Deft's to the report of the Hearing Master in re: proposed admission of W.C. to Haverford State Hospital, No. 84-A-1, filed.

3 Sixth supplemental fee affidavit of David Ferleger, Esq. regarding attorney's fees, filed.
3 Report to the Court from the Hearing Master re: proposed admission of B.B., filed.
3 Report to the Court from the Hearing Master re: proposed placement of P.H., filed.

ORDER THAT THE HEARING SCHEDULED FOR MAY 10, 1984 FOR THE PURPOSE OF

DETERMINING WHETHER THE COMMONWEALTH DEFT'S ARE PRESENTLY COMPLYING WITH THIS

COURT'S ORDER OF AUGUST 26, 1983 IS HEREBY RESCHEDULED TO JUNE 5, 1984 AT 2:00

P.M. IN COURTROOM NO. 10B, FILED.

RJB

5/4/84 ENTERED & COPIES MAILED

Commonwealth deft's exceptions to report of the Hearing Master re: 84-A-1,

dated April 23, 1984, filed.

8 Appearance of Larry J. Goldberg, Esq. for United States of America, filed. 14 Withdrawal of appearance of Robert B. Hoffman, Deputy Attorney General as
counsel for deft's Commonwealth deft's, et al, filed.

21 Report to the Court from the Hearing Master re: proposed admission of R.M., filed.
23 Report to the Court from the hearing masterre: proposed admissxon of W.H.,
Filed.
23 ORDER DATED 5/23/84 THAT CLERK OF COURT SHALL PAY OFFICE OF HEARING MASTER THE AM]
OF $8,959.00, AMT. COVERS EXPENSES FOR PERIOD 5/1/84 THROUGH 5/31/84, filed. RJB 5/24/84 entered and copies mailed. (original to fiscal)

OVER.

:>c l i i A Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN, ET AL

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL

DOCKET NO. 74-1345

P A G E ¯*¯ ~'OF

PAGES

DATE

NR.

1984

PROCEEDINGS

2053 MAY 31 2054 JUN 1 2055 " 1 2056 JUN

2057 I!

8

2058 fl 19

Report to the Court from the Hearing Master re: proposed placement of R.A.L.,
filed. Canmonwealth deft's exceptions to report of the Hearing Master re: 84-A-6, filed. Canmonwealth deft's exceptions to report of the Hearing Master re: 84-A-5, filed.

ORDER THAT THE CLERK OF THE COURT SHALL PAY TO THE OFFICE OF THE HEARING MASTER

THE SUM OF $8,959.00 BY JUNE 10, 1984, THIS AMOUNT COVERS THE EXPENSES OF THE

HEARING MASTER'S OFFICE FOR THE PERIOD JUNE 1, 1984 THROUGH JUNE 30, 1984, FILED.

6/6/84 ENTERED & COPIES MAILED

(to financial clerk)

RJB

Report to the Court from the Hearing Master re: proposed admission of B.B.,

filed.

Phila. County's answer to the Commonwealth deft's exceptions to report of the Hearing Master re: 84-A-5, dated 5/22/84, filed.

2059 11 2060 JUL 2061 11 2062 II 2063 II
2064 " ;2O65 "

29 Commonwealth deft's exceptions/objections to notice of hearing re: No. 84-P-2, dated 6/19/84, filed.
2 Montganery County deft's exceptions to Hearing Master's report on B.B. of
June 6, 1984, filed.
6 Report to the Court from the Hearing Master re: proposed admission of W.S.,
filed.

9 Report to the Court from the Hearing Master re: proposed admission of J.E.,
filed.

11 ORDER THAT THE CLERK OF THE COURT SHALL, BY 7-15-84, PAY TO THE OFFICE OF THE

HEARING MASTER, PURSUANT OT THIS COURT'S ORDER OF 1-8-82, THE AMOUNT OF $9,459.00

THIS AMOUNT COVERS THE EXPENSES OF THE HEARING MASTER'S OFFICE FOR THE PERIOD OF

7-1-84, THROUGH 7-31-84. PAYMENT SHALL BE MADE BY CHECK DRAWN TO THE ORDER OF

"MICHAEL S. LOTTMAN, ESQ., HEARING MASTER", FILED.

RJB

7/12/84 entered & copies mailed. (Original to Fiscal Dept.)

16 Report to the Court from the Hearing Master re: proposed admission of S.F., filec 16 Phila. County's exceptions to report of the Hearing Master re: 82-A-5, dated
July 5, 1984, filed.

2066 " 2067 " 2068 " 2069 "

18 Commonwealth deft's exceptions to Report of the Hearing Master re: 84-A-7, dated July 2, 1984, filed.
18 Commonwealth deft's exceptions to Report of the Hearing Master re: 84-A-5, dated July 5, 1984, filed.
19 Report to the Court from the Hearing Master re: proposed admission of A.L.,
filed.

19 ORDER THAT THE REQUEST OF PLFF. CLASS MEMBER T.P. FOR AN APPROPRIATE RESIDENTIAL

PROGRAM AND PLACEMENT IS HEREBY REFERRED TO THE HEARING MASTER FOR HEARING,

DECISION AND ORDER, ETC., FILED.

RJB

7/19/84 ENTERED & COPIES MAILED

CONT. ON PAGE #116

DC 111A (Rev. 1/75)
PLAINTIFF
TERRI T.TTR HALDERMAN, ET A L .

I . CIVIL DOCKET CONTINUATION SHEET
DEFENDANT PENNHURST STATE SŒOOL & HOSPITAL

DOCKET NO. 74-1345

PAGE^OF_

.PAGES

DATE

NR.

PROCEEDINGS

1984

2070 JUL 23 Certified copy of order from U.S.C.A. dated 7-20-84 that this court shall retain

jurisdiction of the appeals in Nos. 78-1490, 78-1564 & 78-1602 & proceedings are

remanded to the District Court for proceedings in consideration of the final

2071 II

settlement agreement, etc., filed. RECORD RETURNED. 25 Certified copy of Order from U.S.C.A. dated 7/23/84 that upon review of the

Settlement agreement and the documents attached, it is ordered that the fees

set forth in the settlement agreement are reasonable and the agreement is

2072 It

hereby approved, filed. 26 "Commonwealth" Defts1 Response to Hearing Master's Request Re: Thomas Place,

2073 II

Certificate of Service, filed. 27 Report of the Hearing Master, filed.

2074 II

30 Report to the Court from the Hearing Master re: proposed placement of D.T.,

filed.

2075 AUG 2 PLFF'S MOTION FOR APPLICATION OF COURT FUND TO ATTORNEY'S FEES AND COSTS,

CERTIFICATE OF SERVICE, FILED.

(2075)"

ORDER DATED 8/7/84 THAT THE CLERK OF THE COURT SHALL ON OR BEFORE AUGUST 15, 1984 PAY TO DAVID FERLEGER, ESQ. AND PENELOPE BOYD, ESQ. THE SUM OF $47,000.00,

ETC., FILED. (to fiscal dept.)

RJB

8/8/84 ENTERED & COPIES MAILED

2076 "

ORDER THAT ALL MEMBERS OF THE PLFF. CLASS AS ORIGINALLY CERTIFIED, AND THEIR

PARENTS & GUARDIANS WILL BE GIVEN NOTICE OF THE FINAL SETTLEMENT AGREEMENT IN

ACCORDANCE WITH THE PROVISIONS OF APPENDIX C OF THE AGREEMENT, ANY OBJECTIONS

MADE BY OR ON BEHALF OF ANY MEMBER OF THE PLFF. CLASS SHALL BE FILED WITH THE

CLERK OF THE COURT AND MAILED TO ALL COUNSEL BY SEPTEMBER 18, 1984, ANY PARTY

TO THIS ACTION WISHING TO OBJECT TO THE PROPOSED SETTLEMENT SHALL FILE AND SERVE

ANY SUCH OBJECTIONS BY SEPTEMBER 18, 1984, A HEARING WILL BE HELD ON THE

PROPOSED SETTLEMENT ON SEPTEMBER 25, 1984 AT 9:30 A.M. IN COURTROOM 10B, ETC.,

FILED.

P`Jß

8/8/84 ENTERED & COPIES MAILED 2077 " 9 Report to the Court from the Hearing Master re: proposed placement of G.C.,
filed. 2078 " 9 Report to the Court fran the Hearing Master re: proposed placement of P.C.,
filed.

2079 " 16 Exceptions of Mrs. R.S. parent and Court-appointed Guardian of D.S. to decision and order of Hearing Master dated July 26, 1984, filed.

2080 "

17 ORDER THAT THE CLERK OF THE COURT SHALL PAY TO THE OFFICE OF THE HEARING MASTER THE SUM OF $8,959.00 BY AUGUST 20, 1984, THIS AMOUNT COVERS THE EXPENSES OF THE

HEARING MASTER'S OFFICE FOR THE PERIOD AUGUST 1, 1984 THROUGH AUGUST 31, 1984,

FILED.

RJB

8/20/84 ENTERED & COPIES MAILED

2081

20 Report to the Court from the Hearing Master re: proposed placement of D.S., filed.

OVER.

>C 111A 3ev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN, ET AL

DATE

NR.

1984

CIVIL DOCKET CONTINUATION SHEET

DEFENDANT

DOCKET NO. 74-1345

PENNHURST STATE SCHOOL & HOSPITAL,

PAGE_DF.

.PAGES

PROCEEDINGS

2082 AUG
2083 " 2084 " 2085 11

27 ORDER DATED 8/22/84 THAT THE REQUEST OF R.M., A MEMBER OF THE PLFF. CLASS, FOR

A SUITABLE COMMUNITY PROGRAM AND PLACEMENT DATED 8/10/84 IS HEREBY REFERRED TO

THE HEARING MASTER FOR HEARING, DECISION, AND ORDER, ETC., FILED.

RJB

8/27/84 ENTERED & COPIES MAILED

28 Phila. County's answer to exceptions to Report of the Hearing Master re: 84-P-3

dated July 26, 1984, filed.

30 Report to the Court from the Hearing Master re: amended behavior management plan

submitted by Applied Behavior Systems, filed.

30 Objection of Jacqueline A. Hayes on behalf of Karen A. Hayes, filed.

2086 SEP 4 Report to the Court from the Hearing Master re: proposed admission of W.H., filed

2087 n 2088 II 2089 ii
2090 ii 2091 it 2092 n
2093
2094
2095 II 2096 It 2097 II 2098 II 2099 II 2100 It 2101 M 2102 11 2103 II 2104 11 2105 11 2106 II 2107 11
2108 11
2109 II 2110 11 2111 It
2112

7 Letter dated 9/5/84 from Lester Moyer re: settlement notice, filed.
7 Letter dated 9/2/84 from Carl Weiner re: settlement notice, filed. 7 Letter dated 9/5/84 from Raymond F. and Helen R. Burke re: settlement notice,
filed. 7 Letter from Mr. & Mrs. R. Simmons re: settlement notice, filed.
11 Letter dated 9/10/84 from William E. Knight re: settlement notice, filed. 11 Letter dated 9/10/84 from Francis J. Clark re: settlement notice, filed.
12 Report to the Court from the Hearing Master re: proposed placement of P.H.,
filed. 12 Letter dated 9/9/84 from Thomas and Pauline Casalena re: settlement notice,
filed. 12 Letter dated 9/9/84 from Doris Ebner re: settlement notice, filed. 12 Letter dated 9/9/84 from C. Joyce Storm re: settlement notice, filed.
13 Letter from Saul Solomon and Fay Solomon re: settlement notice, filed. 13 Letter from Grace R. Gouse re: settlement notice, filed. 13 Letter dated 9/10/84 from Ruth and Henry Gisser re: settlement notice, filed. 13 Letter dated 9/11/84 from Mrs. Agnes Flaherty re: settlement notice, filed. 13 Letter dated 9/11/84 frcm Ruth Smith re: settlement notice, filed. 13 Letter dated 9/11/84 from Mrs. Nicholas J. Tascione re: settlement notice, filed.
14 Letter dated 9/13/84 from Mr. & Mrs. Gabriel Babjak re: settlement notice, filed. 14 Letter dated 9/13/84 from Polly Spare re: settlement notice, filed. 14 Letter dated 9/12/84 from Kenneth & Virginia Fegley re: settlement notice, filed. 14 Letter from Mrs. Elizabeth Fedak re: settlement notice, filed. 17 Appearance of Robert W. Lentz, Esq. for Kiiriberly Carol Lentz and Nancy Ann Macbeth
filed. 17 Letter dated 9/14/84 from Connie Scullin and Joan Carbonara re: settlement notice
filed.
17 Nancy Ann McBeth's objections to final settlement agreement, filed. 17 Kimberly Carol Lentz's objections to final settlement agreement, filed. 17 Daniel B.'s request for corrective action and/or objection to proposed settlement
agreement, filed.
17 Andrew Kortschmaryk's objection to proposed settlement, filed.

CONT. ON PAGE #118

DC 111A (Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN, ET AL

CIVIL DOCKET CONTINUATION SHEET
DEFENDANT
PENNHURST STATE SŒOOL & HOSPITAL

DOCKET NO. 74-1345 PAGE ll8¤F PAGES

DATE NR.

PROCEEDINGS

1984

2113 SEP 2114 It
2115 M 2116 If 2117 It 2118 II 2119 tl 2120 It 2121 It 2122 II 2123 II 2124 II 2125 II
2126 II 2127 II 2128 II 2129 II 2130 II 2131 II
2132 It
2133 II 2134 tl 2135 It 2136 II 2137 tl 2138 tl
2139 II 2140 tl
2141 tl 2142 II
2143 tl 2144 tl
2145 II 2146 It
2147

17 Letter dated 9/16/84 fron Frank J. Schaller, Jr. re: settlement notice, filed. 17 Objection of Catherine Devitt to proposed settlement, filed.

17 Letter dated 9/12/84 from Winifred K. Halderman re: settlement notice, filed. 17 Letter dated 9/13/84 from Nora Privott Lewis re: settlement notice, filed. 17 Letter dated 9/13/84 from Mrs. Andrew Hunter re: settlement notice, filed. 17 Letter dated 9/13/84 from Catherine Blazic re: settlement notice, filed.
17 Letter dated8/26/84 from Mrs. Hazel Brown re: Settlement Notice, filed. 17 Letter dated 9/11/84 from Lee Weinstein re: Settlement Notice, filed. 17 Letter dated 9/15/84 from James J. Hurley re: Settlement Notice, filed. 17 Letter dated 9/14/84 from Miriam and Nathan Golub re: Settlement Notice, filed. 17 Letter dated 9/13/84 from Marguerite Cawley re: Settlement Notice, filed. 17 Letter dated 9/13/84 from Robert W. & Helen M. Fritz re: Settlement Notice,filed 17 Letter dated 9/10/84 from Frank E. & Janice L. Whitelam re: Settlment Notice,
filed.
17 Letter dated 9/12/84 from Marie E. Clark re: Settlement Notice, filed. 17 Letter dated 9/14/84 from Virginia W. Fegley re: Settlement Notice, filed.
17 Letter dated 9/14/84 from Helea Gribb re: Settlement Notice, filed. 18 Letter dated 9/17/84 from Catherine Lucena re: Settlement Notice, filed. 18 Letter dated 9/16/84 from Mrs. Sandra K. Champion re: Settlement Notice, filed. 13 Report of the Hearing Master re: Proposed Admission of W.S. to Pennhurst
State Center, filed.
18 Letter dated 9/15/84 from Joseph Lawton & Kathleen Donahue re: Settlement
Notice, filed. 19 Letter dated 9/18/84 from Kathleen Banski, et al re: Settlement Notice, filed. 19 Letter dated 9/17/84 from Shirley Devitt re: Settlement Notice, filed. 19 Letter from Jan Lessman re: Settlement Notice, filed. 19 Letter dated 9/17/84 from Mary Haydu M. Avoy re: Settlement Notice, filed. 19 Letter dated 9/14/84 from L. David Schlosser re: Settlment Notice, filed. 19 Letter dated 9/13/84 from Hibberd & Charlotte Twaddell re: Settlement Notice,
filed. 18 The Pennhurst Parent Staff Association objection to final settlement, filed. 19 ORDER THAT THE CLERK OF THE COURT SHALL, ON OR BEFORE SEPTEMBER 24, 1984 PAY
TO THE OFFICE OF THE HEARING MASTER THE AMOUNT OF $9,959.00, ETC. FILED.
9/19/84 Entered and Copies mailed. (Original to Fiscal)

24 Report to the Court from the Hearing Master re: placement of R.M., filed. 24 Affidavit of notice to plff. class of Vicki Still·man-Toomey, filed.
25 Supplement to plff"s brief in support of settlement approval, filed. 25 Memorandum of proponents P.A.R.C, et al in support of the proposed settlement,
filed.
25 Plff•s brief in support of settlement agreement, filed. 26 Hearing re: Approval of Settlement, 9/25/84, witnesses sworn, CAV, filed.

27 ORDER DATED 9/26/84 THAT THE HEARING ON THE PROPOSED SETTLEMENT WHICH COMMENCED

ON SEPTEMBER 25, 1984 SHALL CONTINUE ON NOVEMBER 13, 1984 AT 10:00 A.M. IN

COURTROOM NO. 10B, FILED.

RJB

9/27/84 ENTERED & COPIES MAILED

OVER

>C 111A Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN, ET AL,

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL

DOCKET NO. 74-1345
PAGES

DATE

NR.

PROCEEDINGS

1984

2148 OCT 2149 " 2150 " 2151 "
2152 NOV 2153 "
2154 II 2155 II
2156 11

Conmonwealth deft's exceptions to the Report of the Hearing Master re: 84-A-7, dated September 14, 1984, filed. 2 Letter to Clerk frcm Thomas L. Nickelson re: Settlement Notice, filed.

12 Report to the Court frcm the Hearing Master re: proposed admission of G.R.,

filed.

25 ORDER DATED 10/23/84 THAT THE CLERK OF THE COURT SHALL PAY TO THE OFFICE OF THE

HEARING MASTER THE SUM OF $8,340.09 BY OCTOBER 26, 1984, THIS AMOUNT COVERS THE

EXPENSES OF THE HEARING MASTER'S OFFICE FOR THE PERIOD OCTOBER 1, 1984 THROUGH

OCTOBER 31, 1984, FILED.

RJB

10/26/84 ENTERED & COPIES MAILED

5 Report to the Court from the Hearing Master re: proposed admission of R.M., filed.

14 ORDER THAT THE HEARING ON THE PROPOSED SETTLEMENT WHICH WAS POSTPONED FRCM THIS

DATE IS HEREBY RESCHEDULED TO NOVEMBER 20, 1984 AT 10:00 A.M. IN COURTROOM 10B

FILED.

RJB

11/14/84 ENTERED & COPIES MAILED

15 Montgomery County deft's exceptions to Hearing Master's report on R.M., dated November 1, 1984, filed.

27 ORDER THAT THE HEARING ON THE PROPOSED SETTLEMENT WHICH COMMENCED ON 9/25/84 AND WHICH WAS CONTINUED TO 11/13/84 AND THEN TO 11/20/84 SHALL CONTINUE TO 12/5/84 AT 10:00 A.M. IN COURTROOM NO. 10-B, FILED. 11/28/84 ENTERED AND COPIES MAILED.
29 Report to the Court from the Hearing Master re: placement of R.M., filed.

2157 DEC
2158 " 2159 " 2160 " 2161 "
1985

4 ORDER THAT THE CLERK OF THE COURT SHALL PAY TO THE OFFICE OF THE HEARING MASTER

THE SUM OF $10,577.91, BY DECEMBER 6, 1984, THIS AMOUNT COVERS THE EXPENSES OF

THE HEARING MASTER'S OFFICE FOR THE PERIOD NOVEMBER 1, 1984 THROUGH NOVEMBER 30,

1984, FILED.

(to fiscal)

RJB

12/5/84 ENTERED & COPIES MAILED

5 Hearing re: Settlement (Proposed) - CAV, filed.

12 Report to the Court from the Hearing Master re: proposed admission of S.B., filed.
12 Report to the Court frcm the Hearing Master re: proposed placement of D.S., filed.

27 Report to the Court from the Hearing Master re: M.B.K.'s behavior management plan, filed.

2162 JAN 7
2163 " 7 2164 " 7

Report to the Court from the Hearing Master re: proposed admission of J.E., filec
Report to the Court from the Hearing Master re: proposed admission of G.K., filed Report to the Court from the Hearing Master re: proposed admission of S.F., filec

CONT. ON PAGE #$20

DC 1UA (Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN, ET AL

CIVIL DOCKET CONTINUATION SHEET
DEFENDANT
PENNHURST STATE SŒOOL & HOSPITAL

74-1345 DOCKET NO.
PAGES

DATE

NR.

PROCEEDINGS

1985

2165 JAN 2166 " 2167 " 2168 " 2169 " 2170 " 2171 " 2172 " 2173 "
2174 " 2175 " 2176 FEB 2177 " 2178 " 2179 " 2180 " 2181 "
2182 "
2183
2184 "

10 Coirmonwealth deft's exceptions to Report of the Hearing Master re: 82-A-3, dated January 2, 1985, filed.
10 Coitmonwealth deft's exceptions to Report of the Hearing Master re: 82-A-4, dated January 2, 1985, filed.
10 Commonwealth deft's exceptions to Report of the Hearing Master re: 82-A-5, dated January 2, 1985, filed.
11 Phila. County's exceptions to Report of the Hearing Master re: 82-A-5, filed. 16 Report to the Court from the Hearing Master re: proposed placement of D.S.,
filed. 16 Report to the Court fran the Hearing Master re: proposed Admission of W.S.,
filed.
17 Phila. County's exceptions to report of the Hearing Master re: 82-A-5, dated January 2, 1985, filed.

18 PLFF'S MOTION FOR CONTEMPT, CERTIFICATE OF SERVICE, FILED.

21 Exceptions of Mrs. R.S. Parent and Court-appointed Guardian of D.S. to Report of the Hearing Master, filed.

28 Report to the Court from the Hearing Master re: proposed admission of D.L., filed.

28 Report to the Court from the Hearing Master re: proposed admission of R.R.,

filed. 1 Phila. County's exceptions to Report of the Hearing Master re: 84-A-9, dated
January 24, 1985, filed. 4 Report of the Court fran the Hearing Master re: Proposed Community Placement of
K.H., filed.

4 Report to the Court from the Hearing Master re: Proposed Admission of W.C. to

Haverford State Hospital, filed. 4 Report to the Court from the Hearing Master re: Proposed Community Placement of

D.S. filed. 8 Exceptions of Mrs. R.S. to report of the Hearing Master dated 2/1/85, filed.

11 Exceptions of the Delaware County deft's to the report of the Hearing Master in re: proposed admission of W . C , to Haverford State Hospital, No. 84-A-1,

filed.

11 ORDER DATED 2/7/85 THAT THE CLERK OF THE COURT SHALL PAY TO THE OFFICE OF THE

HEARING MASTER THE SUM OF $9,459.00 BY FEBRUARY 11, 1985, THIS AMOUNT COVERS

THE EXPENSES OF THE HEARING MASTER'S OFFICE FOR THE PERIOD DECEMBER 1, 1984

THROUGH DECEMBER 31, 1984, FILED.

BJB

2/11/85 ENTERED & COPIES MAILED
11 ORDER DATED 2/7/85 THAT THE CLERK OF THE COURT SHALL PAY TO THE OFFICE OF THE

HEARING MASTER THE SUM OF $7,364.10 BY FEBRUARY 11, 1985, THIS AMOUNT COVERS

THE EXPENSES OF THE HEARING MASTER'S OFFICE FOR THE PERIOD JANUARY 1, 1985

THROUGH JANUARY 31, 1985, FILED.

KTB

2/11/85 ENTERED & COPIES MAILED

19 Phila. County's answer to exceptions to report of the Hearing Master re:

84-P-3 dated February 1, 1985, filed.

OVER.

C 111A îev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN, ET AL

CIVIL DOCKET CONTINUATION SHEET
DEFENDANT
PENNHURST STATE SŒOOL & HOSPITAL

DOCKET NO. 74-1345
P A G E 1 2 1 OF .PAGES

DATE

NR.

PROCEEDINGS

1985

:I85 MAR :I86 11 2187 tl 2188 II 2189 11

11 Report to the Court from the Hearing Master re: proposed placement of D.P., filed.
11 Report to the Court from the Hearing Master re: proposed admission of V.Y., filed.
13 Report to the Court from the Hearing Master re: proposed admission of C.C., filed.
15 Phila. County's exceptions to report of the Hearing Master re: 84¯-P-5, dated March 5, 1985, filed.
20 PLFF'S MOTION FOR APPLICATION OF COURT FUND TO ATTORNEY'S FEES AND COSTS,

2190

22 ORDER DATED 3/21/85 THAT THE CLERK OF THE COURT SHALL PAY TO THE OFFICE OF THE

HEARING MASTER THE SUM OF $11,553.90 BY MARCH 22, 1985, THIS AMOUNT COVERS THE

EXPENSES OF THE HEARING MASTER'S OFFICE FOR THE PERIOD FEBRUARY 1, 1985 THROUGH

FEBRUARY 28, 1985, FILED.

(to fiscal)

RJB

2191 "

3/25/85 ENTERED & COPIES MAILED

22 ORDER DATED 3/21/85 THAT THE CLERK OF THE COURT SHALL PAY TO THE OFFICE OF THE

HEARING MASTER THE SUM OF $9,459.00 BY MARCH 22, 1985, THIS AMOUNT COVERS THE

EXPENSES OF THE HEARING MASTER'S OFFICE FOR THE PERIOD MARCH 1, 1985 THROUGH

MARCH 31, 1985, FILED.

(to fiscal)

RJB

3/25/85 ENTERED & COPIES MAILED 2192 " 25 Report to the Court from the Hearing I Master re: proposed placement of J. L.,
filed. 2193 Apr . 5 MEMORANDUM AND ORDER THAT FINAL SETTLEMENT AGREEMENT IS APPROVED. FURTHER
ORDERED THAT THE PROVISIONS OF THE FINAL SETTLEMENT AGREEMENT EXECUTED ON 7/12/84 HERETOFORE MADE A PART OF THE RECORD IK THIS CASE SÏI?Ii EAVL THE FULL FORCE AND EFFECT OF AN ORDER OF THIS COURT, FILED.

4/5/85 entered & copies mailed 2194 " 5 Transcript of Hearing of 9/25/84, filed.

2195 " 8 Report of the Hearing Master dated 4/5/85 re: "Placement of D.S..," filed.

2196

8 Report of the Hearing Master dated 4/5/85 re: "Proposed Community Placement

of D.P.," filed.

2197 24 Transcript of Proceedings of 9/25/84, filed.

2198 MA1

ORDER THAT THE CLERK OF THE COURT SHALL, ON OR BEFORE 5/6/85, PAY TO THE OFFICE OF THE HEARING MASTER, PURSUANT TO THIS COURT'S ORDER OF 1/8/82, THE AMOUNT OF $13,292; THIS AMOUNT COVERS THE EXPENSES OF THE HEARING MASTER'S OFFICE FOR PERIOD 4/1/85 THROUGH 4/30/85 & REPRESENTS FINAL CLOSE-OUT OF THE EXPENSES OF THE HEARING MASTER'S OFFICE; PAYMENT MADE BY CHECK TO THE ORDER OF "MICHAEL S. LOTTMAN, ESQ., HEARING MASTER," FILED. (Original to Fiscal)

5/6/85 ENTERED & COPIES MAILED.

2199 AUG 7 Certified Copy of Order from u.S.C.A. re: "Appellants' Motion to Dismiss appeals
is Granted", dated 8-1-85, filed.

2200 ' 7

Certified Copy of Dismissal Received from U.S. Court of Appeals that this case is Dismissed Pursuant to F.R.A.P. 42(b), filed. 8/8/85 Entered. Sixteenth and Seventeenth Supplements Returned.

C 111A ìev. 1/75)
PLAINTIFF

CIVIL DOCKET CONTINUATION Sh` `, T DEFENDANT

DOCKET NO 74-1345

TERRI LEE HALDERMAN, ET AL

PENNHURST STATE SCHOOL & HOSPITAL

PAGE

.PAGES

DATE

NR.

PROCEEDINGS

1987
2236 FEE 11

PL·FF'S MOTION FOR CONTEMPT & ENFORCEMENT REGARDING PLFF. CLASS MEMBER ROBERT HARTMAN, BRIEF, CERTIFICATES OF SERVICE, FILED.

237 M 20 PLFFS MOTION FOR CONTEMPT AND ENFORCEMENT REGARDING PLFFS CLASS MEMBER RICHARD

GALLOWAY AGAINST DELAWARE COUNTY DEFTS AND ELYWYN INSTITUTE, BRIEF, CERT. OF

SERVICE, FILED.

.238 Mar 9 MITCHELL W. DALE'S MOTION TO WITHDRAW AS CO-COUNSEL FOR PLFF INTERVENOR, CERT. OF

SERVICE, FILED.

2239 It 18 Commonwealth Defts Answer to Plffs motion for contempt and enforcement regarding

2240 tl

plff class member Robert Hartman, verification, proof of service, filed. 18 Commonwealth Defts brief in opposition to motion for contempt, proof of service,

filed.

2241 It

19 Objections of the Montgomery County Deft to Plffs interrogatories regarding

community placement, cert, of service, filed.

2242 tl 20 PLFFS MOTION TO COMPEL ANSWERS OF THE COMMONWEALTH DEFTS AND COUNTY DEFTS TO PLFFS INTERROGATORIES REGARDING COMMUNITY PLACEMENTS AND PLFFS INTERROGATORIES

REGARDING ELWYN INSTITUTE, BRIEF, CERT. OF SERVICE, FILED.

2243 It

20 PLFFS MOTION FOR CONTEMPT AND ENFORCEMENT REGARDING COMMONWEALTH DEFTS OBLIGATION TO PROVIDE MONITORING AND ADVOCACY TO CLASS MEMBERS, MEMO, CERT. OF

SERVICE, FILED.

2244 It

2: Phila. County Defts response to Plffs motion to compel answers of the common-
wealth Defts and County Defts to Plffs Interrogatories regarding community

placements and Plffs interrogatories regarding Elwyn Institute, cert, of

service, filed.

238) MAR 23

ORDER THAT MOTION OF MITCHELL W. DALE TO WITHDRAW AS CO-COUNSEL FOR PLFFINTERVENOR - GRANTED, FILED.
3/24/87 entered & copies mailed.

245 " 25
2246 " 30
2247 " 30 :248 Apr 2
249 " 3

250 "

6

251 "

6

252 "

253 "

ORDER THAT A HEARING WILL BE HELD ON A/9/81 TO DETERMINE WHETHER OR NOT THE

DEFTS SHALL BE HELD IN CONTEMPT, FILED.

3/26/87 ENTERED AND COPIES MAILED.

„^

PLFFS MOTION FOR HEARING FOR EXPERT REPORT REGARDING PENDING MOTION FOR CONTEMPT

IN CONNECTION WITH ROBERT HARTMAN, MEMO, CERT. OF SERVICE, FILED.

Plffs request to Commonwealth Defts to produce documents, filed.

Plffs proposed findings and stipulation of facts, cert, of service, filed.

Reply of the Bucks and Delaware County Defts to Plffs motion to Compel answers

to Plffs Interrogatories regarding Community Placement and Elwyn Institute, cert,

of service, filed.

Plffs request to produce documents to each deft regarding client fee schedules,

cert, of service, filed.

Plffs supplemental memo in support of their motion to compel answers of the

Commonwealth Defts and all County Defts to Plffs Interrogatories regarding

ccranunity placements, cert, of service, filed.

Commonwealth Defts answer to Plffs motion for contempt and enforcement regarding

Commonwealth Defts obligation to provide monitoring and advocacy to class members

vertification, brief, cert, of service, filed.

Commonwealth Defts answer to Plffs motion to compel answers of the Commonwealth

Defts and County Defts to Pl-ffs interrogatories regarding Community Placements

and Plffs interrogatories regarding Elwyn Institute, brief, verification, cert. of service, filed.

DC 111A (Rev. 1/75)
PLAINTIFF

- il_ DOCKET CONTINUATION SHEET DEFENDANT

DOCKET NO.

PAGE

OF_

.PAGES

DATE

NR.

PROCEEDINGS

1987
2254 Apr 10

Plffs ARC/PA, et al Memo in support of the Motion of Plffs Halderman et al., for contempt and enforcement regarding Plff Class member Robert Hartman, cert.. of service, filed.

2255 " 10 Argue Sur: hearing 4/8/87, re: Plffs motion for contempt, filed.

2256 "

21 Phila. County Defts reply brief to Plffs supplemental memo in support of their motion to compel answers of the Coitimonswealth Defts and all county Defts to

Plff interrogatories regarding community placements, cert, of service, filed.

2257 "

23 ORDER THAT PLFFS' MOTION FOR CONTEMPT AND ENFORCEMENT REGARDING PLFF CLASS MEMBEI
RICHARD GALLOWAY AGAINST DELAWARE COUNTY DEFTS1 AND ELWYN INSTITUTE IS DISMISSED,

FILED.

4/24/87 entered & copies mailed.

2258 " 29 ORDER THAT A CONFERENCE WILL BE HELD ON 5/12/'87, IN CONNECTION WITH PLFFS MOTION
TO COMPEL ANSWERS OF THE COMMONWEALTH DEFTS, ETC., FILED.

4/29/87 ENTERED AND COPIES MAILED BY CHAMBERS

2259 May 19

ORDER THAT THE COMMONWEALTH SHALL COOPERATE WITH THE COUNTIES IN PROVIDING THE INFORMATION AS SET FORTH ABOVE; PLFFS MOTION TO COMPEL ANSWERS BY COMMONWEALTH DEFTS, ETC., IS DISMISSED AS MOOT, FILED.
5/20/87 ENTERED AND COPIES MAILED

2260 Jun

ORDER THAT PLFFS MOTION FOR CONTEMPT AND ENFORCEMENT ETC., SHALL BE DISMISSED UNLESS THIS COURT RECEIVES A RESPONSE FROM PLFF TO THE COMMONWEALTH'S ANSWER ON OR BEFORE 7/l/87, FILED.

6/10/87 ENTERED AND COPIES MAILED

2261 II 17 ORDER THAT THE HEARINGS PREVIOUSLY SCHEDULED SHALL CONTINUE ON l/9/%l at
3:30 P.M, FILED.

2262 ju: 9 2263 tt 13

6/18/87 entered and copies mailed.
Transcript of hearing on 4/9/87, filed. ORDER THAT A HEARING IS SCHEDULED FOR 7/29/87 ON PLFFS MOTION FOR CONTEMPT IN CONNECTION WITH ROBERT HARTMAN, ETC., FILED. 7/14/87 ENTERED AND COPIES MAILED

2264 it 2265 ii 2266 ti 2267 II 2268 n

20 23
23 23 24

COMMONWEALTH'S MOTION TO DISMISS PLFFS MOTION FOR CONTEMPT AND ENFORCEMENT REGARDING PLFFS CLASS MEMBER ROBERT HARTMAN, BRIEF, CERT. OF SERVICE, FILED. Plffs response to Defts belated motion to dismiss contempt and enforcement motion regarding Robert Hartman, cert, of service, filed. PLFFS MOTION FOR CONTEMPT AND ENFORCEMENT REGARDING REPORTING REQUIREMENTS UNDEF ADDENDUM TO SETTLEMENT, CERT. OF SERVICE, FILED. PLFFS MOTION FOR CONTEMPT AND ENFORCEMENT REGARDING HEARING OFFICER, CERT. OF SERVICE, FILED.
COUNTY OF BERKS DEFTS MOTION TO DISMISS PLFFS MOTION FOR CONTEMPT AND ENFORCEMEN

REGARDING PLFF CLASS MEMBER ROBERT HARTMAN, BRIEF, CERT. OF SERVICE, FILED.

2269 n

27 PLFFS MOTION FOR ATTY FEES AND COSTS FOR THE PERIOD 7/1/86 THROUGH 7/27/87, BRIEI

CERT. OF SERVICE, FILED.

227Q_ II
2271 ti 2272 II

29 Objections of the Bucks, Chester and Delaware County Defts to Plffs motion for Attys fees and costs for the period 7/1/86 through 7/26/87, filed.
30 Hearing 7/29/87 re: Contempt, filed. 30 SETTLEMENT AGREEMENT WITH COURT APPROVAL, FILED.

7/30/87 ENTERED AND COPIES MAILED BY CHAMBERS

(CONTINUATION)

DC 111A (Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN, ET AL
DATE NR.

CIVIL DOCKET CONTINUATION
DEFENDANT PENNHURST STATE SCHOOL & HOSPITAL
PROCEEDINGS

74-1345
DOCKET NO.

PAGE!22OF

PAGES

2201 AUG 30
2202 SEPT 3
2203 " 27 2204 " 27 2205 " 27 2206 " 27
1986 2207 MAY 21

ORDER THAT THE CLERK OF THE COURT SHALL ON OR BEFORE 9/4/85 PAY TO THE PUBLIC INTEREST LAW CENTER OF PHILADELPHIA THE SUM OF $49,691.98 PLUS INTEREST AS A REASONABLE ATTY.'S FEE INCURRED IN THIS ACTION, PAYMENT SHALL BE MADE TO THE "PUBLIC INTEREST LAW CENTER OF PHILADELPHIA," ETC., FURTHER ORDERED THAT THE CLERK OF THE COURT SHALL EFFECTUATE THE CLOSE-OUT OF THE "PENNHURST CONTEMPT FUND", FILED. (ORIG. TO FISCAL)
9/3/85 ENTERED & COPIES MAILED. Cert, copy of Order from USCA dated 8/30/85 that in accordance with the agreement of the parties in the above entitled case, it is entered dismissed by the Clerk, filed.
Cert, copy of Order frcm USCA dated 9/26/85 that USCA #79-1467 is hereby dismissed for failure to timely prosecute, etc., filed. • Cert, copy of Order from USCA dated 9/26/85 that USCA #79-1630 is hereby dismissed for failure to timely prosecute, etc., filed. Cert, copy of Order from USCA dated 9/26/85 that USCA #79-2092 is hereby dismissec for failure to timely prosecute, etc., filed. Cert, copy of Order frcm USCA dated 9/26/85 that USCA #79-2093 is hereby dismissed for failure to timely prosecute, etc., filed.
ORDER THAT A CONFERENCE SHALL BE HELD BEFORE THE UNDERSIGNED ON 6/2/86 IN CHAMBERS CONCERNING THE NECESSITY OR PRACTICALITY OF HAVING AN OUTSIDE PROFESSIONAL TEAM OR INDIVIDUAL EVALUTE THE APPROXIMATELY TWELVE INDIVIDUALS AT PENNHURST WHO HAVE SEVERE MEDICAL PROBLEMS AS WELL AS BEING RETARDED.
5/22/86 ENTERED & COPIES MAILED.

2208

29 ORDER THAT THE CONFERENCE PREVIOUSLY SCHEDULED FOR 6/2/86 IS RESCHEDULED TO FRIDAY 6/13/86 AT 9:00 AM IN CHAMBERS CONCERNING THE NECESSITY OR PRACTICALITY OF HAVING AN OUSTIDE PROFESSIONAL TEAM OR INDIVIDUAL EVALUATE THE APPROXIMATELY 12 INDIVIDUALS AT PENNHURST WITH SEVERE MEDICAL PROBLEMS, FILED. 5/29/86 ENTERED & COPIES MAILED.

2209 JUN 2210 "

COMMONWEALTH, DELAWARE CTY. & PHILA. CTY. DEFTS.' MOTION TO EXTEND TIME IN WHICH TO CLOSE PENNHURST STATE SCHOOL & HOSPITAL & PLACE ITS RESIDENTS IN COMMUNITY-BASED FACILITIES, CERT. OF SERVICE, FILED. 10 PLFFS.' MOTION TO SHORTEN THE TIME TO ANSWER CERTAIN INTERROGATORIES, RESPONSE IN OPPOSITION, CERT. OF SERVICE, FILED,

2211 "
2212 II 2213 II 2214 It 2215 It

13 ORDER THAT A HEARING SHALL BE HELD ON THE COMMONWEALTH'S MOTION TO EXTEND TIME IN WHICH TO CLOSE PENNHURST ON 6/24/86 AT 2:00 PM IN CTRM. 10-B OF THIS U.S. DISTRICT COURTHOUSE, FILED.
6/13/86 ENTERED & COPIES MAILED.
16 PLFFS.' MOTION TO APPOINT WILLIAM MCKENDRY TO SERVE AFTER 7/1/86, CERTIFICATE OF SERVICE, FILED.
19 Commonwealth Defts.' Response to Plffs.' Motion to Appoint William McKendry to Serve After 7/1/86, Cert, of Service, Filed.
19 Plffs.' Response to Motion of Defts. to Extend Time Until 12/31/86, Cert, of
Service, Filed.
27 ORDER THAT PLFFS.' MOTION TO APPOINT WILLIAM McKENDRY AN INDEPENDENT NEUTRAL RETARDATION PROFESSIONAL TO SERVE AFTER 7/1/86 IS MARKED WITHDRAWN AS MOOT,
FILED. 6/27/86 ENTERED & COPIES MAILED.

DC 111A (Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN, ET AL DATE NR.

C: a;? DOCKET CONTINUATION SHEET
DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL PROCEEDINGS

DOCKET NO. 7 4 - 1 *¾¿l·S

PAGE _I23¤F

PAGES

1986 2216 Jul 25

2217

II

2218

1

2219

12

Appearance of Carol J. Weaver, Esq. on behalf of Patricia Haydu through her legal guardian Mary McAvoy, filed. PATRICIA HAYDU'S MOTION FOR CONTEMPT, CERTIFICATION OF SERVICE, BRIEF, FILED. Plff's response to McAvoy motion for contempt, cert, of service, filed. ORDER THAT MARY MCAVOY & THE DEFTS SHALL APPEAR AT A HEARING TO BE HELD ON
8/19/86, ETC., FILED. 8/12/86 ENTERED AND COPIES MAILED.

2220 " 15

Commonwealth Defts' Response in Opposition to McAvoy Motion for Contempt, proof of service, filed.

2221 " 18

PLFFS' MOTION FOR ATTORNEYS FEES AND SUPPORTING AFFIDAVITS FOR TIME EXPENDED BETWEEN JULY 3, 1984 AND JUNE 30, J986, CERT. OF SERVICE, FILED.

2222 " 18

Phila. Defts' Response in Opposition to McAvoy Motion for Contempt, proof of service, filed.

2223 " 20 2224 " 20
2225 " 20 2226 " 21

Answer of Montgomery County Defts to Motion for Contempt, Proof of Service, filed
ORDER THAT CLERK OF COURT SHALL WITHIN 15 DAYS PAY TO PUBLIC INTEREST LAW CENTER OF PHILA. $8,790.26, ETC., FILED. (Original to Fiscal)
8/20/86 ENTERED AND COPIES MAILED. Argued Sur: Hearing of 8/19/86 re: "motion for contempt", filed. ORDER THAT MS. BEVERLEY S. CORKHILL, ETC., SHALL APPEAR AT THE HEARING ON 9/2/86 AT 2:00, ETC., FILED.
8/21/86 ENTERED AND COPIES MAILED.

2227 Sept

Hearing on 9/2/86 re: motion to hold defts in contempt, hearing continued for 60 days, filed.

2228 Oct

ORDER THAT THE HEARING PREVIOUSLY HELD ON 8/19/86 and 9/2/86 SHALL CONTINUE ON 11/13/86, IN CONNECTION WITH THE PETITION OF MARY MCAVOY, FILED.
10/7/86 ENTERED AND COPIES MAILED.

2229 " 2230 " 2231 " 2232 Nov

10
10 30
18

ORDER THAT A CONFERENCE IS SET FOR 10/22/86 AT 3:30 P.M. , FILED. 10/10/86 entered & copies mailed.
Answer of Montgomery County Deft's to Plffs Motion for Attorney Fees and Supporting Affidavits for time expended between July 3, 1984 and June 30, 1986, Certificate of Service, filed.
ORDER THAT THE HEARING SCHEDULED FOR 11/13/86 IN CONNECTION WITH THE PETITION OF MARY MCAVOY IS RESCHEDULED TO 11/14/86, FILED.
10/31/86 ENTERED AND COPIES MAILED. ORDER THAT THE HEARING SCHEDULED FOR 11/14/86 IS CONTINUED TO 12/2/86 FOR PURPOSE OF PROVIDING THE PETITIONER AN OPPORTUNITY TO INSPECT THE CLA AND REVIEW THE TIHP, FILED.
11/19/86 ENTERED AND COPIES MAILED.

2233 Dec
2234 "
2235 " 29 (2235) " 30

AMENDMENT TO FINAL SETTLEMENT AGREEMENTS AS TO COMMONWEALTH AND PHILADELPHIA DEFTS, WITH COURT APPROVAL, FILED.
12/3/86 ENTERED AND COPIES MAILED. AMENDMENT TO FINAL SETTLEMENT AGREEMENTS AS TO DELAWARE COUNTY DEFTS, WITH COURT APPOVAL, FILED.
12/3/86 ENTERED AND COPIES MAILED. PLFFS MOTION TO MARK ATTORNEY'S FEE MOTION AS SETTLED, CERT. OF SERVICE, FILED. ORDER THAT MOTION IS GRANTED, SETTLEMENT APPROVED AND MOTION FOR ATTORNEYS FEES HEREBY MARKED SETTLED, FILED.
12/31/86 ENTERED AND COPIES MAILED. (CONTINUATION)

DC 111A (Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN, ET AL

r
CIVIL DOCKET CONTINUATION SHEET DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL

74-1345RJB
DOCKET NO.
PAGEJL2£DF. .PAGES

DATE

NR.

PROCEEDINGS

1987 2273 Jul 31 2274 " 31 2275 " 31 2276Aug 2277 " 2278 Sep 29 2279 " 29
2280 Oct
2281 "
2282 " 13 2283 " 27 2284 " 28 2285 " 28
2286Nov 2 2287 " 2 2288 " 4 2289 " 9

Commonwealth Defts response to Plffs motion for contempt and enforcement regarding requirements under addendum to settlement, verification and proof of service, filed. Commonwealth Defts response to Plffs motion for contempt and enforcement regarding Hearing officer, verification, cert, of service, filed. PLFFS MOTION FOR FEES AND COSTS WITH REGARD TO ROBERT HARTMAN CONTEMPT HEARING, CERT. OF SERVICE, FILED. Phila. Defts response to Plffs motion for contempt and enforcement regarding reporting requirements under addendum to settlement, filed.
Answer of Montgomery County Defts to Plffs motion for Attys fees and costs for the period 7/1/86 through 7/27/87, cert, of service, filed.
Clerk's Taxation of Costs, filed. 9/29/87 entered and copies mailed
ORDER AND JUDGMENT ENTERED IN FAVOR OF DEFTS CHESTER COUNTY AND THE MOREHOUSE AGAINST PLFF TERRI LEE HALDERMAN, ET AL AND PENNSYLVANIA ASSOCIATION FOR RETARDED CITIZENS IN THE AMOUNT OF 1,979.00 and IN FAVOR OF MOREHOUSES AND AGAINST PLFFS AND PENNSYLVANIA ASSOCIATION FOR RETARDED CITIZENS IN THE SUM OF 621.00, FILED.
9/29/87 ENTERED AND COPIES MAILED STIPULATION AND ORDER THAT ALL CLASS MEMBERS LIVING AT PENNHURST CENTER WILL BE PLACED IN ACCORDANCE WITH FINAL SETTLEMENT AGREEMENT AND PENNHURST CENTER WILL CLOSE ON OR BEFORE 10/26/87, ETC., FILED.
10/2/87 ENTERED AND COPIES MAILED ORDER THAT A HEARING WILL BE HELD ON 10/29/87 IN CONNECTIONS WITH PLFFS MOTION FOR CONTEMPT AND ENFORCEMENT REGARDING HEARING OFFICER, FILED.
10/8/87 ENTERED AND COPIES MAILED PLFFS MOTION FOR CONTEMPT TO COMPEL APPROPRIATE MANAGEMENT OF CLASS MEMBERS FUNDS BRIEF, CERT. OF SERVICE, FILED.
ARC/Pennsylvania's memo in support of petition of Halderman, et al for contempt and enforcement regarding the hearing officer, cert, of service, filed. COMMONWEALTH'S MOTION TO DISMISS PLFFS MOTION FOR CONTEMPT TO COMPEL APPROPRIATE MANAGEMENT OF CLASS MEMBERS FUNDS, PROOF OF SERVICE, BRIEF, FILED. ORDER THAT HALDERMAN, ET AL's MOTION FILED ON 7/23/87 (#2267) IS MARKED WITHDRAWN FILED.
10/29/87 ENTERED AND COPIES MAILED DAVID FERLEGER, ESQ.'S MOTION FOR LEAVE TO WITHDRAW AS PLFFS COUNSEL, CERT. OF SERVICE,FILED.
Phila. County's response to Plffs motion for contempt to compel appropriate Management of Class members funds, cert, of service, filed. Bucks, Chester and Delaware County Defts response to Plffs motion for contempt to compel appropriate management of Class members, funds, filed. MONTGOMERY COUNTY DEFTS MOTION TO DISMISS PLFFS MOTION FOR CONTEMBT TO COMPEL APPROPRIATE MANAGEMENT OF CLASS MEMBERS FUNDS, CERT. OF SERVICE, FILED.

DC 111A (Rev. 1/75)
PLAINTIFF

CIVIL DOCKET CONTINUATION SHEET DEFENDANT

DOCKET NO.

PAGE_ OF .PAGES

DATE NR.

PROCEEDINGS

1987 2290 Nov 16
2291 " 18
(2286)" 24
2292 " 25

ARC/PENNSYLVANIA, ET AL'S PETITION FOR A FINDING OF CONTEMPT AGAINST PHILA. DEFTS MEMO, CERT. OF SERVICE, FILED. Plff's response to Montgomery County's Motion to dismiss the plffs motion for contempt regarding client funds, filed.
ORDER THAT BARBARA HOFFMAN'S MOTION FOR LEAVE TO WITHDRAW AS PLFFS COUNSEL IS GRANTED, FILED.
11/25/87 ENTERED AND COPIES MAILED
MEMORANDUM AND ORDER THAT PLFFS PETITION FOR ATTY FEES AND COSTS FOR THE PERIOD 7/1/87 to 7/27/87 IS DISMISSED WITHOUT PREJUDICE, ETC., FILED.
11/27/87 ENTERED AND COPIES MAILED

2293 Dec

2294 "

2295 II 4

2296 M

4

ORDER THAT A CONFERENCE WILL BE HELD 12/17/87 AT 4:00p.m. IN CONNECTION WITH PLFF PARC'S MOTION FOR CONTEMPT AGAINST PHILA. COUNTY DEFTS, FILED.
12/3/87 ENTERED AND COPIES MAILED
ORDER THAT SETTLEMENTS BETWEEN PLFFS AND COMMONWEALTH DEFTS AND PHILA. COUNTY DEFTS ARE HEREBY APPROVED AND ADOPTED BY THE COURT, FILED.
12/3/87 ENTERED AND COPIES MAILED Phila. County Defts. supplemental response to Plffs; motion for contempt to compel appropriate management of class members' funds, certificate, filed. Phila. County Defts supplemental response to Plffs motion for contempt to Compel appropriate management of class members funds, filed.

2297 IT 2298 II
2299 IT 2300 11

7 ORDER THAT A CONFERENCE CALL SHALL BE HELD IN CHAMBERS ON 12/17/87, etc., FILED.
12/7/87 ENTERED AND COPIES MAILED 15 PHILA. COUNTY DEFTS MOTION TO JOIN COMMONWEALTH DEFTS AS RESPONDENTS TO THE
PETITION OF PLFFS ARC/PENNSYLVANIA, et al. FOR A FINDING OF CONTEMPT AGAINST PHILA DEFTS, MEMO, CERT. OF SERVICE, FILED.
16 PLFFS AND ARC-PA'S MOTION FOR INTERPRETATION OF CLERK'S ORDER ON MOREHOUSE COSTS; CERT. OF SERVICE, FILED.
21 ORDER THAT THE COMMONWEALTH AND COUNTY DEFTS WILL FILE WITH THE CLERK BY 12/31/8: ANY AND ALL PROPOSED REGULATIONS, POLICIES ET AL; A HEARING WILL BE HELD ON 1/19/88, ETC., FILED. 12/22/87 ENTERED AND COPIES MAILED

2301 "
2302 " 2303 "

23 Morehouse's response to motion by Plffs Halderman, et al and ARC-PA for interpretation of Clerk's Order on Morehouse costs, cert, of service, filed.
31 Montgomery county Defts response to the Court order of 12/18/87, filed. 31 Report of Phila. County Defts pursuant to court order of 12/22/87, filed.

1988

2304 "

Withdrawal of Larry J. Goldberg, Esq. and appearance of Arthur E. Peabody, Jr., Esq., on behalf of United States, filed.

2305 JM 11 PLFFS' MOTION FOR œNTINUANŒ OF 1/19 HEARING IN LIGHT OF DEBTS' FAILURE TO RESPOfS

TO ORDER AND NEED FOR DISCOVERY, & CERT. OF SEEAflCE, FILED.

2306

11 Commonwealth Defts1 Response to Court Order entered 12/22/87, filed.

2307 " 15 Phila. County supplemental response to court order entered 12/22/87, cert, of

service, filed. 2308 " 15 ORDER THAT THE HEARING SCHEDULED FOR 1/19/88 IS CONTINUED TO 3/7/88, ETC., FILED.

1/15/88 ENTERED AND COPIES MAILED

(CONTINUATION)

OC 111A (Rev. 1/75) ©
PLAINTIFF
TERRI LEE HALDERMAN ET AL

CIVIL DOCKET CONTINUATION SHEE( DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL

DOCKET NO. 7 ¿ L - 1

PAGEL28-OF

PAGES

DATE

NR.

PROCEEDINGS

1988 2309 Jan 26

Bucks, Chester and Delaware County Defts response to the order entered 12/22/87, filed.

2310 Feb 2311 "

12 COMMONWEALTH DEFTS MOTION FOR CONTINUANCE, PROOF. OF SERVICE FILED 19 ORDER THAT THE COMMONWEALTH'S MOTION TO DISMISS PLFFS MOTION FOR CONTEMPT
TO COMPEL APPROPRIATE MANAGEMENT OF CLASS MEMBERS FUNDS IS DENIED. IT IS FURTHER ORDERED THAT COMMONWEALTH DEFTS MOTION FOR A CONTINUANCE OF THE HEARING SCHEDULED FOR 3/7/88 IS DENIED, FILED.
2/19/88 Entered and copies mailed.

2312 II 2313 It

22 OOMiyDNWEALTH DEFTS' MOTION FOR A PROTECTIVE OFDER, CERTIFICATION, FILED.
22 Plffs' response to Commonwealth's Continuance Motion, cert, of serv., filed.

2314 II 23 Plffs' response to protective order motion by Canmonwealth Defts., certificate,
filed.
2315 II 24 MONTGOMERY COUNTY DEFTS1 MOTION FOR A PROTECTIVE ORDER, CERT OF SERVICE, FILED. 2316 II 24 ORDER THAT COMMONWEALTH DEFTS' MOTION FOR A PROTECTIVE ORDER IS GRANTED AND STEVEN
EIDELMAN, THE DEPUTY SECRETARY FOR MENTAL RETARDATION SHALL APPEAR FOR HIS
DEPOSITION PRIOR TO 3/7/88, FILED.
2/25/88: Entered and copies mailed.
2317 Feb 25 CO-MAR, INC.'S MOITON FOR LEAVE TO INTERVENE,MEM3., CERTIFICATE OF SERVICE, FILED.
2318—-- —25· -QRBER-THAT-Trffi-M3TïeN-Te-iMmVENE-9F-G9-^^ MEMBERS-eBRRENTL·¥-RE6EïVÏN6-RESÏÐENTÏAL·- SERVÏ6ES-AT-THE- CQMMyNIÏ¥-LIVING
- AND- SEPVÎVA- STREETS- í N - ï ¾ Í L A - ~ I 5 - €RA¾T££h-IT-I^F¾RTHï£-

2319 "
2320 "
2321 tl 2322 11 2323 IT 2324 1!
If

SrìAi£- FÎL·EÐ- AN- ANSNER¤RDER¯,¯T¾íîh ( r e t r a c t e d by chambers a t 2:25 p.m.)
¿./ ¿-J/ Oü HXTL.cl ci¤. c*TTCl t u p X c ¾ n n n t c r ; ~ ~
25 ORDER THAT A MOTION FOR A PROTECTIVE ORDER OF MONTGOMERY COUNTY IS GRANTED.
FURTHER ORDERED THAT COMMUNITY FOUNDATION FOR HUMAN DEV., ST. EIDELMAN, DEPT. OF WELFARE, ELWYN INSTITUTE, ADM. MONTGOMERY COUNTY MH/MR AND KEN CREST CENTER SHALL APPEAR FOR THE DEPOSITION AT A MUTUALLY CONVENIENT TIME PRIOR TO MARCH 7, 1938, AT THE OFFICES OF VARALLO ASSOC, ET AL, FILED.
2/25/88 Entered and copies mailed.
25 ORDER THAT THE CITY OF PHILA. , THE COMMONWEALTH OF PA. AND THE REPRESENTATIVE
OF PLFF CLASS SHALL FILE AN ANSWER TO CO-MHAR, INC. TO INTERVENE ON OR BEFORE 3/2/88, IT IS FURTHER ORDERED THAT CO-MHAR, I N C , SHALL MAKE PERSONAL SERVICE OF THIS ORDER UPON COUNSEL FOR THE CITY OF PHILA. , ET AL ON OR BEFORE 2/26/88, ETC, FILED.
•2/25/88 Entered and copies mailed. 29 PLFFS MOTION FOR ENFORCEMENT OF I.H.P.'S OF PHILA. CLASS MEMBERS AND FOR
APPOINTMENT OF SPECIAL MASTER, CERT. OF SERVICE, FILED.
29 Commonwealth Defts response to Plffs motion for contempt to compel appropriate
management of Class members funds, filed.
29 ORDER THAT COMMONWEALTH OF PA. AND THE CITY OF PHILA. SHALL FILE AN ANSWER TO THE PLFFS MOTION BY 3/7/88, A HEARING IS SCHEDULED FOR 3/8/88, ETC., FILED.
3/1/88 ENTERED AND COPIES MAILED 29 Affidavit of service by Lisa Ehrich re; John A. Kane, Esq. was served on 2/25/88,
with a court order dated 2/25/88, filed. 29 Affidavit of service by Wayne Clinton re: served Richard Gold, Esq. with a
court order dated 2/25/88 on 2/26/88, filed. (CONTINUED)

DC 111A (Rev. 1/75)
PLAINTIFF

CIVIL DOCKET CONTINUATION SHEET DEFENDANT

DOCKET NO.

PAGE

OF_

PAGES

DATE

NR.

PROCEEDINGS

1988 — Feb 2325 Mar 2326 " 2327 " 2328 "
2329 ti 2330 ii 2331 ti 2332 tt 2333 it
2334 it 2335 it 2336 it
2337 ti 2338 it 2339 it 2340 tt 2341 it 2342 it 2343 Apr
2344 May
2345 Jur

29 Affidavit of service by Robert Miller re: served Daivd Ferleger, Esq. on 2/26/88 with a court order dated 2/25/88, filed.

2 Phila. County's response to Co-Mar, Inc.'s motion for leave to invervene, brief,

cert, of service, filed. 2 Commonwealth Defts response in opposition to Co-MHAR's motion for leave to

intervene, cert, of service, filed.

2 Plffs response to CO-MHAR, Inc.'s motion to intervene, cert, of service, filed. 2 ORDER THAT THE ORDER OF 2/29/88 IS VACATED, COMMONWEALTH OF P. AND THE CITY OF

PHILA. SHALL FILE AN ANSWER TO THE MOTION OF PLFFS BY 3/14/88, A HEARING IS

SCHEDULED FOR 3/15/88, FILED.

3/3/88 ENTERED AND COPIES MAILED

2

ARC/PA et al's response in opposition to motion for leave to intervene of CO-MHAI

Inc., Memo, cert, of service, filed.
2 ARC/Pennsylvania et al's response in opposition to motion for leave to intervene

of CO-MHAR, Inc., Memo, Cert, of service, filed.

3 COMMONWEALTH DEFTS MOTION TO QUASH SUBPOENA FOR STEVEN M. EIDELMAN, CERT. OF

SERVICE, FILED.

3 ARD/Pa. et al's response in opposition to motion for leave to intervene of CO-

MHAR, INC., filed.

4 ORDER THAT MONTGOMERY COUNTY DEFTS MOTION TO DISMISS PLFFS MOTION FOR CONTEMPT

TO COMPEL THE APPROPRIATE MANAGEMENT OF MEMBERS FUNDS IS DENIED, FILED.

3/7/88 ENTERED AND COPIES MAILED

7 CO-MHAR, INC.s reply memo on intervention, filed.

7 Hearing "illIBS re: management of Class Fiends, filed.

10 ORDER THAT PLFFS HALDERMAN ET AL MOTIONS IS DISMISSED WITHOUT PREJUDICE, ETC.,

FILED.

3/11/88 ENTERED ¿JD COPIES MAILED

10 ORDER THAT CO-MHAR FOR LEAVE TO INTERVENE IS DENIED, FILED.

3/11/88 ENTERED AND COPIES MAILED

10 Copy ot transcript purchase order form, filed.

16 Transcript of hearing on 3/7/88, filed. 22 ARC/PENNSYLVANIA, ET AL'S MOTION TO APPOINT PHILADELPHIA AUDIT TEAM, CERT. OF

SERVICE, FILED. 22 Transcript purchas order form, filed. 24 CITY OF PHILA.'S MOTION TO DISMISS, BRIED, CERT. OF SERVICE, FILED. 6 ORDER THAT PERSONS LISTED IN EXHIBIT A ARE APPOINTED AS AN EXPERT TEAM TO REVIEW
AND ANALYZE THE COMMUNITY PROGRAM OPERATED BY THE OFFICE OF THE MENTAL RETARDATION OF THE CITY OF PHILA., EXPENSES OF THE TEAM SHALL BE PAID BY THE CITY OF PHILA. AND COMMONWEALTH DEFTS IN EQUAL SHARES, THE TEAM SHALL SUBMIT ITS REPORT BY 5/20/88, ETC., FILED.
5/6/88 ENTERED AND COPIES MAILED

13 ORDER THAT THE ORDER OF 4/6/88 IS AMENDED TO READ: THE TEAM SHALL SUBMIT ITS REPORT ON OR BEFORE 6/30/88, FILED. 5/13/88 ENTERED AND COPIES MAILED
30 ARC/PENNSYLVANIA'S MOTION TO EXTEND TIME FOR EXPERT TEAM'S REPORT, CERT. OF SERVICE , FILED.

DC 111A (Rev. 1/75)
PLAINTIFF

TERRI LEE HALDERMAN ET AL

DATE

NR.

r
CIVIL DOCKET CONTINUATION SHEET DEFENDANT
PENNHURST STATE SCHOOL & HOSPITAL
PROCEEDINGS

DOCKET NO. 74-1345Rj|B

PAGE J A ¾ F

PAGES

1988 (2345)Ju]

ORDER THAT THE TEAM SHALL SUBMIT ITS REPORT BY 7/11/88, ALL PARTIES SHALL FILE WITH THE COURT WRITTEN RESPONSES BY 7/22/88, FILED.
7/5/88 ENTERED AND COPIES MAILED

2346 " 20 ORDER THAT THE COURT SHALL RECEIVE THE FINAL REPORT ON 7/29/88, ETC., FILED. 7/20/88 ENTERED AND COPIES MAILED

2347 11 2348 11
2348 M

20 Plffs initial response to report of expert team, filed. 29 Plffs. request for relief pursuant to report of expert team, certificate, filed. 29 Plffs. supplemental statement regarding expert team report, certificate, filed.

2349 II 2350 11.

29 Hearing 7/29/88 re: Receipt of Team Report, filed. 29 Report of Expert Team on Services to Pennhurst Class Members in Phila. Co.
7/1988, filed.

2351 Aug 11

Commonwealth Defts answer to Plffs request for relief pursuant to report of expert team, cert, of service, filed.

2352 Dec 1 2353 " 7

CCMCNWEALTH DEFTS MOTION TO QUASH PLFFS REQUEST FOR PRODUCTION OF DOCUMENTS, CERT. OF SERVICE, FILED.
Plffs response to Commonwealth Defts motion to Quash Production request, filed.

(2353) " 21 ORDER THAT DEFTS MOTION TO QUASH IS DENIED, COMMONWEALTH DEFTS SHALL PRODUCE
WITHIN 20 DAYS ALL DOCUMENTS REQUESTED, FILED. 12/21/88 ENTERED AND COPIES MAILED.

1989
2354 Mar 24
2355 " 24
2356 " 30

ARC/PA'S MOTION FOR ENFORCEMENT, FURTHER ORDERS AND EXTENSION OF THE FINAL SETTLEMENT AGREEMENT AS TO DELAWARE CO. AND COMMONWEALTH DEFTS, MEMO, CERT. OF SERVICE, FILED. ARC/PA'S MOTION FOR ENFORCEMENT, FURTHER ORDERS AND EXTENSION OF THE FINAL SETTLEMENT AGREEMENT AS TO MONTGOMERY CO. AND CCMyOSIWEALTH DEFTS, MEMO, CERT. OF SERVICE,FILED. PLFFS MOTION FOR ENFORCEMENT AND EXTENSION OF FINAL SETTLEMENT AGREEMENT AS TO DELAWARE AND MCOTGOMERY COUNTIES AND THE COMMONWEALTH DEFTS, CERT. OF SERVICE, FILED.

2357 Apa:: .10 2358 " 10

Commonwealth Defts brief in response to motion of ARC/PA for enforcement, further orders and extension of the final settlement agreement as to Delaware Co. and Commonwealth Defts, filed. Commonwealth Defts brief in response to motion of ARC/PA for enforcement, further orders and extension of the final settlement agreement as to Montgomery Co. and Commonwealth Defts, filed.

2359 "

19 Commonwealth Defts response to Plffs motion for enforcement and extension of the
final settlement agreement as to Delaware and Montgomery Co. and Commonwealth
Defts, filed.

2360 " 20 Answer of Montgomery Co. Defts to Motion of ARC/PA for enforcement, further
orders and extension of the final settlement agreement as to Montgomery Co.
and Commonwealth Defts, filed.
2361 J I N 5 ORDER FIXING A HEARING ON 6/21/89 AT 3PM IN COURTROOM 10-B AT WHICH TIME THE PARTIES SHALL PRSENT EVIDENCE PURSUANT TO ¶I4, ETC. OF THE FINAL SETTLEMENT AGREEMENT RE THE DELAWARE COUNTY, MONTGOMERY COUNTY AND COMMONWEALTH DEFTS COMPLIANCE WITH THE AGREEMENT ETC., FILED. 6/6/89 entered & copeis mailed

CONTINUED...

DC 111A (Rev. 1/75)
PLAINTIFF

CIVIL DOCKET CONTINUATION SHEET DEFENDANT

DOCKET NO.

PAGE

OF_

.PAGES

DATE

NR. 74-1345 (RTB)

PROCEEDINGS

=1989=

2362 JUNE 16 Appearance of Robert H. Stern, for plff-intervenor United States of America, filed.

2363 "

16 Defts. Delaware County's answer to motion of ARC/PA for enforcement, further orders & extension of the final settlement agreement, cert, of serv., filed.

2364 "

20 PHILA. CO. DEFT'S MOTION FOR A FINDING OF CONTEMPT OR IN THE ALTERNATIVE, FOR ENFORCEMENT OF THE FINAL SETTLEMENT AGREEMENT AGAINST COMMONWEALTH DEFTS, BRIEF,

CERT. OF SERVICE, FILED.

2365 " 2367 " 2368 "

22 Hearing 6/21/89 Ms. Gran moved exhibits 1 thru 15 into evidence, filed. 23 Hearing 6/22/89, filed. 29 Commonwealth deft's brief in opposition to motion of phila. County deft's for a
finding of contempt etc., filed.

2369 " 30 Stipulation of facts, filed.

2370 " 30 Hearing 6/29/89 re: Enforcement of settlement, witnesses sworn, filed.

237lJuly

Commonwealth defts motion to dismiss all outstanding motions, brief, proof of

2372 "

service, filed. Hearing 7/6/89 re: Motion to enforce settlement argument, witness sworn and

testified, C.A.V., parties to submit proposed Findings of Fact and Conclusions 7/17/89, filed.

2373 "

12 Plffs brief in response to Commonwealth Defts motions to dismiss for lack of jurisdiction, filed.

2374 " 17

Commonwealth Defts brief in opposition to motin of Phila. Co. Defts to Join

Commonwealth Defts as respondents to the petition of Plffs ARD/PA et al, for

a finding of contempt against Phila. Defts, filed.

2375 " 17

Commonwealth Defts post-hearing brief in opposition to Plffs motions for enforcement, further orders and extensions of the final settlement agreement as to

Delaware and Montgomery Co. and Commonwealth Defts, filed.

2376 " 17 Plffs proposed findings of fact and conclusions of law, filed. 2377 " 17 Transcript of proceedings on 6/21/89, filed. 2378 " 17 Transcript of proceedings on 6/22/89, filed. 2379 " 17 Transcript of proceedings on 6/29/89, filed. 2380 " 17 Transcript of proceedings on 7/6/89, filed.

2381 " 17 Delaware Co. Defts requests for Findings of Fact and Conclusions of Law, filed.

2382 "

18 Plffs ARC/PA's post hearing proposed findings of fact and conclusions of law for enforcment, further orders and an extension of the final settlement agreement

with respect to Delaware Co. Montgomery Co. and the Commonwealth of Pa., filed.

2383 " 19 ARC/PA's post hearing proposed findings of fact and conclusions of law for enforcement, further orders and an extension of the final settlement agreemen

with respect to Delaware Co., Montgomery Co. and the Commonwealth of Pa., filed.

2384 " 21 2485 Aug 24
2386 " 28

Montgomery Co. Defts requests for findings of fact and conclusions of law, filed.
ORDER THAT THE MOTION OF PHILA. CO. TO JOIN THE COMMONWEALTH TO THE MOTION FILED BY ASSOC. TO HAVE PHILA. CO. DEFTS FOUND IN CONTEMPT IS GRANTED, A HEARING IS SET FOR 9/21/89, filed.
8/25/89 ENTERED AND COPIES MAILED MEMORANDUM AND ORDER THAT THE MOTION OF COMMONWEALTH DEFTS TO DISMISS ALL OUTSTANDING MOTIONS IS DENIED; IT IS FURTHER ORDERED THAT THE DELAWARE CO. DEFTS., THE MONTGOMERY CO. DEFTS AND THE COMMONWEALTH DEFTS SHALL COMPLY WITH ALL PROVISIONS 0 FHE FINAL SETTLEMENT AGREEMENT BY 3/1/90, ETC., FILED.
8/28/89 entered & copies mailed.

DC 111A (Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN ET AL

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
PENNHURST STATE SCHOOL & HOSP.

DOCKET NO. 74-1345RJB

PAGE _L3_2OF

PAGES

DATE

NR.

PROCEEDINGS

1989 2387 Au<i 31
2388 SEFT 5 2389 " 13

PLFFS RENEWED MOTION FOR FEES FROM SUBURBAN COUNTIES FOR 7/1/86 - 1/21¡Ql, MEMO, CERT. OF SERVICE, FILED. MOTION OF ARC/PA ET AL., TO COMPEL DISCOVERY, CERTIFICATE, FILED.
ORDER THAT COMMONWEALTH DEFTS. SHALL PRODUCE DOCUMENTS REQUESTED BY PLFFS. IN REQUEST OF 7/13/89 WITHIN 3 DAYS OF DATE OF THIS ORDER. FURTHER ORDERED THAT IF DEFTS. FIAL TO PROVIDE DOCUMENTS, A HEARING SHALL BE HELD ON 9/19/89 ETC., FILED.
9/14/89 entered & copies mailed.

2390
2391 " 2392 " 2393 "

15 Commonwealth defts notice of appeal, filed. (USCA 89-1788) 9-18-89 copies to D. Spitz, USCA, Judge Broederick, John Kane, Carol Weaver, KITTREDGE KUAFMAN & DONLEY Pamela Cohen, William McKendry, Joseph Scartelli, Patricia Jenkins, T. Kittredge, Richard Gold, Arthur Peabody M.J. Ayres, R. Barrett, David Ferleger, Thomas Gilhool, Esquires
15 Zòpy of Clerks notice to USCA, Filed. 18 COMMONWEALTH DEFTS MOTION TO VACATE ORDER OF 8/24/89 FOR WANT OF JURISDICTION,
BRIEF, CERT. OF SERVICE, FILED. 19 ORDER THAT A HEARING SCHEDULED FOR 9/21/89 IS RESCHEDULED FOR 10/5/89, ETC.,
FILED. 9/19/89 ENTERED AND COPIES MAILED

2394 " 2395 " 2396 " 2397 "
2398 " 2399 "
2400 "

21 COMMONWEALTH DEFTS MOTION TO VACATE ORDER OF 9/13/89, CERT. OF SERVICE, FILED. 21 Ccitimonwealth Defts brief in support of motion to vacate order of 9/13/89, filed.
25 Copy of TPO Form, filed.
26 RECORD COMPLETE FOR PURPOSES OF APPEAL-TRANSCRIPT ALREADY ON FILE.
26 Coitmissioners and Mental Health/Mental Retardation Administrator of Montgomery Co., Pa. notice of appeal, filed. (USCA 89-1841) 9/27/89 entered and copies to Judge Broderick, D. Spitz, D. Ferleger, Esq., J.A. Gran, Esq., A.E. Peadbody, Jr., Esq., j . Kane, Esq., H. Ulan, Esq., T.M. Kittredge, Esq., R. Gold, Esq., P.P. Cohen, Esq., W.A. McKendry, Esq., R.H. Stern, Esq.
26 Copy of Clerks notice of Appeal from USCA, filed.
27 Delaware Co. Defts notice of appeal, filed. (USCA 89-1842) 9/27/89 entered and copies to Judge Broderick, D. Spitz,R.S. Barrett, D. Ferleger, Esq., J.A. Gran, A.E. Peabody, Jr., J. Kane, H. Ulan R. Gold, P.P. Cohen, W.A. McKendry, R.H. Stern
27 Copy of Clerks notice of appeal to USCA, filed.

2401 " 27 Plffs response to Commonwealths motion to vacate order of 8/24/89, filed.

2402 Get 2 Copy of TPO form, filed.

2403 " 5 Report of Montgomery Co. Defts as required in court order dated 8/28/89, filed.

2404 " 5

Commonwith Defts report pursuant to order of 8/28/89, filed.

2405 " 5 Hearing 10/5/89 - hearing continued to 11/9/89, filed.

(CONTINUATION)

DC 111A (Rev. 1/75)
PLAINTIFF

DATE

NR.

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
PROCEEDINGS

DOCKET NO.

PAGE

OF_

. PAGES

1989 Oci 10
2406 " 10

f-±4ed. (error) October report of the Delaware Co. Defts pursuant to the 8/28 order, filed.

2407 " 11 ORDER THAT A HEARING IS CONTINUED TO 11/9/89, FILED.

2408 " 2409 " 2410 '•

10/11/89 ENTERED AND COPIES MAILED 23 Copy of TPO form, filed.
25 Copy of TPO form, filed. 27 ORDER THAT THE CONFERENCE SCHEDULED FOR 11-9-89 IS RESCHEDULED BY THE COURT TO
11-30-89 AT 9:30 AM IN COURTROOM 10-b, FILED

2411 New 6 2412 " 9

10-27-89 ENTERED & COPIES MAILED Commonwealth Defts report pursuant to order of 8/28/89, filed. Report of Montgomery Co. Defts as required in court order of 8/28/89, filed.

2413 2414 '

15 Delaware Co. Defts's November report pursuant to 8/28 Order, filed.
29 MEMORANDUM AND ORDER THAT BUCKS CO. PAY 1793.58, CHESTER CO. PAY 1778.58, DELAWARE CO. PAY 2093.58, MONTGOMERY CO. PAY 1558.58, TO PLFFS ATTY DAVID

2415 "

FERLEGER, ETC., FILED.
11/29/89 ENTERED AND COPIES MAILED 30 Hearing re: Phila. & Commonwealth being in contempt, held 11/30/89, filed.

24l6Dec 6 Transcript of hearing on 11/30/89, filed.

2417 " 13 Commonwealth Defts report pursuant to order of 8/28/89, filed.

2418 " 13 2419 " 15 2420 " 29

Report of Montgomery Co. Defts as required in court order of 8/28/89, filed. Delaware Co. Defts December report pursuant to the August 28 order, filed. Bucks, Chester, and Delaware Co.'s notice of appeal, filed. (USCA 90-1024)
1/2/90 entered and copies mailed to Judge Broderick, D. Spitz, D.

Ferleger, J.A. Gran, A.E. Peabody, J. Kane, H. Ulan, R.S. Barrett,

P. Jenkins, P.P. Green, W.A. McKendry, R.H. Stern

2421 " 29 1990 2422 Jan

Copy of Clerks notice of appeal to USCA, filed. Montgomery Co.'s Jan. 1990 report as required by court order of 8/28/89, filed.

2423 "

9

2424 " 31 2425 Fet 8

2426 "

14

2427 " 14

2428 " 20 2429 " 27

Commonwealth Defts report pursuant to order of 8/28/90, filed.
January report of Delaware Co. Defts pursuant to the Aug 28 order, filed.
Commonwealth Defts report pursuant to order of 8/28/89, filed.
PLFFS MOTION TO ENFORCE ORDER OF 8/28/89 AS TO COMMONWEALTH DEFTS, CERT. OF SERVICE, FILED. MOTION OF THE DELAWARE COUNTY DEFTS FOR AN ORDER COMPELLING THE COMMONWEALTH TO PROVIDE FUNDING FOR COMPLIANCE WITH THE AUGUST 28, 1989 ORDER, CERTIFICATE OF SERVICE, FILED. Plffs1 response to Delaware County Motion re: Commonwealth Compliance with 8/28/89 Order, filed.
Response of ARC/PA., ET AL to motion of the Delaware countv Defts for an order compelling the Commonwealth to orovide funding for compliance with the August 28, 1989 order, filed.

2430 Feb 27

MOTION OF MONTGOMERY COUNTY DEFT'S FOR AN EXTENSION OF TIME IN WHICH TO IMPLEMENT THE COURT ORDER DATED 8-28-89, CERTIFICATE OF SERVICE, FILED.

¯continuted.

DC U1A (Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN, ET AL

CIVIL DOCKET CONTINUATION SHEET
DEFENDANT
PENNHURST STATE SCHOOL & HOSP.

DOCKET NO. 74-1345RTR

PAGE JL3§DF

PAGES

DATE

NR.

PROCEEDINGS

1990

243l· Mar. 2 Commonwealth Defts1 response to Plffs1 motion to enforce order of 8/28/89 as to

Camionwealth defts, Cert, of Service, filed.

2432 " 07 Commonwealth defts' response to motion of the Delaware County Defts for an order

compelling the Commonwealth to provide funding for compliance with the 8/28/89

order, proof of service, filed.

2433 " 12 Certified copy of order from USCA dtd. 3/8/90 that the case is dismissed for failure to timely prosecute, that a certified copy of this order be issued

forthwith as the mandate, filed.

2434 May

ORDER THAT MONTGOMERY CO. DEFTS MOTION FOR EXTENSION OF TIME TO 8/28/90 IS

GRANTED, MONTGOMERY CO. DEFTS SHALL IMPLEMENT A COMMUNITY RESIDENTIAL PROGRAM

FOR CAROL SEEGER BY 7/1/90, FILED.

2435 "

5/4/90 ENTERED AND COPIES MAILED ORDER THAT DELAWARE CO. DEFTS SHALL FILE BY 5/10/90 A SCHEDULE SETTING DATES FOR SECURE COMMUNITY LIVING ARRANGEMENT FACILITIES FOR THE 68 INDIVIDUALS WHO WERE FOUND NOT TO BE RECEIVING THE SERVICES TO WHICH THEY WERE ENTITLED, FILED.

5/4/90 ENTERED AND COPIES MAILED

2445 " 9 Order from USCA dated 4/17/90 that judgment entered by the District Court on 8/28/89 is affirmed, filed.
2446 " 11 Delaware Co.'s status report on compliance with the order of 8/28/89 and proposed schedule to completion, filed.

2447 " 17 PLFFS MOTION FOR ATTY FEES FOR PERIOD OF 7/28/87 - 5/1/90, filed.

2448 " 17 Plffs memo in support of motion for atty fees, cert, of service, filed.

2449 " 21 Commonwealth Defts enforcement plan, filed. 2450 " 21 Affidavit of Barbara Hoffman, filed.

2451 " 31 COMMONWEALTH DEFTS MOTION TO VACATE NOTICES OF DEPOSITION, CERT. OF SERVICE, MEMO,-FILED.

2452 Jun 1 MONTGOMERY CO. DEFTS ANSWER TO PLFFS MOTION FOR ATTY FEES, FILED.

2453 " 4 Plffs response to Commonwealth Defts motion to vacate deposition notices, filed.

2454 " 12 Response of ARC/PA et al to Commonwealth Defts motions to vacate deposition notices, cert, of service, filed.

2455 " 13 ORDER THAT COMMONWEALTH DEFTS MOTION TO VACATE PLFFS NOTICES OF DEPOSITIONS IS DENIED, AND J.F. WHITE AND T.P. ORR SHALL BE PRODUCED FOR DEPOSITIONS BY

6/22/90, ETC., FILED.

6/14/90 ENTERED AND COPIES MAILED

2456 " 15 Delaware Co. Defts memo in opposition to plffs motion for atty fees for the period of 7/28/87-5/1/90, filed.

2457 " 18 ORDER THAT A CONFERENCE WILL BE HELD ON 7/5/90, TO DETERMINE THE STATUS OF PHILA. CO. COMPLIANCE WITH SETTLEMENT AGREEMENT, FILED.

6/19/30 ENTERED AND COPIES MAILED

2458 JIT.., 11 ORDER THAT THE CONFERENCE SCHEDULED FOR JULY 5, 1990 IS HEREBY RESCHEDULED TO MONDAY, JULY 23, 1990 AT 4:15PM, IN CHAMBERS (ROOM 10613) FOR THE PURPOSES OF

DETERMINING THE STATUS OF PHILADELPHIA COUNTY'S COMPLIANCE WITH THE SETTLEMENT

AGREEMENT AND THE PRESENT POSITION OF THE COMMONWEALTH CONCERNING ITS SHARE OF FUNDING NECESSARY TO IMPLEMENT THE AGREEMENT, FILED.
7/11/90 entered and copies mailed.

over

DC U1A (Rev. 1/75!
PLAINTIFF

DATE

NR.

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
PROCEEDINGS

DOCKET NO. PAGE .OF

. PAGES

2459 J¯ÜL 19

ORDER THAT THE COMMONWELATH OF PENNSYLVANIA DEFTS SHALL PY TO DAVID FERLEGER, COUNSEL FOR THE PLFFS, THE SUM OF THIRTY THOUSAND DOLLARS ($30,000.00) FOR PLFFS ATTORNEYS FEES AND EXPENSES IN THE ABOVE ACTION FOR THE PERIOD COMMENCING JULY 28, 1987 AND ENDING MAY 1, 1990, FILED.
7/19/90 entered and copies mailed.

2460 Auc 10 Richard H. Jones's MOTION FOR SPECIAL RELIEF, MEMO, CERT. OF SERVICE, FILED.

2461 " 16 Plffs response to motion for special relief by Richard Jones, filed. 2662 SEP 18 ORDER THAT THE CONFERENCE OF 7-5-90 IN CONNECTION WITH THE DETERMINATION OF THE
STATUS OF PHILA. COUNTy'S COMPLIANCE WITH THE SETTLEMENT AGREEMENT & THE PRESENT

POSITION OF THE COMMONWEALTH CONCERNING ITS SHARE OF FUNDING NECESSARY TO IMPLE-

MENT THE AGREEMENT SHALL CONTINUE ON 9-27-90 AT 4:15PM, FILED.

9-19-90 ENTERED & COPIES MAILED

2663 " 18 ORDER THAT A HEARING SHALL BE HELD ON 9/27/90 IN RE: MOTION FOR ATTY FEES, FILED.

9/19/90 ENTERED AND COPIES MAILED

2664 " 26 ORDER THAT THE CONFERENCE IS RESCHEDULED UNTIL 10/4/90, FILED.

2665 " 2666 "

9/27/90 ENTERED AND COPIES MAILED 27 Delaware Co. defts status report pursuant to the 8/28/89 order, filed.
28 Hearing 9/27/90 re: Atty fee petition, C.A.V, filed.

2667 Oct 04 Plffs request for interrogatories and request to produce Re Delaware County Placements, filed.
2668 " 04 PLFFS' MOTION TO COMPEL COMMONWEALTH DEFTS TO RESPOND TO DISCOVERY, CERTIFICATE OF SERVICE, FILED.

2669 Oct 15 ORDER THAT A CONFERENCE WILL BE HELD ON 10/18/90, ETC., FILED. 10/15/90 ENTERED AND COPIES MAILED BY CHAMBERS

2670 " 2671 "

17 ORDER THAT THE COMMONWEALTH OF PA. AND DELAWARE CO. FORMULATE AN INDIVIDUAL HABILITATION PLAN FOR M.L. JONES BY 11/16/90, AND BY 12/3/90 THE COMMONWEALTH AND DELAWARE CO. DEFTS FILE WITH THE COURT A RESPONSE SETTING FORTH THE TERMS, ETC., FILED. 10/18/90 ENTERED AND COPIES MAILED
18 COMMONWEALTH DEFTS MOTION FOR A PROTECTIVE ORDER, CERT. OF SERVICE, FILED.

2672 " 2673 " 2674 "
2675 No\ 2676 " 2677

18 COMtvDNWEALTH DEFTS BRIEF IN SUPPORT OF MOTION FOR PROTECTIVE ORDER AND RESPONSE TO PLFFS MOTION TO COMPEL, FILED.
ORDER THAT PLFFS MOTION FOR ATTY FEES FOR 7-28-90 AND ENDING 5/1/90 IS DISMISSED 19 AS MOOT, FILED.
10/22/90 ENTERED AND COPIES MAILED ORDER 10/26/90 THAT THE COMMONWEALTH DEFTS1 MOTION FOR A PROTECTIVE ORDER IS 29 DENIED AND THAT PLTFS1 MOTION TO COMPEL IS GRANTED AND THAT BY 11/9/90 THE CCMMONWEALTH DEFTS SHALL ANSWER PLTFS1 INTERROATORIES AND COMPLY WITH PLTFS1
REQUEST FOR PRODUCTION OF DOCUMENTS, FILED.
10/30/90 entered & copies mailed 13 Commonwealth Defts memo in opposition to ARC/PA1s funding proposal, filed.
14 Response of ARC/PA to the Coromonwealth Defts memo in opposing an order to pay the costs of a review of Phila. and Commonwealth Defts compliance with the final settlement agreement, filed.
14 Appearance of Nicholas S. Lippincott and withdrawal of Patricia H. Jenkins on
behalf of Delaware Co, filed.

(CONTINUATION)

DC 111A (Rev. 1/75)
PLAINTIFF

CIVIL DOCKET CONTINUATION SHEET DEFENDANT

nor.KFT NO 74-1345RJB

Terri Lee Halderman Et Al·

DATE

NR.

Penrihurst State School & Hosp.
PROCEEDINGS

PAGE JJfâÖF

PAGES

1990 2678 2679 "
2680 Dec 2681 " 2682 " 1991 2683 Apr

15 Plffs response to Commonwealth Defts opposition to funding of Dr. Gant Review, filed.
28 ORDER THAT DR. SUE A. GANT IS APPOINTED AS A SPECIAL MASTER IN THIS ACTION, UPON COMPLETION OF HER REPORT HER FEE AND EXPENSES, AFTER A HEARING THE COURT SHALL DETERMINE WHICH DEFTS SHALL BEAR THE COSTS, ETC., FILED. 11/29/90 ENTERED AND COPIES MAILED Delaware Co. Defts response to the motion for special relief of Richard H. Jones, filed. Commonwealth Defts report concerning Marilyn Jones, filed.
11 ORDER THAT RICHARD H. JONES'S MOTION FOR SPECIAL RELIEF IS DENIED, ETC., FILED. 12/12/90 ENTERED AND COPIES MAILED
ORDER THAT A CONTEMPT/COMPLIANCE HEARING SHALL BE HELD ON 6/13/91 10:00a.m. filed.
4/4/91 ENTERED AND COPIES MAILED

2684 " 18 2685 May 30
2686 Jur
2687 " 19 2688July 1 2689 Aug 15 2690 " 19

PLFFS MOTION FOR APPROVAL OF SPECIAL MASTER FEES AND EXPENSES, CERT. OF SERVICE, FILED.
ORDER THAT WITHIN 30 DAYS THE COMMONWEALTH OF PA DEFTS SHALL PAY $42,488.41, TO SUE GANT, PH.D., ETC., FILED.
5/31/91 ENTERED AND COPIES MAILED
ORDER THAT PLFFS MOTION FOR APPROVAL OF SPECIAL MASTER FEES AND EXPENSES IS DISMISSED AS MOOT, FILED.
6/6/91 ENTERED AND COPIES MAILED
Commonwealth Defts MOTION FOR REIMBURSEMENT OF MASTER'S FEES, CERT. OF SERVICE,
FILED. Commonwealth Defts1 Discontinuance of Motion for reimbursement of Master's Fees, filed. STIPULATION AND AGREEMENT WITH COURT APPROVAL, FILED.
8/16/91 ENTERED AND COPIES MAILED Commonwealth Defts MOTION TO MODIFY THE FINAL SETTLEMENT AGREEMENT, MEMO, CERT. OF SERVICE, FILED.

2691 " 28 2692 Seÿ 3 2691)" 3
2693 Sep 5 (2692) " 9
2694

PLFFS1 MOTION FOR EXTENSION OF TIME TO RESPOND TO DEFTS1 MOTION TO MODIFY, CERT. OF SERVICE, FILED. U.S. MOTION FOR EXTENSION OF TIME TO RESPOND TO COMMONWEALTH'S MOTION TO MODIFY, MEMO, CERT. OF SERVICE, FILED. ORDER THAT ALL RESPONSES TO DEFTS MOTION TO MODIFY THE FINAL SETTLEMENT AGREEMENT ETC. ARE DUE 11/5/91, FILED.
9/5/91 ENTERED AND COPIES MAILED ARC/PA'S MOTION FOR AN EXTENSION OF TIME, CERT. OF SERVICE, FILED. ORDER THAT THE UNITED STATES BE PERMITTED TO FILE A RESPONSE TO COMMONWEALTH DEFT£ MOTION TO MODIFY BY 9/30/91, FILED.
9/10/91 ENTERED AND COPIES MAILED
ORDER THAT ARC/PA ET AL. SHALL HAVE UNTIL 10/4/91 TO RESPOND TO COMMONWEALTH DEFTS MOTION, FILED.
9/10/91 ENTERED AND COPIES MAILED

DC 111A (Rev. 1/75)
PLAINTIFF

CIVIL DOCKET CONTINUATION SHEET DEFENDANT

DOCKET NO. PAGE _OF_

PAGES

DATE

NR.

PROCEEDINGS

1991 13
2695 Sep 18
2696 "
2697 Nov 15

Appearance of Thomas J. Wamser and withdrawal of Doris M. Leisch on behalf of City of Phila. and all other city defts, filed. ORDER THAT ARC/PA AND THE U.S. SHALL HAVE UNTIL 11/15/91 TO RESPOND TO COMMONWEAL^} DEFTS MOTION, FILED.
9/18/91 ENTERED AND COPIES MAILED Gov'ts memo in oppostion to Commonwealth Defts motion to modify the final settlement agreement, cert of service.

2698 Nov 19

Response of ARC/PA, et al., to Commonwealth Defendants' motion to modify the final settlement agreement, Cert, of Service, filed.

1992 2699 JAN 10 27üO FeD
2701 Feb

Withdrawal of Appearance of Thomas J- Wamser and Appearance of John W- Wiggins for City Defendants, certificate of service, filed ORDER THAT COMMONWEALTH OF PA.'S MOTION TO MODIFY THE FINAL SETTLEMENT AGREEMENT BY VACTING APPENDIX A. IS DENIED, FILED.
2-4-92 ENTERED AND COPIES MAILED MEMORANDUM AND ORDER THAT THE COMMONWEALTH OF PENNSYLVANIA MOTION TO MODIFY THE FINAL SETTLEMENT AGREEMENT BY VACATING APPENDIX A. IS DENIED, FILED.
2-5-92 ENTERED AND COPIES MAILED

2702 MAR
2703 MAR — MAR 12

Zornmonwealth Defts hereby appeal to the U.S. Court of Appeals for the Third Circui`: from the order denying their Rule 60(b) motion to modify the Final Settlement Agreement, dated 1/31/92, entered 2/4/92, proof of service, copies mailed to counsel on 2/6/92, filed. Clerk's notice of appeal to U.S. Court of Appeals 3/6/92, filed. Notice of docketing of appeal from U.S.C.A. No. 92-1186 filed on 3/12/92, filed.

2704 "

17 Copy of TPO form, filed.

19 RECORD COMPLETE FOR PURPOSES OF APPEAL-TRANSCRIPT NOT NEEDED

2705 Jun

PLFFS MOTION FOR AWARD OF FEES AND EXPENSES, CERT. OF SERVICE, FILED.

2706 JUN 24 COMMONWEALTH DEFENDANTS' RESPONSE TO PLAINTIFFS' MOTION FOR AWARD OF FEES AND EXPENSES FOR MAY 6, 1991 - MAY 31, 1992, CERTIFICATE OF SERVICE, Filed.

27C7 JUN 30 Entry of Appearance of Charlotte A. Nicholas, Esquire on behalf of the defendant City of Philadelphia; Withdrawal of Appearance of John Wiggins, Esquire for
defendant City of Philadelphia, filed.

27)8 JUL 22

Plaintiffs' Supplement to Motion for Fees and Expenses and Proposed Order Resolving the issues, Time Expended Sheet for David Ferleger May 6, 1991 May 31, 1992 Re: Commonwealth Defendants (excluding pending appeal), Certificate
of Service, Filed.

2709 AUG 11

ORDER THAT JUDGMENT IS ENTERED IN FAVOR OF THE PLAINTIFFS AND AGAINST THE PHILADELPHIA COUNTY DEFENDANTS IN THE AMOUNT OF $3,554.11; IT IS FURTHER ORDERED THAT JUDGMENT IS ENTERED IN FAVOR OF THE PLAINTIFFS AND AGAINST THE COMMONWEALTH OF PENNSYLVANIA DEFENDANTS IN THE AMOUNT OF $3,948.21, FILED.
8/11/92 ENTERED AND COPIES MAILED.
n

DC 1UA (Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
PENNHURST STATE SCHOOL, et al.

DOCKET NO. 7á=l3A5___

PAGEr¾foF

PAGES

DATE
1992 2710 SEP

NR.

PROCEEDINGS

continued

PLAINTIFFS' MOTION FORCONFERENCE, CERTIFICATE OF SERVICE, FILED.

2711 SEP 11

ORDER THAT A STAUTS (CONFERENCE WILL BE HELD ON TUESDAY, OCTOBER 20, 1992 AT 3:30 P.M. IN CHAMBERS (ROOM 10613 UNITED STATES COURTHOUSE, PHILADELPHIA) FOR THE PURPOSE OF DISCUSSING THE PROGRESS AND PLANS OF THE SETTLEMENT AGREEMENT WITH REGARD TO SERVICES IN PHILADELPHIA, FILED.
9/11/92 ENTERED AND COPIES MAILED.

2712 SEP 16 PLAINTIFFS' RENEWED MOTION REGARDING FEES AGAINST COMMONWEALTH DEFENDANTS FOR MAY 6, 1991 - MAY 31, 1992 PERIOD REGARDING APPEAL TO CIRCUIT CIRUCIT, CERTIFICAT] 1 OF SERVICE, FILED.

2713 OCT

APPEAL ORDER THAT IT IS NOW ORDERED AND ADJUDGED BY THIS COURT THAT'THE JUDGMENT OF THE DISTRICT COURT ENTERED 2/A/92, BE AND THE SAME IS HEREBY AFFIRMED. COSTS TAXED AGAINST THE APPELLANTS AND IN FAVOR OF HALDERMAN, ET AL., FILED.

2714 OCT

ORDER THAT JUDGMENT IS ENTERED IN FAVOR OF PLAINTIFFS AND AGAINST THE COMMONWEALTH DEFENDANTS IN THE AMOUNT OF $6,864.00, FILED.
10/6/92 ENTERED AND COPIES MAILED.

2715 OCT 15

ORDER THAT THE STATUS CONFERENCE SCHEDULED FOR OCTOBER 20, 1992 IS HEREBY RESCHEDULED TO NOVEMBER 30, 1992 AT 3:30 P.M. IN CHAMBERS (ROOM 10613, U.S. COURTHOUSE) FOR THE PURPOSE OF DISCUSSING THE PROGRESS AND PLANS OF THE SETTLEMENl AGREEMENT WITH REGARD TO SERVICES IN PHILADELPHIA, FILED.
10/16/92 ENTERED AND COPIES MAILED.

2716 DEC 1993

Transcript of hearing held 11/30/92, Filed.

2717 JAN 13 MOTION BY PLAINTIFFS' FOR ATTORNEY'S FEES AND EXPENSES FOR PERIOD JUNE 1, 1992 TO JANUARY 6, 1993, CERTIFICATE OF SERVICE, FILED.
(27I7)FE¢ 12 ORDER THAT UPON CONSIDERATION OF PLAINTIFFS' MOTION FOR ATTORNEY'S FEES AND EXPENSES FOR PERIOD JUNE 1, 1992 TO JANUARY 6, 1993, IT IS HEREBY ORDERED THAT PLAINTIFFS' COUNSEL IS AWAKDEÛ FEES AND EXPENSES IN THE FOLLOWING AMOUNTS FROM THE FOLLOWING DEFENDANTS: COMMONWEALTH DEFENDANTS: $6,348 IN FEES PLUS $64 IN EXPENSES, FOR A TOTAL AWARD OF $6,412.00; PHILADELPHIA DEFENDANTS: $3,468 IN FEES PLUS $64 IN EXPENSES, FOR A TOTAL AWARD OF $3,532.00; DELAWARE COUNTY DEFENDANTS: $936 IN FEES PLUS $18 IN EXPENSES, FOR A TOTAL AWARD OF $954; AND SAID DEFENDANT'S SHALL PAY THE RESPECTIVE TOTAL AWARDS TO PLAINTIFFS' COUNSEL WITHIN 30 DAYS. INTEREST SHALL BEGIN TO ACCURE AT THE FEDERAL STATUTORY RATE AS OF THE 31ST DAY FOLLOWING THE DATE OF THIS ORDER, FILED. 2/12/93 ENTERED AND COPIES MAILED.
2718 MAY 5 Commonwealth Defendants' Motion to Dismiss all Non-United States Plaintiffs,
Certificate of Service, Filed.

2719 MAY 5 Memorandum in Support of Motion to Dismiss all Non-U.S. Plaintiffs as Parties,
Certificate of Service, Filed.

DC 111A (Rev. 1/75)
PLAINTIFF

CIVIL DOCKET CONTINUATION SHEET DEFENDANT

DOCKET NO.

PAGE

OF_

PAGES

DATE

NR.

PROCEEDINGS

1993 MAY 13
2720 MAY 13
2721 13
2722

UNITED S T A T E S ' MOTION FOR EXTENSION OF T I M E , MEMO, C E R T I F I C A T E OF SERVICE, FILED. P L F F S 1 MOTION TO STAY RESPONSE TO COMMONWEALTH'S MOTION TO D I S M I S S ALL NON-UNITED STATES P L F F S , CERTIFICATE OF S E R V I C E , F I L E D . ORDER THAT PLFFS MOTION TO STAY RESPONSE TO COMMONWEALTHS MOTION TO DISMISS, I S GRANTED, THAT THAT THE RESPONSE OF PLFFS HALDERMAN, ET AL, THE ARC-PA AND THE U . S . TO THE COMMONWEALTHS MOTION I S NOT DUE UNTIL 60 DAYS FROM THE OF THIS ORDER, FILED.
5/14/93 entered & copies mailed

2723 JUN 22

ORDER THAT UPON CONSIDERATION OF THE PENDING MOTION FOR CONTEMPT AGAINST THE COMMONWEALTH AND CITY OF PHILADELPHIA DEFENDANTS, AND THE STIPULATION AMONG THE PARTIES FOR CREATION OF A COLLABORATIVE PLAN WHICH WOULD RESOLVE THE MOTION, AND THE COURT BEING ADVISED THAT A PLAN HAS BEEN COMPLETED, I T I S HEREBY ORDERED: THE COMMONWEALTH AND CITY OF PHILADELPHIA DEFENDANTS WILL JOINTLY FILE THE COLLABORATIVE PLAN WITHIN TEN ( 1 0 ) DAYS OF THE DATE OF THIS ORDER; THE PARTIES TO THE STIPULATION WHICH RESULTED IN THE PLAN WILL ALL ADVISE THE COURT WITHIN FOURTEEN ( 1 4 ) DAYS OF THEIR VIEWS ON THE NATURE OF THE ORDER THE COURT MIGHT ENTER WITH REGARD TO THE PLAN, E T C . ; THE OTHER PARTIES I N THE CASE (THE REMAINIK G COINT`Y DEFENDANTS AND THE UNITED STATES) MAY, BUT ARE NOT REQUIRED TO, ADVISE THE COURT OF THEIR VIEWS ON THE PLAN.', AND THE COURT WILL SCHEDULE A STATUS CONFERENCE PROMPTLY AFTER RECEIPT OF THE ABOVE INFORMATION,

FILED·

6 / 2 3 / 9 3 ENTERED AND COPIES MAILED.

2724 JUL 7 2725 JUL 12

Memorandum Regarding P l a i n t i f f s ' Proposed Order, pursuant t o t h e C o u r t ' s June 22, 1993 Order, C e r t i f i c a t e of Service, F i l e d .
PLAI!·]TIFFS1 MOTION FOR SANCTIONS AGAINST CXM©NWEALTH DEFENDANTS AED AGAINST ÍOWARD ULAN, ESQ., MEMORANDUM, CERTIFICATE OF SERVICE, FILED.

2726 JUL 12 P l a i n t i f f C l a s s ' Response t o Cfctntnonwealth Defendants' Rule 60(b) Motion t o Elim-
inate Plaintiff Class, Certificate of Service, Filed.

2727 JUL 12 2728 JUL 21

United States' Opposition to Commonwealth Defendants' Motion to Dismiss a l l nonUnited States Plaintiffs, Certificate of Service, Filed.
MOTION OF COM!VDNWEALTH AND CITY DEFENDANTS FOR AN EXTENSION OF TIME TO RESPOND TO THE COURT'S ORDER OF 6 / 2 2 / 9 3 , DIRECTING THE PARTIES TO SUBMIT A PROPOSED ORDER IN THIS MATTER, MEMORANDUM OF LAW IN SUPPORT, CERTIFICATE OF SERVICE, FILED.

2729 JUL 26 2730 JUL 26

Memorandum o f The A r c of P e n n s y l v a n i a , e t a l . i n S u p n o r t o f Proposed O r d e r regarding the Strategic Plan for the Revitalization of Mental Retardation Services in Philadelphia, Certificate of Service, Filed.
Canmonwealth Defendants' and Howard Ulan's Response to Halderman Plaintiffs' Motion for Rule 11 Sanctions, Certificate of Service, Filed.

continued -

DC 111A (Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN,

et al.

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
PENNHURST STATE SCHOOL, et al

DATE

NR.

PROCEEDINGS continued

DOCKET NO 74-1345

ÍU/)

PAGE/ 7VOF

PAGES

1993

2 731AUG (2728)AUG 4

Plaintiff's Response to Motion for Extension of Time by Commonwealtt and City defendants, Certificate of Service, filed.
ORDER THAT THE MOTION OF THE COMMONWEALTH AND CITY OF PHILADELPHIA DEFENDANTS REQUESTING AN EXTENSION OF TIME UNTIL 9/30/93, IN WHICH TO FILE THEIR VIEWS CONCERNING THE ORDER WHICH THE COURT MIGHT ENTEP IN REGARD TO THE COLLABORATIVE PLAN, ETC., IS DENIED. IT IS FURTHEP ORDERED: THE SECOND PART OF THIS COURT'S ORDER OF 6/22/93, IS AMENDED. THE COMMONWEALTH AND CITY OF PHILADELPHIA DEFENDANTS SHALL FILE ON OR BEFORE 8/25/93, THEIR VIEWS CONCERNING THE ORDER WHICH THE COURT MIGHT ENTER IN REGARD TO THE COLLABORATIVE PLAN, INCLUDING A PROPOSED ORDER, AND THEIR VIEWS ON WHETHER THEY BELIEVE THE PLAN SHOULD BE REVIEWED BY THE SPECIAL MASTER. IT IS FURTHER ORDERED: A CONFERENCE, AT WHICH COUNSEL FOR ALL PARTIES SHALL ATTEND, WILL BE HELD ON TUESDAY, 9/1/92, AT 10:00 A.M. IN CHAMBERS, FOR THE PURPOSE OF DISCUSSING THE VIEWS OF THE PARTIES AND THEIR PROPOSED ORDERS IN CONNECTION WITH THE COLLABORATIVE PLAN, FILED.
8/4/93 ENTERED AND COPIES MAILED.

(27I8)AI G 17 MEMORANDUM AND ORDER THAT THE MOTION OF THE COMMONWEALTH DEFENDANTS TO DISMISS ALL NON-UNITED STATES PLAINTIFFS IS DENIED, FILED. 8/18/93 ENTERED AND COPIES MAILED; COPIES TO LEGAL, AND OPINIONS.
27 3 2 AUG 17 CRDER THAT ON A DATE THAT SHALL BE DETERMINED AFTER THIS COURT ENTERS ITS ORDER IN CONNECTION WITH THE COLLABORATIVE PLAN, MR. ULAN SHALL APPEAR BEFORE THIS COURT AND SHOW CAUSE WHY RULE 11 SANCTIONS SHOULD NOT BE ASSESSED AGAINST THE COMMONWEALTH DEFENANTS, SIGNED BY MR. ULAN, TO DISMISS ALL NON-UNITED STATES PLAINTIFFS WAS INTERPOSED FOR AN "IMPROPER PURPOSE, SUCH AS TO HARASS OR TO CAUSE UNNECESSARY DELAY OR NEEDLESS INCREASE IN THE COST OF LITIGATION.", FILED. 8/18/93 ENTERED AND COPIES MAILED.
27 33AUG 25 Memorandum of THE COMMONWEALTH AND CITY DEFENDANTS in support of their Proposed Order, Certificate of Service, Filed.

2734SEP 2735 SEP, 2735SEE

Response of the ARC Of Pennsylvania, et al., to the Philadelphia and Commonwealth Defendants' Proposed Ooder to Resolve the Motion to Hold the Defendants in Contempt of the Final Settlement Agreement, Certificate of Service, Filed.
Minute Entry: Conference held 9/1/93. Counsel makes known their positions. Hearing will be scheduled within 45 days on the issue of whether or not the City and Commonwealth should be held in contempt, Filed.
ORDER THAT A HEARING SHALL BE HELD BEGINNING ON 11/1-/93 AT 9:30 A.M AT WHICH THE COMMONWEALTH AND PHILADELPHIA DEFENDANTS SHALL SHOW CAUSE WHY THEY SHOULD NOT BE HELD IN CONTEMPT OF THIS COURT'S ORDER OF 4/5/85; IT IS FURTHER ORDERED: PURSUANT TO THE ORDER OF 11/28/90 SPECIAL MASTER DR. SUE A. GANT SHALL BE PREPARED AT THE HEARING TO TESTIFY AS TO WHETHER THE PHILADELPHIA MEMBERS OF THE PLAINTIFF CLASS HAVE BEEN RECEIVING THE HABILITATION FROM THE CITY OF PHILADELPHIA AND THE COMMONWEALTH OF PENNSYLVANIA AS REQUIRED BY THIS COURT IN ITS ORDER OF 4/5/85, FILED. 9 / 9 / 9 3 E N T E R E D

DC 111A (Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN

CIVIL DOCKET CONTINUATION SHEET
DEFENDANT
PENNHURST STATE SCHOOL,

et

DOCKET NO. 74-1345

al. PAGE OF.

PAGES

DATE

NR.

PROCEEDINGS c o n t i n u e d

lh)b>ji

2736SEP 13 Transcript of Conference held 9/1/93, Filed.

2737SEP 2738 "

22 MOTION OF THE ARC OF PENNSYLVANIA, ET AL. TO SHORTEN TIME FOR PRODUCTION OF DOCUMENTS, CERTIFICATE OF COUNSEL, CERTIFICATE OF SERVICE, FILED.
23 ORDER THAT THE REQUEST OF THE ARC/PA. PLFFS IS GRANTED. THE PHILA. DEFTS ARE ORDERED TO PRODUCE THE DOCUMENTS REQUESTED BY 1 0 / 4 / 9 3 , FILED. 9/23/93 ENTERED & COPIES MAILED

2739 SEP 23 E x h i b i t s t o Arc of P A . ' s Motion t o Shorten Time f o r Production of Documents, filed.

274OOCT

PLAINTIFFS1 MOTION TO SHORTEN TIME FOR PRODUCTION OF DOCUMENTS AND RESPONSES TO INTERROGATORIES, CERTIFICATE OF COUNSEL, CERTIFICATE OF SERVICE, FILED.

2741OCT 274 2OCT 20

Request of The Philadelphia Defendants for Documents Addressed to the Plaintiffs Halderman, et al. and the Plaintiffs Arc of Pennsylvania, et al., Certificate of Service, Interrogatories to Plaintiffs Halderman, et al. and the Plaintiffs Arc of Pennsylvania, et al (Set I) attached, Certificate of Service for Interrogatories attached; Expert Witness Interrogatories to Plaintiffs valderman, et al. and the Plaintiffs Arc of Pennsylvania, et al. attached, Certificate of Service for Expert Witness Interrogatories attached, Filed. Appearance of Jerome J. Shestack, Zachary L. Grayson and Carol A. Cannerelli-Van Poortvliet and the law firm of Wolf, Block, Schorr

2743OCT 27 2744OCT 28

and S¤lis-Cohen on b.ehalf of Commonwealth of Pennsylvania defendants Certificate of Service, Filed.
PLAINTIFFS' MOTION TO COMPEL RESPONSES TO DISCOVERY REGARDING CLASS ¡4EMBER LISTS, COMPLAINCE CONTENTIONS, AND PLACEMENT PLANS, CERTIFICATE OF COUNSEL, CERTIFICATE OF SERVICE, FILED.
MOTION OF THE COMMONWEALTH AND PHILADELPHIA DEFENDANTS FOR PROTECTIVE ORDER PURSUANT TO F.R.C.P. 26(C), REQUEST FOR A DISCOVERY CONFERENCE PURSUANT TO F.R.C.P. 26(F) AND FOR EXTENSION OF TIME OF THE 11/16/93 HEARING, MEMORANDUM, CERTIFICATE OF COUNSEL, CERTIFICATE OF SERVICE, FILED.

2 74 5OCT 29 274 6NOV
2 74 7NOV

Halderman Plaintiffs' Response to Motion of Commonwealth and Philadelphia Defendants for Protective Oarder, Certificate of Service Filed. MOTION BY THE HALDERMAN PLAINTIFFS TO COMPEL DISCOVERY OF NONPRIVILEGED ROUTINE DOCUMENTS, WITHIN PRIOR REQUESTS, IDENTIFIED DURING DEPOSITION AS REPORTS PRESENT IN THE WITNESS' OFFICE, :ERTIFICATE OF COUNSEL, CERTIFICATE OF SERVICE, FILED.
Preliminary Response of Plaintiffs the ARC of Pennsylvania, et al. to the Motion of the Commonwealth and Philadelphia Defendants for Protective Order, Discovery Conference and Extension of Time, Memorandum, Certificate of Service, Filed.

DC 111A (Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN

CIVIL DOCKET CONTINUATION SHEET

DEFENDANT

74-1345
DOCKET NO.

PENNHURST STATE SCHOOL, et al.

PAGE

.PAGES

DATE

NR.

PROCEEDINGS c o n t i n u e d

1993

2748NOV 2 74S ;NO`

MOTIONS BY PLAINTIFFS TO COMPEL DISCOVERY (HURWITZ DEPOSITION) OF 1)NON-PRIVILEGED SUMMARY REPORTS AND REPORTS PROVIDED TO SPECIAL MASTER DR. GANT, WHICH ARE WITHIN PRIOR REQUESTS, IDENTIFIED DURING DEPOSITION AS REPORTS PRESENT IN THE WITNESS1 OFFICE AND 2) COMPUTERIZED INFORMATION CENTRAL TO SPECIFIC NON-COMPLIANCE ISSUES, CERTIFICATE OF COUNSEL, CERTIFICATE OF SERVICE, FILED.
ORDER THAT DEFENDANTS1 MOTION FOR A DISCOVERY CONFERENCE PURSUANT TO RULE 26(f) IS DENIED AS MOOT. DEFENDANTS' MOTION FOR A PROTECTIVE ORDER IS DENIED AS MOOT, WITHOUT PREJUDICE TO THE DEFENDANTS TO REFILE SUCH MOTION. PLAINTIFFS' MOTION TO COMPEL DISCOVERY AND SHORTEN THE RESPONSE TIME FOR DISCOVERY RESPONSES IS DENIED AS MOOT, WITHOUT PREJUDICE TO THE PLAINTIFFS TO REFILE SUCH MOTION. IT IS FURTHER ORDERED: DEFENDANTS' MOTION FOR AN EXTENSION OF TIME OF THE NOVEMBER 16, 1993 HEARING IS GRANTED; THE HEARING WILL BE HELD ON DECMEBER 1, 1993 AT 9:30 A.M., FILED.
11/8/93 ENTERED AND COPIES MAILED.

2750 NOy 19 ORDER THAT PLAINTIFFS' MOTIONS FILED ON 11/4/93 AND 11/15/93 TO COMPEL DISCOVERY OF DOCUMENTS AND COMPUTERIZED INFORMATION ARE
DISMISSED AS MOOT, FILED.
11/19/93 ENTERED AND COPIES MAILED.
2751 " 19 5OÏTON OF •DEFT•• (XM¢NWEÄLTH OF PA FOR PROTECTIVE ORDER, MEM), CERTIFICATE OF COUNSEL, CERTIFICATE OF SERVICE, FILED.
2752 " 19 Halderman Plffs1 response to motion of Commonwealth for protective order to halt deposition of Nancy Thaler, Cert, of Service, filed.
2753 " 19 GOVT'Sl·DTIONFOR PROTECTIVE ORDER, CERTIFICATE OF COUNSEL, CERTIFICATE OF SERVICE, FILED.

Memorandum of Law in Opposition to The United States' Motion for 2 754NOV 22 Protective Order by Commonwealth Defendants, Certificate of Service,
Filed.

MOTION OF THE PHILADELPHIA DEFENDANTS FOR AN EXTENSION OF TIME OF 2 755NOV 22 THE 12/1/93 HEARING, MEMORANDUM IN SUPPORT, CERTIFICATE OF SERVICE,
FILED.

2 7 56NO`V 22 27 5 7NOV 23 2758NOV 23

Response of Plaintiffs' ARC-Pennsylvania to Motion of Commonwealth Defendants for Protective Order, Memorandum, Certificate of Service, Filed.
Halderman Plaintiffs' Response to Second Motion of Philadelphia Defendants for Protective Order, Certificate of Service, Filed.
Halderman Plaintiffs' Memorandum in Support of United States' Motion for Protective Order, Certificate of Service, Filed.

2759NOV 23 >76ONOV 23

ORDER THAT DEFENDANT, CITY OF PHILADELPHIA, MOTION FOR AN EXTENSION OF TIME OF THE 12/1/93 CONTEMPT HEARING IS DENIED, FILED.
11/24/93 ENTERED AND COPIES MAILED.
ORDER THAT DEFENDANT, COMMONWEALTH OF PENNSYLVAIA'S, MOTION FOR A PROTECTIVE ORDER IS DENIED, AND DEPUTY SECRETARY THALER'S DEPOSITION WILL BE TAKEN IN HARRISBURG, PENNSYLVANIA ON OR BEFORE 12/1/93, THE DATE OF THE CONTEMPT HEARING IN THIS MATTER, FILED.
11/24/93 ENTERED AND COPIES MAILED.

DC 111A (Rev. 1/75)
PLAINTIFF

CIVIL DOCKET CONTINUATION SHEET DEFENDANT

TERRI LEE HALDERMAN, e t a l

PENNHURST STATE SCHOOL AND HOSPITAL, et al.

DOCKET NO. 74-1345

PAGE

OF

PAGES

DATE

NR.

PROCEEDINGS C O n t d .

1993 2751N0V 24 276"2 NOV 24 2763NOV 29 2764NOV 29 2764NOV 29 27 65NOV 29
>76 6NOV 29
2767DEC 2768DEC

ORDER THAT PLFFS TJNTERVENOR'S MOTION FOR A PROTECTIVE ORDER IS DENIED WITHOUT PREJUDICE TO THE PLFF-INTERVENOR TO PRESENT WITNESSES IN REBUTTAL TO STATEMENTS MADE MY DEFTS WITNESSES IN THE EVENT SUCH REBUTTAL IS RELEVANT, FILED.
11/26/93 entered Scopies mailed. MOTION OF PLFFS1 ARC-PENNSYLVANIA, ET AL TO COMPEL PRODUCTION OF DOCUMENTS FROM COMMONWEALTH DEFTS, CERTIFICATION OF COUNSEL, CERTIFICATE OF SERVICE, FILED.
PLAINTIFFS' MOTION FOR PROTECTIVE ORDER REGARDING TWO CLASS MEMBER DEPOSITIONS AND THREE SUBPOENAS, CERTIFICATE OF SERVICE, FILED.
ORDER THAT PLAINTIFF ARC-PENNSYLVANIA'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS FROM THE COMMONWEALTH OF PENNSYLVANIA IS DISMISSED AS MOOT, FILED.
11/29/93 ENTERED AND COPIES MAILED.
MOTION OF PLAINTIFFS' ARC-PENNSYLVANIA, ET AL. TO COMPEL PRODUCTION OF DOCUMENTS FROM CITY OF PHILADELPHIA DEFENDANTS, CERTIFICATE OF COUNSEL, CERTIFICATE OF SERVICE, FILED.
ORDER THAT IN VIEW OF THE FACT THAT PLAINTIFFS DO NOT INTEND TO CALL ROLAND JOHNSON, JAMES STAMPS AND ROSA SANCHEZ AS WITNESSES AT THE 12/1/93 CONTEMPT HEARING, THE SUBPOENAS ISSUED BY DEFENDANT COMMONWEALTH OF PENNSYLVANIA FOR DEPOSITIONS OF THESE INDIVIDUALS ARE HEREBY QUASHED WITHOUT PREJUDICE TO THE DEFENDANT TO CALL SAID INDIVIDUALS AS WITNESSES T THE 12/1 HEARING; THE DEPOSITION OF RICHARD YOUNG SHALL BE TAKEN ON 11/30/93 AT 1:00 P.M. AT THE OFFICES OF THE UNITED CEREBRAL PALSY ASSOCIATION IN PHILADELPHIA; THE DEPOSITION OF ROBERT OLIVER SHALL BE TAKEN AT THE INGLISS HOUSE IN PHILADELPHIA ON 11/29/93 AT 3:30 P.M. IT IS FURTHER ORDERED: THE DEPOSITIONS OF RICHARD YOUNG AND ROBERT OLIVER WILL BE LIMITED TO TWO HOURS EACH, FILED.
11/29/93 ENTERED AND COPIES MAILED.
ORDER THAT PLAINTIFF'S MOTION TO COMPEL PRODUCTION OF DOCUMENTS FROM THE CITY OF PHILADELPHIA IS GRANTED AS TO ITMES 2,5,7 AND 10, AND THE CITY SHALL MAKE THE DOCUMENTS AVAILABLE FOR PLAINTIFF ARC OF PENNSYLVANIA'S INSPECTION AND COPYING BEGINNING AT 2:00 P.M. ON 11/30/93 AND CONTINUING UNTIL THE CLOSE OF BUSINESS ON 12/7/93. DOCUMENTS PRODUCED IN RESPONSE TO ITEM 7 SHALL BE KEPT CONFIDENTIAL BY COUNSEL AND SHALL NOT BE DISCLOSED WITHOUT THE EXPRESS PERMISSION OF THIS COURT, FILED.
12/1/93 ENTERED AND COPIES MAILED.
Minute Entry: Hearing on Plffs' Motion to Show Cause why City and Commonw. Should not be held in Contempt of court 12/1/93: Dr. Sue Gant, Special Master present. Mr. Jordan and Mr. Shestack raise preliminary procedural matters which court addresses. Plffs1 witnesses sworn, Filed.
Minute Entry: Hearing on P l f f s Motion to Show Cause - Day #2, 12/2/93. Dr.Sue Gant, Special Master present; P l f f s witnesses continue, Filed,

DC 111A (Rev. 1/75)
PLAINTIFF

CIVIL DOCKET CONTINUATION SHEET DEFENDANT

DOCKET NO. 7 4 - 1

TERRI LEE HALDERMAN, e t a l .

PENNHURST STATE SCHOOL, et al. PAGE/T/OF PAGES

DATE
1993 2769DEC

NR.

PROCEEDINGS continued

Minute Entry: Hearing on Plffs1 Motion to Show Cause why City and Commonw. should not be held in contempt of court - Day #3, 12/3/93, Dr. Sue Gant, Special Master present; Plffs1 witnesses continue: Dr. Nirehay Nand Singh resumes, Commonwealth's witness out of turn, Dr. Sue Gant sworn, Filed.

277ODEC
I
b77lDEC¦I4

Minute Entry: Hearing on Plffs' Motion to Show, etc. - 12/6/93 Dr. Sue Gant, Special Master - present; Plffs1 Joint Objections to the Special Master testifying out of turn and the improper questioning of the Special Master argued - OBJECTIONS OVERRULED; Commonw. jwitness out of turn resumes: Dr. Sue Gant, continues, Filed.
ORDER THAT PLAINTIFFS HAVING FILED, ON 12/6/93, A JOINT OBJECTION TO THE COMMONWEALTH DEFENDANT'S IMPROPER QUESTIONING OF THE SPECIAL MASTER OUT OF TIME: THE COURT HAVING DETERMINED ON 12/6/93 AT THE HEARING IN THIS MATTER THAT THE DEFENDANT'S QUESTIONING WAS NOT IMPROPER AND THE COURT HAVING THEREFORE OVERRULED PLAINTIFFS' OBJECTION AT THE HEARING; IT IS ORDERED: PLAINTIFFS' OBJECTION IS DISMISSED AS MOOT, FILED.
12/15/93 ENTERED AND COPIES MAILED.

2772DEC 14

ORDER THAT A HEARING SHALL BE HELD ON FRIDAY, DECEMBER 17, 19 93 AT 9:00 A.M. AT WHICH THE DEFENDANT, CITY OF PHILADELPHIA, SHALL HAVE THE BURDEN OF SHOWING, PURSUANT TO FED.R.CIV.P. 45(c), THAT PLAINTIFFS' SUBPOENA SUBJECTS MR. HURWITZ TO AN UNDUE BURDEN. IT IS FURTHER ORDERED: MR. HURWITZ'S PHYSICIAN, KENNETH ROSENSTEIN, SHALL BE PREPARED TO TESTIFY AT THE HEARING AS TO MR. HURWITZ'S MEDICAL CONDITION, FILED.
12/15/93 ENTERED AND COPIES MAILED.

.2773DEC 15 Halderman Plaintiffs' Response to Motion to Quash subpoena, Cert, of Service, Filed.

2774DEG¦ 15 Minute Entry: Hearing on Plffs' Motion to Show Cause - Day #5 12/7/93. Dr. Sue Gant, Special Master present; Plffs' witnesses
resume, (In Chambers conference on matter of Subpoena of Joel
Hurwitz), Filed.

2774DEC 20

ORDER THAT DEFENDANT CITY OF PHILADELPHIA'S MOTION TO QUASH THE SUBPOENA OF JOEL HURWITZ IS GRANTED SUBJECT TO THE CONDITIONS SET FORTH IN THIS ORDER. IT IS FURTHER ORDERED: BOTH PLFFS AND DEFTS SHALL BE PERMITTED TO TAKE A DEPOSITION OF JOEL HURWITZ UPON WRITTEN QUESTIONS PURSUANT TO F.R.C.P. 31; BOTH PLFFS"AND DEFTS1 COUNSEL SHALL DELIVER WRITTEN QUESTIONS IN SEALED ENVELOPES TO JUDGE PETER B. SCUDERI NO LATER THAN 9:00 A.M., TUESDAY, 12/21/93. PLFFS SHALL SERVE THEIR QUESTIONS ON DEFTS NO LATER THAN 4:00 P.M. MONDAY, 12/20/93; DEFTS SHALL SERVE THEIR CROSS-EXAMINATION QUESTIONS ON THI PLFFS NO LATER THAN 6:00 P.M. MONDAY, 12/20/93, ETC. JOEL HURWITZ SHALL APPEAR BEFORE JUDGE PETER B. SCUDERI IN HIS CHAMBERS ON
12/21/93 AT 10:00 A.M. FOR THE PURPOSE OF PROVIDING ANSWERS TO THE WRITTEN QUESTIONS, ETC, FILED.
12/21/93 ENTERED AND COPIES MAILED.

DC 111A (Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN,

et

CIVIL DOCKET CONTINUATION SHEET
DEFENDANT
al. PENNHURST STATE SCHOOL, et

DOCKET NO. 74-1 345
al. PAGE OF PAGES

DATE

NR.

PROCEEDINGS c o n t d .

1993
:>775DEC 21 Minute Entry: Hearing on Plffš1 Motion to Show Cause, 12/17/93, Day #6; Dr. Sue Gant, Special Master Present, Witness sworn; The Court directs counsel for plffs and defts to submit questions for Court approval and the approved questions will then be submitted to the witness before Magistrate Judge Scuderi; contempt hearing resumes p l f f s witnesses resume, Filed.
:ï776DEC 21 Minute Entry: Hearing on Plffs1 Motion to Show Cause, 12/20/93, Day #7; Dr. Sue Gant, Special Master present; Plffs1 witnesses resume, Filed.

2777DEC 21 Transcript of Hearing 12/21/93, Present: Joel Hurwitz, Filed.

2778DEC 22

Minute Entry: Hearing on Plffs1 Motion to Show Cause, 12/21/93, Day #8; Dr. Sue Gant, Special Master present; Plffs1 witnesses resume, Plffs rest; Defts1 witness sworn, Filed.

2779DEC 23 Transcript of Hearing: Motion for Contempt, Day 6, 12/17/93, Filed. 278ODEC 23 Transcript of Hearing: Motion for Contempt, Day 7, 12/20/93, Filed. 2781DEC 23 Transcript of Hearing: Motion for Contempt, Day 8, 12/21/93, Filed. 2782 DEt: 23 Transcript of Hearing: Motion for Contempt, Day 9, 12/22/93, Filed.

2783 "
¯I994 2784JAN

23 Minute Entry Re: hearing on plaintiffs' motion to show cause why City & Community should not be held in contempt of court on 12/22/93 at 9:00 a m filed.
11 Jnited States' Proposed Summary Findings of Fact and Conclusions of aw, Certificate of Service, Filed.

2785JAN 11 Jnited States' Proposed Detailed Findings of Fact, Certificate, of Service, Filed.
2786JAN 11 Transcript of Hearing: Motion for Contempt - Day 10 - 12/23/93,Filed

>787JAN

Halderman Plaintiffs' Proposed Findings of Fact, Certificate of

11 Service, Filed.

2788JAN

Halderman Plaintiffs' Proposed Conclusions of Law, Certificate of

11 Service, Filed.

2789JAN 279OJAN

Proposed Findings of Fact and Conclusions of Law of Plaintiffs The 11 ARC of Pennsylvania, et al. on the Motion of ARC-Pennsylvania et al
For a Finding of Contempt of the Final Settlement Agreement against the Philadelphia and Commonwealth Defendants, Certificate of Serv., Filed.
11 Proposed Findings of Fact and Conclusions of Law of The Philadelphia Defendants, Certificate of Service, Filed.

2791JAN 11 >792JAN 18

Commonwealth Defenants' Findings of Fact and Conclusions of Law, Certificate of Service, Filed.

Rebuttal of the Commonwealth Defendants to Proposed Findings of Fact

and Conclusions of Law Submitted by Plaintiffs and plaintiff inter-

venors, Certificate of Service, Filed.

CONT.

DC 111A (Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN, ET AL

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
PENNHURST STATE SŒOOL, ET AL

DOCKET NO. 74- 1345
.PAGES

DATE

NR.

PROCEEDINGS

1994 2793Jan. 19 United States' response to Deft's proposed Findings of Fact and Conclusions
of Law, Certificate of Service.
2794JAN 21 Response of Philadelphia Defendants to Plaintiff's and Plaintiff Intervenors' Proposed Findings of Fact and Conclusions of Law, Certificate of Service, Filed.
2795JAN 24 Response of Plaintiffs the? ARC ~. of ~ Pennsylvania , et al. , to the Proposed Findings of Fact of the Philadelphia and Commonwealth Defendants, Certificate of Service, Filed.

2796?EB

Notice of Change of Address by Robert H. Stern, Esq. and Tawana E. Davis, Esq. for Plaintiff-intervenor United States,Certificate of Service, Filed.

2797MAR 28

MEMORANDUM AND ORDER THAT IN CONSIDERATION OF THE REASONS SET FORTH IN THIS COURT'S MEMORANDUM OF 3/28/94 AND THIS COURT HAVING FOUND THAT THE COUNTY OF PHILADELPHIA AND COMMONWEALTH OF PENNSYLVANIA DEFENDANTS ARE IN CONTEMPT OF THIS COURT'S ORDER OF 4/5/85; IT IS ORDERED: WITHIN SIXTY (60) DAYS OF THE DATE OF THIS ORDER, THE PLAINTIFFS, PLAINTIFF-INTERVENOR AND DEFENDANTS SHALL AGREE UPON ANY ADDITIONS OR DELETIONS TO THE LIST OF PHILADELPHIA PLAINTIFF CLASS MEMBERS CONTAINED IN EXHIBIT A TO THIS ORDER. THE PARTIES SHALL SUBMIT A FINAL LIST OF PHILADELPHIA CLASS MEMBERS TO THE SPECIAL MASTER FOR THE SPECIAL MASTER'S REVIEW AND APPROVAL, ETC. WITHIN TWELVE (12) MONTHS OF THE DATE OF THIS ORDER, THE COUNTY AND COMMONWEALTH SHALL PROVIDE COMMUNITY LIVING ARRANGEMENTS TO ALL PHILA. CLASS MEMBERS, ETC. WITHIN SIXTY (60) DAYS OF THE DATE OF THIS ORDER, EVERY PHILADELPHIA CLASS MEMBER SHALL BE ASSIGNED A COUNTY CASE MANAGER IN ACCORDANCE WITH PARAGRAPH A5(d) OF THE COURT DECREE, ETC. THE COUNTY SHALL BRING ITS CASE MANAGEMENT LEVELS INTO COMPLIANCE WITH PARAGRAPH A5(d) OF THE COURT DECREE WITHIN THIRTY (30) DAYS OF THE DATE OF THIS ORDER, ETC. THE COURT SHALL HOLD A HEARING ON 4/4/94 AT 10:00 A.M. FOR THE PURPOSE OF HEARING FROM ALL PARTIES CONCERNING THE APPOINTMENT OF THE SPECIAL MASTER, ETC., FILED.
3/29/94 ENTERED AND COPIES MAILEDf :

2798MAR 29 MOTION BY HALDERMAN PLAINTIFFS, ET AL. FOR APPROVAL OF FEES AND EXPENSES OF SPECIAL MASTER, CERTIFICATE OF SERVICE, FILED.

2799MAR 29 2800MAR 29 2801MAR 29 28O2MAR 29 28O3MAR 29
28O4MAI 30

Transcript of Hearing: Motion for Contempt, 12/1/93, Filled. Transcript of H¾aring: Motion for Contempt, Day 2, 12/2/93, Filed. Transcript of Hearing: Motion for Contempt, Day 3, 12/3/93, Filed Transcript of Hearing: Motion for Contempt, Day 4, 12/6/93, Filed, Transcript of Hearing: Motion for Contempt, Day 5, 12/7/93, Filed. HALDERMAN PLAINTIFFS' MOTION FOR AWARD OF FEES AND COSTS, AND FOR INTERIM AWARD, AFFIDAVIT OF DAVID FERLEGER, ESQ., CERTIFICATE OF SERVICE, FILED.

DC 111A (Rev. 1/75)

CIVIL DOCKET CONTINUATION SHEET

PLAINTIFF TERRI LEE HALDERMAN, e t a l .

DEFENDANT
PENNHURST

STATE

SCHOOL, et al

DOCKET NO. 7 4 - 1 3 4 5

PAGE

OF

PAGES

DATE

NR.

PROCEEDINGS , contd.

1994

28O5APF >8O6APR 28O7APR 28O8APR

Halderman Plaintiffs' Memorandum Regarding Order of Reference, Certificate of Service, Filed.
Halderman Plaintiffs' Memorandum on Special Master, Certificate of Service, Filed. Halderman Plaintiffs' Comments Regarding Nominations for Special Master, Certificate of Service, Filed.
ORDER THAT PLAINTIFFS AND DEFENDANTS SHALL MEET ON OR BEFORE 5/2/94 FOR THE PURPOSE OF DETERMINING WHETHER VIRGINIA MCCLURE CAN BE PLACED IN COMMUNITY LIVING ARRANGEMENTS ON AN EXPEDITED BASIS. IT IS FURTHER ORDERED: PLAINTIFFS' MOTION FOR EXPEDITED RELIEF ON BEHALF OF VIRGINIA MCCLURE IS DISMISSED WITHOUT PREJUDICE TO PLAINTIFFS REFILING THEIR MOTION IN THE EVENT THAT THE PARTIES CANNOT AGREE ON A RESOLUTION OF THIS MATTER ON OR BEFORE 5/2/94 FILED.
// ENTERED AND COPIES MAILED.

2809 " 2810 "
2811 "
2812 " 2813 " 2814APR 2815APR
2816APR

7 MOTION OF ARC-PENNSYLVANIA, ET AL FOR EXPEDITED RELIEF ON BEHALF OF VIRGINIA MCCLURE, MEMO, CERT. OF SERVICE, FILED.
7 Memorandum of Plffs Concerning the Appointment of the Special Master, Cert, of Service, filed.
COMMONWEALTH DEFTS1 MOTION FOR AN ORDER TO PROHIBIT FURTHER EX PARTE ORAL Œ)MMUNICÄTIONS BY PLFFS1 COUNSEL WITH CANDIDATES FOR SPECIAL MASTER, MEMORANDUM, CERTIFICATE OF SERVICE, FILED.
Response to Defendants' Nominations for Special Master (and to frivolous motion to ban protected communications) by Plaintiffs, certificate of service, filed. Response of Plaintiffs The Arc of Pennsylvania, et al., to the Defendants' Nominations for the Position of Special Master, certificate of service, filed.
11 PLAINTIFFS' ARC/PA, ET A L . APPLICATION FOR A T T O R N E Y S ' FEES AND- COSTS CERTIFICATE OF SERVICE, FILED.
14 ORDER THAT THE COURT WILL HOLD A HEARING ON 5/6/94 AT 2:00 P.M. TO DETERMINE THE APPROPRIATE ALLOCATION OF FEES AND EXPENSES BETWEEN THE DEFENDANTS IN THE AMOUNTS DETERMINED TO BE REASONABLE BY THE COURT, FILED. 4/14/94 ENTERED AND COPIES MAILED.
14 Commonwealth Defendants' Supplemental Memorandum regarding selectioi of a Special Master, Certificate of Service, Filed.

2817APR 14 Commonwealth Defendants' Answer to Motion for Approval of Fees and Expenses of Special Master, Certificate of Service, Filed.

2818APR 15 2819APR 28

Appearance of Stephen C. Miller, Esq. for Defendant, City of Phila., Certificate of Service, Filed.
Halderman Plaintiffs' Updated Information regarding pending Motion for Fees and Expenses, Certificate of Service, Filed.

DC 111A (Rev. 1/75)
PLAINTIFF

CIVIL DOCKET CONTINUATION SHEET DEFENDANT

TERRI LEE HALDERMAN, ET A L .

PENNHURST STATE SCHOOL, ET AL

DOCKET NO. 7 4 - 1 ? 4 5

PAGE J_2¿OF

PAGES

DATE I!j94
282OAPR 2821APR
2822APR

NR.

PROCEEDINGS c o n t d .

29 City Defendants1 Answer to Plaintiffs' ARC/PA et al Application for Attorneys' Fees and Costs, Certificate of Service, Filed.
29 Commonwealth Defendants' Answer in Opposition to Plaintiff ARC/PA1s Application for Attorneys' Fees and Costs, Memorandum, Certificate of Service, Filed.
29 City Defendants' Answer to Plaintiffs Class Application for Attys' Fees and Costs, Certificate of Service, Filed.

2823APR >824MAY 2825MAY >826MAY >827MAY
2828MAY 2829MAY 283OMAY 2831MAY 2832MAY 2833MAY 2834MAY 2835MAY

30 Commonwealth Defendants' Answer in Opposition to Halderman Plffs' Application for Attorneys' Fees and Costs, Memorandum, Certificate of Service, Filed.
3 Halderman Plaintiffs' Response to Commonwealth Defendants'Opposition to Fee Award, Certificate of Service, Filed
4 Letter dated 4/22/94 from Sue A. Gant, Ph.DÌ to Hon. Raymond J. Broderick RE: Pennhurst Fees and Expenses, Filed (per instructions from Chambers). Letter dated 4/7/94 from Sue A. Gant, Ph.D. to Diana McCarthy RE: explanation of issues raised regarding bill in Pennhurst matter, Filed (per instructions from Chambers). Letter dated 3/22/94 from Sue A. Gant, Ph.D. to Hon. Raymond J. Broderick RE: billing for services rendered (fees) and expenses incurred through 12/31/93, including copies, Filed (per instructions from Chambers). Commonwealth Defendants' Objections to the Halderman Plaintiffs' updated information regarding pending Motion for Fees and Expenses, Certificate of Service, Filed. Commonwealth Defendants' Objections to the Special Master's Application for Fees and Costs, Memorandum, .Certificate of Service, Filed.
Response by Halderman Plaintiffs' to Philadelphia Defendants' Opposition to Halderman Plaintiffs' Fee Request, Certificate of Service, Filed.
4 Philadelphia Defendants' Response to Plaintiffs' Interrogatories, Certificate of Service, Filed.
5 Memorandum on Behalf of Philadelphia Defendants in Opposition to the Special Master's Application for Fees and Costs, Certificate of Service, Filed.
Commonwealth Defendants' Memorandum of Law on the Allocation of Fee Liability, Certificate of Service, Filed.
Philadelphia Defendants' Objections to the Haldreman Plaintiffs' Updated information regarding pending Motionfor Fees and Expenses, Certificate of Service,Filed. Plaintiffs' ARC/PA et al. Supplemental Application for Attorneys' Fees and Costs, Certificate of Service, Filed.

DC 111A (Rev. 1/75)
PLAINTIFF

CIVIL DOCKET CONTINUATION SHEET DEFENDANT

DOCKET NO. PAGE OF_

PAGES

DATE
2836MAY
2837MAY

NR.

PROCEEDINGS

STIPULATION AND SETTLEMENT AGREEMENT ORDER THAT THE COUNTY DEFTS. & THE COMMONWEALTH DEFTS. SHALL PAY TO DAVID FERLEGER, ESQ., COUNSEL FOR THE HALDERMAN PLFF. CLASS, THE SUM OF TWO HUNDRED SIXTY THOUSAND DOLLARS ($260,000.00) IN FULL SATISFACTION OF ALL FEES AND EXPENSES INCURRED BY THE HALDERMAN PLFF. CLASS THROUGH AND INCLUDING 5/6/94, ETC., FILED. (2814)
5/9/94 ENTERED AND COPIES MAILED. Philadelphia Defendants' Memorandum of Law on the Allocation of Fee liability, Certificate of Service, Filed.

2838MAY 10 Commonwealth Defendants' Objection to the Supplemenatl Application for Attorneys1 Fees and Costs of ARC/PA, . Certificate of Service Filed.
2839MAY 10 Commonwealth Defendants' Objections to ARC/PA's Subpoenas to counsel Certificate of Service, Filed.
284OMAY 12 ORDER THAT COMMONWEALTH DEFENDANTS HAVING FILED A MOTION FOR AN ORDER TO PROHIBIT FURTHER EX PARTE ORAL COMMUNICATIONS BY PLAINTIFFS COUNSEL WITH CANDIDATES FOR SPECIAL MASTER; THE COURT HAVING APPOINTED A SPECIAL MASTER ON 5/12/94; IT IS ORDERED: COMMONWEALTH DEFENDANTS' MOTION FOR AN ORDER TO PROHIBIT FURTHER EX PARTE ORAL COMMUNICATIONS BY PLAINTIFFS' COUNSEL WITH CANDIDATE¯Š¯¯^FOR SPECIAL MASTER IS DISMISSED AS MOOT, FILED.
5/12/94 ENTERED AND COPIES MAILED.

2841MAY

12 MEMORANDUM AND ORDER THAT PURSUANT TO F.R.C.P. 53, J.A. (TONY) RECORDS IS APPOINTED AS A SPECIAL MASTER IN THE ABOVE-CAPTIONED ACTION TO EVALUATE WHETHER THE COMMONWEALTH OF PENNSYLVANIA AND THE COUNTY OF PHILADELPHIA ARE IN COMPLIANCE WITH THE COURT'S ORDER OF 3/28/94, A COPY OF WHICH IS ATTACHED HERETO AS EXHIBIT A AND MADE A PART OF THIS ORDER, ETC.; IT IS FURTHER ORDERED THE ESTIMATED ANNUAL BUDGET SUBMITTED BY THE SPECIAL MASTER TO THE COURT IN THE AMOUNT OF $173,715.00 IS HEREBY APPROVED, AND 'THE COMMONWEALTH AND COUNTY SHALL EACH BE RESPONSIBLE FOR FUNDING ONE-HALF OF THE ANNUAL BUDGET; WITHIN SEVEN (7) DAYS OF THE DATE OF THIS ORDER, THE COMMONWEALTH AND COUNTY EACH SHALL DEPOSIT WITH THE CLERK OF COURT, UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PA., A SUM IN THE AMOUNT OF $7,238.13, REPRESENTING EACH PARTY'S SHARE OF ONE-TWELFTH OF THE SPECIAL MASTER'S ANNUAL BUDGET; ON OR BEFORE 6/1/94, AND ON OR BEFORE THE FIRST DAY OF EACH SUCCEEDING MONTH THEREAFTER, UP THROUGH AND INCLUDING 4/1/95, THE COMMONWEALTH AND THE COUNTY EACH SHALL SUBMIT A SUM IN THE AMOUNT OF $7,238.13 TO THE CLERK, REPRESENTING THEIR SHARE OF ONE-TWELFTH OF THE ANNUAL BUDGET OF THE SPECIAL MASTER; ALL DEPOSITS MADE BY THE COMMONWEALTH AND COUNTY SHALL BE PLACED BY THE CLERK OF COURTS IN AN INTEREST-BEARING ACCOUNT, ETC.: THE SPECIAL MASTER SHALL KEEP A COMPLETE ACCOUNTING OF ALL OF HIS FEES AND EXPENSES, WHICH SHALL BE MADE AVAILABLE AT THE COURT'S REQUEST FOR ITS INSPECTION, FILED.
5/13/94 ENTERED AND COPIES MAILED.. .'

DC 111A (Rev. 1/75)
PLAINTIFF

CIVIL DOCKET CONTINUATION SHEET DEFENDANT

TERRI LEE HALDERMAN, e t a l

PENNHURST STATE SCHOOL, e t a l

DOCKET N O 7 4 - I 3 4 5

AJL/OF

PAGES

DATE

NR.

1994

PROCEEDINGS
contd.

2842MAY 13 2843MAY 13

RENEWED MOTION OF ARC-PENNSYLVANIA, et al. FOR EXPEDITED RELIEF ON BEHALF OF VIRGINIA MCCLURE, MEMORANDUM, CERTIFICATE OF SERVICE, FILED.
Commonwealth Defendants' Reply Memorandum on the Question of the Allocation of fee liability, Certificate of Service, Filed.

2844MAY 16 `4OTION IN OPPOSITION TO RENEWED MOTION OF ARC-PENNSYLVANIA FOR EXPEDITED RELIEF ON BEHALF OF VIRGINIA MCCLURE, CERTIFICATE :OF SERVICE, FILED.

2845 MAY 17 MOTION OF THE (X¢fOWEALTH TO AMEND THE ORDER OF REFERENCE TO EXTEND THE TIME FOR PAYMENT OF THE FIRST DEPOSIT WITH THE CLERK OF COURT TO MAY 26, 1994, CERT.
OF SERVICE, FILED.

2846MAY 19 MOTION OF CITY DEFENDANTS TO AMEND THE ORDER OF REFERENCE TO EXTEND THE TIME FOR PAYMENT OF THE FIRST DEPOSIT WITH THE CLERK OF COURT TO 5/25/94, CERTIFICATE OF SERVICE, FILED.

--MAY

20 The sum of $7,238.13 deposited into the Registry of the Court by The City of Philadelphia, pursuant to Paragraph 7 of the Court's Order filed 5/12/94, Filed.

2847MAY 23 2848MAY 23
2849MAY 23

Request by Plaintiff Class to set show cause hearing on Sanctions, Certificate of Service, Filed.
MOTION BY HALDERMAN PLAINTIFF CLASS FOR DECLARATORY ORDER RE-AFFIRMING NINE YEARS OF UNDERSTANDING ON CLASS DEFINITION, CERTIFICATE: OF SERVICE, FILED. ORDER THAT THE COURT HAVING HELD A HEARING ON THE FEES AND EXPENSES OF THE FORMER SPECIAL MASTER, DR. SUE GANT, ON 5/6/94; DR. GANT HAVING SUBMITTED A SUPPLEMENTAL STATEMENT OF FEES AND COSTS TO THE COURT ON 5/16/94; DR. GANT'S STATEMENT HAVING INDICATED THAT SHE SENT COPIES OF HER STATEMENT TO ALL PARTIES TO THIS ACTION; IT IS ORDERED THAT THE CLERK OF COURT SHALL DOCKET DR. SUE GANT'S SUPPLEMENTAL STATEMENT OF FEES AND EXPENSES; ANY OBJECTIONS TO DR. GANT'S SUPPLEMENTAL STATEMENT OF FEES AND EXPENSES SHOULD BE FILED WITH THE COURT NO LATER THAN SEVEN (7) DAYS FROM THE DATE OF THIS ORDER; THE COURT WILL NOT HOLD FURTHER HEARINGS ON THIS MATTER, FILED.

5/24/94 ENTERED AND COPIES MAILED.

2850MAY 23 2851MAY 23

Statement of fees and costs by Dr. Sue A. Gant, Filed. ORDER THAT THE DEFENDANTS COMMONWEALTH OF PENNSYLVANIA AND COUNTY OF PHILADELPHIA HAVING FILED MOTIONS TO AMEND THE ORDER OF REFERENCE DATED 5/12/94 TO EXTEND THE TIME FOR PAYMENT OF THE FIRST DEPOSIT WITH THE CLERK OF COURT TO 5/26/94; BOTH DEFENDANTS HAVING DEMONSTRATED TO THE COURT GOOD CAUSE FOR THEIR MOTIONS; IT IS ORDERED: PARAGRAPH 7 OF THE ORDER OF REFERENCE DATED 5/12/94 IS AMENDED TO PROVIDE THAT THE DATE BY WHICH THE COMMONWEALTH AND COUNTY SHALL DEPOSIT THE SUM OF $7,238.13 WITH THE CLERK OF COURT IS EXTENDED TO 5/26/94, FILED.
5/24/94 ENTERED AND COPIES MAILED.

DC 111A (Rev. 1/75)
PLAINTIFF

CIVIL DOCKET CONTINUATION SHEET DEFENDANT

TERRI LEE HALDERMAN, e t a l

PENNHURST STATE SCHOOL, e t a l

DOCKET N O 7 4 - 1 3 4 5

PAGE

OF

PAGES

DATE NR. 1994

PROCEEDINGS

2852MAY 25 2853MAY 26

Transcript of proceedings of hearing on counsel fees held on 5/10/94 Filed.
MEMORANDUM AND ORDER THAT DEFENDANT COUNTY OF PHILADELPHIA AND COMMONWEALTH OF PENNSYLVANIA SHALL PAY FEES AND COSTS TO HALDERMAN PLAINTIFFS' ATTORNEY, DAVID FERLEGER, IN THESE AMOUNTS: DEFENDANT COUNTY OF PHILADELPHIA: $130,000.00; DEFENDANT COMMONWEALTH OF PENNSYLVANIA: $13 0,000.00; DEFENDANT COUNTY OF PHILADELPHIA AND COMMONWEALTH OF PENNSYLVANIA SHALL PAY FEES AND COSTS TO ASSOCIATION OF RETARDED CITIZENS OF PENNSYLVANIA PLAINTIFFS' ATTORNEYS, JUDY GRAN, FRANK LASKI AND BARBARA RANSON IN THESE AMOUNTS: DEFENDANT
OUNTY OF PHILADELPHIA: $222,239.25 DEFENDANT COMMONWEALTH OF PENNSYLVANIA: $222,239.25; AND ALL PAYMENTS REQUIRED TO BE MADE PURSUANT TO THIS ORDER, SHALL BE MADE WITHIN THIRTY (30) DAYS OF THE DATE OF THIS ORDER, FILED.
5/26/94 ENTERED AND COPIES MAILED.

2854MAY 31 Memorandum on behalf of Philadelphia Defendants in Opposition to

Dr. Sue Gant's Supplemental Statement of Fees and Costs, Certificate

of Service, Filed.

2855MAY 31 Commonwealth Defendants' Answer in Opposition to ARC/PA1s Renewed

Motion for Expedited Relief on behalf of Virginia McClure, Memo.,

Certificate of Service, Filed. 2856MAY 31 Commonwealth Defendants' Objections to the Supplemental Request for

Fees and Expenses of Sue A. Gant, Ph.D., Certificate of Service,

2857JUN 2858JUN

Filed.
ORDER THAT COMMONWEALTH DEFENDANT'S MOTION TO QUASH ARC PLAINTIFFS' SUBPOENA DUCES TECUM IS GRANTED, FILED.
6/2/94 ENTERED AND COPIES MAILED. MEMORANDUM AND ORDER THAT DEFENDANT COUNTY OF PHILADELPHIA AND COMMONWEALTH OF PENNSYLVANIA SHALL PAY FEES AND COSTS TO THE SPECIAL MASTER, SUE A. GANT, Ph.D., AS FOLLOWS: COUNTY OF PHILADELPHIA: $61,246.03; COMMONWEALTH OF PENNSYLVANIA: $61,246.03. IT IS FURTHER ORDERED: ALL PAYMENTS REQUIRED TO BE MADE PURSUANT TO THIS ORDER SHALL BE MADE WITHIN THIRTY (30) DAYS OF THE DATE OF THIS ORDER, FILED.
6/2/94 ENTERED AND COPIES MAILED.

2859JUN

MOTION OF CITY DEFENDANTS TO AMEND THE ORDER OF REFERENCE TO EXTEND THE TIME FOR PAYMENT OF THE 6/1 DEPOSIT WITH THE CLERK OF COURT TO 6/15/94, CERTIFICATE OF SERVICE, FILED.

286OJUN

Reply Memorandum of Plaintiffs The Arc of Pennsylvania, et al., in Support of Expedited relief on behalf of Virginia McClure, Certificate of Service, Filed.

DC 111A (Rev. 1/75)
PLAINTIFF

CIVIL DOCKET CONTINUATION SHEET DEFENDANT

TERRI LEE HALDERMAN, e t a l .

PENNHURST STATE SCHOOL, e t a l

DOCKET NO. 7 4 - 1 3 4 5 PAGE¡J>f¤F_ .PAGES

DATE

NR.

PROCEEDINGS

1994 2861JUN 2862JUN
2863JUN 2864JUN 2865JUN

Philadelphia Defendants' Reply Response to Renewed Motion of Plffs. The ARC, in Support of Expedited Relief on Behalf of Virginia McClure, Certificate of Service, Filed.
ORDER THAT THE COURT'S ORDER OF 5/12/94 IN THIS MATTER IS HEREBY AMENDED TO PROVIDE THAT THE DATE ON WHICH THE COUNTY DEFENDANT SHALL DEPOSIT THE SUM OF $7,238.13 WITH THE CLERK OF COURT IS EXTENDED FROM 6/1/94 TO 6/15/94, FILED.
6/7/94 ENTERED AND COPIES MAILED. The Commonwealth Defendants' Answer in Opposition to the Halderman ?laintiffs' Motion for a Declaratory Order on the Cl_ass Definition, Memorandum, Certificate of Service, Filed.
14 Transcript of Hearing on fee petitions held 5/6/94, Filed.
15 ORDER THAT PLAINTIFF'S RENEWED MOTION FOR EXPEDITED RELIEF ON BEHALF DF VIRGINIA MCCLURE IS DISMISSED AS MOOT; IT IS FURTHER ORDERED: IN ACCORDANCE WITH THE COURT'S ORDER OF REFERENCE OF 5/12/94, THE PECIAL MASTER SHALL DIRECT, SUPERVISE AND MONITOR THE TRANSFER OF 7IRGINIA MCCLURE TO A COMMUNITY LIVING ARRANGEMENT THAT HE DEEMS APPROPRIATE, AND ACCORDING TO TIMETABLES THAT HE DEEMS ARE IN HER 3EST INTEREST, TO ENSURE THAT SHE WILL RECEIVE THE MINIMALLY ADEQUATE 3ABILITATION AND OTHER SERVICES TO WHICH SHE IS ENTITLED UNDER THE :OURT DECREE, FILED. 6/15/94 ENTERED AND COPIES MAILED.

2866JUN 15 >867 JUl· 16

ORDER THAT PLAINTIFFS' MOTION FOR A DECLARATORY ORDER ON CLASS DEFINITION IS DISMISSED AS MOOT, FILED.
6/15/94 ENTERED AND COPIES MAILED. Plffs1 submission to special master regarding class membership of three persons, certificate of service, filed.

2868JUN 16 DEFENDANTS' MOTION FOR RECONSIDERATION OF THE ORDER DATED 6/2/94 AWARDING FEES AND EXPENSES TO SUE A. GANT, Ph.D., MEMORANDUM, CERTIFICATE OF SERVICE, FILED.
2869JUN 17 Statement of Plaintiffs The ARC of Pennsylvania, et al., concerning the Class List, Certificate of Service, Filed.

287OJUN 24 Notice of Appeal by Defendant Commonwealth of Pennsylvania of Memo. and Order: entered on 5/26/94, Fee Paid; Copies to Hon. Raymond J. Broderick, Appeals Clerk, U.S.C.A., and D. Ferleger, J. Gran, A. Peabody, J. Kane, H. Ulan, R. Barrett, T. Kittredge, W. McKendry, N. Lippincott, R. Stern, C. Nichols, T. Davis, J. Shestack, Z. Grayson, C. VanPoortvliet, S. Miller, and B. Klayman, Certificate of Service, Filed.
2871JUN 24 Copy of Clerk's Notice to U.S.C.A., Re: 2870 Appeal, Filed.

2872 JUN 24 -– J U N 29

Plaintiff's Response to Defendants' Motion for Reconsideration, Certificate of Service, filed.
Notice of Docketing of Appeal at Docket No. 94-1674, Filed.

2 8 73. JUN 29 Copy of tpo form, RE: 2870 Appeal, Filed. 2874JUL 5 Copy of TPO form by Commonw. of PA., RE: 2870 Appeal, Filed.

DC 111A (Rev. 1/75)
PLAINTIFF TERRI LEE HALDERMAN

CIVIL DOCKET CONTINUATION SHEET

DEFENDANT

74-1345

DOCKET NO.

PENNHURST STATE SCHOOL, ET AL.

PAGEl_5J3OF_ .PAGES

DATE
1994 2875JUL

NR.

PROCEEDINGS

Notice of Appeal by Commonwealth of Pennsylvania of Memo, and Order filed 6/2/94 directing it to pay fees and costs to the Special Master, Copies to: Hon. Raymond J. Broderick, Appeals Clerk, USCA, and all counsel of record, Certificate of Service, Fee Paid, Filed.

2876JUL 5 Copy of Clerk's Notice to USCA RE:#2875 Appeal, Filed.

— JUL 11 RECORD COMPLETE FOR PURPOSES OF APPEAL.

--JUL

15 Notice of Docketing of Appeal, RE:#2875 Appeal, Court of Appeals No. 94-1724, Filed.

28 7 7 JU 15 ORDER THAT THIS COURT'S ORDER OF 6/2/94 AWARDING FEES AND EXPENSES

TO DR. SUE GANT FOR HER SERVICES AS SPECIAL MASTER IN THIS CASE

REMAIN IN FULL FORCE AND EFFECT, FILED.

7/18/94 ENTERED AND COPIES MAILED.

2878JUL 25 MOTION TO ENFORCE 6/2/94 ORDER AND FOR CONTEMPT AGAINST COMMONWEALTH DEFENDANTS BY HALDERMAN PLAINTIFFS, ET AL., CERTIFICATE OF SERVICE, FILED.
2879JU1 25 Copy of TPO form by Commonwealth, RE: #2875 Appeal, Filed.

288OJUL 26 Notice of Appeal by Commonwealth of Pennsylvania of the Order

entered on 7/18/94 which affirmed the Order entered 6/2/94, Copies

to: Hon. Raymond J. Broderick, Appeals Clerk, U.S.C.A., and all

counsel of record, Certificate of Service, Filed.

(94-1765)

2881JUL 26 Copy of Clerk's Notice to USCA Re:#288O Appeal, Filed.

2882JUL 26 ORDER THAT DEFENDANTS, COMMONWEALTH OF PENNSYLVANIA AND COUNTY OF PHILADELPHIA, ARE HEREBY ORDERED TO APPEAR AT A HEARING TO BE HELD

ON MONDAY, 8/15/94 AT 9:30 A.M. IN COURTROOM 10B, TO SHOW CAUSE WHY

THEY SHOULD NOT BE HELD IN CONTEMPT OF THIS COURT'S ORDER OF 6/2/94

REQUIRING THEM TO PAY THE FEES AND EXPENSES OF THE SPECIAL MASTER IN

THE AMOUNT OF $122,492.03, FILED.

-– JUL 28

7/27/94 ENTERED AND COPIES MAILED. Notice of Docketing of Appeal, RE: #2880 Appeal, Court of Appeals No. 94-1765, Filed.

2883AUG

ORDER THAT THE COURT HAVING ORDERED ON 7/26/94 THAT DEFENDANTS COMMONWEALTH OF PENNSYLVANIA AND COUNTY OF PHILADELPHIA SHOULD APPEAR AT A HEARING ON MONDAY, 8/15/94 TOO SHOW CAUSE WHY THEY SHOULD NOT BE HELD IN CONTEMPT OF THIS COURT'S ORDER OF 6/2/94; THE COURT HAVING BEEN NOTIFIED THAT THE COUNTY OF PHILADELPHIA HAS COMPLIED WITH THE COURT'S 6/2 ORDER; IT IS ORDERED: THE COURT'S ORDER OF 7/26/94 IN THIS MATTER IS HEREBY AMENDED TO DELETE THE REQUIREMENT THAT THE COUNTY OF PHILADELPHIA APPEAR AT THE SHOW CAUSE HEARING ON 8/15/94; ALL OTHER PORTIONS OF THE COURT'S ORDER OF 7/26/94 SHALL REMAIN IN FULL FORCE AND EFFECT, FILED. 8 / 3 / g 4 E N T E R E D A N D C O p T E S

MAILED.

2884AUG

The Commonwealth's Memorandum of Law in Opposition to the Halderman Plaintiffs' Motion to Enforce the 6/2/94 Order and for Contempt, Certificate of Service, Filed.

DC 1UA (Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN,

CIVIL DOCKET CONTINUATION SHEET DEFENDANT

ET A L .

PENNHURST STATE SCHOOL,

ET A L .

DOCKET NO.

PAGES

DATE

NR.

PROCEEDINGS contâ.

1994
2885AUG

Copy of TPO form by Commonwealth of Pennsylvania, RE: #2880 Appeal, Filed.

2886AUG 11 ORDER RE: VOUCHER FOR FEES AND SERVICES BY OFFICE OF THE SPECIAL MASTER FOR PERIOD FROM MAY 3, 1994 THROUGH MAY 30, 1994, FILED. 8/11/94 ENTERED AND COPIES MAILED.

2887AUG

11

ORDER RE: VOUCHER FOR FEES AND SERVICES BY OFFICE OF THE SPECIAL MASTER FOR PERIOD FROM MAY 31, 1994 THROUGH JUNE 30, 1994, FILED.

8/11/94 ENTERED AND COPIES MAILED.

2888AUG 2889AUG 289OAUG
2891 SEP 2892 "

11 ORDER RE: VOUCHER FOR FEES AND SERVICES BY OFFICE OF THE SPECIAL MASTER FOR PERIOD FROM JULY 1, 1994 THROUGH JULY 30, 1994, FILED 8/11/94 ENTERED AND COPIES MAILED.
12 ORDER THAT THE MOTION TO HOLD THE COMMONWEALTH OF PENNSYLVANIA IN CONTEMPT OF THIS COURT'S ORDER OF 6/2/94 IS DISMISSED AS MOOT AND THE HEARING SCHEDULED FOR 8/15/94 IS CANCELLED, FILED. 8/12/94 ENTERED AND COPIES MAILED.
29 Certified copy of Order from the United States Court of Appeals for the Third Circuit dated 8/29/94 RE: 94-1724 and 94-1725 Appeals. In accordance with the agreement of the parties in the above entitled case, it is entered dismissed by the Clerk under the authority conferred upon him by Rule 42 (b), Federal Rules of A¾opellate Procedure, Filed.
PLFFS1 MOTION FOR ATTORNEY'S FEES AND EXPENSES FOR PERIOD 5/4/94 TO 8/16/94, FILED. Plffs1 Memorandum in Support of Motion for Attorney's Fees and Expenses for period 5/4/94 to 8/16/94, certificate of service, filed.

2893SEP

ORDER RE: VOUCHER FOR FEES AND SERVICES BY OFFICE OF THE SPECIAL MASTER FOR PERIOD FROM 8/1/94 THROUGH 8/31/94, FILED.
9/8/94 ENTERED AND COPIES MAILED.

2894SEE 22 2Š9 5 " 30

Defendants' Answer in Opposition :to¯¯Hãlderman Plaintiffs' Motion for Attorneys' Fees and Expenses for 5/4/94 to 8/16/94, Memorandum, Certificate of Service, Filed.
PLAINTIFFS' response/ re: Commonwealth defendants' opposition to fee award, certificate of service, filed.

30 PLAINTIFFS' SUPPLEMENT TO MOTION FOR ATTORNEY'S FEES FOR PERIOD OF MAY 4, 1994, K) AUGUST 16, 1994(ADDING EXPERT COSTO, CERTIFICATE OF SERVICE, FILED.

2897OCT

ORDER THAT UPON CONSIDERATION OF PLAINTIFFS' MOTION FOR AWARD OF

FEES AND EXPENSES FOR THE PERIOD 5/4/94 TO 8/16/94, IT HAVING BEEN

REPRESENTED THAT THE DELAWARE AND BUCKS COUNTY DEFENDANTS ARE NOT

OPPOSED TO THE REQUESTED AWARD, AND NO OPPOSITION HAVING BEEN FILED

BY SAID DEFENDANTS TO THE AWARD, AND THE COURT FINDING THAT THE TIME

EXPENDED IS REASONABLE AND THAT THE REQUESTED HOURLY RATE IS REASON-

ABLE, AND THAT FEES ARE AWARDABLE PURSUANT TO 42 U.S.C. 1988, IT IS

HEREBY ORDERED THAT SAID MOTION IS GRANTED AND SAID DEFENDANTS SHALL

PAY TO PLAINTIFFS' COUNSEL THE FOLLOWING AMOUNTS WITHIN THIRTY (30)

DAYS OF THE DATE OF THIS ORDER: DELAWARE COUNTY, THE AMOUNT OF

$200.00; BUCKS COUNTY, THE AMOUNT OF $88.00. IF NOT PAID, INTEREST

/94 ENT

SHALL ACCRUE ON THIS JUDGMENT AT THE FEDERAL STATUTORY RATE BEGINNINC A N D THE THIRTY-FIRST DAY AFTER THE DATE OF THIS ORDER, FILED.

r¢`<; M a T T p.n

DC 111A (Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN,

CIVIL DOCKET CONTINUATION SHEET DEFENDANT

ET AL

PENNHURST STATE SCHOOL,

DOCKET NO. 7 4 - 1 3 4 S

ET ALL PAGEl5 5OF

PAGES

DATE NR. 1994

PROCEEDINGS

2898OCT 11 ORDER RE: VOUCHER FOR FEES AND SERVICES BY OFFICE OF THE SPECIAL MASTER PERIOD FROM 9/1/94 THROUGH 9/30/94, FILED. 10/11/94 ENTERED AND COPIES MAILED 10/12/94.

2899OCT 25 2900OCT 25 2901OCT 25 29O2OCT 25 29O3NOV 29O4NOV

PLAINTIFFS' MOTION FOR SANCTIONS AGAINST DEFENDANTS FOR PROVIDING INCORRECT INFORMATION TO SPECIAL MASTER, CERTIFICATE OF SERVICE, FILED.

i
Plaintiffs' Memorandum in support of motion for sanctions against defendants for providing incorrect information to special master, Certificate of Service, Filed.

PLAINTIFFS' MOTION FOR ASSESSMENT OF FINES FOR CONTEMPT OF PARA- \

GRAPH 7 OF 3/28/94 ORDER, CERTIFICATE OF SERVICE, Filed.

I

I

Plaintiffs' Memorandum in Support of Motion for Assessment of Fines'

for Contempt of Paragraph 7 of 3/28/94 Order, Certificate of Service

Filed.

ORDER RE: VOUCHER FOR FEES AND SERVICES BY OFFICE OF THE SPECIAL i

MASTER PERIOD FROM 10/1/94 THROUGH 10/31/94, FILED.

j

11/4/94 ENTERED AND COPIES MAILED.

¦

Defendants Response to Halderman Plaintiffs' (1) Motion for Assess-

ment of Fines for Contempt of paragraph 7 of the 3/28/94 Order, and

(2) Motion for Sanctions against Defendants for providing incorrect >

information to the Special Master, Memorandum, Certificate of

Service, Filed.

,

29O5NOV 23 PLAINTIFFS' MOTION TO COMPEL ANSWERS TO INTERROGATORIES TO

I

COMMONWEALTH DEFENDANTS REGARDING HOURS AND FEES, CERTIFICATION OF

COUNSEL, CERTIFICATE OF SERVICE, FILED.

29O6NOV 23 Plaintiffs' Memorandum in Support of Motion to Compel Answers to Interrogatories to Commonwealth Defendants Regarding Hours and Fees, Certificate of Service, Filed.

29Õ7NOV 29 2908 DEC 02 29O9DEC

DEFENDANT COMMONWEALTH OF PENNSYLVANIA'S MOTION TO COMPEL ANSWERS TO THE COMMONWEALTH'S INTERROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS TO THE HALDERMAN PLAINTIFFS (SET NO .· 2 ) , MEMORANDUM, CERTIFICATE OF COUNSEL, CERTIFICATE OF SERVICE, FILED. ORDER THAT THE COURT WILL CONSIDER ALL COMMENTS ON THE "SPECIAL REPORT FROM THE SPECIAL MASTER" BY 12/14/94, FILED.
12/5/94 ENTERED AND COPIES MAILED.
Plaintiffs' Response to Commonwealth Defendants' Motion to Compel Discovery by Halderman Plaintiffs, Certificate of Service, Filed.

2910DEC 2911DEC

PLAINTIFFS' MOTION FOR ATTORNEY'S FEES AND EXPENSES FOR PERIOD 8/17/94 TO 11/27/94, CERTIFICATE OF COUNSEL, CERTIFICATE OF SERVICE, FILED.
Plaintiffs' Memorandum in Support of Motion for Attorney's Fees and Expenses for Period 8/17/94 to 11/27/94, Certificate of Service, filed.

DC 1UA (Rev. 1/75)
PLAINTIFF

CIVIL. DOCKET CONTINUATION SHEET DEFENDANT

DOCKET NO.

TERRI LEE HALDERMAN, et al. PENNHURST STATE SCHOOL, et al. PAGEL5ü¤F

74-1345 PAGES

DATE

NR.

PROCEEDINGS

1994

2912DEC 2913DEC 2914DEC

ORDER RE: VOUCHER FOR FEES AND SERVICES BY THE OFFICE OF THE SPECIAL MASTER PERIOD FROM 11/1/94 THROUGH 11/30/94, FILED.
PLAINTIFFS' AMENDED MOTION FOR FEES AND INTERIM FEES, TO CORRECT ARITHMETIC ERROR, CERTIFICATE OF SERVICE, FILED.
Commonwealth Defendants' Answer in Opposition to the Halderman Plaintiffs' Motion to Compel Answers to Interrogatories regarding hours and fees, Memorandum, Certificate of Service, Filed.

2915DEC 14 Defendant City of Philadelphia's Comments and Objections to the Special Report from the Special Master, Certificate of Service, Filed.

2916DEC 2917DEC 2918DEC

14 United States' Comments on the Special Report from the Special Master, Certificate of Service, Filed.
14 Defendant Commonwealth of Pennsylvania's Comments and Objections to the Special Report from the Special Master, Certificate of Service, Filed.
15 PLAINTIFFS'1 RENEWED MOTION': FOR ASSESSMENT OF FINES AND MOTION FOR ACCEPTANCE OF MASTER'S REPORT, CERTIFICATE OF SERVICE, FILED.

2919DEC 15 Plaintiffs' Response to Commonwealth Defendants' Opposition to Motion to Compel Answers to Interrogatories, Certificate of Service, Filed.

292ODEC 16 Defendant City of Philadelphia's Response to Plaintiff's Renewed Motion for Fines and Sanctions, Certificate of Service, Filed.

2921DEC 22 Defendants' Answer in Opposition to Halderman Plaintiffs' Motion for Attorneys' Fees and Expenses for Q/l/94 to 11/27/94, Memorandum, Certificate of Service, Filed

2922DEC 22 Commonwealth Defendants' Surreply Brief in Opposition to the Halderman Plaintiffs' Motion to Compel Answers to Interrogatories regarding hours and fees, Certificate of Service, Filed.

2923DEC 22 2924DEC 27 2925DEC 28

Reply Brief in Support of the Motion to Compel Answers to the Commonwealth's Interrogatories and Request for Production of Documents to the Halderman Plaintiffs (Set No. 2 ) , Certificate of Service, Filed.
Commonwealth Defendants' Answer in Opposition to Halderman Plaintiffs' Renewed Motion for Assessment of Fines and Motion for Acceptance of Master's Report, Objections to the Special Report from the Special Master, Certificate of Service, Filed. Response of Plaintiffs The ARC, Pennsylvania, et al. to the Special Report of the Special Master, Certificate of Service, Filed.

>926DEC 28 City of Philadelphia's Response to the comments filed by the ARC of Pennsylvania on 12/26/94 to the Special Report of the Special Master Certificate of Service, Filed.

DC 111A (Rev. 1/75)
PLAINTIFF

CIVIL DOCKET CONTINUATION SHEET
DEFENDANT

TERRI LEE HALDERMAN, et al. PENNHURST STATE SCHOOL, et al

DOCKET NO. PAGEl

74-1345
.PAGES

DATE NR.

PROCEEDINGS

1995

2927JAN 18 2928JAN 25

Plaintiffs' Comments on Status Regarding Fee Requests, Certificate of Service, Filed.
Defendants' Reply to Halderman Plaintiffs' Comments regarding fee requests, Certificate of Service, Filed.

2929JAN 293OFEB

30 ORDER RE: VOUCHER FOR FEES AND SERVICES BY OFFICE OF THE SPECIAL MASTER PERIOD FROM 12/1/94 THROUGH 12/22/94, FILEDL 1/30/95 ENTERED AND COPIES MAILED.
13 DRDER RE: VOUCHER FOR FEES AND SERVICES BY OFFICE OF THE SPECIAL FASTER PERIOD FROM 1/1/95 THROUGH 1/31/95, FILED. 2/14/95 ENTERED AND COPIES MAILED.

2931FEB 23

ORDER THAT THE COURT HAVING REVIEWED THE RECOMMENDATION OF THE SPECIAL MASTER AND HAVING FOUND THAT THE COUNTY OF PHILADELPHIA HAS PROVIDED THE SPECIAL MASTER WITH COMPELLING REASONS FOR GRANTING AN • EXTENSION OF THE REQUIREMENT TO PROVIDE COMMUNITY LIVING ARRANGEMENTS BY 3/28/95 (PARAGRAPH 2 OF THE 3/28/94 ORDER) FOR EIGHT PHILADELPHIA CLASS MEMBERS; IT IS ORDERED THAT SAID EXTENSIONS ARE GRANTED AS FOLLOWS: ACKERMAN, ELIZABETH-EXTENSION TO 5/28/95; DANIELS, MARGARET-EXTENSION TO 6/30/95; FELICIONE, ANTHONY-EXTENSION TO 6/30/95; CAMIEL, VALENTINE-EXTENSION TO 4/15/95; FRIED, PAULAEXTENSION TO 5/28/95; QUANTIUS, ADELAIDE-EXTENSION TO 5/28/95; RAIA, FRANCIS-EXTENSION TO 4/30/95, AND SYKES, MYRA-EXTENSI ON TO 4/15/95, FILED.

2/23/95 ENTERED AND COPIES MAILED.

>932FEB 23 ORDER THAT ON OR BEFORE 3/3/94, DAVID FERLEGER SHALL FILE A RESPONSE TO THE OBJECTIONS RAISED BY THE COMMONWEALTH AND PHILADELPHIA COUNTY TO THE REQUEST FOR FEES AND EXPENSES FOR THE PERIODS OF 5/4/94. TO 8/16/94 AND 8/17/94 TO 11/27/94 AND SAID RESPONSE SHALL INCLUDE AN AFFIDAVIT SETTING FORTH THE BASIS FOR HIS HOURLY RATE. IT IS FURTHER ORDERED PLAINTIFFS' MOTION FOR AN INTERIM FEE AWARD IS GRANTED, AND PLAINTIFFS' COUNSEL SHALL RECEIVE AN INTERIM AWARD OF 60 PERCENT OF THE AMOUNTS REQUESTED FROM THE COMMONWEALTH AND PHILADELPHIA COUNTY FOR THE PERIODS OF 5/4/94 TO 8/16/94 AND 8/17/94 TO 11/27/94 AS HEREINAFTER SET FORTH: 1. WITHIN THIRTY DAYS OF THE DATE OF THIS ORDER, THE COMMONWEALTH SHALL PAY PLAINTIFFS' COUNSEL, DAVID FERLEGER, AN INTERIM AWARD OF $17,223.60 (60% OF $28,706, THE TOTAL REQUEST FROM THE COMMONWEALTH) FOR THE PERIODS OF 5/4/94 TO 8/16/94 AND 8/17/94 TO 11/27/94. 2. WITHIN THIRTY DAYS OF THE DATE OF THIS ORDER, THE COUNTY OF PHILADELPHIA SHALL PAY PLAINTIFFS' COUNSEL, DAVID FERLEGER, AN INTERIM AWARD OF $15,829.20 (60% OF $26,382, THE TOTAL REQUEST FROM THE COUNTY) FOR THE PERIODS OF 5/4/94 TO 8/16/94 AND 8/17/94 TO 11/27/94, FILED.

2/23/95 ENTERED AND COPIES MAILED.

continued .

DC 111A (Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN,

CIVIL DOCKET CONTINUATION SHEET DEFENDANT

ET A L .

PENNHURST STATE SCHOOL, ET AL

DOCKET NO. 7 4 - 1 3 4 5

PAGE!58QF

PAGES

DATE

NR.

1995

PROCEEDINGS

2933MAR 2934MAR

Affidavit of David Ferleger, Esq., attorney for plaintiffs, in Response to Order of 2/23/95, Certificate of Service, Filed.
Halderman Plaintiffs' Response to Order of 2/23/95 Regarding Pending Fee Applications, Certificate of Service, Filed.

2935MAR 2936MA.R

Halderman Plaintiffs' Supplemental Authority regarding Par. 7 Compliance, Assessment of Fines, and Rtecommendations of Special Master, Certificate of Service, Filed.
HALDERMAN PLAINTIFFS' THIRD QUARTER FEE MOTION (NOVEMBER 23, 1994 TO MARCH 2, 1995) AND MOTION FOR INTERIM FEE AWARD, CERTIFICATE OF SERVICE, FILED.

2937MAR 2938MAR 13

Brief in Support of Halderman Plaintiffs' Third Quarter Fee Motion (November 23, 1994 to March 2, 1995) and Motion for Interim Fee Award, Certificate of Service, Filed.
Defendants' Response to Plaintiffs' Supplementary Authority regarding paragraph 7 compliance, Certificate of Service, filed.

2939MAR 14 294OMAR 20

ORDER RE: VOUCHER FOR FEES AND SERVICES BY OFFICE OF THE SPECIAL MASTER PERIOD FROM 2/1/95 THROUGH 2/28/95, FILED.
3/14/95 ENTERED AND COPIES MAILED. Defendants' Reply to Halderman Plaintiffs' Response to 2/23/95 Ordei regarding pending fee application, Certificate of Service, Filed.

2941MAR 23 MOTION BY THE HALDERMAN PLAINTIFFS FOR REMEDY FOR FAILURE OF DEFTS. TO PURGE CONTEMPT IDENTIFIED IN 3/28/94 OPINION AND ORDER, CERT. OF SERVICE, FILED.

2942MAR 23 Halderman Plaintiffs' Memorandum in Support of Motion for Remedy for failure of Defendants' to Address contempt identified in March 28, 1994 Opinion and Order, Certificate of Service, Filed.
2943MAR 23 ORDER THAT THE COURT HAVING REVIEWED THE RECOMMENDATION OF THE SPECIAL MASTER AND HAVING FOUND THAT THE COUNTY OF PHILADELPHIA HAS PROVIDED THE SPECIAL MASTER WITH COMPELLING REASONS FOR GRANTING AN EXTENSION OF THE REQUIREMENT TO PROVIDE COMMUNITY LIVING ARRANGEMENTS BY 3/28/95 FOR JO SUZANNE MOSKOWITZ: IT IS ORDERED THAT SAID EXTENSION FOR JO SUZANNE MOSKOWITZ IS GRANTED TO 4/30/95, FILED. 3/23/95 ENTERED AND COPIES MAILED.

2944MAR 24 2945MAR 24

HALDERMAN PLAINTIFFS' MOTION FOR CONTEMPT AGAINST COMMONWEALTH DEFTS FOR VIOLATION OF THE FINAL SETTLEMENT AGREEMENT, ORDER OF 8/28/89 AND ORDER OF 4/17/90, CERTIFICATE OF SERVICE, FILED.
Memorandum of Halderman Plaintiffs in Support of Motion for Contempt against Commonwealth Defendants for violation of the final Settlement Agreement, Order of 8/28/89 and Order of 4/17/90, Certificate of Service, Filed.
contd.

DC 111A (Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN,

CIVIL DOCKET CONTINUATION SHEET DEFENDANT

et al.

PENNHURST STATE SCHOOL,

et al

DOCKET N O 74-1345 PAGÉL 5 9 OF PAGES

DATE

NR.

PROCEEDINGS c o n t d .

1995

2946MAR 24

MOTION BY HALDERMAN PLAINTIFFS FOR CONTEMPT AGAINST BUCKS COUNTY AND COMMONWEALTH DEFENDANTS, CERTIFICATE OF SERVICE, FILED.

2947MAR 24
2948 ^ 24
2949 MAR 24

Memorandum of Halderman P l a i n t i f f s i n S u p p o r t of Motion f o r Contempt
against Bucks County and Commonwealth Defendants, Certificate of
Service, Filed.
ORDER THAT THE ESTIMATED ANNUAL BUDGET SUBl·ŒTTED EY THE SPECIALl·!ASTERTO THE COURT IN THE AÎDUNT OF $134,240.00 FOR THE PERIOD OF 5/1/95 UP THROUGH. & INCLUDING 4/1/96 I S HEREBY APPROVED; ON OR BEFORE 5/1/95 & ON OR BEFORE THE FIRST DAY OF EACH SUCCEEDING M¾TCH THEPEAFTER, UP THROUGH & INCLUDING 4/1/96 THE COM3NNEÄLTH & THE COUNTY EACH SHATL SU3<IT A SUM IN THE AMOUNT OF $7,238.13 TO THE CLEP>K, REPRESENTING THEIR SHARE OF (XIE-TWELFTH OF THE ANNUAL EUDGET OF THE SPECIAL FASTER, ETC., FILED.
3/27/95 EMTERED AND COPIES MAILED. C e r t i f i e d Copy of Order from ü.S.C.A t h a t t h e judgment of t h e D i s t r i c t Court entered 5/26/94 i s hereby remanded for modification of t h e judgment against t h e Cumironwealth by reducing i t t o $ 28,486.59; I n a i l other r e s p e c t s , t h e judgment of t h e D i s t r i c t Court i s affirmed, filed.

295OMAR 27
2951MAR 28 2952MAR 30
2953 MAÍ 31 2954APR 3 2955APR 2956APR

Defendants, Commonwealth of Pennsylvania and the City of Phila. Answer in Opposition to Halderman P l a i n t i f f s ' Third Quarter Fee Motion and Motion for Interim Fee Award, Memorandum, C e r t i f i c a t e of Service, Filed. P l a i n t i f f s ' Response on Hourly r a t e , C e r t i f i c a t e of Service, Filed.
ORDER THAT THE COMMONWEALTH DEFENDANTS' REQUEST FOR A TEN DAY EXTENSION TO COMPLETE THE 20% MONITORING AS REQUIRED BY THE COURT'S 3 / 2 8 / 9 4 CONTEMPT ORDER AND THE COURT DECREE I S GRANTED, AND THE DEFENDANTS SHALL HAVE UNTIL A/1/95 TO COMPLETE THE 20% MONITORING AS REQUIRED, E T C .
3 / 3 0 / 9 5 ENTERED AND C O P I E S MAILED.
Plffs' reply, with amended charts third quarter fee motion, certificate of service, filed. Defendants, Commonwealth of Pennsylvania and the County of Phila., Answer in Opposition to Halderman Plaintiffs' Motion for Remedy for Failure of Defendants to Purge Contempt(Abuse- Registry), Memorandum, Certificate of Service, Filed. Defendant, Commonwealth of Pennsylvania, Surreply to Plaintiff's Reply with Amended Charts (Third Quarter Fee Motion), Certificate of Service, Filed.
MOTION BY PLAINTIFFS, THE ARC, PENNSYLVANIA, ET AL. FOR CONTEMPT, MEMORANDUM, CERTIFICATE OF SERVICE, FILED.

2957APR 2958APR

Plaintiffs' Reply to Defendants' Answer to Motion for Remedy for Failure of Defendants to Purge Contempt (Abuse Registry), Cert, of Service, Filed. Commonwealth of Pennsylvania's Answer in Opposition to Halderman Plaintiffs' Motion for Contempt against Commonwealth Defendants for Violation of the Final Settlement Agreement, Order of 8/28/89 and Order of 4/17/90 (-Ehforcement Plan) , Memorandum, Certificate of Service, Filed.

DC 111A (Rev. 1/75)
PLAINTIFF

CIVIL DOCKET CONTINUATION SHEET DEFENDANT

TERRI LEE HALDERMAN, et al. PENNHURST STATE SCHOOL, e t a l

DOCKET NO. 7 4 - 1 3 4 5

PAGE1 6 0 O F

PAGES

DATE

NR.

PROCEEDINGS

1995

2959APR 1 1 296OAPR 1 1 296lAPR 12

ORDER R E : VOUCHER FOR FEES AND SERVICES BY O F F I C E OF THE SPECIAL MASTER FOR PERIOD FROM 3/1/95 THROUGH 3 / 3 1 / 9 5 , F I L E D .
4 / 1 2 / 9 5 ENTERED AND C O P I E S MAILED.
Defendants' City of Philadelphia and Commonwealth of Pennsylvania Surreply to P l a i n t i f f s ' Reply (Abuse Registry), Certificate of Service, Filed.
P l a i n t i f f s ' Reply to Commonwealth Defendants' Opposition to Motion for Contempt, Certificate of Service, Filed.

2962APR 14 2963 " 18 2964 " 18
296 5 " 24 2966MAY

ORDER THAT THE PORTION OF T H I S COURT'S ORDER OF 5 / 2 6 / 9 4 WHICH DIRECTS DEFENDANT COMMONWEALTH OF PENNSYLVANIA TO PAY F E E S AND COSTS TO THE ASSOCIATION OF RETARDED C I T I Z E N S OF PENNSYLVANIA P L A I N T I F F S ' ATTORNEYS JUDY GRAN, FRANK LASKI AND BARBARA RANSOM IN THE AMOUNT OF $ 2 2 2 , 2 3 9 . 2 5 I S AMENDED BY REDUCING THE AMOUNT OF FEES AND COSTS TO BE PAID BY DEFENDANT COMMONWEALTH OF PENNSYLVANIA TO SAID ATTORNEYS TO $ 1 8 8 , 4 8 6 . 5 9 , F I L E D .
4 / 1 4 / 9 5 ENTERED AND C O P I E S MAILED.
ORDER THAT THE COURT HAVING REVIEWED THE RECOMMENDATION OF THE SPECIAL MASTER AND HAVING FOUND THAT THE COUNTY OF PHILA. HAS PROVIDED THE SPECIAL MASTER WITH COMPELLING REASONS FOR GRANTING AN EXTENSION OF THE REQUIREMENT TO PROVIDE COMMUNITY LIVING ARRANGEMENTS 3Y 5 / 1 5 / 9 5 , S A I D EXTENSION FOR •VALENTINE CAMIEL IS GRANTED TO 5 / 1 5 / 9 5 , ETC., FILED.
4/18/95 entered and copies mailed. MEMORANDUM AND ORDER: PLFFS1 MOTION AND RENEWED MOTION FOR ASSESSMENT OF FINES FOR CONTEMPT OF PARAGRAPH 7 OF THE 3 / 2 8 / 9 4 ORDER ARE DENIED. FURTHER ORDERED: PLFFS' MOTION FOR SANCTIONS AGAINST DEFTS FOR PROVIDING INCORRECT INFORMATION TO THE SPECIAL MASTER I S DENIED; PLFF'S MOTION FOR ACCEPTANCE OF THE MASTER'S REPORT I S GRANTED; FOR THE PURPOSE OF CLARIFICATION AND IMPLEMENTATION, PARAGRAPH 7 OF THE COURT'S CONTEMPT ORDER OF 3 / 2 8 / 9 4 I S AMENDED TO BECOME EFFECTIVE ON OR BEFORE 5 / 1 5 / 9 5 AS FOLLOWS: THE COUNTY SHALL PROVIDE EVERY PHILADELPHIA CLASS MEMBER WITH A CURRENT INDIVIDUAL HABILITATION PLAN WITHIN ONE-HUNDRED TWENTY(120) DAYS FROM THE DATE OF THIS ORDER, ETC. WITHIN ONE-HUNDRED TWENTY ( 1 2 0 ) DAYS OF THE DATE OF THIS ORDER, THE SPECIAL MASTER, AFTER REVIEWING THE PLAN AND AFTER CONSULTATION WITH THE COUNTY AND THE COMMONWEALTH, SHALL SUBMIT THE QUALITY ASSURANCE PLAN TO THE COURT FOR THE COURT'S APPROVAL, FILED.
4/19/95 entered and copies mailed. Commonwealth Defendants' Answer in Opposition to ARC/PA's Motion for Contempt concerning Class Member Donna Holler, Memorandum, C e r t i f i c a t e of Service, Filed.
Joinder by Halderman P l a i n t i f f s in Motion for Contempt concerning
Class Member Donna Holler, C e r t i f i c a t e of Service, Filed.

2967MAY 2968MAY 5

COMMONWEALTH DEFENDANTS' MOTION FOR RECONSIDERATION OF THE MEMORANDUM OPINION AND ORDER DATED 4 / 1 8 / 9 5 AND ENTERED 4 / 1 9 / 9 5 ACCEPTING THE SPECIAL MASTER'S REPORT ON COMPLIANCE WITH PARAGRAPH 7 OF THE 3 / 2 8 / 9 4 ORDER, MEMORANDUM, C E R T I F I C A T E OF S E R V I C E , F I L E D .
ORDER R E : VOUCHER FOR FEES AND SERVICES BY O F F I C E OF THE S P E C I A L
MASTER FOR PERIOD FROM 4 / 1 / 9 5 THROUGH 4 / 3 0 / 9 5 , F I L E D . 5 / 8 / 9 5 ENTERED AND C O P I E S MAILED.

DC 111A (Rev. 1/75)
PLAINTIFF

CIVIL. DOCKET CONTINUATION SHEET
DEFENDANT

TERRI LEE HALDERMAN, et al.

PENNHURST STATE SCHOOL, e t a l

DOCKET NO. 7 4 - 1 3 4 5
PAGES

DATE

NR.

PROCEEDINGS

1995

2969MAY 10 Plaintiffs' Response to Commonwealth Defendants' Motion for Reconsideration, Certificate of Service, Filed.

297OMAY 11 297lMAY 17

Commonwealth Defendants' Reply to Plaintiffs' Answer to Commonwealth Defendants' Motion for Reconsideration, Certificate of Service, Filed.
ORDER THAT THE HALDERMAN PLAINTIFFS' MOTION FOR AN INTERIM FEE AWARD IS GRANTED, AND HALDERMAN PLAINTIFFS' COUNSEL, DAVID FERLEGER, SHALL RECEIVE AN INTERIM AWARD OF 60 PERCENT OF THE AMOUNTS REQUESTED FROM THE COMMONWEALTH AND PHILADELPHIA COUNTY FOR THE PERIOD OF 11/23/94 to 3/2/95 AS HEREINAFTER SET FORTH: 1. WITHIN 30 DAYS OF THE DATE OF THIS ORDER, THE COMMONWEALTH SHALL PAY HALDERMAN PLAINTIFFS' COUNSEL, DAVID FERLEGER, AN INTERIM AWARD OF $9,028.20
(60 PERCENT OF $15,047, THE TOTAL REQUEST FROM THE COMMONWEALTH) FOR THE PERIOD OF 11/23/94 TO 3/2/95; 2. WITHIN 30 DAYS OF THE DATE OF THIS ORDER, THE COUNTY OF PHILADELPHIA SHALL PAY HALDERMAN PLAINTIFFS' COUNSEL, DAVID FERLEGER, AN INTERIM AWARD OF $8,750.40 (60 PERCENT OF $14,584, THE TOTAL REQUEST FROM THE COUNTY) FOR THE PERIOD OF 11/23/94 TO 3/2/95; IT IS FURTHER ORDERED THAT IN THE EVENT PLAINTIFF/INTERVENOR ARC/PA INTENDS TO FILE A PETITION FOR ATTORNEY'S FEES AND EXPENSES FOR THE PERIOD OF 5/A/°>A TO 3/2/95, THE¡ FIRST THREE QUARTERS OF IMPLEMENTATION OF THE COURT'S 3/28/94 CONTEMPT ORDER, IT SHALL DO SO ON OR BEFORE 5/26/95. THE COMMONWEALTH AND CITY OF PHILADELPHIA SHALL RESPOND TO PLAINTIFF/ INTERVENOR ARC/PA'S REQUEST FOR ATTORNEY'S FEES AND EXPENSES ON OR BEFORE 6/7/95. IT IS FURTHER ORDERED THAT A HEARING ON THE HALDERMAN PLAINTIFFS' THREE PENDING PETITIONS FOR ATTORNEY'S FEES AND EXPENSES FROM THE COMMONWEALTH AND THE CITY OF PHILADELPHIA AND PLAINTIFF/INTERVENOR ARC/PA'S FEE REQUEST, IF ANY, IS SCHEDULED FOR 6/8/95 AT 9:30 A.M. IN COURTROOM 10-B, FILED.
5/18/95 ENTERED AND COPIES MAILED.

297 2MAY 25 HALDERMAN PLAINTIFFS'"FOURTH

FEE MOTION (3/3/95 TO 5/9/95)

AND MOTION FOR INTERIM FEE AWARD, CERTIFICATE OF SERVICE, FILED.

2973MAY 25 2974MAY 26 2975JUN

Brief of Halderman Plaintiffs in Support of Halderman Plaintiffs' Fourth Quarter Fee Motion (3/2/95 to 5/9/95), Certificate of Service Filed.
APPLICATION BY PLAINTIFFS, ARC OF PENNSYLVANIA, ET AL., FOR ATTORNEY FEES AND COSTS, AFFIDAVIT OF JUDITH A. GRAN, CERTIFICATE OF SERVICE, FILED.
ORDER THAT UPON CONSIDERATION OF PLAINTIFF`S FOUR PENDING MOTIONS FOR AWARDS OF FEES AND EXPENSES WHICH COLLECITVELY COVER THE PERIOD 5/11/94 TO 5/9/95, AND UPON THE AGREEMENT OF PLAINTIFFS AND THE CIT`· PHILADELPHIA DEFENDANTS TO RESOLVE ALL CLAIMS FOR FEES AND EXPENSES AGAINST THE CITY OF PHILADELPHIA, AND SAID PARTIES HAVING REACHED AN AGREEMENT TO COMPROMISE AND SETTLE SAID MOTIONS WHICH, AS TO THE CITY, IS PREMISED UPON THE REQUESTED HOURLY RATE FOR PLAINTIFFS' COUNSEL, DAVID FERLEGER, AND THE COURT FINDING THAT THE SETTLEMENT IS REASONABLE , AND THAT THE FEES ARE AWARDABLE PURSUANT TO 42 USC

DC 111A (Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN,

CIVIL DOCKET CONTINUATION SHEET DEFENDANT

ET A L .

PENNHURST STATE SCHOOL,

DOCKET NO. 7 4 - 1 3 4 5

ET AL, PAGE UjJ£>F

PAGES

DATE

NR.

PROCEEDINGS c o n t d .

2975JUN 8 Continued
2976JUN 2977JUN 12

1988, IT IS HEREBY ORDERED THAT SAID SETTLEMENT OF THE MOTIONS IS APPROVED WITH RESPECT TO THE CITY OF PHILADELPHIA DEFENDANTS AND SAID DEFENDANTS SHALL PAY TO PLAINTIFFS' COUNSEL $30,000 BY 7/7/95, FILED.
6/9/95 ENTERED AND COPIES MAILED.
Plaintiffs' Hearing Memorandum 6/8/95 Hearing, Certificate of Service Filed.
Commonwealth Defendants' Answer in Opposition to HaldermanPlaintiff £ Fourth Quarter Fee Motion from 3/2/95 to 5/9/95, Memorandum, Certificate of Service, Filed.

2978JUN 12 Plaintiffs' Response to Defendants' Opposition to Fourth Quarter Fee Application, Certificate of Service, Filed.

2979JUN 14
298OJUN 15 2981JUN 15
2982JUN 15
298 3 JUt 19

ORDER THAT THE COURT HAVING REVIEWED THE RECOMMENDATION OF THE SPECIAL MASTER AND HAVING FOUND THAT THE COUNTY OF PHILADELPHIA HAS PROVIDED THE SPECIAL MASTER WITH COMPELLING REASONS FOR GRANTING AN EXTENSION OF THE REQUIREMENT TO PROVIDE COMMUNITY LIVING ARRANGEMENTS 3Y 12/31/95 FOR ADELAIDE QUANTIUS: IT IS ORDERED THAT SAID EXTENSION FOR ADELAIDE QUANTIUS IS GRANTED TO 12/31/95, FILED.
6/14/95 ENTERED AND COPIES MAILED. ORDER RE: VOUCHER FOR FEES AND SERVICES BY OFFICE OF THE SPECIAL MASTER FOR PERIOD FROM 5/1/95 THROUGH 5/31/95, FILED.
6/16/95 ENTERED AND COPIES MAILED. ORDER THAT THE SPECIAL MASTER, COUNSEL FOR HALDERMAN PLAINTIFFS AND COUNSEL FOR THE CITY AND COMMONWEALTH DEFENDANTS SHALL ATTEND A CONFERENCE IN CHAMBERS ON 6/22/95 AT 12:30 P.M. AT WHICH TIME THE COURT WILL MAKE A DETERMINATION AS TO THE LENGTH OF THE EXTENSION TO COMPLY WITH THIS COURT'S ORDER OF 4/18/95, FILED.
6/16/95 ENTERED AND COPIES MAILED. Defendants' Answer in Opposition to the Application of PlaintiffIntervenors, ARC/PA, for attorneys' fees and costs from 5/4/94 to 4/30/95, Memorandum, Certificate of Service, Filed. Transcript dated 6/8/95, filed.

2984JUL

10 ORDER THAT THE COUNTY AND COMMONWEALTH DEFENDANTS' REQUEST FOR A THIRTY (30) DAY EXTENSION TO COMPLY WITH THE PORTION OF THIS COURT'S ORDER OF 4/18/95 REQUIRING THE COUNTY AND COMMONWEALTH TO SUBMIT A QUALITY ASSURANCE PLAN TO THE SPECIAL MASTER BY 6/19/95 IS GRANTED. THE COUNTY AND THE COMMONWEALTH SHALL HAVE UNTIL 7/19/95 TO SUBMIT THEIR PROPOSED QA PLAN TO THE SPECIAL MASTER. THE COURT CONSIDERS 7/19/95 TO BE THE FINAL DEADLINE, AND NO FURTHER EXTENSIONS WILL BE GRANTED. IT IS FURTHER ORDERED THAT THE. SPECIAL MASTER SHALL HAVE UNTIL 9/18/95 TO SUBMIT THE FINAL QUALITY ASSURANCE PLAN TO THE COURT FOR THE COURT'S APPROVAL. IT IS FURTHER ORDERED THAT THE PORTION OF THE COURT'S 4/18/95 ORDER WHICH READS "[W]ITHIN ONEHUNDRED TWENTY (120) DAYS OF THE DATE OF THIS ORDER, THE SPECIAL MASTER, AFTER REVIEWING THE PLAN AND AFTER FURTHER CONSULTATION WITH THE COUNTY AND THE COMMONWEALTH, SHALL SUBMIT THE QUALITY ASSURANCE PLAN TO THE COURT FOR THE COURT'S APPROVAL" IS AMENDED TO READ AS

DC 111A (Rev. 1/75)
PLAINTIFF

CIVIL DOCKET CONTINUATION SHEET DEFENDANT

TERRI LEE HALDERMAN, e t a l .

PENNHURST STATE SCHOOL, e t a l

DOCKET NO. 7 4 - 1 3 4 5

PAGEl_6_2OF

PAGES

DATE

NR.

PROCEEDINGS cont<3,

1995

2984JUL 10 cont FOLLOWS: THE SPECIAL MASTER SHALL SUBMIT THE FINAL QUALITY ASSURANCE PLAN TO THE COURT BY 9/18/95. DURING THE SIXTY DAY PERIOD FROM 7/19/95 (THE DEFENDANTS' DEADLINE FOR SUBMISSION OF THE QA- PLAN TO THE SPECIAL MASTER)TO 9/18/95 (THE SPECIAL MASTER'S DEADLINE FOR SUBMISSION OF THE QA PLAN TO THE COURT), THE SPECIAL MASTER SHALL PROVIDE PLAINTIFFS WITH THE OPPORTUNITY TO REVIEW AND COMMENT ON THE DEFENDANTS' PROPOSED QUALITY ASSURANCE PLAN, AND, ALSO DURING SAID PERIOD, THE SPECIAL MASTER SHALL PROVIDE ALL PARTIES WITH THE OPPORTUNITY TO REACH AN AGREEMENT CONCERNING THE CONTENT OF THE QUALITY ASSURANCE PLAN WHICH WILL BE SUBMITTED TO COURT ON 9/18/95, FILED. 1/11/95 ENTERED AND COPIES MAILED.
2985JUL 2 6 ORDER RE: VOUCHER FOR FEES AND SERVICES BY THE OFFICE OF THE SPECIAL MASTER FOR PERIOD FROM 6/1/95 THROUGH 6/30/95, FILED. 7/26/95 ENTERED AND COPIES MAILED.

2986JUL 27 ORDER THAT THE REVISED ANNUAL BUDGET SUBMITTED BY THE SPECIAL MASTER TO THE COURT IN THE AMOUNT OF $229,720.00 FOR THE PERIOD OF 5/1/95 UP THROUGH AND INCLUDING 4/1/96 IS HEREBY APPROVED; ON OR BEFORE 8/1/95, AND ON OR BEFORE THE FIRST DAY OF EACH SUCCEEDING MONTH THEREAFTER, UP THROUGH AND INCLUDING 4/1/96, THE COMMONWEALTH AND THE COUNTY EACH SHALL SUBMIT A SUM IN THE AMOUNT OF $9,738.13 TO THE CLERK REPRESENTING THEIR SHARE OF THE ANNUAL BUDGET OF THE SPECIAL MASTER; IN THE EVENT THAT THE COURT DETERMINES THAT THE SPECIAL MASTER'S DUTIES ARE COMPLETED AS OF 5/5/96, ANY SURPLUS FUNDS ON DEPOSIT WITH THE CLERK'S OFFICE WILL BE REFUNDED PRO RATA TO THE DEFENDANTS; HOWEVER, IF THE COURT DETERMINES AT ANY^rï¯ME THAT THE SPECIAL MASTER WILL REQUIRE SUPPLEMENTAL FUNDS, THE COURT MAY SO ORDER THE COUNTY AND COMMONWEALTH TO MAKE ADDITIONAL DEPOSITS, FILED.
7/27/95 ENTERED AND COPIES MAILED.
-ORIGINAL TO FISCAL. g987JUL 3 1 ORDER THAT THE COUNTY AND THE COMMONWEALTH SHALL HAVE UNTIL 8/4/95
TO PROVIDE A CLA TO ANTHONY FELICIONE, ETC. IT IS FURTHER ORDERED THE COUNTY AND THE COMMONWEALTH SHALL HAVE UNTIL 9/30/95 TO PROVIDE A CLA TO MARGARET DANIELS. IT IS FURTHER ORDERED, THE SPECIAL MASTER HAVING INFORMED THE COURT THAT FRANCES RAIA, CURRENTLY AT THE LYNCH GWYNNED FACILITY, SUFFERS FROM A SEVERE MEDICAL CONDITION THAT¡ REQUIRES CONSTANT MONITORING, ETC., THE COUNTY AND THE COMMONWEALTH SHALL HAVE AN EXTENSION TO PROVIDE FRANCES RAIA WITH A CLA IN COMPLIANCE WITH PARAGRAPH TWO OF THIS COURT'S 3/28/94 CONTEMPT ORDER ETC. ON 1/15/96 THE SPECIAL MASTER SHALL REPORT TO THE COURT ON MS. RAIA'S CONDITION, ETC.
8/1/95 ENTERED AND COPIES MAILED.

DC 111A (Rev. 1/75)
PLAINTIFF

TERR! LEE HALDERMAN, ET AL

DATE

NR.

CIVIL DOCKET CONTINUATION SHEET
DEFENDANT
PENNHURST STATE SCHOOL, ET AL
PROCEEDINGS

RJB
DOCKET NO.
PAGE!W OF_

74-1345
.PAGES

1995 !988 AUG 0 3

ORDER THAT ON OR BEFORE 9 / 1 / 9 5 , THE COMMONWEALTH AND THE COUNTY SHALL EACH SUBMIT THE SUM OF $ 2 , 5 0 0 TO THE C L E R K , R E P R E S E N T I N G T H E I R SHARE OF THE A D D I T I O N A L MONTHLY D E P O S I T GRANTED THE S P E C I A L MASTER FORTHE MONTH OF AUGUST 1 9 9 5 , ETC, FILED.
8 / 3 / 9 5 ENTERED & COPIES MAILED.

2 989 " 2990
2991 "
2992 " 2993 " 2994 "
2 99 5 "
2996 "

16 17
17
21 21 23
25
30

ORDER R E : VOCHER FOR F E E S AND S E R V I C E S BY O F F I C E OF THE S P E C I A L

MASTER FROM 1/1/95

THROUGH 7 / 3 1 / 9 5 , F I L E D .

8 / 1 7 / 9 5 ENTERED & COPIES MAILED.

MEMORANDUM AND ORDER THAT COUNSEL FOR HALDERMAN PLFFS, DAVID FERLEGER, I S

AWARDED FEES AND EXPENSES FROM DEFT COMMONWEALTH OF PA FOR THE PERIOD OF

MAY 4 , 1 9 9 4 TO MAY 9 , 1 9 9 5 IN THE AMOUNT OF $ 5 5 , 0 0 8 . 8 0 , E T C . ; FURTHER ORDERED

THAT THE FOLLOWING MOTIONS ARE DISMISSED AS MOOT: P L F F ' S MOTION TO COMPETE

ANSWERS TO INTERROGATORIES TO COMMONWEALTH DEFTS REGARDING HOURS AND FEES; AND

DEFT'S MOTION TO COMPEL ANSWERS TC-THE COMMONWEALTH'S INTERROGATORIES AND

REQUEST FOR PRODUCTION OF DOCUMENTS TO THE HALDERMAN PLFFS, FILED.

8/18/95 entered & copies mailed

ORDER THAT WTTHIN 30 DAYS, BUCKS OOUNTY SHALL PAY TO HALDERMAN PLFFS COUNSEL, DAVID FERLEGER, A FEE AWARD IN THE AMOUNT OF $ 5 7 6 . 0 0 FOR THE PERIOD OF 8 / 1 7 / 9 4 TO 5 / 9 / 9 5 ; WITHIN 30 DÏAS, DELAWARE COUNTY SHALL PAY TO HALDERMAN PLFFS COUNSEL A FEE AWARD IN THE AMOUNT OF $ 1 , 7 2 6 . 0 0 FOR THE PERIOD OF 8 / 1 7 / 9 4 TO 5 / 9 / 9 5 ; HALDERMAN PLFFS REQUEST FOR FEES FOR THE PERIOD OF 5 / 4 / 9 4 TO 8 / 1 6 / 9 4 FROM BUCKS COUNTY IN THE AMOUNT OF $ 8 8 . 0 0 FROM DELAWARE COUNTY IN THE AMOUNT OF $ 2 0 0 . 0 0 I S MARKED WITHDRAWN, FILED.
8/18/95 entered &copies mailed PLFFS1 MOTION TO ADOPT SPECIAL MASTER'S SPECIAL REPORT AND RECOMMENDATIONS REGARDING MARGO WATT, CERT. OF SERVICE, FILED. HALDERMAN PLFFS1 FIFTH QUARTER FEE MOTION AND MOTION FOR INTERIM FEE AWARD, CERT. OF SERVICE, FILED.

ORDER THAT THE EXTENSION REQUEST FOR THE PROVISION OF COMMUNITY SERVICES FOR ANTHONY FELICIONE BE GRANTED UNTIL 9/30/95. DURING THE EXTENSION PERIOD, THE COUNTY OF PHILADELPHIA WILL DEVELOP A PLAN FOR MR. FELICIONE'S TRANSITION TO A COMMUNITY LIVING ARRANGEMENT AND PROVIDE SUCH PLAN TO THE SPECIAL MASTER, FILED.
8/23/95 ENTERED S COPIES MAILED.
Comments and objections by defendant City of Philadelphi to the special report from the special master regarding Margo Watt and answer in opposition to plaintiffs1 motion to adopt the special master's report, Memorandum, Certiificate of Service, filed. ORDER THAT A HEARING ON THE PETITION OF PLAINTIFFS THE ARC OF PENNSYLVANIA FOR ATTORNEYS' FESS AND EXPENSES FROM THE COMMONWEALTH OF PENNSYLVANIA AND THE COUNTY OF PHILADELPHIA FOR THE PERIOD OF 5/4/94 to 4/30/95 WILL HE HELD ON 9/13/95 AT 9:30 A.M. IN COURTROOM 10-B OF THIS UNITED STATES
COURTHOUSE, 601 MARKET STREET, PHILADELPHIA, PENNSYLVANIA, FILED. 8/31/95 ENTERED & COPIES MAILED.

DC 111A (Rev. 1/75)
PLAINTIFF

TERRI LEE HAL·DEKMAN, ET AL

DATE

NR.

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
PENNHURST STATE SCHCX)L, ET AL
PROCEEDINGS

RJB

74-1345

DOCKET NO. PAGE OF.

.PAGES

1995 2997SEP1 01

2 998

05

2 999

12

3 0 00 " 13

3001

21

3 00 2 " 21
3 0 03 " 21 Ì004 OCT 05

Answer by Commonwealth defendants in opposition to plaintiffs' motion to adopt Special Master's special report and recommendation; regarding Margo Watt, Memorandum, Certiifcate of Service, filed.
Answer by Commonwealth defendants in opposition to the Halderman plaintiffs' fifth quarter fee motion, Memorandum, Certificate of Service, filed.
ORDER RE: VOUCHER FOR FEES AND SERVICES FROM OFFICE OF THE SPECIAL MASTER FROM 8/1/95 THROUGH 8/31/95, FILED.
9/12/95 ENTERED S COPIES MAILED. ORDER THAT THE PETITION OF PLAINTIFFS THE ARC, PENNSYLVANIA FOR ATTORNEYS' FEES AND EXPENSES FOR THE PERIOD OF 5/4/94 to 4/30/95 IS DISMISSED AS MOOT, FILED.
9/14/95 ENTERED & COPIES MAILED. ORDER THAT WITHIN 30 DAYS OF THE DATE OF THIS ORDER, DELAWARE COUNTY SHALL PAY TO COUNSEL FOR PLAINTIFFS THE ARC, PENNSYLVANIA, ET AL., THE PUBLIC INTEREST LAW CENTER OF PHILADELPHIA ("PILCOP"; A FEE AWARD IN THE AMOUNT OF $1880.00 FOR THE PERIOD OF 5/4/94 TO 4/30/95, FILED.
9/22/95 ENTERED & COPIES MAILED. ORDER THAT WITHIN 30 DAYS OF THE DATE OF THIS ORDER, BUCKS COUNTY SHALL PAY TO HALDERMAN PLAINTIFFS' COUNSEL, DAVID FERLEGER, A FEE AWARD IN THE AMOUNT OF $100.00 FOR A PERIOD OF 5/15/95 TO 8/14/95, ETC., FILED.
9/22/95 ENTERED & COPIES MAILED.
ORDER THAT HALDERMAN PLAINTIFFS' FIFTH QUARTER FEE MOTION (5/15/9 TO 8/14/95) IS DISMISSED AS MOOT, FILED.
9/22/95 ENTERED & COPIES MAILED.
ORDER THAT THE COUNTY AND THE COMMONWEALTH SHALL HífVE UNTIL3/28/96 TO PROVIDE A CLA TO MARGARE DANIELS. DURING THE EXTENSION PERIOD, THE COUNTY OF PHILADELPHIA SHALL DEVELOP A PLAN FOR MS. DANIELS' TRANSITION TO THE COMMUNITY AND SUBMIT THE PLAN TO THE SPECIAL MASTER. THE COUNTY SHALL SUBMIT TWO (2) STATUS REPORTS TO THE SPECIAL MASTER SPECIFYING PROGRESS AND CONCERNS REGARDING THE TRANSITION PROCESS. THE COUNTY SHALL SUBMIT THE FIRST STATUS REPORT TO THE SPECIAL MASTER BY 11/30/95 AND THE SECOND STATUS REPORT BY 1/31/96, FILED.
10/6/95 ENTERED & COPIES MAILED.

3005 " 3006

13 AGREEMENTTORADOPTION OF PHILADELPHIA QUALITY ASSURANCE PLAN, FILED. 13 MEMORANDUM AND ORDER THAT TIE PHILA., QUALITY ASSURANCE PLAN SATISFIES THE
REQUIREMENTS OF THE COURT'S 4/18/95 ORDER AND IS APPROVED; THE AGREEÎ1ENT FOR ADOPTION OF THE PHILA., QUALITY ASSURANCE PLAN IA ACCEPTED, FILED.
10/16/95 entered and conies mailed.

DC 111A (Rev. 1/75)
PLAINTIFF
TERKI LEE HALDERMAN, ET AL

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
FENNHURST STATE SCHOOL, ET AL

RJB

74-1345

DOCKET NO. H 1 - J 4 J

PAGE O F

.PAGES

DATE

NR.

PROCEEDINGS

1995 !OO7 OCT¡ 16 5008 NOV! 01 :¡OO9 " 02
3 010 " 07
3012DEC 07

ORDER RE: VOCHER FOR FEES AND SERVICES BY OFFICE OF THE SPECIAL MASTER FROM 9/1/95 THROUGH 9/30/95, FILED.
10/17/95 ENTERED & COPIES MAILED.
ORDER THAT THE COUNTY AND THE COMMONWEALTH SHALL HAVE UNTIL 7/31/96 TO PROVIDE A CLA TO/'ANTHONY FEKICIONE. DURING THE EXTENSION PERIOD, THE COUNTY OF PHILADELPHIA SHALL DEVELOP A PLAN FOR MR. FELICIONE'S TRANSITION TO THE COMMUNITY AND SUBMIT THE PLAN TO THE SPECIAL MASTER, FILED.
11/2/95 ENTERED & COPIES MAILED.
STIPULATION AND ORDER THAT THE COMMONWEALTH DEFENDANTS WILL PROVIDE FUNDING, IN ADDITION TO FUNDING FOR PRESENT PROGRAMS, FOR THE APPROPRIATE COMMUNITY PLACEMENT OF THE SEVEN BUCKS COUNTY CLIENTS PRESENTLY BEING SERVED AT WOODHAVEN AS HAS BEEN AGREED WITH THE BUCKS COUNTY DEFENDANTS, ETC. THE HALDERMAN PLAINTIFFS' MOTION FOR CONTEMPT IDENTIFIED IN PARAGRPAH 1 SHALL BE MARKED "MOOT" IN LIGHT OF THIS STIPULATION, ETC.
11/2/95 ENTERED & COPIES MAILED.
ORDER RE: VOCHER FOR FEES AND SERVICES BY OFFICE OF THE SPECIAL MASTER FROM 10/1/95 THROUGH 10/31/95, FILED.
11/7/95 ENTERED S COPIES MAILED.
ORDER THAT THE COUNTY SHALL HAVE UNTIL 2/29/96 TO SUBMIT THE MEDICAL AND DENTAL PLAN REQUIRED BY PARAGRAPH 12 OF THIS COURT'S 3/28/94 CONTEMPT ORDER, FILED.
11/8/95 ENTERED & COPIES MAILED. ORDER RE: VOCHER FOR FEES AND SERVIES BY OFFICE OF THE SPECIAL MASTER FROM 11/1/95 THROUGH 11/30/95, FILED.
12/7/95 ENTERED & COPIES MAILED.

3013 " 14

014

19

1996 015 JAN 03

Notice by plaintiffs of lodestar, fees and expenses for time period 8/14/95 to 11/6/95, Certificate of Service, filed.
ORDER THAT THE COUNTY AND THE COMMONWEALTH SHALL HAVE UNTIL 3/28/96 TO PROVIDE A CLA TO ADELAIDE QUANTIUS. THE COUNTY SHALL SUBMIT TO THE SPECIAL MASTER A STATUS REPORT DETAILING THE PROGRESS AND/OR CONCERNS REGARDING THE PROVISION OF A CLA TO MS. QUANTIUS BY 2/29/96, FILED.
12/20/95 ENTERED & COPIES MAILED.
ORDER THAT PARAGRAPH 14 OF THE COURT'S 3/28/94 CONTEMPT ORDER IS AMENDED TO READ AS FOLLOWS: IN APRIL OF 1996, THE COUNTY SHALL COMMENCE SUBMITTING QUARTERLY STATUS REPORTS TO THE COMMONWEALTH DETAILING THE COUNTY'S COMPLIANCE WITH ALL TERMS OF THE COURT DECREE AND THIS ORDER. IN ADDITION, IN APRIL OF 1996, THE COMMONWEALTH AND COUNTY EACH SHALL COMMENCE SUBMITTING QUARTERLY REPORTS TO THE SPECIAL MASTER DETAILING THEIR COMPLIANCE WITH THE TERMS OF THE COURT DECREE AND THIS ORDER. ALL REPORTS SHALL BE IN A FORM AND PURSUANT TO A SCHEDULE ACCEPTABLE TO THE SPECIAL MASTER. FURTHER ORDERED THAT PARAGRAPH 2 OF THE COURT'S 5/12/94
(CONT')

DC 111A (Rev. 1/75)
PLAINTIFF

CIVIL DOCKET CONTINUATION SHEET
DEFENDANT

DOCKET NO. 74-1345

TERRI LEE HALDERMAN, ET AL

PENNHURST STATE SCHOOL, ET AL

PAGE

OF

. PAGES

DATE

NR.

PROCEEDINGS

1996 3015JAN 03

ORDER OF REFERENCE IS AMENDED TO READ AS FOLLOWS: THE SPECIAL MASTER SHALL HAVE THE POWER TO SUPERVISE AND MONITOR IMPLEMENTATION OF AND COMPLIANCE WITH THE 1994 COURT DECREE: BEGINNING IN APRIL OF 1996, THE SPECIAL MASTER SHALL FILE WITH THIS COURT, WITH A COPY TO ALL PARTIES, QUARTERLY REPORTS ADDRESSING SUCH COMPLIANCE, FILED.
1/4/95 ENTERED & COPIES MAILED.

Ì016

23

ORDER THAT THE COUNTY AND THE COMMONWEALTH SHALL HAVE AN EXTENSION

UNTIL FURTHER ORDER OF THIS COURT TO PROVIDE FRANCES RAIA WITH A

CLA IN COMPLIANCE WITH PARAGRAPH 2 OF THIS COURT'S 3/28/94 ORDER.

FOR THE FURATION OF THIS EXTENSION, MS. RAIA SHALL CONTINUE TO

RESIDE AT THE LY!!CH GWYNNED FACILITY, AND THE SPECIAL MASTER

SHALL MONITOR HER CONDITION REGULARLY, ON 1/15/97, THE SP~^i;.l

MASTER SHALL REPORT TO THE COURT ON THE STATUS OF MS. RAID'S

MEDICAL CONDITION, ETC., FILED.

1/24/96 ENTERED & COPIES MAILED.

017 FE3 01

ORDER RE: VOCHER FOR FEES AND SERVICES BY OFFICE OF THE SPECIAL MASTER FROM 12/1/95 THROUGH 12/31/95, FILED.
2/1/96 ENTERED & COPIES MAILED.

018 FEB 05

ORDER RE: VOCHER FOR FEES AND SERVICES BY OFFICE OF THE SPECIAL MASTER FROM 1/1/96 THROUGH 1/31/96, FILED.
2/5/96 ENTERED & COPIES MAILED.

JO19 FEB 13 Praecipe to withdraw Corrrnonwealth Defts' motion for reconsideration of the memorandum opinion and order dated 4/18/95, etc., Cert, of Service, filed.

020 021 MAR

7 ORDEP. RE: VOUCHER FOR FEES AND SERVICES BY OFFICE OF THE SPECIAL MASTER FROM 2/1/96 THROUGH 2/29/96, FILED. 3/8/96 ENTERED
26 PLFFS1 MOTION FOR PRELIMINARY INJUNCTION AND MEMORANDUM, CERTIFICATE OF SERVICE,
FILED.

022 APR 03 Notice by plffs of lodestar, fees and expenses for tune period of 11/6/96 to 2/19/96, Cert, of Service, filed.

ÌO23 "

ORDER RE: VOUCHER FOR FEES AND SERVICES BY OFFICE OF THE SPECIAL MASTER FROM

3/1/96 THROUGH 3/31/96, FILED.

4/4/96 ENTERED

3024 " 9 ORDER THAT THE COUNTY AND THE COMM)NWEALTH SHALL HAVE UNTIL 9/30/96 TO PROVIDE

A CLA TO MARGARET DANIELS, FILED.

4/10/96 ENTERED AND COPIES MAILED.

3025 " 9 ORDER THAT THE COUNTY SHALL HAVE UNTIL 6/28/96 TO COMPLETE THE INDEPENDENT

PHYSICIAN REVIEW REQUIRED BY PARAGRAPH 8 OF THIS COURT'S 3/28/94 CONTEMPT ORDER,

FILED.

4/10/96 ENTERED At© COPIES MAILED.

3026 "

ORDER THAT THE COMMONWEALTH SHALL HAVE UNTIL 8/30/96 TO COMPLETE THE TWENTY

PERCENT MONITORING REQUIRED BY PARAGRAPH 10 OF THIS COURT'S 3/28/94 CONTEMPT

ORDER, FILED.

4/10/96 ENTERED AND COPIES MAILED.

(CONTINUED)

DC 1UA (Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN, ET AL

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
PENNHURST STATE SŒOOL, ET AL

DOCKET NO.

PAGES

DATE

NR.

PROCEEDINGS

3027 APE[ 3028 " 3029 " 3030 "
3031
3032 " 3033 11 3034 II 3035 I f 3036 f I 3037 MAS 3038 ii 3039 ii 3040 11 3041 II 3042 II 3043 ii

9 ORDER THAT THE COUNTY AND THE COMMONWEALTH SHALL HAVE UNTIL 4/30/96 TO PROVIDE A CLA TO ADELAIDE QUANTIUS, FILED.
4/10/96 ENTERED AND COPIES MAILED. 10 Commonwealth Defts' answer in opposition to Halderman Plf£s1 notion for a
preliminary injunction regarding DNR Orders, Memo, Cert, of Service, filed.

11 PLFFS' MOTION TO ADOPT SPECIAL MASTER REPORT AND MEMORANDUM, CERT. OF SERVICE, FILED. -
11 ORDER THAT THE ESTIMATED ANNUAL BUDGET SUBMITTED BY THE SPECIAL MASTER TO THE COURT IN THE AMOUNT OF $223,320.00 FOR THE PERIOD OF 5/1/96 UP THROUGH & INCLUDING 4/1/97 IS HEREBY APPROVED: ON OR BEFORE 5/1/96 & ON OR BEFORE THE FIRST DAY OF EACH SUCCEEDING MONTH THEREAFTER, UP THROUGH & INCLUDING 4/1/97, THE COMMONWEALTH & THE COUNTY EACH SHALL SUBMIT A SUM IN THE AMOUNT OF $9,305.00 TO THE CLERK, REPRESENTING THEIR SHARE OF ONE-TWELFTH OF THE ANNUAL BUDGET OF THE SPECIAL MASTER; IT IS FURTHER ORDERED THAT TO THE EXTENT NOT SUPERSEDED BY THIS ORDER, THIS COURT'S ORDER OF 5/12/94 SHALL REMAIN IN FULL FORCE AND EFFECT, FILED. 4/11/96 ENTERED AND COPIES MAILED.
11 ORDER THAT THE COURT WILL CONSIDER ALL COMMENTS ON THE "REPORT TO THE COURT BY THE SPECIAL MASTER ON THE PROVISION OF MINIMALLY ADEQUATE HABILITATION TO PHILADELPHIA CLASS MEMBERS" FILED WITH TECS COURT ON OR BEFORE 5/1/96, FILED.
4/11/96 ENTERED AND COPIES MAILED.

11 Report to the Court by the Special Master on the Provision of Minimally Adequate Hábilitation to Philadelphia Class Members, dated 2/13/96, filed.
11 City of Philadelphia's response in opposition to plffs' motion for a preliminary injunction, Memo, Cert, of Service, filed.
24 Phila. County Defts1 answer to the Halderman plffs' motion to adopt the Special Master's Report on the provision of nànimally adequate hábilitation to
Philadelphia Class Mer±>ers, Memo, Cert, of Service, filed, 25 united States' comments regarding Special Master Report on the provision of
minimally adequate hábilitation, Cert, of Service, filed.
30 Plffs' response to 4/11/96 order on Special Report by Special Master, Cert, of Service, filed.

8 ORDER RE: VOUCHER FOR FEES AND SERVICES BY OFFICE OF THE SPECIAL MASTER FROM 4/1/96 THROUGH 4/30/96, FILED.
5/8/96 ENTERED AND COPIES MAILED.
9 Defts' reply to the Halderman plffs' response to the 4/11/96 order on the Special Report by the Special Master, Cert, of Service, filed.
10 Plffs' corrected supplement to eighth quarter motion for fees and expenses, Cert, of Service, filed.
13 Plffs1 supplement to eighth quarter motion for fees and expenses, Cert, of

Service, filed. 13 HALDERMAN PLFFS' 8TH QUARTER FEE MOTION (2/19/96 TO 5/1/96), CERT. OF SERVICE,

16

FILED. Plffs1 response to defts' reply regarding 4/11/96 order and Special Master

16

Hábilitation Report, Cert, of Service, filed. ORDER THAT THE MOTION OF PLFFS, THE ARC, PENNSYLVANIA FOR CONTEMPT IS

DISMISSED AS MOOT, FILED.

5/17/96 ENTERED AND COPIES MAILED.

(OVER)

DC 111A (Rev. 1/75)
PLAINTIFF

CIVIL DOCKET CONTINUATION SHEET
DEFENDANT

:KET NO. 74-1345

TERRI LEE HALDERMÄN, ET AL

PENNHURST STATE SCHOOL, ET AL

PAGE OF PAGES

DATE NR.

PROCEEDINGS

3044 MAY 3045 " 3046 " 3047 "
3048 JUtø
3049 " 3059 " 3060 " 3061 " 3062 JUL 3063 "
3064 "
3065 "
3066 " 3067 AUC 3068 " 3069 " 3070 "

20 Exhibit A to plffs1 response to defts' reply regarding 4/11/96 order and Special Master Habilitation Report, Cert, of Service, filed.
28 County Defts' Answer in opposition to the Halderman Plffs' eighth quarter fee motion as supplemented and corrected, Memo, Cert, of Service, filed.
28 Conmonwealth Defts1 Answer in opposition to the Halderman Plffs' eighth quarter fee motion as supplemented and corrected, Memo, Cert, of Service, filed.
30 COMK)NWEALTH DEFTS' MOTION TO COMPEL PLFF/INTERVENOR ARC/PA TO FILE PERIODIC RDQUESTS FOR ATTORNEYS' FEES AND EXPENSES, MEMO, CERT. OF SERVICE, FILED.
4 Halderman Plffs' response to defts1 opposition to 8th quarterly fee request,
Cert, of Service, filed.
5 Affidavit of Jill Spector, Cert, of Service, filed. 5 ORDER RE: VOUCHER FOR FEES AND SERVICES BY OFFICE OF THE SPECIAL MASTER FROM
5/1/96 THROUGH 5/30/96, FILED. 6/6/96 ENTERED AND COPIES MATT .ED,
25 Plffs1 supplement regarding pending fee request, Cert, of Service, filed. 27 Commonwealth Defts' Reply to Halderman Plffs' supplement regarding pending fee
request, Cert, of Service, filed.
ORDER RE: VOUCHER FOR FEES AND SERVICES BY OFFICE OF THE SPECIAL MASTER FROM 6/1/96 THROUGH 6/30/96, FILED.
7/8/96 ENTERED AND COPIES MAILED. 11 OPDER THAT COUNSEL FOR HALDERMAN PLFFS & COUNSEL FOR THE COMmNWEALTH OF PA SHAIJ
ON 1/221% AT 12:30 P.M. ATTEND A CONFERENCE IN CHAMBERS FOR THE PURPOSE OF DISCUSSING SETTLEMENT OF THIS FEE DISPUTE, FILED.
7712/96 ENTERED AND COPIES MAILED. 11 ORDER THAT THE COUNTY & CCMCNWEALTH DEFTS SHALL, UNDER THE DIRECTION OF THE
SPECIAL MASTER, CONTINUE THE PROCESS OF VOLUNTARILY IMPLEMENTING ALL THE RECŒ·IMENDATIONS CONTAINED IN THE SPECIAL MASTER'S REPORT. IT IS FURTHER ORDERED THAT THE SPECIAL MASTER SHALL ON OR BEFORE 11/15/96 REPORT TO THE COURT ON THE PROGRESS ACHIEVED BY THE COUNTY & THE COMMDNWEALTH TOWARD FULL MPIEMENTATION OF ALL THE RECOl·MENDATIONS CONTAINED IN THE SPECIAL MASTER'S REPORT, FILED.
7/12/96 ENTERED AND COPIES MAILED. 15 ORDER THAT THE COUNTY OF PHILA. & THE CŒ^røNWEALTH OF PA HAVING COMPLIED WITH
THE RECOMMENDATION SET FORTH IN THE SPECIAL MASTER'S REPORT, SAID REPORT IS ACCEPTED BY THE COURT, FILED.
7/16/96 ENTERED AND COPIES MAILED.
23 ORDER THAT HALDERMAN PLFFS1 EIGHTH QUARTER FEE MOTION AS SUPPLEMENTED AND CORRECTED IS DISMISSED AS MOOT, FILED,
7/24/96 ENTERED AND COPIES MAILED.
5 ORDER RE: VOUCHER FOR FEES AND SERVICES BY OFFICE OF THE SPECIAL MASTER FROM
7/1/96 THROUGH 7/31/96, FILED.
8/6/96 ENTERED AND COPIES MAILED.
HALDERMAN PLFFS' 9TH QUARTER FEE MOTION (5/2/96 TO 7/18/96), CERT. OF SERVICE, FILED. CORRECTED HALDERMAN PLFFS1 9TH QUARTER FEE MOTION (5/2/96 TO 7/18/96) CERT OF SERVICE, FILED. 14 Conmonwealth Defts' answer in opposition to the Halderman Plffs' ninth quarter fee motion as corrected, Memo, Cert, of Service, filed.

DC 111A (Rev. 1/75)
PLAINTIFF
TERRI LEE HALDEPMAN, ET AL

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
PENNHURST STATE SCHOOL, ET AL

DOCKET NO. 7 4 - 1 3 4 5 PAGES

DATE
1996
3081 " 3082 " 3083 "
3090 "

NR.

PROCEEDINGS

PHila., defts answer in opposition to the Halderman plffs1 ninth quarter fee
motion as corrected, memo, certificate of service, filed.
-Plffs' response to Philadelphia Defts' objections to fee award, Cert, of
Service, filed. Plffs1 response to Commonwealth Defts' objections to fee award, Cert, of
Service, filed. Philadelphia Defts reply to plffs1 response to Philadelphia Defts' objections

to fee award, Cert, of Service, filed.

Application by Plffs The Arc, Pennsylvania, et al, for attorneys' fees and

costs, Cert, of Service, filed.

ORDER THAT THE COUNTY & THE COMMONWEALTH SHALL H A W UNTIL 12/31/96 TO PROVIDE

•¯£ CIA TO ANTHONY FELICIONI; IT IS FURTHER ORDERED THAT THE COUNTY & THE

COMMONWEALTH DEFTS SHALL SUBMIT A DETAILED TRANSITION PLAN DEVELOPED BY

MR. FELICIONI'S INDIVIDUAL PLANNING TEAM TO THE SPECIAL MASTER FOR HIS REVIEW

BY 10/31/96, ETC,, FILED,

8/30/96 ENTERED AND COPIES MAILED.

PLFFS1 MOTION TO STRIKE PHILADELPHIA DEFTS1 REPLY TO PLFFS' RESPONSE TO

PHILADELPHIA DEFTS' OJBECTIONS TO FEE AWARD, CERTIFICATE OF SERVICE, FILED.

ORDER RE: VOUCHER FOR FEES AND SERVICES BY OFFICE OF THE SPECIAL MASTER FROM

8/1/96 THROUGH 8/30/96, FILED.

9/12/96 ENTERED AND COPIES MAILED.

Plffs' Notice of partial settlement of 9th Quarter Fee Motion, Cert, of Service, filed. STIPULATION AND ORDER THAT THE TIME WITHIN WHICH THE CCMMONW£ALTK LEFTS MUST FILE AN ANSWER TO ARC/PA'S APPLICATION FOR ATTORNEYS' FEES & COSTS ±5 HEREBY EXTENDED FOR A PERIOD OF 30 DAYS UNTIL 10/16/96, FILED.
9/19/96 ENTERED AND COPIES MAILED.
19 PLFFS' MOTION TO ENFORCE QUALITY ASSURANCE PLAN ACTIVITY 17.a (MANAGEMENT OF
OAPLAN), CERT. OF SERVICE, FILED.
HALDERMAN PLFFS 10TH FEE MOTION (7/19/96 TO 9/18/96), CERT. OF SERVICE, FILED. PLFFS' MOTION FOR SHOW CAUSE ORDER FOR CONTEMPT REGARDING SYSTEMIC ISSUES RELATED TO CLASS MEMBER MARY MCCARTHY, CERT. OF SERVICE, FILED.
DEFT CITY OF PHILA.' S MOTION TO DISMISS APPLICATION TO THE SPECIAL MASTER

RE: QUALITY ASSURANCE PLAN ACTIVITY 17.a, CERT. OF SERVICE, FILED.
PLFFS' MOTION FOR SHOW CAUSE ORDER FOR CONTEMPT REGARDING SYSTEMIC ISSUES RELATED TO CLASS MEMBER KIM WADDELL, CERT. OF SERVICE, FILED.

DEFT CITY OF PHILA.' S AMENDED MOTION TO DISMISS APPLICATION TO THE SPECIAL MASTER RE: QUALITY ASSURANCE PLAN ACTIVITY 17.A, CERT. OF SERVICE, FILED. Phila. Defts' answer in opposition to the Halderman Plffs' Tenth Quarter Fee Motion as corrected, Memo, Cert, of Service, filed.

Plffs' response to Phila. Defts' motion to dismiss application to the Special Master Re: Quality Assurance Plan Activity 17a, Cert, of Service, filed. PLFFS' MOTION FOR SHOW CAUSE ORDER FOR CONTEMPT REGARDING SYSTEMIC ISSUES RELATED TO CLASS MEMBER MICHAEL WALSHOCK, CERT. OF SERVICE, FILED. C¡oiT!ronwealth Defts1 answer in opposition to the Halderman Plffs1 Tenth Quarter Fee Motion (7/19/96 to 9/18/96), Memo, Cert, of Service, filed.

CONTINUED

DC 111A (Rev. 1/75)
PLAINTIFF

TERRI HALDERMAN, ET AL

DATE

NR.

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
PENNHURST STATE SCHOOL, ET AL
PROCEEDINGS

;ET NO. 74-1345

PAGE

OF_

PAGES

3091 OCT 3092 " 3093 "
3094 11 3095 îl 3096 11 3097 lî 3098 11 3099 11 3100 T 1 3101 t 1
3102 " 3103 " 3104
3105 3106 "

4 ORDER RE: VOUCHER FOR FEES AMD SERVICES BY OFFICE OF TIE SPECIAL MASTER FROM 9/1/96 THROUGH 9/30/96, FILED. 10/7/96 ENTERED AND COPIES MAILED.
7 Plffs1 response to Phila. Defts' opposition to 10th Fee Motion, Cert, of Service, filed.
15 STTPULATION AND ORDER THAT THE TIME WITHIN WHICH DEFTS MUST RESPOND TO HALDERMAN PLFFS1 MDTION FOR SHOW CAUSE ORDER FOR CONTEMPT RELATED TO CLASS MEMBER MARY MCCARTHY & HALDEKMAN PLFFS' M3TTON FOR SHOW CAUSE FOR CONTEMPT RELATED TO CLASS MEMBER KEM WADDELL IS HEREBY EXTENDED UNTIL 10/18/96, FILED. 10/16/96 ENTERED AND COPIES MAILED.
16 Halderman Plffs' supplemental brief in support of motion to strike, Cert, of Service, filed.
16 Comnonwealth Defts' Answer in opposition to the application of ARC/PA for attorneys' fees and costs (4/30/95 to 8/16/96), Memo, Cert, of Service, filed.
18 Defts' Answer in opposition to the Halderman Plffs' motion for a show cause order for contempt regarding systemic issues related to class member Michael Walshock, Cert, of Service, filed.
18 Defts1 Answer in opposition to the Halderman Plffs1 motion for a show cause order for contempt regarding systemic issues related to clasa member Kim Waddell, Cert, of Service, filed.
18 Defts' Answer in opposition to the Halderman Plffs' motion for a show cause order for contempt regarding systemic issues related to class member Mary McCarthy, Cert, of Service, filed,
21 Defts1 supplemental authority in opposition to plffs fee request, Cert, of Service, filed.
23 Plffs' reply to defts' answers to motions for orders to show cause regarding Mary McCarthy, Kim Waddell & Michael Walshock, Cert, of Service, filed.
24 ORDER THAT THE SPECIAL MASTER SHALL ISSUE A REPORT & RE(Xïy!MENDATION TO THE COURT WITHIN 45 DAYS OF THE DATE OF THIS ORDER ADDRESSING WHETHER, & TO I·IHAT EXTENT IF ANY, DEFTS HAVE VIOLATED THE 1985 COURT DECREE &/OR THE 1994 CONTEMPT ORDER AS ALLEGED IN THE THREE SHOW CAUSE MOTIONS, FILED.
10/25/96 ENTERED AND COPIES MAILED. 24 ORDER THAT A CONFERENCE IN THE ABOVE-CAPTIONED CASE SHALL BE HELD ON 11/7/96
AT 9:30 A.`\ BEFORE THE HON. RAYMDND J. BRODERICK, ETC., FILED.
10/25/96 ENTERED AND COPIES MAILED. 25 Defts' opposition to plffs1 motion to strike, Cert, of Service, filed.
ORDER THAT THE PETITION OF PLFFS THE ARC, PA, FILED ON 8/29/96, FOR ATTORNEYS' FEES a EXFENSES FOR THE PERIOD OF 4/30/95 THROUGH 8/16/96 IS DISMISSED AS MOOT, FILED.
11/5/96 ENTERED AMD COPIES MAILED.
ORDER THAT THE COUNTY AND THE Ca^NWEALTH SHALL HAVE UNTIL 3/30/97 TO PROVIDE A CIA TO MARGAPET DANIELS, FILED.
11/5/96 ENTERED AND COPIES FAILED.
Plffs' response to Master's recommendation regarding Margaret Daniels, Cert, of Service, filed.

CONTINUED

DC 111A (Rev. 1/75)
PLAINTIFF

CIVIL DOCKET CONTINUATION SHEET DEFENDANT

TERRI LEE HALDERMAN, ET AL

DATE

NR.

PENNHURST STATE SCHOOL, ET AL
PROCEEDINGS

DOCKET NO. 74-1345
PAGES

3107 NO\r 6
3108 " 6
3109 " 12

PLFFS1 MOTION TO ENFORCE SPECIAL MASTER'S DIRECTIVE ON TRANSPORTATION COSTS, CERT. OF SERVICE, FILED. Plffs' memorandum in support of plffs' motion to enforce special master's directive on transportation costs, Cert, of Service, filed. ORDER APPROVING TONY RECORDS, SPECIAL MASTER DISTRIBUTION, FILED.
11/13/96 entered and copies mailed.

3110 " 19 Plffs Application to Special Master for enforcement of activity 6.a, Quality
Assurance Plan, Cert, of Service, filed. 3111 " 20 PLFF'S MOTION FOR ORDER TO SHOW CAUSE REGARDING CONTEMPT OF EMPLOYMENT PLAN,
MEMO, CERT. OF SERVICE, FILED.

3112 •" 25 Defts1 answer in opposition to Halderman Plffs' motion to enforce the Special
Master's directive on transportation costs, Memo, Cert, of Service, filed.
3113 " 25 Commonwealth Defts' answer in opposition to the Halderman Plffs' motion to
enforce Special Master's directive on transportation costs, Memo, Cert, of Service, filed.
3114 " 27 Plffs' supplemental memorandum regarding pending motion to enforce Special
Master's directive regarding transportation, Cert, of Service, filed.
3115 " 27 Plffs' notice of settlement regarding 10th Fee Application, Cert, of Service,
filed.

3116 DE£ 3117 " 3118 " 3119 "
3120 " 3121

3 Defts' answer in opposition to Halderman Plffs' motion to show cause regarding
contempt of employment plan, Memo, Cert, of Service, filed.
3 Commonwealth Defts1 answer in opposition to the Halderman Plffs' motion for an
order to show cause regarding contempt of the employment plan, Memo, Cert. of Service, filed.
3 Plffs' supplement to application to Special Master for enforcement of
Activity 6.a of Quality Assurance plan, Cert, of Service, filed. 5 ORDER RE: VOUCHER FOR FEES AND SERVICES BY OFFICE OF THE SPECIAL MASTER FROM
11/1/96 THROUGH 11/30/96, FILED.
12/6/96 ENTERED AND COPIES MAILED.
Defts1 supplemental memorandum in opposition to Halderman Plffs1 motion to enforce the Special Master's directive on transportation costs, Cert, of Service, filed.
11 ORDER THAT THE COUNTY AND THE COMiyDNWEALTH DEFTS SHALL HAVE AN EXTENSION TO
PROVIDE MR. DELICIONI WITH A CIA.. ETC., FOR THE DURATION OF THIS EXENTSION, MR. FELICIONI SHALL CONTINUE TO RESIDE AT SIMPSON HOUSE AND SHALL BE PROVIDED SUPPLEMENTAL SERICES BY QUALITY MANAGEMENT ASSOCIATES, AND THE SPECIAL MASTER SHALL MONITOR HIS CONDITION REGULARLY; ON 11/30/97, THE SPEICAL MASTER SHALL REPOîfT TO THE COURT ON THE STATUS OF MR. FELICIONI'S CONDITION AND SHALL MAKE A
RECOMMENDATION ABOUT WHETHER MR. FELICIONI'S CONDITION HAS IMPROVED TO SUCH A DEGREE THAT HE CAN BE TRANSFERRED TO A CLA OR WHETHER SIMPSON HOUSE CONTINUES TO BE THE MOST APPROPRIATE PLACEMENT FOR HIM, FILED.
12/12/96 entered and copies mailed.

13122 " 11 Letter of Tony Records, Special Master, dated 12/9/96, re: Response to Court's 10/25/96 order, filed.
11 Report to the Court by the Special Master regarding the show cause motions filed in relation to Philadelphia Class Members Mary McCarthy, Kim Waddell, & Michael Walshock, filed. (See Paper #3122)

(OVER)

DC 111A (Rev. 1/75)
PLAINTIFF

CIVIL DOCKET CONTINUATION SHEET DEFENDANT

TERRI T,RR HALDERMAN. ET AL

DATE

NR.

PENNHURST STATE SCHOOL, ET AL
PROCEEDINGS

DOCKET NO. 74-1345

PAGE

OF

.PAGES

3123 DEC

3124
3125 ! t 3126 1 1 3127 11
3128 11

—

I 1

3129 1 1

12 ORDER THAT THE 9TH QUARTER PETITION OF PLFFS FOR ATTORNEYS' FEES & EXPENSES FOP. THE PERIOD OF 5/2/96 THROUGH 7/18/96 IS GRANTED LESS THE TIME WAIVED BY THE PLFFS, FILED.
12/12/96 ENTERED AND COPIES BAILED. 12 ORDER THAT THE 10TH QUARTER PETITION OF PLFFS FOR ATTORNEYS' FEES & EXPENSES
FOR THE PERIOD OF 7/19/96 THROUGH 9/18/96 IS DISMISSED AS MOOT, FILED. 12/12/96 ENTERED AND COPIES MAILED.
12 HALDERMAN PLFFS' 11TH FEE MOTION (9/18/96 TO 11/26/96),, CERT. OF SERVICE, FILED. 16 COUNTY DEFTS1 MOTION TO QUASH DEPOSITION SUBPOENAS AND FOR A PROTECTIVE ORDER
AND STAY OF DISCOVERY, MEMO, CERT. OF SERVICE, FILED. 17 PLFFS1 MOTION FOR SHOW CAUSE ORDER FOR CONTEMPT AND FURTHER RELIEF REGARDING
SYSTEMIC ISSUES RELATED TO FAILURE TO PROVIDE ADEQUATE ADVOCACY AND HABILITATION SERVICES, MEM), CERT. OF SERVICE, FILED.
19 DEFTS' MOTION TO ENLARGE THE TIME WITHIN WHICH THEY MUST FILE WRITTEN OBJECTIONS TO THE SPECIAL MASTER'S REPORT FOR SHOW CAUSE ORDERS FILED IN RELATION TO CLASS MEMBERS MARY MCCARTHY, KIM WADDELL, & MICHAEL WÄLSHOCK, MEtD, CERT. OF SERVICE, FILED.
19 County Defts' Response to Halderman Plffs1 request for admissions regarding employment plan, Cert, of Service, filed, (filed in error)
20 Plffs' Response to motion to quash, Cert, of Service, filed.

3130 " 3132 "

20 ORDER THAT THE DEFENDANTS MAY FILE WRITTEN OBJECTIONS REGARDING THE SPECIAL MASTER'S REPORT UPON THE OTHER PARTIES WITHIN 30 DAYS OF THE DATE OF THIS ORDER, FILED. 1 2 | 2 3 | 96 ENTERED AND COPIES MAILED..
23 Plffs' response to Philadelphia defts' motion to enlarge time, certificate of
service, filed.
23 P L F F S 1 RENEWED MOTION FOR SHOW CAUSE ORDER AND HEARING REGARDING THREE PENDING
MOTIONS AND REQUEST FOR ACTION ON SPECIAL MASTER'S REPORT, CERTIFICATE OF SERVICE, FILED.

3133
3134 11 1997

27 Answer by Commonwealth defendants in oppositon to the Halderman plaintiffs' eleventh quarter fee motion, Memorandum,- Certificate oí¯ Service, filed.
30 Phila. County Defts' answer in opposition to the Halderman Plffs' Eleventh Quarter Fee Motion (9/18/96 to 11/26/96), Memo, Cert, of Service, filed.

3135 JAN
3136 11
3137 It
3138 11

2 Phila. County Defts1 answer in opposition to the Halderman Plffs' motion for show cause order for contempt and further relief regarding issues related to advocacy, Memo, Cert, of Service, filed.
2 Corrrnonwealth Defts1 answer in opposition to Halderman Plffs1 motion for show cause order for contempt and further relief regarding issues related to advocacy, Memo, Cert, of Service, filed.
7 Plffs' response regarding advocacy motion, certificate of service, filed. 9 Commonwealth Defts1 answer in opposition to the Halderman Plffs1 renewed motion
for show cause order and hearing regarding three pending motions and request for
action on Special Master's Report, Memo, Cert, of Service, filed.

(CONTINUED)

DC 111A (Rev. 1/75)
PLAINTIFF

CIVIL DOCKET CONTINUATION SHEET
DEFENDANT

DOCKET NO. 74-1345

TERRI LEE HALDERMAN, ET AL

DATE

NR.

PENNHURST STATE SCHOOL. ET AL
PROCEEDINGS

PAGES

3139 JAISJ 9

<XiMMDNWEALTH DETTS1 MOTION TO STRIKE THE HALDEKMAN PLFFS' "RENEWED MOTION FOR SHOW CAUSE ORDER AND HEARING REGARDING THREE PENDING MOTIONS AND REQUEST FOR ACTION ON SPECIAL MASTER'S REPORT" FOR FAILURE TO COMPLY WITH THE RULES OF COURT, MEM), CERT. OF SERVICE, FILED.

3140 JAST 6 3141 " 17

ORDER R E : VOUCHER FOR F E E S AND S E R V I C E S BY O F F I C E OF THE S P E C I A L MASTER FROM 1 2 / 1 / 9 6 THROUGH 1 2 / 2 6 / 9 6 , F I L E D . 1 / 1 6 / 9 7 ENTERED AND COPIES MAILED. Phila's defts1 reply to plffs1 response regarding advocacy, certificate of service filed.

3142 " 3143 "
3144 " 3145 " 3146 FEB

21 Phila. Defts Memorandum in opposition to the Special Master's report to the Court in relation to individual class members, Cert, of Service, filed.
21 Corrrn¤nwealth Defts1 objections and conments to the Special Master's Report regarding individual Phila. Class Members Mary McCarthy, Kim Waddell and Michael Walshock, Cert, of Service, filed.
27 Plffs' reply to defts' opposition to Special Master's Report, Cert, of Service,
filed.
28 County Defts' sur reply to plffs' reply to defts1 opposition to Special Master's
Report, Cert, of Service, filed.
HALDERMAN PLFFS' MOTION FOR FEES AND EXPENSES FOR PERIOD 11/26/96 TO 2/3/97 (TWELFTH MOTION) , MEMO, CERT. OF SERVICE, FILED.

3147 "

Letter received from Tony Records, Special Master, dated 2/4/97, re: Placement in a Community Living Arrangement pursuant to Paragraph 2 of the 3/28/94 Contempt Order for Francis Raia, a Philadelphia class member, filed. Special Master's Recommendation regarding placement in a Community Living Arrangement pursuant to Paragraph 2 of the 3/28/94 Contempt Order for Francis Raia, a Paiiadelphia class member, filed.

3148 " 3149 3150 "

11 ORDER THAT THE COUNTY & THE CCM©NNEÄLTH SHALL HAVE AN EXTENSION UNTIL FURTHER
ORDER OF THIS COURT TO PROVIDE FRANCES RAIA WITH A CLA IN COMPLIANCE WITH PARAGRAPH 2 OF THIS COURT'S 3/28/94 ORDER. ON 2/15/98, THE SPECIAL MASTER SHALL REPORT TO THE COURT ON THE STATUS OF MS RAIA'S MEDICAL CONDITION & SHALL MAKE A RECOMMENDATION ABOUT WHETHER MS. RAIA'S MEDICAL CONDITION HAS IMPROVED TO SUCH A DEGREE THAT SHE CAN BE TRANSFERRED TO A CLA OR WHETHER LYNCH GWYNEDD CONTINUES TO BE AN APPROPRIATE FACILITY FOR HER GIVEN THE SERIOUSNESS OF HER MEDICAL CONDITION, FILED.
2/12/97 ENTERED AND COPIES MAILED.
11 ORDER THAT THE SPECIAL MASTER SHALL ISSUE A REPORT & RECOMMENDATIONS BY
6/30/97, WITH INPUT FROM THE PARTIES, CONCERNING A PROPOSED PROCESS FOR SURROGATE HEALTH CARE DECISION-MAKING FOR PENNHURST CLASS MEMBERS; & THE PLFFS' MOTION OF 3/25/96 IS DISMISSED WITHOUT PREJUDICE TO THE PARTIES FILING RESPONSE TO THE SPECIAL MASTER'S REPORT & RECOMMENDATIONS, FILED.
2112/97 ENTERED AND COPIES MAILED.
11 ORDER THAT THE SPECIAL MASTER SHALL ISSUE A:REPORT & RECOMM3`TOATIONS BY 6/30/97,
WITH INPUT-FRCM THE PARTIES, CONCERNING A POLICY ON TRANSPORTATION COSTS FOR IHP-RELATED SERVICES; & IT IS FURTHER ORDERED THAT PLFFS'l·DŒTONOF 11/6/96 TO ENFORCE THE SPECIAL MASTER1 S DIRECTIVE ON TRANSPORTATION COSTS IS DISMISSED WITHOUT PREJUDICE, FILED.
2/12/97 ENTERED AMD COPIES MAILED.

(OVER)

DC 111A (Rev. 1/75)
PLAINTIFF

TERRI LEE HALDERMAN, ET AL

DATE

NR.

CIVIL DOCKET CONTINUATION SHEET
DEFENDANT
PENNHURST STATE SCHOOL, ET AL
PROCEEDINGS

PAGE

NO. 74-1345
OF_ .PAGES

3151 FEB 12 ORDER RE: VOUCHER FOR FEES AND SERVICES BY OFFICE OF THE SPECIAL MASTER FPOM 1/1/97 THROUGH 1/31/97, FILED.

3152 " 3153 "
3154 "
3155 "

2/13/97 ENTERED AMD COPIES MAILED.
13 Report of the Special Master, dated 2/11/97, Cert, of Service, filed. 18 Plffs' Notice of non-compliance regarding Activities 3.a and 9.a, Quality
Assurance Plan, Cert, of Service, filed. 19 Plffs' Notice of non-compliance regarding mediation (Activity 8), Quality
Assurance Plan, Cert, of Service, filed. 20 Plffs1 supplemental memorandum on 11th and 12th fee petitions with regard to

Philadelphia Defendants, Cert, of Service, filed. 3156 " 21 PLFFS1 ÎÜTION FOR CONTEMPT AGAINST PHILA. DEFTS FOR FAILURE TO COMPLY \JITR

3157 "

24

SPECIAL'MASTER DIRECTIVE, MEMO, CERT. OF SERVICE, FILED. Plffs' notice of non-compliance regarding Activity 23.c, Quality Assurance

Plan, Cert, of Service, filed.

3158 " 25 City Defts' response to Halderman Plffs supplemental memorandum on 11th & 12th

fee petitions, Cert, of Service, filed.

3159 " 26 Conrn¤nwealth Defts1 answer in opposition to the Halderman Plffs1 twelfth fee

motion (11/26/96 to 2/3/97), Memo, Cert, of Service, filed.

3160 " 27 Flffs' notice of partial settlement of 11th fee notion, Cert, of Service, filed. 3161 " 27 County Defts1 memorandum in support of their answer in opposition to the
Halderman Plffs1 twelfth fee motion, Cert, of Service, filed.

3162 Mar 4 ORDER RE: VOUCHER FOR FEES AT© SERVICES BY OFFICE OF THE SPECIAL MASTER FROM

2/1/97 THROUGH 2/28/97, FILED.

¯

RJB

3/4/97 ENTERED AND COPIES FAILED.

3163 " 3164 "

5 Plffs' notice of partial settlement of 12th fee motion, Cert, of Service, filed. 6 Letter received from Tony Records, Special Master, dated 2/21/97, re: Regarding
purging the County & Commonwealth defts from contempt of specific requirements of the 3/28/94 order, filed.
Special Master's recommendation regarding purging the County & Conmonwealth defts from contempt of specific requirements of the 3/28/94 order, Cert, of Service, filed.

3165 " 7 Defts' response to plffs' motion for contempt for failure to comply with Special Master directive, Cert, of Service, filed.
3166 " 13 Letter received from Tony Records, Special Master, dated 3/4/97, re: Recommendation & proposed order regarding modification of Paragraph 10 of the 3/28/94 Order & Paragraph A5(c) of the 4/5/85 Final Settlement'Decree, filed.
it 13 Special Master's recommendation regarding Paragraph 10 of the 3/28/94 Contempt Order & Paragraph A5(c) of the 4/5/85 Final Settlement Decree, filed.
3167 " 13 ORDER THAT PLFFS1 MOTION FOR CONTEMPT AGAINST THE PHILA. DEFTS FOR FAILURE TO COMPLY WITH THE SPECIAL MASTER'S DIRECTIVE FILED 2/21/97 IS DENIED, FILED.

3/14/97 ENTEPED AND COPIES MAILED.

DC 1UA (Rev. 1/75)
PLAINTIFF

TERRI LEE HALDERMAN, ET AL

DATE

NR.

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
PENNHURST STATE SCHOOL, ET AL
PROCEEDINGS

DOCKET NO. 74-1345

F

PAGES

3168 MAR 13
3169 " 13
!3I7O " 13
3171 " 17 3172 " 21 3173 " 27
27 3174 " 27
317 5 " 31
3176 APR 9

ORDER THAT THE REQUIREMENTS OF PARAGRAPHS 1, 3, 4, 5, 6, 9 , 10 & 13 OF THE 3/28/94 ORDER HAVE BEEN SATISFIED BY THE COUNTY &/0R COMMONWEALTH DEFTS. ACCORDINGLY, THESE DEFTS ARE PURGED OF CONTEMPT & NO LONGER ARE SUBJECT TO THE FINES SET FORTH IN THESE PARAGRAPHS. FROM THE DATE OF THIS ORDER, THE COUNTY & COMMONWEALTH DEFTS MAY CEASE PROVIDING STATUS REPORTS OF THE SPECIAL MASTER ON PARAGRAPHS 1, 3, 4, 5, 6, 9, 10 & 13 OF THE 3/28/94 ORDER. WITHIN 30 DAYS OF THIS ORDER, THE SPECIAL MASTER SHALL PROVIDE TO THE COUNTY & COMMONWEALTH DEFTS A REVISED ACCEPTABLE FORMAT FOR SUBMISSION OF QUARTERLY STATUS REPORTS, ETC., FILED.
3/14/97 ENTERED AND COPIES MAILED. ORDER THAT THE COMMONWEALTH DEFTS SHALL CONDUCT A SPECIAL REVIEW OF THE PROVISION OF THERAPY SERVICES TO PENNHURST CLASS MEMBERS AS AGREED TO BY THE PARTIES. UPON COMPLETION OF SUCH A REVIEW, A REPORT SUMMARIZING THE FINDINGS & INCLUDING RECOyiMENDATIONS SHALL BE SUBMITTED TO THE PARTIES & THE SPECIAL MASTER FOR REVIEW BY 9/30/97. THE COMPLETION OF SUCH A REVIEW & SUBMISSION OF SUCH A REPORT WILL SATISFY THE REQUIREMENTS OF PARAGRAPH A5(c) OF THE 4/5/85 FINAL SETTLEMENT DECREE, ETC., FILED.
3/14/97 ENTERED AND COPIES MAILED. ORDER THAT THE PARTIES SHALL MEET WITH THE SPECIAL MASTER TO DEVELOP A SOLUTION ADDRESSING THE ISSUES RAISED IN THE DECEMBER 9TH REPORT'S RECOMMENDATIONS ON SPEECH/COMMUNICATION ASSESSMENTS & CASE MANAGER SURVEYS, & THE SPECIAL MASTER SHALL ADVISE THE COURT ON THE STATUS OF THESE ISSUES IN HIS NEXT QUARTERLY REPORT; THE PLFFS1 MOTIONS FILED 9/20, 9/24 & 10/1/96, ON BEHALF OF MARY MCCARTHY, KIM WADDELL, & MICHAEL WALSHOCK, FOR FINES ARE DENIED; & DEFTS' REQUEST FOR ATTORNEYS FEES & EXPENSES IS DENIED, FILED.
3/14/97 ENTERED AND COPIES MATT,ED. Plffs1 response to Special Master rec¤nmendaticn regarding modification of Paragraph 10 (3/28/94 Order) and Paragraph A5(c) (4/5/85 Dacree), Cert, of Service, filed.
Suggesstion of death by Dennis E. Haggerty, Esq. as to Anthony Felicioni, filed. Letter received from Tony Records, Special Master, dated 3/21/97, re: Special Master's recomnendation regarding the Halderman plffs1 3/20/95 motion for remedy for defts' failure to purge contempt identified in the 3/28/94 Order, filed. Special Master's Recomnendation regarding the Halderman plffs1 3/20/95 motion for remedy for defts1 failure to purge contempt identified in the 3/28/94 order, Cert, of Service, filed. ORDER THAT PLFFS' MOTION OF 3/20/95, (DOCUMENT NO. 2941) IS DENIED; IT IS FURTHER ORDERED THAT THE SPECIAL MASTER SHALL CONTINUE IN HIS QUARTERLY REPORTS TO PROVIDE A STATUS OF THE DEFTS' PROGRESS IN ENSURING THAT PROVIDERS IMPLEMENT THE HIRING PRACTICE REQUIREMENTS WELCH HAVE BEEN IMPOSED ON THEM BY THE COUNTY DEFTS, ETC., FILED.
3/28/97 ENTERED AND COPIES MAILED.
Plaintiffs' Application to the Special Master to Enforce Activity
3.a. of Quality Assurance Plan, Certificate of Service, filed.
ORDER RE: VOUCHER FOR FEES AND SERVICES BY OFFICE OF THE SPECIAL MASTER FROM
3 / 1 / 9 7 THROUGH 3 / 3 1 / 9 7 , FILED.
4/10/97 ENTERED AND COPIES MAILED.

Continued

DC 111A (Rev. 1/75)
PLAINTIFF

TERRI LEE HALDERMAN, ET AL

DATE

NR.

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
PENNHURST STATE SCHOOL, ET AL
PROCEEDINGS

D%‰;ET NO. _74-1345

PAGE OF

.PAGES

3177 APR 14 3178 APR 14
3179 " 16

3180 " 21 3181 " 24

3182 " 24

3183

28

3184 MAI
3185 " 6 3186 " 7

3187 "

3188 "

3189 " 12 3190 " 13
3191 " 16
3192 " 23

HALDERMAN PLFFS' MOTION FOR FEES AND EXPENSES FOR PERIOD 2/'4/97 to 3/28/97
(THIRTEENTH MOTION), MEMORANDUM, CERTIFICATE OF SERVICE, FILED.
Notice of Settlement of 11th and 12th Fee Motions with the City, certificate
of service, filed.
ORDER THAT PLFF'S 11TH PETITION FOR ATTORNEYS' FEES & EXPENSES COVERING THE PERIOD OF 9/18/96 TO 11/26/96 IS DISMISSED AS MOOT; & IT IS FURTHER ORDERED: PLFF'S 12TH PETITION FOR ATTORNEYS' FEES & EXPENSES COVERING THE PERIOD OF 11/26/96 TO 2/3/97 IS DISMISSED AS MOOT, FILED.
4111191 ENTERED AND COPIES MAILED. County Defts' Memorandum in support of their answer in opposition to the Halderman Plffs1 Thirteenth Fee Motion, Cert, of Service, filed. ORDER THAT COUNSEL FOR ALL ACTIVE PARTIES & THE SPECIAL MASTER SHALL ATTEND A STATUS CONFERENCE ON 5/7/97 AT 12:30 P.M. IN CHAMBERS FOR THE PURPOSE OF DISCUSSING A CONCLUSION TO SUPERVISION & INTERVENTION BY THE SPECIAL MASTER & THE COURT IN THIS NOW 23-YEAR-OLD CASE, FILED.
4/25/97 ENTERED AND COPIES MAILED. ORDER THAT THE HALDERMAN PLFFS1 MOTION OF 3/21/95 FOR CONTEMPT AGAINST COl·f·ÍOMÆALTH DEFTS FOR VIOLATION OF THE FINAL SF,TTLEMENT AGREEMENT, ORDER OF 8/28/89 & ORDER OF 4/17/90,IS HEREBY DENIED, FILED.
4/25/97 ENTERED AND COPIES MAILED.
Conrnonwealth Defts' answer in opposition to the Halderman Plffs' Thirteenth Fee Motion (2/3/97 to 3/28/97), Memo, Cert, of Service, filed. Plffs' response to defts1 opposition to 13th Fee Application, Cert, of Service, filed. Report of the Special Master, dated 5/5/97, Cert, of Service, filed.
Halderman Plffs' memorandum regarding 5/7/97 status conference, Cert, of
Service, filed.
ORDER RE: VOUCHER FOR FEES AND SERVICES BY OFFICE OF THE SPECIALl·íASTERFROM 4/1/97 THROUGH 4/30/97, FILED.
5/9/97 ENTERED AND COPIES MAILED. ORDER THAT THE ESTIMATED ANNUAL BUDGET SUBMITTED BY TIÎE SPECIAL MASTER TO THE COURT IN THE AMOUNT OF $263,320.00 FOR THE PERIOD OF 5/1/97 UP THROUGH & INCLUDING 4/30/98 IS APPROVED IN A PRO-RATED AMOUNT FOR THE PERIOD OF 5/1/97 UP THROUGH & INCLUDING 12/31/97; WITHIN 14 DAYS OF THIS ORDER, & ON OR BEFORE THE FIRST DAY OF EACH SUCCEEDING MONTH THEREAFTER, UP THROUGH & INCLUDING 12/1/97, THE COMMONWEALTH & THE CITY EACH SHALL SUBMIT A SUM IN THE AMOUNT OF $9,305,00 TO THE CLERK, REPRESENTING THEIR SHARE OF ONE-TWELFTH OF THE ANNUAL BUDGET OF THE SPECIAL MASTER, ETC., FILED.
5/9/97 ENTERED AND COPIES MAILED. Defts' reply to Halderman Plffs1 response to defts' opposition to 13th Fee Application, Cert, of Service, filed.
Ctonmonwealth Defts' sur reply in opposition to the Halderman Plffs' Thirteenth Fee Motion (2/3/97 to 3/28/97), Cert, of Service, filed.
COUNTY DEFTS' MOTION FOR PROTECTIVE ORDER CONCERNING DEPOSITIONS OF NON-PARTY
WITNESSES AND OTHER FORMAL DISCOVERY REQUESTS, MEMORANDUM, CERT. OF SERVICE, FILE!
Conrnonwealth Defts' answer to Mr. Ferleger's letter to the Court dated 5/16/97, Cert, of Service, filed.

DC 1UA (Rev. 1/75)
PLAINTIFF
TERRI LEE HALDERMAN, ET AL

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
PENNHURST STATE SCHOOL, ET AL

DOCKET NO. 74-1345

PAG

OF_

.PAGES

DATE

NR.

PROCEEDINGS

3193 MAY 3194 JUN
3195 " 3196 " 3197 " 3198 " 3199 " 3200 " 3201 "
3202 "
3203 "
it
3204 "
3205

27 Plffs1 response to Philadelphia Defts' motion for protective order, Cert, of Service, filed.

ORDER THAT DEFT PHILA. COUNTY'S MOTION FILED 5/16/91 PURSUANT TO F.R.C.P. 26(c) TO QUASH PLFFS1 DEPOSITION NOTICES & FOR A PROTECTIVE ORDER IS DENIED ON THE GROUNDS THAT COUNSEL FOR PLFFS HAS AGREED TO WITHDRAW THE DEPOSITION NOTICES IF DEFT PROVIDES RESPONSES TO PLFFS1 REQUESTS FOR PRODUCTION OF DOCUMENTS & ANSWERS TO INTERROGATORIES. IT IS FURTHER ORDERED THAT COUNSEL FOR PLFFS SHALL WITHDRAW THE DEPOSITION NOTICES OF ESTELLE RICHMAN, SUSAN PINGREE, LARRY PACE, JEFF PETRACO, GEORGE TIMBERS & THE PMT CUSTODIAN OF RECORDS, ETC., FILED.
6/3/97 ENTERED AND COPIES MATT .En. HALDERMAN PLFFS1 MOTION FOR FEES AND EXPENSES FOR PERIOD 3/31/97 TO 6/4/97 (FOURTEENTH MOTION), MEMO, CERT. OF SERVICE, FILED. County Defts' Answer to Mr. Ferleger's letters to the Court dated 5/22/97 & 6/4/97, Cert, of Service, filed.

County Defts' response to Halderman Plffs' letter of 6/4/97, Cert, of Service, filed.

Plffs application to Special Master for enforcement of mediation request for class member Jonathan Williams, Cert, of Service, filed.

ORDER RE: VOUCHER FOR FEES AND SERVICES BY OFFICE OF THE SPECIAL MASTER FROM 5/1/97 THROUGH 5/3/97, FILED.
6/10/97 ENTERED AND COPIES MAILED.

17 County Defts' response to Halderman Plffs' memorandum regarding 5/7/97 status

conference, Cert, of Service, filed.

17 County Defts' Memorandum in support of their answer in opposition to the

Halderman Plffs' Fourteenth Fee Motion, Cert, of Service, filed.

20 Commonwealth Defts' Answer in opposition to the Halderman Plffs1 Fourteenth

Fee Motion (3/31/97 to 6/4/97), Memorandum, certificate of service, filed.

25

Letter received from Tony Records, Special Master, dated 6/3/97, re: Recommendation to the Court regarding class member Margaret Daniels, filed.

25 Recommendation that an extension be granted for the placement of Margaret Daniels in a community living arrangement (CLA), etc., filed.

25 Letter received from Tony Records, Special Master, dated 6/16/97, re: Special Master's request for an extension to submit a Report and Recommendations

concerning a policy on transportation costs for IHP-related services, etc.,

filed.

25 Request by Special Master for an extension of time to submit a report and recornnendations concerning a proposed policy on transportation costs for IHPrelated services as required by the Court's Order of 2/11/97, etc., filed.
25 Letter received from Tony Records, Special Master, dated 6/3/97, re: Special Master's request for an extension to submit a Report and Recommendations concerning a proposed process for surrogate health care decision-making for Pennhurst class members, etc., filed.

25 Request by Special Master for an extension of time to submit a report and recommendations concerning a proposed process for surrogate health care decision-making as required by the Court's Order of 2/11/97, etc., filed.

(OVER)

DC 111A (Rev. 1/75)
PLAINTIFF

CIVIL DOCKET CONTINUATION SHEET DEFENDANT

DOCKET NO. 74-1345

TERRI LEE HALDERMAN, ET AL PENNHURST STATE SCHOOL, ET AL PAGE OF PAGES

DATE

NR.

PROCEEDINGS

3206 JUt 3207 " 3208 " 3209 JUL 3210 " 3211 "

25 ORDER THAT THE COUNTY & THE CCMKDNVEALTH SHALL HAVE UNTIL 3/31/98, TO PROVIDE A CIA TO MARGARET DANIELS, FILED. 6/26/97 ENTERED AND COPIES MATT,FT).
25 ORDER THAT THE SPECIAL MASTER IS HEREBY GRANTED AN EXTENSION UNTIL I/2>^I9I, TO ISSUE A REPORT & RECCMMENDATTONS, WITH INPUT FROM THE PARTIES, CONCERNING A POLICY ON TRANSPORTATION COSTS FOR HIP-RELATED SERVICES AS REQUIRED BY THIS COURT'S 2/11/97 ORDER, FILED. 6/26/97 ENTERED AND COPIES MAILED.
25 ORDER THAT THE SPECIAL MASTER IS HEREBY GRANTED AN EXTENSION UNTIL 7/30/97, TO ISSUE A REPORT & RECOMMENDATIONS, WITH INPUT FROM THE PARTIES, CONCERNING A PROPOSED PROCESS FOR SURROGATE HEALTH CARE DECISION-MAKING FOR PENNHURST CLASS MEMBERS AS REQUIRED BY THIS COURT'S 2/11/97 ORDER, FILED. 6/26/97 ENTERED AND COPIES MAILED.
9 ORDER RE: VOUCHER FOR FEES AND SERVICES BY OFFICE OF THE SPECIAL MASTER FROM 6/1/97 THROUGH 6/30/97, FILED.
7/9/97 ENTERED AND COPIES MAILED.
31 ORDER THAT THE SPECIAL MASTER IS HEREBY GRANTED AN EXTENSION UNTIL 8/30/97, TO ISSUE A REPORT & RECCMMENDATIONS, WITH INPUT FROM THE PARTIES, CONCERNING A POLICY ON TRANSPORTATION COSTS FOR IHP-RELATED SERVICES AS REQUIRED BY THIS COURT'S 2/11/97 ORDER, FILED.
7/31/97 ENTERED AND COPIES BAILED. 31 ORDER THAT THE SPECIAL MASTER IS HEREBY GRANTED AN EXTENSION UNTIL 8/30/97, TO
ISSUE A REPORT & RECCMMF21DA1TONS, WITH INPUT FROM THE PARTIES, CONCERNING A PROPOSED PROCESS FOR SURROGATE HEALTH CARE DECISION-MAKING FOR PENNHURST CLASS MEMBERS AS REQUIRED BY THIS COURT'S 2/11/97 ORDER, FILED.

7/31/97 ENTERED AND COPIES FAILED.

3212 AUG

Report of the Special Master, dated 8/5/97, Cert, of Service, filed.

3213 it 11 ORDER RE: VOUCHER FOR FEES AND SERVICES BY OFFICE OF THE SPECIAL MASTER FROM

7/1/97 THROUGH 7/31/97, FILED

8/12/97 ENTERED AND COPIES MAILED

3214 AUG 27 MEt©RANDUM AND ORDER THAT THE SPECIAL MASTER.'S REPORT OF 8/5/97, INCLUDING THE RECOMt·'ENDATIONS SET FORTH THEREIN,, APE APPROVED AS FILED, FILED.

8/28/97 ENTERED AND COPIES MAILED.

215 SEP 02 Report of the Special Master, dated 8/29/97, Certificate of service, filed

3216 it
3217 ii 3218 ii

05 Report of the Special Master, dated 9/3/97 to the Court regarding surrogate healt :are decision-making for Philadelphia Pennhurst class members, Certificate of
ervice, filed
11 OPDER RE: VOUCHER FOR FEES AND SERVICES BY OFFICE OF THE SPECIAL MASTER. FROM 8/1/97 THROUGH 8/31/97, FILED. 9/11/97 entered and copies mailed.
12 ORDER THAT THE COURT WILL CONSIDER ALL COMMENTS ON THE "REPORT OF THE SPECIAL MASTER REGARDING A POLICY ON TRANSPORTATION COSTS FOR IHP-PELATED SERVICES" FILED WITH THIS COURT ON OR BEFORE 9/22/97, FILED. 9/15/97 ENTERED AND COPIES MAILED.

(CONTINUED)

DC 111A (Rev. 1/75)
PLAINTIFF

CIVIL DOCKET CONTINUATION SHEET DEFENDANT

RJB

TERRI LEE HAL·DERMAN, ET AL

DATE

NR.

PENNHURST STATE SCHOOL, ET AL
PROCEEDINGS

DOCKET NO. 7 4 - 1 3 4 5 6yOPAGES

3219 SEP 12 ORDER THAT THE COURT WILL CONSIDER ALL COMMENTS ON THE SPECIAL MASTER'S "REPORT TO THE COURT REGARDING SURROGATE HEALTH CARE DECISION-MAKING FOR PHILADELPHIA PENNSHURST CLASS MEMBERS" FILED WITH THIS COURT ON OR BEFORE 9122/91, FILED.
9/15/97 ENTERED AND COPIES MAILED.

3220 " 24 torments of the ARC, Pennsylvania on the Report of the Special Master regarding a policy on transportation costs for IHP-Related Services, Cert, of Service,
filed.

3221

24 Qxirnonwealth Defts' cotnnents on the Special Master's Report to the Court

regarding Surrogate Health Care Decision-Making for Philadelphia Pennhurst

Class Members, Cert, of Service, filed.

3222

24 Cotrmonwealth Defts1 comments on The Report of the Special Master regarding a

Policy on Transportation Costs for IHP-Related Services, Cert, of Service, filed.

3223

24 Philadelphia County Defts1 corrments to the Special Master's Report on

Transportation Costs for IHP-related services, Cert, of Service, filed.

3224

24 County Defts1 conments to the Court regarding Surrogate Health Care Decision-

Making for Philadelphia Pennhurst Class Members, Cert, of Service, filed.

3225

25 Plffs' response regarding Special Master's Reports on Health-Care Decision-

Making and Transportation, Cert, of Service, filed.

3226 OCT 9 HALDERMAN PLFFS' MOTION FOR FEES AND EXPENSES FOR PERIOD 6/5/97 TO 9/22/97 (FIFTEENTH MOTION), CERT. OF SERVICE, FILED.
3227 " 9 Halderman Plffs1 Memorandum in support of motion for fees & expenses for period

3/31/97 to 6/4/97 (Fifteenth Motion), Cert, of Service, filed.

3228 " 9 ORDER RE: VOUCHER FOR FEES AND SERVICES BY OFFICE OF THE SPECIAL MASTER FROM

9/1/97 THROUGH 9/30/97, FILED.

10/10/97 ENTERED AND COPIES MAILED.

3229 " 10 ORDER THAT THE REPORT SATISFIES THE REQUIREMENTS OF THE COURT'S ORDER CF

2/11/97 DIRECTING THE SPECIAL MASTER TO ISSUE A REPORT AND RECOMMENDATIONS

WITH INPUT FROM THE PARTIES CONCERNING A POLICY ON TRANSPORTATION COSTS OF IHP-RELATED SERVICES, ETC., FILED.

10/14/97 ENTERED AND COPIES MAILED. 3230 " 23 Coirmonwealth Defts' answer in opposition to the Halderman Plffs' Fifteenth Fee

3231 " 23 3232 " 28

Motion (6/5/97 to 9/22/97), Memo, Cert, of Service, filed. Plffs1 application to Special Master to compel compliance with Quality Assurance Plan, Cert, of Service, filed.
PLFFS' MOTION TO STAY REVIEW PENDING RULING BY SPECIAL MASTER, MEMO, CERT. OF SERVICE, FILED.

3233 NOV 3 3234 " 4 3235 " 4 3236 " 7

Notice of change of address of Special Master, filed. County Defts1 Answer in opposition to Halderman Plffs1 motion to stay review pending ruling by Special^Master, Memo, Cert, of Service, filed. Carrmonwealth Defts' Answer in opposition to Halderman Plffs' motion to stay review pending ruling by Special Master, Memo, Cert, of Service, filed.
MEMORANDUM AND ORDEP. THAT THE COURT WILL CONSIDER ALL OOMMENIS FILED BY THE
PARTIES ON OR BEFORE 11/14/97 ON THE SPECIAL MASTER'S PROPOSED ORDER & SCHEDULE

& METHODOLOGY TO DETERMINE SUBSTANTIAL COMPLIANCE, FILED.

11/10/97 ENTERED AND COPIES MAILED. 3237 " 10 ORDER PE: VOUCHER FOR FEES AND SERVICES BY OFFICE OF THE SPECIAL MASTER FROM
10/1/97 THROUGH 10/31/97, FILED.

11/10/97 ENTERED AND COPIES MAILED.

(OVER)

DC UlA (Rev. 1/75)
PLAINTIFF

TERRI LEE HALDERMAN, ET AL

DATE

NR.

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
PENNHURST STATS SCHOOL, ET AL PROCEEDINGS

NO. PAGE OF

PAGES

3238 NOV 3239 " 3240 " 3 241 " 3242 " 3`243 " 3244 DEC
3245 "
1998 3246 JAM 3247 " 3248 "
3249 "
3250 " 3251 " 3252 " 3253 " 3254 "
3255 '•'

13 Haldeman Plffs' response to Special Master review methodology, Cert, of Service

filed.

'

14 Conrnonwealth Defts1 comments on the Special Master's proposed schedule and

methodology to measure substantial compliance, Cert, of Service, filed.

Response of plffs The Arc, PA., et al to the proposed schedule and 17 methodology for the Special Master's review to determine substantial compliance,

Certificate of Service, filed.

County Defts' Comments to Special Master's Proposed Schedule and 14 Methodology for a Review of Substantial C o m p l i a n c e , certificate

of s e r v i c e , filed. Plffs1 withdrawal of motion for stay, Cert, of Service, filed. 20 Plff Intervenor'c Notice of change of address, Cert, of Service, filed.

24 ORDER RE: VOUCHER FOR FEES AH) SERVICES BY OFFICE OF THE SPECIAL MASTER FROM

10 11/1/97 THROUGH 11/30/97, FILED.

12/10/97 ENTERED AND COPIES MAILED.

23 ffîORANDUM AND ORDER THAT THE COMMONWEALTH OF PA & PHIIA. COUNTY SHALL IDENTIFY MEMBERS OF PHILA. PENNHURST CLASS WHO ARE CAPABLE OF MAKING HEALTH CARE DECISIONS

ON THEIR OWN OR WITH LIMITED ASSISTANCE FROM. OTHER RESOURCES. AS PART OF THE

ANNUAL IHP/ISP PLANNING PROCESS, THE OOÎrøJEÄLTH OF PA & PHILA. COUNTY SHALL

TAKE AFFIRMATIVE STEPS TO: ADVISE & TRAIN THESE CLASS MEMBERS & MEMBERS OF THEIR

INTERDISCIPLINARY TEAMS ON ANY RESOURCES WHICH ARE OTRRENTLY AVAILABLE TO PROVIDE

ASSISTANCE WITH HEALTH CARE DECISIONS, SUCH AS EXPLAINING MEDICAL TERMS &

PROCEDURES IN EASY TO UNDERSTAND LANGUAGE, ETC., FILED.

12/24/97 ENTERED AND COPIES MAILED.

9 HALDERMAN PLFFS' MOTION FOR FEES ¿>T> EXPENSES FOR PERIOD 9/24/97 TO 1/5/98, M M )

CERT. OF SERVICE, FILED.
9 DEFTS' MOTION FOR RECONSIDERATION &/OR CLARIFICATION OF THE COURT'S ORDER DATED

12/23/97 ON END-OF-LIFE DECISIONMAKING, MEMD, CERTIFICATE OF SERVICE, FILED.

12 ORDER. RE: VOUCHER FOR FEES AND SERVICES BY OFFICE OF THE SPECIAL MASTER FROM

12/1/97 THROUGH 12/31/97, FILED.

1/12/98 ENTERED AND COPIES MAILED.

14 ORDER THAT Tl·ÎE COURT WILL HEAR ORAL ARGUMENT ON THE MERITS OF DEFTS' "MOTION FOR

RECONSIDERATION &/OR CLARIFICATION" ON 1/21/98 AT 12:30 P.M; IN COURTROOM 10-B ETC., FILED.

1/15/98 ENTERED AND COPIES MATT .FT).

14 PLFFS' THE ARC, PENNSYLVANIA, ET AL APPLICATION FOR ATTORNEYS' FEES AND COSTS,
CERT. OF SERVICE, FILED.

20 Kalderman Plffs' response to Commonwealth Defts' motion for reconsideration of

12/23/97 Order, Certificate of Service, filed.
21 (¾Trnonwealth Defts' Answer in opposition to the ITalderman Plffs' sixteenth fee

motion (9/24/97 to 1/5/98), Femo, Cert, of Service, filed. 22 Response of the ARC, Pennsylvania, et al to defts' motion for reconsideration of

the 12/23/97 order, Certificate of Service, filed.

22 Philadelphia County Defts' Answer in opposition to the Halderman Plffs'

Sixteenth Fee Motion (9/24/97 to 1/5/98), Memo, Certificate of Service, filed.
26 Minute Entry: Oral argument on defts' motion for reconsideration of the Court's

Memorandum and Order of 12/23/97 held on 1/21/98, etc., filed.

(CONTINUED)

DC 111A (Rev. 1/75)
PLAINTIFF

CIVIL DOCKET CONTINUATION SHEET DEFENDANT

2BL
DATE

_EÄ HERMAN, ET AT,
NR.

PENNHURST STATE SCHOOL, ET AL
PROCEEDINGS

RJB
DOCKET NO.
OF

74-1345
PAGES

3256 JAN 29 Plffs' Notice to Court regarding fee petition status, Certificate of Service, filed.
3257 " 29 STIPULATION AND ORDER THAT THE TIME WITHIN WHICH THE DEFTS, THE COMMONWEALTH & PHILADELPHIA COUNTY DEFTS, MUST RESPOND TO THE ARC, PENNSYLVANIA'S APPLICATION FOR ATTORNEYS' FEES & COSTS, FILED 1/12/98, IS HEREBY EXTENDED FOR A PERIOD OF 30 DAYS UNTIL 3/2/98, FILED.
1/30/98 ENTERED AND COPIES MAILED. 3258 " 30 O5DER THAT PLFFS 13TH, 14TH & 15TH PETITIONS FOR ATTORNEY'S FEES & EXPENSES
COVERING THE PERIODS OF 2/4/97 THROUGH 9/22/97 ARE DISMISSED AS MOOT, FILED. 2/2/98 ENTERED AND COPIES MAILED.
3259 FE¾ 2 Transcript of oral argument held on 1/21/98, filed.

3260 FEE 9 9
3261
3262
3263 " 12 3264 " 25 3265 MAE 17 3266 " 27 3267 APR 7 3268 MAY 19 3269 ' 20

ORDER RE· VOUCHER EOR FEES AND SERVICES BY OFFICE OF THEHSPECIAL MASTER FROM 1/1/98 TO 1/31/98, FILED. 2/9/98 ENTERED AND COPIES MAILED.
ORDER THAT THE AGREEMENT OF THE PARTIES IS APPROVED, & THE COMMONWEALTH SHALL CONDUCT A SPECIAL REVIEW OF THE DAY SERVICES PROVIDED TO PENNHURST CLASS MEMBERS AS AGREED BY THE PARTIES, ETC., FILED.
2/10/98 ENTERED AND COPIES MAILED. MEMORANDUM AND ORDER THAT THE SPECIAL MASTER SHALL CONDUCT A COMPREHENSIVE INDIVIDUAL REVIEW OF APPROXIMATELY 110 RANDOMLY SELECTED PHILADELPHIA CLASS MEMBERS IN ORDER TO DETERMINE WHETHER THE CCMMDNWEALTH'S & PHILADELPHIA'S EFFORTS TO ACHIEVE SUBSTANTIAL COMPLIANCE ARE ACTUALLY PROVIDING EACH PHILADELPHIA CLASS MEMBER WITH THE HABILITATION, TRAINING, & CARE MANDATED BY THE 1985 COURT DECREE. THE SPECIAL MASTER SHALL FILE A REPORT OF HIS FINDINGS & RECOMMENDATIONS WITH THE COURT BY 6/30/98, ETC., FILED.
2/10/98 ENTERED AND COPIES FAILED. ORDER THAT PLFFS1 16TH PETITION FOR ATTORNEY'S FEES & EXPENSES COVERING THE PERIOD OF 9/24/97 THROUGH 1/5/98 IS DISMISSED AS MOOT, FILED.
2/13/98 ENTERED AND COPIES MAILED.
ORDER THAT PETITION OF PLFF-INTERVENOR THE ARC, PENNSYLVANIA, ET AL., FILED ON 1/14/98, FOR ATTORNEYS' FEES & COSTS FOR THE PERIOD OF 8/16/96 THROUGH 12/31/97 IS DISMISSED AS MOOT, FILED.
2/25/98 ENTERED AND COPIES MAILED.
ORDER RE: VOUCHER FOR FEES AND SERVICES BY OFFICE OF THE SPECIAL MASTER FROM 2/1/98 THROUGH 2/28/98, FILED.
3/17/98 ENTERED AND COPIES MAILED.
Conmonwealth Defts' supplemental memorandum in support of defts' motion for reconsideration and/or clarification of the court's order dated 12/23/97 on end-of-life decision making, Certificate of Service, filed. ORDER RE: VOUCHER FOR FEES AND SERVICES BY OFFICE OF THE SPECIAL MASTER FROM 3/1/98 THROUGH 3/31/98, FILED.
4/7/98 ENTERED AND COPIES MAILED.
Notice of change of address of Stephen C. Miller, Esq., Certificate of Service,
filed. ORDER RE: VOUCHER FOR FEES AND SERVICES BY OFFICE OF THE SPECIAL MASTER FROM 4/1/98 THROUGH 4/30/98, FILED.
5/20/98 ENTERED AND COPIES MAILED.

(OVER)

DC 111A (Rev. 1/75)
PLAINTIFF

CIVIL DOCKET CONTINUATION SHEET
DEFENDANT

D ¾ ‰ T NO. 74-1345

TERRI LEE HAL·DERMAN, ET AL

DATE

NR.

PENNHURST STATE SCHOOL, ET AL
PROCEEDINGS

PAGE

OF

PAGES

3270 MAY 27 3271 JUT`
3272 " 16 3273 " 18 3274 " 29 3275 " 30 3276 JUli 06 3277 " 13
3 2 7 8 " 16
3279 " 21
3280 SEP 21 3281 " 21

HALDERMAN PLFFS' MOTION FOR FEES AND EXPENSES FOR PERIOD 1/7/98 TO 5/18/98 (SEVENTEENTH MOTION), MEM), CERTIFICATE OF SERVICE, FILED.
ORDER THAT ON OR BEFORE 6/20/98, THE CCM-DWEALTH OF PA & THE COUNTY OF PHILA. SHALL EACH SUBMIT A SUM IN THE AMOUNT OF $24,000 TO THE CLERK OF THE COURT, REPRESENTING THEIR SHARE OF NECESSARY EXPENDITURES FOR THE OFFICE OF THE SPECIAL MASTER FOR THE PERIOD UP THROUGH & INCLUDING 6/30/98, ETC. IT IS FURTHER ORDERED: TO THE EXTENT NOT SUPERSEDED BY THIS ORDER, THIS COURT'S ORDER OF 5/12/94 SHALL REMAIN IN FULL FORCE AND EFFECT, FILED.
6/4/98 ENTERED AND COPIES MAILED. ORDER THAT PLFFS1 17TH PETITION FOR ATTORNEY'S FEES & EXPENSES COVERING THE PERIOD OF 1/7/98 THROUGH 5/18/98 IS DISMISSED AS MOOT, FILED.
6/17/98 ENTERED AND COPIES MAILED.
ORDER RE: VOUCHER FOR FEES AND SERVICES BY OFFICE OF THE SPECIAL MASTER FROM 5/1/98 THROUGH 5/31/98, FILED.
6/18/98 ENTERED AND COPIES MAILED. ORDER THAT COUNSEL FOR ALL ACTIVE PARTIES & THE SPECIALl·'!ASTERSHALL ATTEND A CONFERENCE ON 7/1/98 AT 4:30 P.M. IN CHAMBERS, ETC., FILED.
6/30/98 ENTERED AND COPIES MAILED.
Tony Records' Report to the Court regarding defts' compliance with the 1985
Court Decree (2 Volumes), Certificate of Service, filed.
Halderman Plffs' Memorandum and proposed order on Special Master's 6/30/98
Report, Certificate of Service, filed.
Defts' Memorandum and proposed order on Special Master's 6/30/98 Report,
%ef£Ì:ceCaof ¾ ‰ ^ i ¾ ° c i a ^ ½ T a s t e r vourcher for fees and services 6/1
thru 6/30/98, filed
MEMORANDUM AND ORDER THAT THE SPECIAL MASTER1S FINDINGS IN HIS 6/30/98 REPORT TO THE COURT ARE APPROVED & ADOPTED. THE COMM)NVIEALTH OF PA & COUNTY OF PHILA. ARE PURGED OF ALL CONTEMPT WITH RESPECT TO THE COURT'S OPDER OF 3/28/94..THE OFFICE OF THE SPECIAL MASTER SHALL BE CLOSED BY 8/31/98. THE SPECIAL MASTER SHALL SUBMIT TO THE COURT BY 9/21/98 A REQUEST FOR FEES & EXPENSES FOR THE PERIOD OF 6/30/98 THROUGH 8/31/98, ETC., FILED.
7/22/98 ENTERED AND COPIES MAILED.
ORDER RE: VOUCHER FOR FEES AND SERVICES BY OFFICE OF THE SPECIAL MASTER FROM 7/1/98 THROUGH 8/31/98, FILED.
9/22/98 ENTERED AMD COPIES MAILED. ORDER THAT THE SPECIAL MASTER'S FINAL FEE REOUEST IS HEREBY APPROVED. ON OR BEFORE 9/30/98, THE CC¢i¢NWEALTH & THE COUNTY EACH SHALL SUBMIT A SUM IN THE AMOUNT OF $10,730.89 TO THE CLERK, REPRESENTING THEIR SHARE OF THE AMOUNT OWED TO THE SPECIAL MASTER. AFTER THE SPECIAL MASTER'S FINAL FEE REQUEST IS PAID, ANY SURPLUS FUNDS ON DEPOSIT WITH THE CLERK'S OFFICE SHALL BE REFUNDED PRO RATA TO THE COUNTY & COMMONWEALTH DEFTS, FILED.
9/22/98 ENTERED AND COPIES MAILED.

- CONTINUED

DC 1UA (Rev. 1/75)
PLAINTIFF

TERRI LEE HALDERMAN, ET AL

DATE

NR.

CIVIL DOCKET CONTINUATION SHEET DEFENDANT
PENNHURST STATE SŒOOL, ET AL
PROCEEDINGS

r NO. 74-1345
PAGEI84¤F_ .PAGES

3282 SEP 3283 DEC

21 ORDER THAT AS REQUIRED BY THE COURT'S ORDER OF 2/9/98, THE COMMONWEALTH CURRENTLY IS IN THE PROCESS OF CONDUCTING A SNAPSHOT REVIEW OF DAY SERVICES. A REPORT SUMMARIZING THE FINDINGS OF THIS REVIEW SHALL BE SUBMITTED TO THE PARTIES BY 10/31/98. TO SATISFY THE REQUIREMENTS OF PARAGRAPH A5 (c) OF THE 1985 COURT DECREE, THE COMMONWEALTH, EITHER BY THEMSELVES OR BY QUALIFIED CONTRACTOR, SHALL CONDUCT 2 ADDITIONAL SNAPSHOT REVIEWS IN FISCAL YEAR 1998-99 & FISCAL YEAR 1999-2000, ETC., FILED.
9/22/98 ENTERED AND COPIES MAILED.
Coramonwealth Defts' Notice of promulgation of Mr. Bulletin on procedures for substitute health care decision making, Certificate of Service, filed.

MICHAEL E. KUNZ CLERK OF COURT

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA U.S. COURTHOUSE
INDEPENDENCE MALL WEST 601 MARKET STREET
PHILADELPHIA, PA 19106-1797

CLERK'S OFFICE ROOM 2609 TELEPHONE 215-597-7705

August 18, 1999

Margo Schlanger HARVARD LAW SCHOOL 1525 Massachusetts Avnue Griswold 301 Gambridge, MA 02138
Re:Case#74-CV-1345
Dear: Sir or Madam
Enclosed please find a copy of the docket sheet for the within referenced case.
Would you please review the docket and specify exactly what information you are interested in obtaining. Highlight the items of interest to you and return the marked docket sheet so we can process your request.
Should you have any questions regarding this, please contact this office.
Very truly yours,
Michael E. Kunz Clerk of Court

Enclosure

Deputy Clerk

 
 MR-PA-Oööâ-öö l`5

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

it--
TERRI LEE HALDERMAN, a retarded citizen, by her mother-and guardian, Winifred Halderman;
LARRY TAYLOR, a retarded citizen, by his parents and guardians, Elmer and Doris Taylor;

KENNY TAYLOR, a minor, a retarded citizen, by his parents and guardians, Elmer and Doris Taylor;

ROBERT SOBETSKY, a minor, a retarded citizen, by his parents and guardians, Frank and Angela Sobetsky;

JUl/2 91974

THERESA SOBETSKY, a retarded citizen, by her parents

and guardians, Frank and Angela Sobetsky;

JOHN J./l·lWrfG. C!erk¯

NANCY BETH BOWMAN, a retarded citizen, by her parentsB5O*

_ J J > _ _ _ . D f p . Clerk

and guardians, Mr. and Ms. Horace Bowman;

:

LINDA TAUB, a retarded citizen, by her parents and

:

guardians, Mr. and Ms. Allen Taub;

GEORGE SOROTOS, a minor, a retarded citizen, by his

foster parents, William and Marion Caranfa, all of

:

the above individually and on behalf of all others similarly

FIRST

situated;

: AMENDED

COMPLAINT

THE PARENTS AND FAMILY ASSOCIATION OF PENNHURST,

:

Plaintiffs v. PENNHURST STATE SCHOOL AND HOSPITAL; DEPARTMENT OF PUBLIC WELFARE;

: CLASS
: ACTION
: Civil Action Number
:

HELENE WOHLGEMUTH, Secretary of the Department of Public

:

Welfare;

C. DUANE YOUNGBERG, Superintendent, Pennhurst State School

and Hospital;

:

ROBERT SMILOVITZ, Assistant Superintendent, Pennhurst State : School and Hospital;

MARGARET GREEN, BETTY UPHOLD, ALICE BARTON, P.E. KLICK, DR. PAROCCA, HELEN FRANCIS, employees and agents of Pennhurst : State School and Hospital;

JOHN DOCTOR, JAMES NURSE, JANE AIDE, JILL THERAPIST, RICHARD

ROE, JANE DOE, unknown and unnamed staff, employees and agents:

of Pennhurst State School and Hospital, each individual

Defendant sued individually and in his or her official

:

capacity,

Defendants

*********

I I . PRELIMINARY STATEMENT i ¦ 1. Plaintiffs Terri Lee Halderman, Larry Taylor, Kenny Taylor, Robert Sobetsky,
Theresa Sobetsky, Nancy Beth Bowman, George Sofotos, and Linóa,Taub bring this ¦ civil rights action for declaratory and injunctive relief, individually and on : behalf of all persons similarly situated, as a result of physical and psycho¦ logical injuries and deprivations they and their class have suffered and contin ¡! ue to suffer during their confinement within Pennhurst State School and Hospita I; a state institution for the retarded. Certain of these resident Plaintiffs also
sue individually for damages. Joining as a Plaintiff i s the Parents and Family r
Association of Pennhurst, which organization sues on behalf of i t s members and . the institution's residents.
2. Plaintiffs and their class suffer from both a lack of adequate supervision and a lack of meaningful and therapeutic staff/resident interaction. Plaintiffs ' and their class live in improperly designed and inadequately furnished buildings ; Staff are poorly trained 'and the use of mechanical restraints, unnecessarily i and without proper authorization, i s commonplace.
. 3. Residents are often sedated for the convenience of staff rather than for therapeutic purposes. Residents are often ill-clothed and insufficiently
j trained in self help techniques.
i
¦ A. Plaintiffs and their class have suffered and continue to suffer physical and emotional injuries and deprivations from deficiencies in education,
¦ recreational toys, and indoor and outdoor exercise. Plaintiffs and their class i daily suffer the indignity of being forced to eat entire meals with improper ! eating utensils.
! 5. Staff incompetence, staff negligence, and intentional physical and verbal ' abuse of residents by staff i s not uncommon.
¦ 6. The class of retarded residents at Pennhurst State School and Hospital

I
I

are treated as less than second-class citizens by Defendants who are charged

with the responsibility and duty of providing proper care and supervision to

¡ them. That the conditions which prevail and have prevailed at Pennhurst are

j allowed tp exist in our society is a sad reflection on.the way we view those

: persons whose capabilities differ from the norm.

7. .The Plaintiffs and their class suffer, in terms of their general and Individ' ¦: ual conditions, a deprivation and denial of their constitutional, statutory

¦ and common law rights to treatment, and a deprivation and denial of their ¡ constitutional right to the least restrictive conditions necessary to achieve
t
! the purposes of commitment, right to refuse treatment, right to be free from

I' harm, right to be free from cruel and unusual punishment, right to due process

of law and right to equal protection of the laws — all in violation of the

, Pennsylvania Mental Health and Mental Retardation Act of 1966, 50 P.S.§4401,

, et seq., and the First, Fourth, Eighth, Ninth and Fourteenth Amendments to the

j United States Constitution.

i ! II.JURISDICTION

i

; 8. Jurisdiction is conferred upon this Court by:

a. 28 U.S.C. §§ 1343(3) and 1343(4) which provide for original

I jurisdiction in all suits for redress of deprivation, under color of law, of

constitutional rights, privileges or immunities under federal law.

b. 28 U.S.C. S§ 1343(1) and 1343(2) which provide for original

; jurisdiction in suits for damages arising from conspiracies to violate civil

; rights under 42 U.S.C. §1985 and in suits to recover damages from persons who
I
j fail to prevent violations of civil rights.
i

!

c. Plaintiffs' action for declaratory and injunctive relief, and for

' damages, is authorized by 28 U.S.C. §§ 2201, 2202 and by Rules 57 and 65 of

¦¦ the Federal Rules of Civil Procedure, which relate to declaratory judgments

| and injunctions, and by 42 U.S.C. S5 1983, 1985, 1986, and 1988.

-2-

d. 28 U.S.C. S 1331 which provides for original federal question

jurisdiction. The amount in controversy herein, for each of the named Plaintiffs

•and for the c l a s s , exclusive of interests and costs, exceeds $10,000.

i

!·

`

•

i'

e . The doctrine of pendent jurisdiction.

i

| 9. Each of the Defendants herein, at all times relevant to the matters contained

in this complaint, acted under the color of state law.
;ill. PLAINTIFFS
î ,

¦i 10. Plaintiff Terri Lee Halderman was born July 29, 1953. She i s a retarded
I,
citizen. Plaintiff was committed to Pennhurst State School and Hospital on

February 15, 1966 by her parents.

11. Plaintiff Larry Taylor, born on February 14, 1956, i s a retarded citizen committed to Pennhurst State School and Hospital by his parents in 1961.

12. Plaintiff Kenny Taylor, born on November 13, 1957, i s a retarded citizen ¡ I' committed to Pennhurst State School and Hospital by his parents in 1961.

¦I3. Plaintiff Robert Sobetsky was born on November 23, 1956. He is a retarded ii citizen who was committed by his parents to Pennhurst State School and Hospital.

il4.¯ Plaintiff Theresa Sobetsky, a retarded citizen, i s more than eighteen years jold and was committed to Pennhurst State School and Hospital by her parents.

i¦
¦;I5· Plaintiff Nancy Beth Bowman is a twenty-three year old retarded citizen who
i.
j¦was committed by her parents to Pennhurst State School and Hospital in 1961.
|î

>¯·I6. Plainitff Linda Taub, born on May 12, 1951, i s a retarded citizen committed

pby her parents to Pennhurst State School and Hospital in October, 1966,

¯¡

i;

¦,I7. Plaintiff George Sorotos i s an eleven year old retarded citizen who was I committed to Pennhurst State School and Hospital in 1970 by Catholic Social Services of Philadelphia.
-3-

18. All of the above named Plaintiffs were committed to Pennhurst State School
¦ and Hospital for treatment and habilitation and for the purpose of providing an
¡¦ environment able to protect their .dignity, privacy, rights and capabilities,
¦ and a professionally supervised program to deal with the problems of a severely
l· retarded individual.
I; 19. Plaintiff Parents And Family Association Of Pennhurst represents 200 parent
j¦ of retarded citizens at Pennhurst State School And Hospital. The Parents And
i
: Family Association Of Pennhurst was organized in 1967 to protect the rights of
¦ retarded citizens at Pennhurst State School And Hospital and all other insti-
i
¡. tutions.
¦ IV. DEFENDANTS
I 20. Defendant Pennhurst State School and Hospital i s a`Pennsylvania s t a t e menta
j
r¦ institution and a "facility" under the state Mental Health and Retardation Act
¡; of 1966, 50 P.S. 4101, 4102. Pennhurst State School and Hospital is located in
I Spring City, Pennsylvania. i
i
¦ 21. Defendant Department of Public Welfare supervises and operates all activiti i. ¦ of all Pennsylvania mental institutions, including Pennhurst State School and
I:
I. Hospital, and is responsible for such facilities and for the actions of i t s
i \
\\ employees, including those at Pennhurst State School and Hospital. ¡ 22.Defendant Helene Wohlgemuth is Secretary of the Defendant Department of ¦:
Public Welfare, Harrisburg, Pennsylvania. She is charged under 71 P.S. 66 and
• 50 P.S. 4101, et. seq. with responsibility for exercising the powers and per-
`-¦ forming the duties vesting in her office and person and the Department of Publi
¡.
j. Welfare. She is responsible for the actions and decisions of all Department
; employees. She has had personal knowledge of the matters complained of in this
, Complaint.
-A-

I I

I 23. Defendant C. Duane Youngberg is the Superintendent of Fennhurst State School

!

¯

· i

¦ and Hospital and is responsible for the day-to-day functioning of the instituticc

¦' and for the general supervision of the treatment of the residents. He had direc

! knowledge or should have had direct knowledge of the wrongs done to the individu¯

¦al Plaintiffs.

¦ 24. Defendant Robert Smilovitz is the Assistant Superintendent of Pennhurst ;· State School and Hospital and has responsibility for the day-to-day functioning I of the institution and for the supervision of the treatment of the residents, i¡ He had direct knowledge or should have had direct knowledge of the wrongs done | to Plaintiff.

25. Defendants Margaret Green, Betty Uphold, Alice Barton, and.P.E·. -Klick are each4mployees and staff members of Pennhurst State School and Hospital who were involved in the incident described below in which Plaintiff Terri Lee Halderman • incurred multiple fractures of her jaw.

26. Defendant Parocca is a physician at Pennhurst State School and Hospital,
:first name unknown at this time, who has had direct and immediate responsibility
!: for the physical and psychological care of Plaintiff Terri Lee Halderman and has
;had or should have had direct knowledge of the numerous injuries to Plaintiff
:Terri Lee Halderman and of the conditions of continuous danger to Plaintiff
•
!Terri Lee Halderman's well being. As late as August 1973, Defendant Parocca
'was not licensed to practice medicine in the United States.
i:
!.27. Defendant Helen Francis is past director of the hospital unit at Pennhurst
i;
¡, State School and Hospital in which Plaintiff Halderman resided. She was responsi;
, ble for the treatment of Terri Lee Halderman and has had or should have had
! knowledge of the wrongs done to her.
;28. Defendants John Doctor, Jack Nurse, Jack Aide, J i l l Therapist, Richard Roe, i and Jane Roe are unknown and unnamed employees of Defendant Department of Public
i
Welfare and Defendant Pennhurst State School and Hospital who are or were physic -5-

nurses, child care aides, and other employees.
29. Defendants Department of Public Welfare, Pennhurst State School and Hospital Woƒilgemuth, Youngberg, and Smilovitz are aware of the deplorable and unconcionable conditions at Pennhurst State School and Hospital and of the substandard inadequate and illegal treatment and non-treatment to which Plaintiffs are subjected. They have direct and actual knowledge of these wrongs, do nothing to effectively prevent or halt them, and conspire to continue them.
30. At all times relevant herein, the Defendants, and each of them, knew or should have known of the policies, practices, acts, omissions, and conditions alleged herein. !. V.CLASS ACTION ALLEGATIONS
31.For the declaratory and injunctive relief that will affect the operation and maintenance of the institution and will end the illegal and unconstitutional practices there, Plaintiffs bring this action on their own behalf and on behalf of all other persons similarly situated. The members of the class- are all residents at Pennhurst State School and Hospital.
32. This is a proper class action under Rule 23(a) and 23(b)(l). and 23(b)(2) of the Federal Rules of Civil Procedure. The class is so numerous as to make joinder of all members impracticable. There are substantial questions of law and fact common to the entire class and the claims of the Plaintiffs are typica of the class and predominate over any questions affecting only individual membe The named Plaintiffs will adequately and fairly represent the interests of the class. The class action is superior to any other available method for the fair and efficient adjudication of the controversy.
33. The questions of law and fact involved are: a. Do Defendants act under color of state law?
-6-

I

b· Have Defendants conspired to violate the rights of the Plaintiffs'

; and those of their class or have they failed to prevent violations of such

i rights? Have Defendants violated the rights of the Plaintiffs and their

¡ class?

i

;

c. Are the facts and conditions at Pennhurst State School and Hospital

¡

as alleged herein and do they violate the rights of the Plaintiffs and their

class, as alleged herein?

-7-

VI .FACTUAL ALLEGATIONS

• The Totality of the Residents at Pennhurst, Including the named Plaintiffs.

: Live Under Adverse and Dangerous Conditions

. .

¦34·Pennhurst State School and Hospital (hereafter, "Pennhurst," the "institution

- or the "hospital") has a resident enrollment of approximately 1600 persons

! and a staff which is deficient by a minimum of 146 staff members. Staff/resident

¡ ratios are deficient according to all recognized professional standards, in-

l¯

•

I eluding, among others, the Standards for Residential Facilities for the Mentally j¦ Retarded of the Joint Commission on Accreditation of Hospitals. The Defendants

; are aware of this and other deficiencies. Every other aspect of resident care

at Pennhurst fails to meet all professional standards.

i
.35In July, 1971, the Defendant Department of Public Welfare Bureau of Construc-
j. tion and Maintenance surveyed Pennhurst and reported:

|: .

At the present time, there are approximately 1000 students at Pennhurst living in utter squalor, housed in unsafe, unsanitary buildings, several previously planned for demolition to make room for new student cottages.

j;This report's comments are an accurate portrayal of the situation which continu'
¦. ¦· to this day.

i36None of the dozens of buildings at Pennhurst meets the federal Life Safety ¡ !Code requirements. The staff/resident ratio is inadequate to assure each
resident's health, safety, comfort, education, training or treatment.
I;
¡;37Due to poor staffing, poor facilities and inadequate supervision, as well as
¦; gross negligence and incompetence, Pennhurst residents often suffer needless an<
i preventable injuries. For example, it is not uncommon in some of the residentia
!ibuildings for there to be no hot water. As a result, highly contagious localize
!:infections such as boils cannot be properly treated. These infections therefore
iheal very slowly creating the grave danger of infecting other residents. Wards ¦
-8-

; at Fennhurst often have epidemics of boils during which many of the ward residents contract these severe infections.

Ì38. Allegedly "accidental" deaths (at least some of which are actually due to acts or omissions of the Defendants) are not unusual. For example, during the first week of July, 1974, two Pennhurst residents drowned in the Schuylkill River which borders part of the hospital grounds.

39. Residents at Pennhurst receive sedative mind-altering drugs which are not necessary for their care and treatment but which are administered solely for management and control and for the convenience of staff. These drugs are often administered over the objections of the residents and/or their parents

and guardians.
i

;¾O. The grossly deteriorated and adverse physical condition of the facilities

at the institution, combined with the intense lack of meaningful and therapeuti

¡ resident/staff interaction directly causes the level of functioning of

ij residents to deteriorate rather than remain stable or improve. !
41. Inadequate facilities and inadequate attention by staff to residents results

in neglect of proper hygiene and sanitation, poor bathing and related practices

| and needless contraction of communicable and other diseases. Even the basic

I levels of human decency in these areas are not met.

i

1

On many wards at Pennhurst, there i s absolutely no toilet paper and no

I I attempt is made to teach residents the self-help skills necessary and proper i

' to deal with toileting. Often hand soap is unavailable in the bathrooms.

!'

Plaintiffs and other residents are not provided with the opportunity

l· to brush their teeth on a daily basis.

¡i

Communicable diseases and other infections often needlessly spread and

t •
I infect large percentages of a ward's population.
Ì'
I
l· t42. Clothing provided by Defendants is unpersonalized, ill-fitting, and often
|¡ improper for the weather. Residents generally cannot choose the clothes they

—9—

wear. Time outdoors Is not adequately provided and the residents generally suffer from a lack of exercise.
I
i iA3. Ward rules and procedures are not uniform; they vary depending upon which of : the dally work shifts is on duty. This constant many-times-daily change of ¦ ward policy results in confusion to the residents and hinders habilitation and
treatment and hinders adaptation to the living environment.
144. Straight-jackets, wrist restraints, and shackle belts with metal locks are used unnecessarily and without proper authorization. Restraints used are not always the least restrictive ones available.
ji45. Gross physical abuse of residents by staff is not unusual. Residents are ¦ spanked, slapped, punched or shoved for disobeying often illegitmate staff ¦ commands or for disobeying rules or ward policy. Residents are tormented by • staff causing great physical and emotional anguish. For example, staff persons ' have been seen placing ice down the shirt of a sleeping resident and verbally
harassing residents who are in bathroom stalls. This is a general pattern and practice at the institution.
i46. Staff training is woefully inadequte and does not enable the trainee to ; understand and cope with the problems of the mentally retarded citizen. Hiring
t
: practices for direct resident care personnel are based on Civil Service ¦ Examinations which do not test for or determine the ability of prospective
employees to work with retarded citizens. I-47. The residents' dignity and privacy are largely ignored and violated. It i s a
common practice to place two or three residents under one shower head simultan· . eously and thus refuse even individual showers. Many bathroom stalls have no \, doors and residents are thus forced to use the toilet in full view of other ¦: residents and staff. On certain wards i t i s routine procedure to toilet the ;
1
i residents as a group at a time chosen by the staff, solely for the convenience
-10-

of staff.
¦48. Residents are often forced to lie face down on a bedsheet on the bathroom • floor in order to receive an enema. During this time other residents are .
permitted to walk in and enter the bathroom.
49. Residents are often found wearing clothing soaked with urine or stained with ¦ feces. Most residents are given only spoons with which to eat their entire meal ; Residents suffer these and other antitherapeutic indignities on a continual and ¦ daily basis. l
j'5O. Other conditions at Pennhurst are generality oppressive, poor, improper, inad\` equate, innefficient, and in violation of professional, humane, legal standards
i.
'. for the treatment of the retarded. i;
¦:5l. These conditions are suffered by all residents whether admitted or committed ¦ upon court order or application of parents or guardians. Those residents ad! mitted or committed on application of parents or guardians, although nominally : "voluntary" are, in actual fact, involuntary commitments as indigency, lack of i adequate funds, and the non-existance of any other state facility in the area ; for the severely retarded, literally renders the applicant without a choice and ¦ i forces the application.
I
¦52.On information and belief, Pennhurst does not now accept residents upon appli • cation, but accepts residents only upon a court order. 53. Each of the named Plaintiffs and the members of their class is subject to all ¦ of the threats and conditions described in the above paragraphs.
!; TERRI LEE HALDERMAN
i.
j'54. Rather than attempting to catalogue the full range of abuses suffered by th class of Pennhurst residents, the tragic and unfortunate details of the naaed Plaintiffs will be described. The wrongs done to them are similar in kind to

I

to the wrongs done to their class. The remedies for such wrongs are also simila

or, In some aspects, identical.

I

i

•

¦ Incidents Causing Injury To Terri Lee Halderman

55.•Since her admission to Fennhurst, Plaintiff has been involved in over forty I ' (40) reported incidents which are as follows(based on hospital records):
a. 2/2/66 a skinned left knee b. 3/2/66 scratch on lower left eye c. 3/5/66 discoloration of right leg d. 3/10/66 sore on head by hairline e. 5/13/66 abrasion on left cheek f. 5/15/66 scratches on right wrist and left ear g. 5/18/66 scratches to the left side of neck h. 12/2/66 laceration of mouth i. 3/21/67 tooth knocked out j. 11/9/67 cut over left eye k. 5/17/68 swelling on right side of head 1. 5/16/70 overdose of drug mellaril m. 6/1/70 laceration on back of head n. 5/27/70 bite on arm o. 7/20/70 laceration of chin p. 9/14/70 laceration of chin q. 9/19/70 reopening of the sutured laceration of the chin r. 10/21/70 laceration on right side of head s. 11/16/70 laceration below the chin t. 12/1/70 brush burn over lower left eye u. 12/1/70 scratched by another resident. v. 12/13/70 scratched back (by another resident) w. 1/30/71 Plaintiff bitten on third finger,right hand, Plaintiff bitten on left elbow, both by another resident x. 2/17/ 71 soft lump on top of head y. 3/1/71 scratches on back
-12-

z. 3/21/71 laceration on left side of head

aa. A/19/71 fracture of proximal phalanges, 2d, 3d, and 4th fingers, and'

a fracture of the second metacarpal, proximal end

bb. 6/13/71 small red mark on left cheek

cc· 7/14/71 fall suffered on wet floor

dd. 7/18/71 two sores on right wrist

ee. 8/3/71 scratches on right side of face

ff. 8/22/71 bitten on left wrist be another resident

gg. 9/12/71 bruised left ankle

hh. 10/23/71 sore hands

::

ii. 10/26/71 multiple (3) fractures .of jaw

¦

¡

jj. 2/23/72 bruise on left side of head

¦

kk. 3/21/72 laceration of big toe

I;

¡:

11. 5/9/72 swollen and discolored right foot

!:

mm. 5/28/72 swollen right foot

¦¡

'.

nn. 6/.4/72 laceration of forehead

¦

oo. 6/9/72 brush burn on last two toes

¦:

pp. 6/30/72 small laceration on forehead

II

qrrq. f2>/7l\/57lT3 ì infrfeacteudre leosfiobnigintosiede mouth

ss. 11/4/73 laceration on back of head

!56.Few or none of the above injuries and incidents would have occured had ' Defendants properly supervised Plaintiff Haldenaan and maintained the i n s t i t u I tion.

¦57.A single example will illustrate.the lack of supervision. On June 15,1973,
: Plaintiff's left toe was fractured. Plaintiff's mother was informed that, at
i
¦ the time, because of a hospital policy on budgetary savings, there was a short-
! age of shoelaces and Plaintiff Halderman was barefoot because there were no l
j shoelaces for her shoes. Thus an otherwise harmless fall resulted in a painful
and frustrating injury.

-13-

1 58. In any case, the hospital's own investigation revealed that there was a lad

i¦

of

supervision

at

the

time
¯

that

the

fall
·

took

place.

In a
.

"Special

Report"

datec

June 15, 1973 and June 20, 1973, Richard L. Matthew, Assistant Director of

Resident Life, stated:

¡'

¦

The residents were being supervised in one dayroom by one aide while

|

the other child care aides were involved in the showering, drying, and

¦

dressing. The aide from the dayroom was in and out while returning the

i·

residents from the shower room door. It was during this process that

.

the accident occured.

i1

The "Tooth" Incident

• 59. On October 26, 1971, Terri Lee Halderman suffered multiple fractures of her

¦ jaw. In a manner not atypical of the incompetent care given by Defendants, some

¡ Defendants decided there was a"tooth"hanging in Terri Lee Halderman's bleeding

i jaw; it later became apparent that this was not a tooth,but a broken piece of

j cartilage, part of Plaintiff's broken jaw. Nevertheless, before consulting a .
¡.
j, doctor or summoning a doctor, the Defendants involved here pulled on the "tooth'
¦.
¡, cauing much pain and suffering to Plaintiff. When the Plaintiff was discovered
I
i bleeding, instead of enlisting a doctor's services or advice immediately, the I

¡. Defendant resident aides attempted to control the bleeding by applying cold

| compresses. The circumstances surrounding this incident are best described in

j the words of an investigating team at Pennhurst which reported:

¦

Terri Halderman got out of bed at approximately 4:00 a.m. Her protect-

ive helmet was placed on her head at this time. From 4:00 a.m. to 5:00a.m. she wandered around the dayroom and toilet areas banging her head and screaming. Shortly after 5:00a.m. Terri began hitting her

wrists on the doorknob of the private clothing room. At his (sic) time

she was placed in a camisole by Nagle and Green. At approximately 6:05

a.m. Miss Lyttle saw Terri fall backwards and land on her right hip. Terri did not appear to be injured at this time and Lyttly helped her to her feet. At approximately 6:10 a.m. Mrs Nagle found Terri sitting

on the floor with her legs crossed at nearly the same location she £el

earlier. She was bleeding from the mouth. Mrs. Nagle helped Terri to a s

bench and notified Miss Lyttle. They applied cold compresses to the

I

injured area. There appeared to be a"right front" tooth missing. At th

time Mrs. Green was in another area of the cottage and Mrs. Klick was

in the office. It has not yet been determined exactly where Mae Voight

(the working resident) was at this time. At approximately 6:15 a.m.

-14-

!

Miss Lyttle called Mrs. Uphold (CCA supervisor) to report the accident.

¦,

Mrs. Uphold told her to continue the cold compresses. The bleeding

<

subsided to (sic) approximately 6:20 a.m. , but commenced again moments

I

later. At approximately 6:30 a.m. Miss Lyttle called Mrs Uphold again to

,

report that rather heavy bleeding had commenced and that there appeared!

to be a "tooth handing (sic) by just a little skin" from her upper jaw',

'

Mrs. Uphold called Mrs Shanta R.N. to report the difficulty in controllj·

ing the bleeding and the loose tooth. Mrs. Shanta told Mrs. Uphold to

have the aides pull the tooth out and continue the cold compresses. Mrs'.

¦

Uphold called the cottage and relayed the message. When the tooth was ¡

|

removed it was found not to be a tooth but a piece of cartilage-like

¦

substance. While applying the compresses at this time, Miss Lyttle"felt

`

her jaw move strangely"—making a grinding like sound. It was was(sic)

"bleeding coming from the lower jaw." Miss Lyttle called Mrs. Uphold

at approximately 6:35 a.m. and reported this to her. Mrs Uphold said to

•

continue the compresses. Mrs. Uphold called Mrs. Shanta and asked her t

i

come see Terri. Mrs. Uphold arrived on C-3 at approximately 6:40 a.m.

and assisted in the administration of first aid. At approximately 6:45

:

a.m. Mrs. Shanta arrived on the ward and examined Terri. She then

!

phoned Dr. Marshall and Dr. Soroka at his home. Dr. Soroka stated that

¦

he would be in to see the resident by 7:30 a.m. The bleeding subsided

!

at approximately 6:50 a.m. Mrs. Uphold returned to her office to finish

!

her regular work. Mrs Shanta left the ward at 7:15 a.m. Dr. Soroka

arrived at approximately 7:25 a.m. and had Terri transferred to the

Hospital.

The above is quoted from a Pennhurst Accident Investigation Report, a four page,

five sheet document signed by Dr. James C.Hirst, Ph.D. and other hospital

'•• officials. ;

; 60. The investigating committee of Pennhurst concluded that the Pennhurst

; employees, Defendants herein, acted improperly and that:

1. The time lapse from discovery of the injury to the hospital admissicjn

; was too long.

,

2. The nurse should not have advised the "tooth" extraction,

i

3. The aides should not have attempted the "tooth" extraction.

!'

4. The professionals involved did not respond promptly or thoroughly

¦ enough.

5. The practice of permitting residents who are confined in a camisole

(i.e. straightjacket) to wander about the cottage cannot be permitted.

61. Although Plaintiff receives no drugs while visiting the home of her parent
or while visiting the homes of others, and although she functions well in this
¡·
l· non-sedated state, she receives, over the objections o£ her parent, daily
j!

-15-

injections of a sedative drug when in residence at Pennhurst.
J62.On May 16, 1970, Plaintiff did in fact receive an overdose of the tranquilizing drug Mellaril, requiring hospitalization and treatment. This overdose i s con-
' firmed by the institution's Progress Record entry at that date.
63. Plaintiff Terri Lee Halderman's conditon has deteriorated at Pennhurst. . While she was once able to express herslf verbally, she has been incommunicativi ¡ during her stay at Pennhurst. Defendants have made no attempts to help or ¡' encourage Plaintiff to regain her verbal abilities. l¦ [ 64. Plaintiff's physical appearance graphically illuminates her deterioration. ! ¦ She has lost practically a l l of her front teeth, has many facial scars, and i s
pitifully undernourished. 65. Plaintiff Halderman has received limited self-help training only five days I per week. For someone in her situation, such an unsustained effort i s not a , sufficient regimen for a responsible attempt to rehabilitate Plaintiff.
i
¦ 66. Plaintiff's digestive capabilities require that she receive her food in a ¦ pureed state. However, Plaintiff has suffered stomach disorders due to the ; ingestion of non-pureed rood.
: 67. In a progress report in Plaintiff's medical records of May 16, 1970, the ¡ doctor indicated that Plaintiff suffered from "poor oral hygiene."
i 68. Although the dayroom in whirh Plaintiff spends considerable time has a cold i t i l e floor, she i s often allowed to walk about in her bare feet. On occasion, i' Plaintiff's mother mother has found her daughter shivering with cold.
I. 69. For years P l a i n t i f f ' s mother has attempted to remedy and redress the wrongs ¡! ¡i suffered by her daughter by communicating with various officials and persons
!·
'; in positions of responsibility. Because these pleas have either been ignored i ¦ or inneffective, i t was necessary to initiate this action.
-16-

LARRY TAYLOR
70. Plaintiff Larry Taylor Is eighteen years old and has been at¯Pennhurst more than ten years. Plaintiff has a walking disability and due to a lack of .needed protective supervision and due also to gross staff neglect, Plaintiff has been repeatedly knocked to the ground by other residents incurring multiple abrasions and bruises.
71. In about 1967, though patient care attendants were on duty at Plaintiff's ward, a strong and violent resident attacked Plaintiff, severely beating him. ¦No staff person came to Plaintiff's aid. Plaintiff suffered large discoloring ¡ ¡ bruises over a large portion of his body and also received deep wounds of the I face and head which required numerous sutures. Plaintiff's injuries were so devastating that he required several weeks of hospitalization.
72. After admission to Pennhurst, Plaintiff was placed on the drug Dilantin, a idrug prescribed to control seizures. Pennhurst ward staff informed Mr. and Mrs. ¡ Taylor that no one had ever seen Larry have any kind of seizure and that the prescription of Dilantin puzzled them. As a direct result of the continual and ;repeated ingestion of this drug, Plaintiff's gums have been permanently damaged ; His gums are swollen and frequently ooze and bleed. Two of Plaintiff's front tee |have fallen out as a result of this drug induced disease.
73. As of the writing of this amended complaint, Larry Taylor is needlessly, to ¦his detriment, and over his parents strenuous objections, kept heavily sedated. ¡When Plaintiff's parents visit with him and take him off grounds for a day, [Plaintiff is extremely sluggish and has a difficult time remaining awake. Plaint jiff's school report card states that Plaintiff falls asleep a lot in class. This 'drug induced grogginess prevents proper habilitation, education, and treatment, • and is for the benefit of staff control. I ¦74. In about 1970, Plaintiff was sick with a virus. Mr. and Mrs. Taylor visited •with Plaintiff. On first sight of their son it was apparent to Plaintiff's
-17-

parents that Plaintiff was dehydrated. Plaintiff's mouth and lips were complete dry and Plaintiff was very weak. Plaintiff's father asked the ward attendant ' for some juice, which was available on the ward, and Plaintiff immediately consumed more than a quart of fluid. This gross neglect of Plaintiff is indicative of the quality of care that residents at Pennhurst recieve.
75. Recently Mrs. Taylor visited with Plaintiff at Pennhurst and the ward staff could not even locate a single washcloth with which to cleanse Plaintiff. Plaintiff and all residents at Pennhurst daily suffer such inhumane and degrading experiences.
KENNY TAYLOR
, 76. Kenny Taylor is sixteen years old and has been at Pennhurst more than ten years. In 1967 or 1968 while ward staff left the residents completely unsupervis
í Plaintiff Kenny Taylor had a tooth knocked out as he was violently pushed to ¡ the floor by another resident. ! i 77. In about 1968, Mr. and Mrs. Taylor were returning Kenny and Larry to their
i
¦ wards after having spent time with them outside. It was 5:30 p.m. Both of the ward attendants were in the office, obviously highly intoxicated, listening to
i
! the radio. Every child on the ward was running excitiedly about without any
I
¦ supervision. Mr. and Mrs. Taylor filed a report with Pennhurst officials protesting the employment of such incompetent and callous individuals. Both aides
I were subsequently dismissed from employment.
¦ 78. On numerous occasions on the wards of both Kenny and Larry Taylor, there ha been broken chairs and benches with sharp and exposed springs and n a i l s .
¦ 79. In 1971 Plaintiff Kenny Taylor was pushed from a swing, landing violently | on the ground. He was bleeding from the mouth and his nose was swollen. I t was ¦ not until two days later that Pennhurst discovered that P l a i n t i ï f ' s nose was'
fractured.
-18-

80. In 1972 Plaintiff was bitten numerous times by other residents sustaining numerous painful wounds and bruises. In the space of four months in 1972, Plaintiff was bitten by the same resident four times. No meaningful attempt was made to protect Plaintiff from this stronger and more aggressive resident.
81. In April of 1972, Plaintiff was pushed by another resident and suffered a deep laceration of the forehead which required sutures. If adequate supervisioh had existed, such a severe injury would have been prevented.
82. In 1973 and 1974 Plaintiff again was victimized by other residents, receiving bites and scratches. In May, 1974 Plaintiff's face, was bitten by another resident inflicting intense pain and persistent discomfort to Plaintiff. These constant attacks could easily have been avoided with adequate and meaningful supervision.
ROBERT SOBETSKY
83. Robert Sobetsky i s seventeen years old and has been at Pennhurst s i n c e 1972. Since h i s admission, P l a i n t i f f Robert Sobetsky has suffered numerous i n j u r i e s on a c o n t i n u a l b a s i s .
84. P l a i n t i f f was not at Pennhurst many months before the f a m i l i a r p a t t e r n of preventable resident assaults became noticeable. Plaintiff was often bitten and scratched by other residents.
¡!85. In May, 1973, in the short space of five days, Plaintiff was twice bitten ion the throat, suffering intense pain. On'one day alone in December,1973, I Plaintiff' Robert Sobetsky suffered multiple bites of his upper arms. These ! injuries occurred l e s s than twenty four hours after Plaintiff was last bitten iby another resident.
! 86. Plaintiff has a walking disability and therefore moves slower than most ochi
¦
residents. He i s a prime target for violent and aggressive residents. It i s obvious to a l l Defendants that Plaintiff needs protective supervision, yet, It i s just as obvious that Plaintiff does not receive such supervision in any form
-19-

I
I I
87. In January, 197A Plaintiff was confined to a wheelchair. Though Defendants knew that Plaintiff needed help in má`euvering his wheelchair, Plaintiff was left ' completely unsupervised at the top of 'an open stairway. Pennhurst records report that Plaintiff was next seen falling down the school stairs in his wheelchair. Such staff incompetence and gross negligence creates the terribly ¦ dangerous conditions under which Pennhurst residents must constantly live.
¦ 88. Typical of the degrading indifference which Pennhurst staff display toward their retarded citizens, is the incident involving Plaintiff on February ll,l97í It was a cold winter day. Plaintiff was taken home to spend some time with his
I
; family. Plaintiff had a deep chest cold, but it was not until the Sobetsky family arrived home that it was discovered that Plaintiff had only an undershirt beneath his coat!
89. Though Plaintiff and all Pennhurst residents need a stable environment in which to properly develop and learn, Plaintiff, for more than two years at Pennhurst did not have an assigned bed in which to sleep. There are more than twenty five beds on Plaintiff's ward.
90. Due to the above-mentioned dangerous, unstable, and anti-therapeutic conditions, Plaintiff has regressed. When Plaintiff was three years old, Plaintiff was able to drink from a water fountain, and this was noted by a social worker in Lansdale, Pennsylvania. Yet, in.1973, an aide at Pennhurst ironically boasted, "I got Robert to drink out of the fountain."
91. Plaintiff has been subjected to dehumanizing, degrading bareheaded haircuts His ward is constantly engulfed in the intolerable smell of feces and urine. Many residents are dressed only in underwear, while other are permitted to lay naked on the cold tile floors. Plaintiffs and their class are subjected to similar or identical conditions throughout Pennhurst.
-20-

THERESA SOBETSKY
¦ 92. Plaintiff Theresa Sobetsky has been at Pennhurst less than three years, yet in this short period of time, she has fallen victim to staff inadequacy and
: negligence many times.
i
i
' 93.. In Harch,l972, Theresa was thrown out of her wheelchair by another resident sustaining lacerations and bruises of the face and head. But, it was not until eleven days later,when Mrs. Sobetsky arrived at Pennhurst to take Theresa home
! for a weekend, that it was discovered that Theresa also sustained a severely ' : sprained left ankle and left knee and was completely unable to walk. ¡ 94. Though Plaintiff Theresa Sobetsky's left ankle and left knee were clearly ¦ swollen and bruised, Pennhurst staff never once detected any Injury, and > Plaintiff remained In pain without treatment for almost two weeks. 'The I, swelling and bruises were so prominent that a private orthopedic surgeon, upon l· seeing Plaintiff on the twelfth day after the fall, immediately ordered X-rays l· to be taken to determine whether or not Plaintiff had fractured any bones in : her left leg or ankle. i¦ ¦ 95. Due to the severity of Plaintiff's leg and ankle injury, Plaintiff's
orthopedic surgeon recommended that Plaintiff wear orthopedic shoes, to prevent any further needless damage. Though Pennhurst received explicit instructions from Plaintiff's physician regarding the correct use of the orthopedic shoes, Pennhurst staff, continually and repeatedly improperly laced the shoes, and ': often placed the shoes on the wrong feet, inflicting -greater damage to 1 Plaintiff's ankles. ||
96. During a home v i s i t by Plaintiff, i t was discovered that Pennhurst staff
!` had labelled Plaintiff's right shoe as the left shoe, and had labelled the j' left shoe as the right shoe! Such gross incompetence and intolerable negligencs
occurs daily to Plaintiff and all residents at Pennhurst.
-21-

(97. Another example of Pennhurst's gross disregard for the welfare of its retarded

i

·

¡citizens surrounds Plaintiff's recovery from her leg injuries. In May, 1972, as

'Plaintiff was recouperating from the knee and ankle impairments, i t was advised

ithat Plaintiff should discard her wheelchair and attempt to walk—but only with
i

ithe aid of a walkette. Pennhurst officials then advised the Sobetsky's by lettei

ithat Plaintiff would receive the walkette and begin rehabilitative therapy--only

jiupon receipt of $20, payment for the walkette. Defendants intentionally made

•rehabilitation of Plaintiff contingent on her parents ability to buy a walkette,

!which was already available at Pennhurst.
¦'98. Though well aware of Plaintiff's leg problems, the Defendants, ignoring all i ¡ reasonable dietary planning, caused Plaintiff to become extremely overweight,
i
|.creating gtreater stress and inflicting greater damage to Plaintiff's already

| weakened knee and ankle.
I
¦;99. Plaintiff Theresa Sobetsky like her brother .Plaintiff Robert Sobetsky and

pall other Pennhurst Residents, has received a glaringly inadequate education.
Î
In 1972 Plaintiff was attending school only three hours a day and only five days

ia week. In the spring of 1973, this shamefully diminutive education was reduced

¡.to only two and a half hours of school per day, and again only five days per weel ! i;a total reduction of 16% of Plaintiff's education!
i • !;

;iOO. On May 7, 1974, Dr. Nickolas, a Pennhurst employee, negligently extracted : Plaintiff's lower left first molar. Dental Supervisor at Pennhurst, Simeon J.

: Cole Jr. D.D.S., in a memorandum to Defendant Superintendent Youngberg, stated !
I:that Plaintiff's post operative examinination "revealed a severely traumatized

¦<cheek and lip." Though Dr. Cole dismissed the swelling and facial disfigurement

has the result of Plaintiff biting her own cheek, a careful examination of

j:Plaintiff 's mouth by her parents revealed no bite marks and absolutely no

ibroken tissue. Upon returning their daughter to Pennhurst, Plaintiff's parents

-22-

were told by a Pennhurst employee that Plaintiff Theresa Sobetsky received an injection in the lip and that this misplaced injection caused the swelling. Though the extraction was Intended to relieve the pain in Plaintiff's jaw, the resulting negligence only served to intensify and prolong Plaintiff's agony.
NANCY BETH BOWMAN
101. Plaintiff Nancy Beth Bowman, twenty three years old,was admitted to Pennhurst in 1961. Pitifully, she typifies the inevitable physical and intell¦ectual deterioration noted in all Pennhurst residents.
¦IO2. Upon entering Pennhurst, Plaintiff was clean, healthy, unscarred, and in {good physical condition. As of the writing of this complaint, Plaintiff epitomizes the tragic consequences of inadequate, incompetent, and negligent
care, treatment, and supervision. Plaintiff's back reveals numerous scars and patches of scar tissue. The same condition exists on Plaintiff's neck and throat area.
1103. In 1970, Plaintiff was violently struck by an aide, and the caps for I ¦Plaintiff's teeth were dislodged by the blow and never located.
104. Under the constant threat of physical detioration and abuse, most of Plaintiff's human energies must be directed solely toward basic survival, thereb ipreventing Plaintiff from even attempting to attain a higher level of human potential and capability. The same is true of the class. Plaintiff and her class !suffer from an obvious lack of intellectual and psychological growth and progres
I
i
I George Sorotos
¦IO5. Plaintiff George Sorotos i s only eleven years old and has been at Pennhurst for four years. Though he i s only a child, Plaintiff too has suffered physical and psychological neglect and abuse.
-23-

106. Like so many other Plaintiffs herein and members of the class, Plaintiff
I has had teeth knocked out while at Pennhurst. This needless injury could have
¦been prevented with proper supervision.
107. Since his commitment to Pennhurst, Plaintiff has received numerous bruises
and lacerations. As of the writing of this complaint, Plaintiff's arms contain
i numerous scars that •did not exist upon his admission to Pennhurst. | •108. Plaintiff is usually dressed only in underpants, though the ward floors ! are made of tile. Occasionally, Plaintiffs foster parents have found him lying
naked on the barren ward floor. Plaintiff, while on the ward, is never dressed ¦ in shoes and socks. Such constant degradations prevent improvement in Plaintiff í
¦;! intellectual and emotional condition.
¡ 109- On occasion, Plaintiff's foster mother has found Plaintiff, in violation
¦of all standards of human decency and safety, physically tied to a bench.
Knowing that a young child was strangled to death in exactly the same manner
¦ at Pennhurst in 1972, Plaintiff's foster mother raised vehement protests
I against such inhuman treatment of her foster child and all other Pennhurst
¦ residents.
¦
¡LINDA TAUB
t
110. Plaintiff Linda Taub is twenty three years old and has been at Pennhurst since she was thirteen years old. She was committed by her parents.
i
; 111. Plaintiff realleges paragraphs 34 to 53 inclusive and i s subject to a l l the 'conditions therein.
¡
': PARENTS AND FAMILY ASSOCIATION OF PENNHURST
i l l 2 . P l a i n t i f f Parents and Family A s s o c i a t i o n of Pennhurst represents 200 parent ¦of retarded c i t i z e n s a t Pennhurst. The organization represents both v o l u n t a r i l y i ¦ and i n v o l u n t a r i l y committed r e s i d e n t s . P l a i n t i f f a s s o c i a t i o n was organized i n
-24-

1967 in response to the critical need to protect the neglected rights of retarded citizens at Pennhursc and all other institutions.Plaintiff Parents and Family Association of Pennhurst has for years, through state, local, and institutional administrative channels, attempted to alleviate the pitiful j; conditons that have existed and continue to exist at Pennhurst State School • and Hospital.Encountering no meaningful success, resort to this lawsuit was | seen as the only viable method of vindicating the rights of those persons
l¡
whose mental capabilities differ from the accepted norm.
CAUSES OF ACTION
For Plaintiffs' causes of action, each enumerated below, they reallege paragraphs 1 through 112 above, as if fully set forth herein in each cause of acti and further allege:
First Cause of Action
¦ 113. Plaintiffs and their class have been denied their Constitutional right to l: treatment, in violation of the Due Process Clause of the Fourteenth Amendment. ; It is a fundamental violation of due process to institutionalize or provide , institutionalization for a person for the purpose of affording him or her ¦ therapeutic treatment and habilitation and then deny him or her such treatment i and habilitation. i
i
¦· 114. For the retarded, included in the right to¯ treatment is the right to l· habilitation, proper medical treatment, education, and care, suited to the
i:
resident's needs, regardless of age, degree of retardation or handicapping condition. A resident has the right to an habilitation program which will maximize human a b i l i t i e s and enhance the ability to cope with his or her environment.
-25-

115. Due to the adverse living conditions and deficient supervision and care, |i Plaintiffs and their class are denied the right to dignity, privacy, and
humane care which underlie the right to treatment and are founded in the Firs Ninth, and Fourteenth Amendments to the United States Constitution.
Second Cause of Action
116. Plaintiffs and their class have been denied their Constitutional right to treatment in violation of the Equal Protection Clause of the Fourteenth Amendment. The state law and Defendant officials have classified certain persons as civilly committable for institutionalization at Pennhurst based on their
r
! condition and need for treatment. Other persons at other state facilities do I receive adequate treatment for similar conditions (e.g. the Woodhaven Institui: ¡ tion); persons at Pennhurst do not receive adequate treatment. There is no
!•
rational basis for this classification and disparity in treatment. Confinement o£.the mentally ill or retarded without treatment deprives them of the equal protection of the laws.
Third Cause of Action
117. Plaintiffs and their class have been denied their statutory right to treatment. Pennsylvania state statutes at 50 P.S. 4402(a) and 44O3(a) provide that "voluntary admission to a facility" is for "examination, treatment and care." (emphasis added) This provision grants a statutory right to adequate and proper treatment which is not being implemented or respected by Defendants
Fourth Cause of Action
118. Plaintiffs and their class have a constitutional right to be protected from bodily harm and abuse and conditions which cause them to be in a state of danger and deterioration. Defendants violate this basic right.
-26-

I
¦
Fifth Cause of Action

: H 9 . Plaintiffs and their class are subjected to cruel and unusual punishment
¦in violation of the Eighth Amendment to the United States Constitution.
i
iSixth Cause of Action
1120. Plaintiffs and their class have been denied their constitutional right to
t
I the least restrictive conditions necessary to achieve the purposes of commitment
in violation of the Due Process Clause of the Fourteenth Amendment.

121. This violation occurs in two ways:

a. Defendants utilize such restraining measures as camisoles (straightjack
I;
¦:posey wrist restraints and leather straps with steel locks when less restrictive i· imeasures (or less time with the more restrictive measures) would suffice.

'

b. By not providing adequate treatment and habilitacion, Plaintiffs and

¡ their class do not improve in condition and functioning to the extent possible

¦and to be expected In a proper program. Thus, the institutionalization i s

:needlessly prolonged and use of l e s s restrictive community care f a c i l i t i e s i s

|not utilized to the proper extent.

: Seventh Cause of Action

122. All of the Defendants have and have had the duty to prevent the above
injuries from occurring to Plaintiffs and their class; they failed to do so
-neglecting their duty in violation of 42 U.S.C. 1986, their common law duties
hand their medical and professional obligations.
!|
•'Eighth Cause of Action !¦ ; 123. Plaintiffs have been denied the right to refuse treatment in violation of ¦ ¡ their First, Eighth, Ninth, and Fourteenth Amendment rights and in violation of !
itheir common law rights. They have been denied their right to be let alone and I I to be from interference with sensation and to be free from interference with
í
-27-

¦ .
I their bodies and minds in violation of their Frist, Eighth, Ninth, and Fourteent I Amendment rights.
24. Plaintiffs Terri Lee Halderman and Larry Taylor,'despite repeated objection :from their parents, continue to be sedated with mind-altering drugs at Pennhurst
i
• by Defendants. Plaintiffs are able to function well in a non-sedated state. This ¦itreatment is is for the purpose of staff convenience and is unnecessary, cruel, 11 barbarous, untherapeutic and interferes with Plaintiffs' habilitation. 'Ninth Cause of Action
• 125. Defendants have been grossly negligent and incompetent in their care and :.treatment of Plaintiffs, due to callous disregard for their comfort, health and t safety and due to deficient staff attention, resources, and programming. They • have permitted the above noted incidents of physical injury and abuse to occur ¦.despite the fact that they had knowledge or should have had knowledge of the ¡i deleterious conditions and improper practices which resulted in such injury and ¦' abuse.
| 126. Defendants have committed aasault and battery upon Plaintiffs Terri Lee I'Halderman, Larry Taylor, Theresa Sobetsky, Nancy Beth Bowman, and George
¡
¦;Sorotos, causing them physical harm and severe emotional d i s t r e s s . Defendants
¡i
¡;are liable at common law for these injuries. ¡127. Defendants are liable to Plaintiffs for punitive and exemplary damages as |ia result of their conscious, deliberate, wanton and gross disregard for the '.life, health, rights, and interests of all Plaintiffs.
¡I.'VIII. PRAYER FOR RELIEF
': WHEREFORE, Plaintiffs respectfully pray this Honorable Court to grant the
i;
!following relief:
-28-

I !
1. Assume jurisdiction of this action and set the matter for an expeditied ihearing and determine i t to be a proper class action.
j;2. Because the above breaches of the substantial rights of all the Plaintiffs hand their class are of a continuing nature, and will cause further irreparable !harm if not remedied, Plaintiffs seek a mandatory injunction on behalf of ithemselves and their class to command Defendants to act to provide proper 11supervision, treatment, and care at Pennhurst which has been denied to 'Plaintiffs and their class. The Court-is asked to determine the minimum jconstitutional and statutory and common law standards for care. Plaintiffs :and their class have no adequate remedy at law.
¦ 3. Award Plaintiff Terri Lee Halderman $250,000 in compensatory damages and
i
I]$1,000,000 in punitive damages.
¦A. Award Plaintiff Larry Taylor $100,000 in compensatory damages and $500,000 liin punitive damages
j:5. Award Plaintiff Kenny Taylor $100,000 in compensatory damages and $500,000
i' i
¡ in punitive damages.
!¡
|;6. Award Plaintiff Robert Sobetsky $100,000 In compensatory damages and $500,000
I in punitive damages. ¦7.Award Plaintiff Theresa Sobetsky $100,000 in compensatory •damages.and
$500,000 in punitive damages.
i
!¦ 8. Award Plaintiff Nancy Beth Bowman $100,000 in compensatory damages and ¦; $500,000 in punitive damages.
i'
i
!; 9. Award Plaintiff George Sorotos $100,000 in compensatory damages and $500,000
i
j'in punitive damages.
-29-

I' 10. Award Linda Taub $25,000 In compensatory damages and $100,000 In punitive ' ¡

'`

!

|: damages.

i

¡·

I

¦· 11. Award costs, attorney's fees, and grant such other relief as may be just, ¡ ¦. proper, and equitable.

0
DAVID FERLEGER, ESQUIRE 1315 Walnut Street, Suite 1407 Philadelphia, Pa. 19107 215-735-8409
Attorney for Plaintiffs

-30-

 
 IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Nos. 78-1490 , 78-1564, 78-1602

TERRI LEE HALDERMAN, et al., Appellee

UNITED STATES OF AMERICA and
PENNSYLVANIA ASSOCIATION FOR RETARDED CITIZENS, et al.,
Plaintiffs-Intervenors-Appellees

V.

PENNHURST STATE SCHOOL AND HOSTIPAL, et al., Defendants-Appellants

FRANK L. RIZZO, et al.,

Defendants-Appellants

and GEORGE METZGER, et al.,

Defendants-Appellants

On Appeal from the United States District Court for the Eastern District of Pennsylvania

BRIEF FOR THE UNITED STATES

ROBERT DeLUCA United States Attorney
JAIME FERNANDEZ Attorney Office of General Counsel Department of Health,
Education and Welfare Washington, D.C.
Of Counsel
r

DREW S. DAYS, III Assistant Attorney General
BRIAN K. LANDSBERG FRANK D. ALLEN, JR. ARTHUR E. PEABODY, JR. Attorneys Department of Justice Washington, D.C. 20530

TABLE OF CONTENTS

Pace

QSTUAETSETMIOENNTS -P-R-E-S-.E_N-T_E-D-_--___-__-----------------------------

1 2

A. Procedural History-----------------------------

2

B. The District Court Findings---------

6

C. The Evidence-------_---.----.--------.-----_-----

11

1. General Nature of Pennhurst--------------_

12

2. Conditions at Pennhurst-------------------

14

3. Alternative Facilities arid Services------

24

AIRNGTURMOEDUNCTT-I-O--N--A-N_D--S-U-M-M-A-R-Y---O-F--A-R-G-U_M-E_N-T-----_-_-_-------_---_---.-__---_-_--

27 29

I. DEFENDANTS ARE DISCRIMINATING AGAINST THE

PLAINTIFFS IN VIOLATION OF SECTION 50 4 OF

THE REHABILITATION ACT OF 1973----------------

29

A. Section 504 Provides A Private Right

of Action To The Plaintiff Class---------

30

13. Defendants Are Violating Section 504-----

36

II. THE DISCRIMINATION AGAINST PLAINTIFFS

VIu'lt

_L

K •.L'

l'11..'

----------

4 U

III. PLAINTIFFS ARE DEPRIVED OF THEIR LIBEi'I'Y

WITHOUT DUE PROCESS OF LAW AT PENNHURST------

47

A. The Liberties at Stake--------------------

50

B. The State Purpose--°------- --------_._____ 57

TV. THE DISTRICT COURT PROPERLY APPLIED

EQUITABLE PRINCIPLES IN GRANTING RELIEF------

60

A, TWahreraAnptpedoi-n-t-m--e-n-t--o-f-a---S-p-e-c-i-a-l--M-a-s-t-e-r---i-s----

62

B. The Relief Is Not Vague_--___.___________.__

65

C. The Scope of the Remedy Does Not Exceed

the Violation Found------------------------

67

D. The Order Does Not Violate the Eleventh

Amendment----------------------------------

69

V THE TRIAL JUDGE PROPERLY EXERCISED DISCRETION

TO ALLOW THE UNITED STATES TO INTERVENE IN

THECASE---------------.----------------------------

70

CONCLUSION --------_------ ----------------------------_- 77

TABLE OF AUTHORITIES

Cases:

Page

Alexander v. Hall, C.A. No. 72-209 (D. D.C., June14, 1978)------------------------_..----- 76

Alexander v. Hall, 64 F.R.D. 152 (D. S.C. 1974)-- 76

Allen v. State Board of Elections, 393 U.S. 544 (1969) --------------------------------- 35

Allen Calculators, Inc. v. Nat'l Cash Register

Co., 322 U.S. 137 (1944) -------------------

72

Ashwander v. TVA, 297 U.S. 288 (1936) ------------ 29

Baldwin v. Morgan, 251 F.2d 780 (5th Cir. 1958)-----------------_-------.--------------- 74

Barnes v. Virgin Islands, 415 F. Supp. 1218 (D. V.I. 1976)-------------------------------- 54

Bates v. City of Little Rock, 361 U.S. 516 (1960)-------------------------------------- 57

Battle v. Anderson, 564 F.2d 388 (10th Cir.

n7 -

Baxstrom v. Herold, 383 U.S. 107 (1966) ----------

Bell v. Hood, 327 U.S. 678 (l946)-----------------

Bossier Parish School Bd. v. Lemon, 370 F.2d 847 (5th Cir. 1967), certiorari denied, 388 U.S. 911----------------------------------

Bowrinq v. 1977)

-G-o-d-w-i-n-,---5-5-1--F-.-2-d---4-4--(-4-t-h--C-i-r-.-------•--

Bradle y v. Mi.11iken, 402 F. Supp. 1096 (E.). Mich. 1975) ---------------------------------

Burnham v. De p artment of Public Health of Georgia, 349 F. Supp. 1335 (N.D. Ga. 1972), rev'd, 503 F.2d 1319 (5th Cir. 1974), certiorari de'ied, 422 U.S. 1057 (1975)-------------------------------•-------

Cortv. Ash, 422 U.S. 66 (1975)-------------------

50 60
33 5 3 64
48 30,36

ii

Cases (continued):

Page

Costello v. Wainwright, 525 F.2d 1239 (5th Cir. 1976) --_----_-----_-------------------------

5 9, 61

Craig v. Boren, 429 U.S. 190 (1976) -------------

39

Dandridge v. Williams, 397 U.S. 471 (1970 )-------46

Davis v. Watkins, 384 F. Supp. 1196 (N.D. Ohio1974) ----------------------------------

47,64

Detainees of the Brooklyn House of Detention v.

Malcolm, 520 F.2d 392 (2d -Cir. 1975) -- -----

62

Donaldson v. O'Connor, 493 F.2d 5+37 (5th Cir.

1974) --- — ------------------------------__-

47

Donaldson v. United States, 400 U.S. 517

(1971)---.----------- -----------------------

77

Drennon v. Philadelphia General Hospital., 428

F. Supp. 809 (E.D. Pa. 1977) ----------------

35

Dunn v. Blumstein, 40 5 U. S. 330 ( 1972)------- --

57

Duran v. Elrod, 542 F.2d 998 (7th Cir. 1976)---Edelman v. Jordan, 415 U.S. 651 (1974) ----------Estelle v. Gamble, 429 U.S. 97 (1976)--___- .__.__._

53 69 53,55,56,57

Evans v. Buchanan, 555 F.2d 373 (3d Cir. 1977)--

60

Evans v. Washington, C.A. No. 76-0293 (D. D.C.,

Jan. 28, 1977) -------------------------------

76

Fanty v. Comm. of Pa. De rtment of Public

Welfare, 551 F.2d 2 (3d Cir. 1977) ---------

69

Feeley? v. Sampson, 570 F.2d 364 (1st Cir. 1978)-

59

Finne v. Arkansas Board of Correction, 505 F.2d 194 (8th Cir. 1974)--_.---_._______.______

53,54

Frontiero v. Richardson, 411 U.S. 677 (1973)----

39

iii

Cases (continued):
Gary W. v. State of Louisiana, 437 F. Supp. 1209 (E.D. La. 1976) -----------------------
Gar W. v. Stewart, C.A. No. 74-2412-C (E.D. La. Apr ii 9, 1975) -------------------------
Gautreax v. Chicaqo Housing Authority, 265 F. Supp. 582 (N.D. Ill. 1967) ---------------
Gregg v. Georr ia, 428 U.S. 153 (1976) ---------
Griswold v. Connecticut, 381 U.S. 479 (1965)--
Hampton v. Holmesburg Prison Officials, 546 F. 2d 10 77 ( 3d Cir. 19 7 6) -------------------
_ Hart v. Community Sch. Bd. of Brooklyynn, N.Y. Sch. D. #21 383 F. Supp. 699 (E.D. N.Y. 1974)----- ----------------------------_----
Hernandez v. Texas, 347 U.S. 475 (1954) --------
Horacek & United States v. Exon, C.A. No. 72-- L-299 (D. Neb., Jan. 23, 1977) ------------

Page 4 7, 4 8 51 , 7 6 33 56,57 52 5 2
64 38 74,76

Ingraham v. Wright, 430 U. S. 651 ( 1977) -- -----

55

In re Debs, 158 U.S. 564 (1895) ----------------

70

In re Estelle, 516 F.2d 480 (5th Cir. 1975),

certiorari denied, 426 U.S. 925 (1976)-----

75

Jackson v. Indiana, 406 U.S. 715 (1972) --------

59

I;_ampmeier v. Ny uist, 553 F.2d 296 (2d Cir.

1977)-----------------------_----------------

30

Kern River Co. v. United States, 257 U.S. 147 (1921)----------7 70 0

Keyes v. Sch. Dist. No. 1, Denver., Colorado,

380 F. Supp. 673 (D. Colo. 1974) ----------

64

iv

Cases (continued):
Knecht v. Gi_llrnan, 488 F.2d 1136 (8th Cir. 1973) - -- — ---------------------------------
Kus er v. Pontikes, 414 U.S. 51 (1973)
Lau v. Nichols, 414 U.S. 563 (1974) ----------
Floyd v. Regional Transp. Authori , 548 F.2d
1277 ('7th Cir. 1977)------------•--------
Martinez Rodriquez v. Jimenez, 409 F. Supp. 582 (D. P.R 1976)---------------------•-
Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 (1976)---------------------
Mathews v. Eldridge, 424 U.S. 319 (1976)------
McCray v. Burrell, 516 F.2d 357 (4th Ci.r. 1975) -----------------------------------
McGowan v. Maryland, 366 U.S. 420 (1961)------
Meyer v. Nebraska, 262 U.S. 390 (1923)
Milliken v. Bradley, 418 U.S. 717 (1974)-----
Milliken v. Bradley, 433 U.S. 267 (1977)
Mills v. Bd. of Educ., 384 F. Supp. 866 (D. D.C. 1972)----- ----------------------•----
Moore v. Ci of East Cleveland, 431 U.S. 494 (1977) ------------------------------
Morales v. Turman, 383 F. Supp. 53 (E.D. Tex. 1974), vacated and remanded, 562 F.2d 993 (5th Cir. 1977) ----------------
Morgan v. Kerricsan, 401 F. Supp. 216 (D. Mass. 1975) ----------- -----------------
NAACP v. Alabama, 357 U.S. 449 (1958)
NAACP v. Button, 371 U.S. 415 (1963) ---------

Page
5 6 57 32,33,39
30 , 32, 33, 34, 35
54
38 49
54 38 52,58 67 69,70
64
50,52
55
64 52 52

v

N

Cases (continued):
Newman v. Alabama, 503 F.2d 1320 (5th Cir. 1974), certiorari denied, 421 U.S. 948 (1975) -------_-----_----.----_-----------

Newman v. Piggie Park Enter ices, Inc., 390 U.S. 400 (1968)----------------------

New Orleans v. Dukes, 427 U.S. 297 (1976)----

New York State Association for Retarded Children v. Rockefeller, 357 F. Supp.
752 (E.D. N.Y. 1973) --------------------

North Carolina Ass'n for Retarded Children v. North Carolina, C.A. No. 3050 (E.D. N .C. Jan. 17, 1974)-----------------------

Nuesse v. Camp, 385 F.2d 695 (D.C. Cir. 1967)------------------------------------

O'Connor v. Donaldson, 422 U.S. 563 (1975)---

O'Keefe v. New York City Board of Education, 246 F. Supp. 978 (S.D. N.Y. 1965)--------

Pena

v.....Nye, w

York _

State 2-

,

Div3,ision..

for

Youth,
5 .

Pennsylvania Ass'n for Retarded Children v. Comm. of Pennsylvania, 334 F. Supp. 1257 (E.D. Pa. 1971)----------- 7 --------
Pierce v. Society of Sisters, 268 U.S. 510 (1925)-----------------------------------
Poe v. Ullman, 367 U.S. 497 (19 ) -------------
Regents of the University of California v. Bakke, 46 U.S.L.W. 4896 (S.Ct. June 28, 1978) ----------- ---------------------------

Rhem v. Malcolm, 507 F.2d 333 (2d Cir. 1974)-
Robinson v. California, 370 U.S. 660 (1962)---
Romeo v. Younbera, No. 76-3429 (E.D. Pa. June6, 1977) ------------------------------
Rone v. Fireman, C.A. No. 75-355A (N.D. Ohio May25 , 1976) ----------------------------
Rouse v. Cameron, 373 F.2d 451 (D.C. Cir. 1966)---------------------------------------

vi

Page
35 , 5 4, 5 6 61 46
55
76 73,77 47,48,58 73
64 52,58 49,50
3 3, 3 8 53,59,60 46,55 5 4 76 48

Cases (continued):

Page

San &otnoio School District v. Rodriquez,

411 D.S. 1 (1973)------------------------

38

Scott v. Plante, 532 F.2d 939 (3d Cit. 1976)--

48

Screws v. United States, 325 U.S. 91 (1 4 45)---

52

-S-E-'C3v1.0United States Realty6 Improvement Co., )---------------------73

Secretary of Public Welfare v. Iostitotion-

alioed Juveniles, No. 77-1751, probable

jurisdiction noted, 46 U.S.L,W. 3779-----

51

Shelton v. Tucker, 364 U.S. 479 (l96O)--------

57

G

v. Staras, 507 F,2d 554 (7th Cit.

974) ---------------------------------------

52

Stamoo v. Leonhardt, C.A. No. 73-126-2 (S.D.

IowaFeb. 2 1 , I975)----------------------

76

Strauder v. West Virginia, 100 U.S. 303

80)------------------------------------

38

V. L|)clL 1.,Li ,,.-^^=/^^^..^

Ddun./ 306 F. Supp. 1291 (M.D. N.C.

l969)------------------------------------

64

Traffica-n-t-e-S.v. MetropolitanLife Ins. C

----

35

-U-n-i-t-ed B di

d F d ti v. Andre,

558 F.2d 413

977) -------------

]O

United States v. American Bell Tele b

Co,,

128 U.S. 315 (1888) -----------------------

70

United States v. Arlin t on Co nt C

f Va.

326 F'.2d 929 (4th Cit. 1964) ---------------

70

United States v. California, 332 D.S. 19 (1947)-

72

United States

County S

8d Prioce

George (County, Va., ]l P. Supp. 93 (E.D.

Va. l963)---------------------------------

76

vii

Cases (continued):
United States v. Frazer, 297 F. Supp. 319 (M.D. Ala. 1968), 317 :'. Supp. 1079 (1970 )---------------------------------------
United States v. Rock Island Centennial Bridge Comm., 230 F. Supp. 654 (S.D. Ill. 1964), aff'd, 346 F.2d 361 (7th Cir.
(1965)-------------------------------------
Unite2d73S-t(a1- t8e8s8-)v.--S-a--n--J-a-c-i—-n-t-o---T---i-n--C--o-.-,--1-2-5--U--.-S-.--
United States v. Solomon, 563 F.2d 1121 (4th Cir. 1977) ----------------------------------

United States v. Stokes, 506 F.2d 771 (5th Cir. 1975) ------ -------------------------

Weinberg v. Wisenfeld, 420 U.S. 636 (1975)---

Welsch v. Likins, 373 F. Supp. 487 (D. Minn. 1974), aff'd and vacated, 550 F.2d 1.122 (8th Cir. 1977) ----------------------

,

w

5T s.:: 12 -

Cir.

1977) --------------------------------------

Williams v. Vincent, 508 F.2d 541 (2d Cir. 1974) --------------------------------------

Wolfish v. Levi, 573 F.2d 118 (2d Cir. 1978)----

Woodhous v. Virginia, 487 F.2d 889 (4th Cir. 1973)-.--------------------------------------

Wyatt v. Stickney, 325 F. Supp. 781 (M.D. Ala. 1971), 334 F. Supp. 1341, 344 F. Supp. 373, 344 F. Supp. 387 (1972), aff'd sub nom. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974) ----------------------------

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) ------------------------------------

Page
76
76
70 70 ,71,72, 74,76 52 40
47,48,54,57 54 53 60,61 54
47,48 71,72

viii

Constitituon, statutes and regulations:

Page

Constitution of the United States of America: EighthAmendment-----------•-----------------EleventhAmendment-------------------------FourteenthAmendment----------------- -----°-

52,53,54,55,56 69 28

Civil Rights Act of 1964, Title VI, Sec. 601,
42 U.S.C. 2000d----------------------------- 31,32,39

Developmentally and Disabled Assistance and Bill of Rights Act:

42 U.S.C.
42 U.S.C.

(Supp. (Supp.

V) V)

6010 60 10

-

-et--s-e-q.-------------------------

37 4 4

42 U.S.C. (Supp. V) 6010(3)----------------- 45

42 U.S.C. (Supp. V) 6010(4)----------------- 45

42 U.S.C. (Supp. V) 60 12---------------------- 6 8

Education For All U.S.C. (Supp.

Handicapped V) 1.401 et

sCehqi.ld-r-e-n--A-c-t-,--2--0-•--

37

Rehabilitation Act of 1973, Section 504, 29 U.S.0 (Supp. V) 794-------------------------------29 U.S.C. (Supp. V) 706(6) ------------------

aassim 30

Social Security Act, Title XVI, as amended, 42 U.S.C. (Supp. V) 1382 et seq.----------------37

Social Security Act, TiLle XIX, as amended:
42 U.S.C. (Supp. V) 1396 et seq. ------------- 36
42 U.S.C. (Supp. V) 1396a------------------- 37 42 U.S.C. (Supp. V) 1396d(a)(15) ------------ 37 42 U.S.C. (Supp. V) 1396d(c) ---------------- 37 42 U.S.C. (Supp. V) 1396d(d) ---------- ------ 37

Social Security Act, Title XX, as amended:
42 U.S.C. (Supp. V) 1397 et seq. -------------
42 U.S.C. (Supp. V) 1397a--------------------

36,44 36

18 U.S.C. 241-------------------------------------- 74

18 U.S.C. 242-------------------------------------- 74

42 42

U.S.C. U.S.C.

11998853-------------------------------------------------------------------------

74 7 4

50 Penn. Stat. §4202------------------------------ 46

45 C.F.R. 80.6-80 .10 ----------------------------- 34 45 C.F.R. 80.7(d) ------------ - _ - ---_ ------- 35 45 C.F.R. Part 81----------------------------------- 34

ix

Constitution, statutes and regulations (continued):

Page

45 C.F.R. 84.1 et seq. --------.-_------------------ 34

45 C.F.R. 84.3- ----------------------------------

34

45
45

C.F.R. C.F.R.

8844..33(h()f-)-----_---_-_-_---_-.-.-_-_-.-_-----------•-------_--._-.-_-_-_-_-_-_-

42 36

45 45

C.F.R. C.F.R.

8844..34(-J-)-(-2-)_(i-)-(-B-.).._-------------------------------------.--_---------

3314

45 C.F.R. 84.4(b) (1) ------------------------------- 4 ]. 45 C.F.R. 84.4(b) (2)---------------------------- 40

45 C.F.R. 84. 4(b) (4)----------------------------45 C.F.R. 84.6------------------------_------------•

43 34

45 C.F.R. Part 84, App. A, p. 377--------------- 40

45 C.F.R. part 84, App. A, p. 378--- -----------

34

45 C.F.R. Part 84, App. A, p. 391----------------

34

Miscellaneous:

Annual Reports of the Attorney General:

p. 7374 (1974) ------------------------------

75

PP . 85-86 (1975) ----------------------------

75

pp. 111-112 (1976) -------------------------- ---

75

P p. 161-162 (1977) -------------------------

75

1.1.7 Cong. Rec. (1971):

p. 45974------------------------------------32

1 597 -45T.

.---. _.-

118 Cong. Rec. (1972):

p. p.

525-------------------------------------
526 -- ------------------------------------ -

p. 9500 -------------------------------------

p. 32302-----------------------------------

p. 32305----------------------------------

p. 32317--------------------------------------

pp. 37203--37204----------------------------

31 31 , 4 2 42 31 43 32 32

119 Cong. Rec. (1973):

p. 5915-------------------------------------32

p. 7154--------------------------------------

32

p. 8008-------------------------------------

32

pp. 9597-9598-------------------------------

32

p. 16676------------------------------------

32

p. 181-27-------------------------------•------

32

p. 18137-------------------------------------

32

x

Miscellaneous (continued):

Page

121 Cong. Rec. S16549 (daily ed. Sept. 23,

1975) ------------------------------------------

45

121 Cong. Rec. H8712--Hi6724 (daily ed. Sept. 15,

1975)-----------------------------------------45

124 Cong. Rec. H7489-H7490 (daily ed. July 28,

19 7 8) ----------_--- --------------_.--------_

72

D. Shapiro, Some Thou ghts tin Intervention

Before Courts, Agencies, and rbitrators,

81 Harv. L. Rev. 721 (1968) ---------------

73

Executive Order No. 11776, 39 Fed. Reg, 1.1865-Executive Order No. 11914, Al Fed. Reg. 17871--

75 34,39

42 Fed. Reg. 22677--------------------------------

34

Fed. R. Civ. P.:

Rule 24(a) ----------------------------------

7 7

Rule24(a)(2)------------------------------

72

Rule24(b) ----------------------------------

76, 77

Rule24(b)(2)-------------------------------

73

Rule53------------------------------------62

G. Frug, The Judicial Power of the Purse, 126

U. Pa. L. Rev. 715 (1978) -----------------

61

H.R. 9400, 95th Cong., 2d Sess. (1978)---------

3B Moore's Federal Practice 9(24.10 [2] (2d ed. )-

74

S. 30 44, 92d Cong. , 2d Sess. (1972 )- -----------

31

S. 7, 93d Cong., 1st Sess. (1973) Section 705--

32

S. Rep. No. 93-1139, 93d Cong., 2d Sees.

(1974) -------------------------------------

3 2

S. Rep. No. 93-1297, 93d Cong., 2d Sees.

(1974) -----------------------------------------

32

7 Weekly Comp. of Pres. Doc., No. 47, P . 1530

(19 71) -- ----- -------- ---- -- - -------------

7 5

xi

IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
Nos. 78-1490 , 78-1564, 78-160 2
TERRI LEE HALDEMAN, et al., Appellee
UNITED STATES OF AMERICA and
PENNSYLVANIA ASSOCIATION FOR RETARDED CITIZENS, et al.,
Plaintiffs-Intervenors-Appellees
V.
PENNHURST STATE SCHOOL AND HOSTIPAL, et al., Defendants-Appellants
FRANK L. RIZZO, et al., Defendants-Appellants
and GEORGE METZGER, et al.,
Defendants-Appellants
On Appeal from the United States District Court for the Eastern District of Pennsylvania
BRIEF FOR THE UNITED STATES
QUESTIONS PRESENTED
1. Whether defendants are discriminating against the plaintiff class by reason of their handicap in violation of Section 504 of the Rehabilitation Act of 1973, and whether that statute provides a private right of action.
2. Whether defendants, by maintaining plaintiffs in custody in Pennhurst., have created a classification of persons

-2-
which infringes fundamental liberties in violation of the
Equal Protection clause of the Fourteenth Amendment.
3. Whether defendants have a compelling interest which will
justify infringement of plaintiffs' liberties by keeping them in
custody in the Pennhurst State School and Hospital.
4. Whether the injunctive relief ordered by the district
court was justified by the violations found and was based upon
proper equitable principles.
5. Whether the relief violates the Eleventh Amendment.
6. Whether the district court was within its discretion
in allowing the United States to intervene.
7. Whether local officials were properly held liable to 1/
injunction.
STATEMENT
A. Procedural History
This action was commenced on May 30, 1974, as a class action
by Terri Lee Halderman, a minor retarded person, against the
Pennhurst State School and Hospital, its superintendent and various
state officials responsible for the operation of the institution 2/
(App. 26-32). The complaint alleged, inter alia, that the mentally
1/ Two issues raised by Commonwealth defendants are not, discussed in this brief: (1) whether the plaintiff class was properly certified by the district court, and (2) whether the district court erred in finding a denial of rights secured by state statute.
2/ Record citations in this brief are: "App" refers to the first volume of the appendix containing pleadings, orders, etc.; "App. V. II" refers to the second volume of the Appendix containing exhibits which were received in evidence; "Photos" refers to photographs in volume II which comprise U.S. Ex. 48, and are reproduced at App. V. II 321--376. "App. V. III" refers to volume three of the Appendix containing portions of the testimony; where citations is to testimony not reproduced in the Appendix, "Tr" for trial testimony and "Dep" plus a name for deposition testimony will be used. Exhibits not in App. V. II are cited to their trial numbers.

-3-

retarded residents of Pennhurst live in inhumane and dangerous

conditions (App. 31-42), are consigned to idleness due to the lack of

organized activities and programs designed to provide education and

training (App. 33, 40-41), are subjected to unneccessary medication

and unnecessary physical restraints and seclusion (solitary confinement),

and, due to inadequate supervision, are subjected to numerous physical

injuries (App. 33, 36, 39-40, 42).

Plaintiff Halderman specifically alleged that she personally

suffered over forty (40) instances of physical injury from March 2,

1966, to November 4, 1973 (App. 34-36) and that she and her class were

deteriorating and regressing emotionally, intellectually, and physically

(App. 40). It was further alleged that the conditions at Pennhurst

and the acts and practices of the defendants deprived plaintiff and

:.^r , lass of :. i . 1

c_ e and treatment

the

alternative least restrictive of individual liberty (App. 43-45), to

equal protection of the law (App. 44), and to be free from cruel and

unusual punishment (App. 45).

On November 25, 1974, leave to intervene as a plaintiff

was sought by the United States pursuant to Rule 24(a) (Inter-

vention of right) (App. 122--123) or, in the alternative to Rule

24(b) (Permissive Intervention), Federal Rules of Civil Procedure

(App. 131-132) ; and on June 3, 1975, the Pennsylvania Association

for Retarded Children (PARC), and several additional individual

retarded residents of Pennhurst moved to intervene. Both motions

were granted (Docket Non. 16, 24, 40, 76 at App. 6, 7, 8). Common-

wealth defendants opposed entry of the United States (Docket No.

19, App. 6), and moved to dimiss the United States as a party

(Docket No. 61; App. 8; 189). After this motion was denied

-4(App. 190), the Commonwealth defendants sought a writ of mandamus
from this Court to compel the district judge to dismiss the United
States as a party; the writ was denied (App. 235). Petitions for certiorari and for a stay of this Court's order were also denied. Beal v. Broderick, 431 U.S. 933 (1977).
The complaint of the United States alleged, inter alia, that "[a]ll, or nearly all, mentally retarded residents of ... Pennhurst ... are capable of benefitting from treatment and habilitative care ..." (App. 125), that defendants have not provided Pennhurst residents with "treatment and habilitative care" and have failed to provide them with "decent and humane living conditions, and to keep [them] free from harm ..." (App. 126). The complaint alleged violations by the defendants
of the Ei g hth and °nurtPPn - h Amendmeni-c to e 4- h n }cd e -t.-'c
Constitution. Injunctive relief was sought from the unlawful acts and
practices and from "failing or refusing to correct the effects of such acts and practices, and from failing or refusing to provide treatment and habilitative care to residents of ... Pennhurst ... in accordance with standards to be developed and adopted by the Court upon the basis of the record in this case" (App. 128-129).
On January 8, 1976, PARC filed an amended complaint (App. 133-187), which added as defendants the governing authorities and mental health administrators of Bucks, Chester, Delaware, Montgomery and Philadelphia Counties, alleging that these added defendants have the duty under state law to provide county mental retardation programs for the diagnosis, care, treatment, and habilitation of the mentally retarded (App. 160-161). It was also

m 4

-5 .-

alleged that persons are incarcerated at Pennhurst because the de-

fendants have failed to provide adequate services for them in the

communities (App. 162), and that such confinement violated

plaintiffs' rights under Section 504 of the Rehabilitation Act

of 1973, 29 U.S.C. (Supp. V) 794 (App. 131).

After a lengthy trial, the district court found for

defendants on the issue of damages, and for the plaintiffs on

the need for injunctive relief (App. 236-307). The court

found that defendants were violating the rights of the mentally

retarded class secured by the Due Process and Equal Protection

clauses of the Constitution, by the Eighth Amendment, by Section

504 and by a state statute. After a separate hearing on relief when

the parties were unable to agree upon necessary relief, ordered:

'1.L .;ui:. blc com;...:.:ity living arra.-

nt_ ?be 'r _i:: for Phi'-

ressiiddeennttss;; that individualized program plans be developed for each

resident; that plans for the removal of Pennhurst residents from the

institution to appropriate community-based mental retardation programs

which meet their individual needs be devised and submitted to the

court, and that a Special Master be appointed to supervise the planning

and implementation of the placement of residents (App. 342-346).

In addition, the county defendants were enjoined from

recommending that any individual he committed to Pennhurst

and from participating in any program or activity in connec--

tion with the placement in the future of retarded persons at

Pennhurst." Commonwealth defendants were enjoined from placing

any additional persons at Pennhurst (App. 346-347).

The Commonwealth defendants were also enjoined to take

precautions to prevent physical and psychological abuse, neglect

M

I

or mistreatment of Pennhurst residents; to enforce State Depart-

ment of Welfare rules relating to physical restraints and seclusion

(App. 348-349); from administering excessive or unnecessary medi-

cation; from using medication as punishment; from failing to

provide a program of medical and health related services; from

failing to provide indiv i dualized adaptive wheelchairs to residents who need them; from feeding any residents in the supine position;

from denying residents programmed activities as punishment; and

to take precautions to keep Pennhurst buildings clean, odorless

and insect-free (App. 349-351). From this order, all defendants appealed (Docket Nos. 466,

474, 476, App. 25). A stay of the order was denied by the 3/
district court (Docket No. 482, App. 25)_ and by this Court.

B. The D j . ict Court

s

The district court's opinion which incorporates its

findings of fact and conclusions of law supporting liability to an injunction is reproduced at App. 241-307. All of the

district court's findings will not be recited; however, it is important to note that the court found, inter alia:

1. All parties agree "that Pennhurst as an institution

is inappropriate and inadequate for the habilitation of the

retarded," that "inadequacies in programming ... are directly

attributable to staff shortages," and that "it was admitted by

the defendants that Pennhurst does not . .. meet minimum stan-

dards for the habilitation of its residents" (App. 256, 251).

3/ 451 F. Supp. 233.

-7-
2. The environment at Pennhurst is hazardous to the residents, both physically and psychologically (App. 266) and is not conducive to "normalization", i.e., "[i]t is separate and isolated from society and represents group rather than family living" (App. 274). The principle of normalization has been accepted by the Administration of Pennhurst and by the Department of Public Welfare (App. 275).
3. "The environment at Pennhurst is not only not conducive to learning new skills, but it is so poor that it contributes to losing skills already learned" (App. 266-267); residents have deteriorated physically and intellectually, and have lost skills while at Pennhurst (App. 268-269).
4. Under the principle of normalization, retarded individuals are treated as much like non-retarded persons as is
ble ( ANr. 2; :', .. 5. "All the parties in this litigation are in agreement
that given appropriate community facilities, all the residents at Pennhurst, even the most profoundly retarded with multiple handicaps, should be living in the community (App. 256); "[m]any individuals now living at Pennhurst could be moved immediately into the community and would be able to cope with little or no supervision" (App. 276).
6. All residents are not placed, consistent with state policy, in programs and living arrangements in the community because of the failure of the commonwealth and its subdivisions to provide the necessary services; it is cheaper to provide these services in the community than at Pennhurst (App. 275-77).
7. Over 18 million dollars appropriated by the Pennsylvania Legislature to provide community based facilities for mentally

-8--

retarded persons remains unspent though seven years have passed

since the appropriation (App. 276-77).

8. The county defendants which control base service units

responsible for arranging community and institutional placements for

retarded persons have failed to investigate and recommend community

alternatives for Pennhurst residents and have done little to prepare

Pennhurst residents to leave Pennhurst; the county defendants

are not in compliance with the Commonwealth's community living

arrangement policy that at least 50% of the residents placed in

community facilities be drawn from Pennhurst or other state

institutions (App. 279).

9. The environment at Pennhurst is unsanitary; there is

often urine and excrement on ward floors; pinworms and infectious

diseases are common: obnoxiris odors a n d exressi

porma-l-^

Pennhurst; most toilet areas do not have towels, soap or toilet

paper (App. 266-267).

10. Organized programs of education and training are

generally unavailable at Pen.nhurst; "the average resident receives

only 1 1/2 hours of programming per weekday and no programming

on weekends. No one, except those in school, gets more than

3 1/2 to 4 hours per day. If one factors out those programs which

are not considered beneficial, the average drops to about fifteen

minutes per day" (App. 256).

11. Specialized services, i.e., physical and occupational

therapy, medical and health related services, speech and hearing,

are inadequate (App. 256-60).

12. "Not only is the programming at Pennhurst inadequate

to meet minimum professional standards, but so are the evaluations

— 1

Y

-.9-

performed on the residents to determine what is required to adequately

habilitate the individual. ... Proper habilitation cannot be

provided to retarded persons unless those responsible for providing such programs are aware of the individual's needs" (App. 259).

13. Record keeping at Pennhurst is also below acceptable

minimum standards (App. 260).

14. Injuries to residents by other residents, through self-

abuse, and by some staff abuse are common (App. 268).

15. Seclusion or solitary confinement rooms have been used

to punish aggressive behavior, contrary to the recommendation of

a committee formed by Pennhurst officials to investigate their use,

and seclusion is often necessary because there is inade q uate staff

( App.

262-263). . :^ i, ul restraints are

be ;-use- :.f .....,fi shorts?,,

and these restraints are potentially physically harmful and have

caused injuries and at least one death (App. 263-264).

17. Dangerous psychautropic drugs are often used for control

and the convenience of staff and not for treatment or habilitative

purposes. A statistical survey of Pennhurst residents found that

51% of the surveyed group were on such drugs. The side effects of

psychotraupic drug usage include lethargy, hypersensitivity to

sunlight, inability to maintain gait and balance and a gum tissue

condition marked by inflammation, bleeding and increased growth

(App. 264-266). Drug practices at Pennhurst do not meet minimum

professional standards and are physically hazardous to residents

(App. 265).

18. Diet control is impossible because staff supervision is at a minimum in the large group eating areas where residents

-10 -

are free to steal food from each other (App. 267).

19. Approximately half of the residents at Pennhurst have

been admitted upon application of their parents or guardians,

and half have been committed there by courts (App. 252); volun-

tariness in connection with admission and with the right to leave

Pennhurst is an illusory concept. Few, if any residents now have, nor did they have at the time of their admission, any

adequate alternative to their institutionalization at Pennhurst

( App. 273). 20. This case 'concerns solely the retarded and not persons
who are mentally or emotionally ill. These are individuals who

have not broken the laws, carry no contagious disease and are not

in any way a danger to society" (App. 280).

21. Ti! ...

ic..., pertain solely tc

retarded at Pennhurst" (pp. 307).

In its March 17, 1978, Memorandum the court further found (App. 340, 341, 343):

In view of the Court's finding that institutionalization at Pennhurst is not conducive to normalization, which is vital to the habilitation of the retarded, our Order must provide that immediate steps be taken to remove the retarded residents from Pennhurst. Great caution and care must be exercised, however, to make certain that each and every retarded resident ... can be accommodated in a community facility which will provide minimally adequate habilitaLion.

As was pointed out ..., the Commonwealth ... agreed that the retarded should be removed from Pennhurst and readily admitted that the only reason that the litigation was necessary was because they wished to accomplish the closing of Pennhurst as a residence for the retarded, pursuant to their own schedule which was vague and indefinite.

i

-•11° in its injunctive order, the district court further noted (App. 343): The Court., on the basis of nine weeks' testimony in this case and the submissions of all parties, finds that the implementation of this Order will be impossible without the appointment of a
Special Master .,.. C. The Evidence
The evidence in the record which portrays the nature of confinement at Pennhurst, the characteristics of the Pennhurst resident population, and the alternatives which may be and have been provided by state and local officials fully support the district court's findings, and particularly the. finding that Pennhurst is ". . inappropriate and inadequate for the habilitation of the retarded" (App. 256).
^::. ^^ . c ^resentcd FO witn.., ar.. ocun;er:...:y exhibits including photographs depicting conditions at Pennhurst to the district court. The witnesses included:
1. Thirteen experts in the various aspects of the care and training of mentally retarded persons, who inspected Pennhurst and concluded that it was not providing and could not provide the care and training which it was created to provide. No experts expressed a contrary opinion.
2. Nine parents or guardians of present or former residents of Pennhurst who testified to the conditions that they observed, that their children or relatives suffered from the effects of a debilitating environment, abuse and the lack of care, education and training while confined at Pennhurst,
3. Three former residents of Pennhurst who testified to the stultifying experience of confinement at Pennhurst.

F
-124. Thirty-nine employees or former employees of Pennhurst who testified to the inadequacies in equipment, personnel, facilities and environment at Pennhurst which make it impossible for Pennhurst to serve its stated purpose.
5. Seven witnesses who had knowledge of the circumstances surrounding the failure of 'Local authorities to perform their
assigned functions of supporting the care and training of Pennhurst residents.
6. Two state officials who described the continuing and long-standing failure and inability of both state and local officials to execute the legislative mandate to provide care and training for all mentally retarded persons in the community despite the availabilty of funds to do so.
The LL l.al - tl_ansuL IF)L c;um p r ise:, ,vet ,7Z- ..aj iii ^.Y&cu matter. Appellees have selected 1,263 pages for inclusion in the appendix which support the trial court's fact findings and the contentions of appellees. While it is impossible to describe all the evidence in this brief, a short description of life at Pennhurst and the alternative community based programs and facilities is helpful.
1. General Nature of Pennhurst Pennhurst was established in 1Si08 as an institution for the care and training of mentally retarded individuals. Since its inception it has been over crowded and under staffed (App. 250251). It is located at Spring City, Pennsylvania, a rural area approximately thirty miles from Philadelphia (App. 250). It is operated under the direction of the Pennsylvania Department of Public Welfare, i.s headed by a superintendent and employs about

-43-

1,500 persons (App. 251).

At the time of trial, it housed 1,230 mentally retarded re-

sidents (Tr. 22-123), who came there largely from five southeastern

4/

Pennsylvania counties.

Some long-time residents came from other

parts of the state (Tr. 21-171, 21 -172).

All of the persons residing at Pennhurst a y e mentally retarded
individuals, some of whom also have physical disabilities (Tr.17-5).
They came to Pennhurst either through a commitment there by a state
court, or by "voluntary" admission initiated by their parents or
guardian (Tr. 22-122). In either case, the admissions are arranged
through base service units, which are instrumentalities of the
county defendants (App. V. III 1121). Since 1971, it has been
the policy of Pennhurst not to accept "voluntary" placements
(=_ • :: l oppose court com..,. 3nts becu--- of cvarcr^.. "i .7 5/
App. Vol. III, 931, Tr. 21-481-182; Tr. 21-190),
Residents over age eighteen who are voluntary admissions are
theoretically free to leave, but in fact are not free to do so. To
leave Pennhurst and participate in a community based program, a community
living arrangement and appropriate supportive services must be devised
in conjunction with the appropriate base service unit (Tr. 21-186;
4/ The present population at Pennhurst is made up of 12% midly retarded (I.Q. 52-69); 14% moderately retarded (I.Q. 36-51); 74% severely or profoundly retarded (I.Q. below 35) (Commonwealth Br. 10). However, mental retardation experts recognize that I.Q. scores, when diagnosing mental retardation, are poor measures of ability. App. V. III, 110-113.
5/ There have been exceptions to the no voluntary rule, e.g., in 1972, there were 76 court commitments and 13 voluntary admissions; in 1973, there were 87 court commitments and two voluntary transfers from other facilities; in 1974, there were 72 court commitments and three voluntaries; in 1975, there were 58 court commitments and 25 voluntary admissions; in 1976, there were 39 court commitments and 13 voluntaries; by trial time, in 1977, there had been seven court commitments and five voluntaries (Tr. 21-183 to 21-184).

-- 14 -^ 21-205). If there is no exit plan, the staff will arrange for
court commitment (Tr. 21-206). If the staff does not believe it is in the interest of the over-eighteen resident to leave Pennhurst, a court commitment is sought or staff will simply sign appropriate papers without consent of the resident to perpetuate the "voluntary"
commitment (Tr. 21-206-210).
Moreover, the base service units do not provide the institution with adequate background data to evaluate individuals, and has failed to search for less restrictive alternative community based habilitation programs before seeking placement in Pennhurst (App. V. III, 921-923). The average length of stay at Pennhurst is 21 years (App. 252).
There is no dispute that given proper supportive services
every resident of Pennhurst could function in the comn^uuiLy in an
appropriate program of care, education and training (App. V. III 184; Tr. 21-162; App. V. III 951). Some residents have been placed with their own or surrogate families into family care programs and other community based programs, but fewer of the severely retarded residents than mildly retarded residents have been placed in community living arrangements (Tr. 21-160 to 21161, 21-163). The state purpose in maintaining retarded persons in Pennhurst is to ". . . provide a living environment . . . where basic needs can be met. . . . however variable they may be, not only in terms of program needs, but special physical needs" (App. V. III 944). See 50 Penn. Stat. 4402, 4406.
2. Conditions at Pennhurst We contend that the findings are tantamount to finding that confinement at Pennhurst is simply incarceration without the

.I

-15-benefit of habilitative services and that the evidence supports this characterization. One expert in the training of mentally

retarded persons described (App. V. III, 53-55) what he saw at

Pennhurst this way:

The institution has frequent conditions
which violate what you might call human dignity
and respect for the individuals.

We discussed some of them and without delineating them into detail, let me mention just things as dehumanizing environment; toilets without doors, without partitions; toilets without toilet paper; sometimes without tile toilets; sometimes unflushed, dirty, filthy; open showers; lack of soap or towels; lack of decorations; lack of any individualization in the living area; lack of pillows on the beds little things like that.

Residents are being forced to eat either

with their fingers or with spoons with no other

kind of eating utensils. Urine on the floors,

feces on the ce?.l ing - these kini.is of i::ii

l.v .^.

Indeed, in looking at the superintendent's deposition I noted that he indicated that he felt the environment did not meet minimum professional standards; and I would certainly concur in this.

Other considerations - the clothing for many of the residents is ill-fitting. it is obviously institutional in nature.

On a number of units I found residents in partial states of nudity. On some they had no shoes . . . .

A lack of privacy is general throughout the the institution. In many areas they sleep in open sleeping areas, no drapes or curtains on the windows, no quiet place where an individual can withdraw for a certain period of loneliness, usually 'Large groupings, frequently loud music, and all blaring television sets; lack of piovisions for any personal property.

[Pennhurst i:) unlike any home. . See also App. V. III 75-76, 132.

-16The buildings are drab. The environment does not produce an atmosphere in which learning can take place (App. V. III 288, 486;

see also photos 1,2,5,6, 7,8,9,10,13,15,16,17,19,21,22,26,27,28,29,

30,31,32,33,34,35,36, 37,39,40,41,42, and discussion of photographs

at App. V. III 146, 149, 150). Because of the type of construction

and lack of furnishings, noise is so excessive that individual

conversation, communication and learning is impossible (Tr. 5-98,

7-126). The buildings are often either too cold or too hot,

and inaccessible to the physically handicapped (App. V. III,

445-446, 451; photos 104, 10 5) , crowded (App. V. III, 4U7), dirty

(App. V. III, 642) or fire traps (Tr. 3-146 to 3-147; App. V. III,

446-453; Tr. 9-145).

In sleeping areas, beds are placed row upon row, up to 46 in

ivom (Apr?. v. iii,

J ULU

15, 16- 11 19, 30, 35, 40,

41, 102, 107). All sleeping areas lack pillows, bedspreads, decoration,

and provision for storage of personal property (App. V. III, 54-55,

146, 183-184).

Dayrooms, where residents spend a majority of their time,

have similar characteristics; they are large with hard surfaced

floors and ceilings (App. V. III 149; photo 21, 24, 26, 27, 28, 31;

99, 108), and are poorly lighted (App. V. III 448). They often

contain no furniture or drapes (App. V. III 74; photo 54),

and are very noisy (App. V. III 132). The dayroom environ-

ment is "barren," a place where residents are "simply sitting

whiling away their lives" (App. V. III 149).

Shower and bathroom areas lack privacy (Tr. 5-96; App. V.

III 136; photos 5, 105). Sinks lack soap and towels (App. V. III

137-138); toilets lack toilet paper (Tr. 5-96); and the bathrooms

T

-17-
are filthy (App. V. III, 53-54) and dangerous (App. V. III, 6/
140-41).

One mental retardation expert testified (App. V. III 151):

• . . [i]ndividuals who come into this type of environment frequently lose the ability to sp?ak. Individuals who come into crowded, chaotic environments, who were walking, tend to lose the ability to walk.

Individuals who come into this environment and they don't have proper programs, proper equipment, such as the adapted wheelchairs I was talking about earlier - those individuals who are able to sit upright tend to lose the ability to sit upright.

In other words, individuals don't gain skills. The more likely situation is that they will lose skills.

He also testified (App. V. III 185-186):

It is my opinion that if you supply every-

ti:i.

at. , . u should want fc: _ .:nnh__ st ._ 'j

I don't think that you would end up with

a situation that would be decent to live in

nor a place that would be conducive to treat-

ment of the residents living there.

Pennhurst is grossly understaffed and is lacking suf-

ficient numbers of professional and direct care staff to in-

sure efficacious programming and, most importantly, to protect

residents from psychological harm, physical injury, and death.

According to the Acting Director of Resident Life at Pennhurst,

980 additional direct care staff positions are required merely

to prevent injuries to residents (Dep. Mathews 26-30) .

Accident and death have occurred because of lack of staff

6/ ". . . excrement, ur ine, dirt, mops strewn about, pools of water on the floor . • • [and] unflushed toilets" were observed extensively (App. V. III 63; photo 50). Pinworm infection refects this condition (Tr. 16-193).

M

-187/ supervision (Dep. Hedson 90, 96-98; U.S. Ex. 22, Pl.

Ex. 62).

During January, 1977, residents suffered 833 minor and 25 major

injuries, in February, 1977, 564 minor and 25 major injuries. (U.S.

x. 15; Dep. Youngberg 78-84). After reviewing the cummulat.ive

accident summary for January, 1977, an expert witness characterized

the report in the following manner (Ap p . V. III 66): . . . [ T ] he thing looks a little like a battlefield report. It appears that it is physically hazardous for the residents to be in the environment. Specific examples of injuries sustained by residents include
fractured fingers and toes, fractured ribs ; fractures of both arms, fractured pelvis, fractured spine, and cut on scrotum from lack of proper positioning in wheelchair (Tr. 5-130 to 5-133; Dep. Hedson 101, 116, 119; App. V. III 68, 555). Bone fractures, many of unknown origin, were so numerous several years ago that these injuries were plotted on a graph and studied by a special committee (App. V. III 550-555). Fractures continue as do other major injuries. Numerosity and severity of injuries remains constant (Tr. 22-40 to 22-41).
There have been instances of intentional staff abuse of residents: a sexual assault (Tr. 3-114 to 3-117); physical abuse of blind children (Tr. 5-66); beatings with shackle belts (U.S. Ex. 26), chains (U.S. Ex. 37; App. V. III, 71; Dep. Hedson 116-118;

7/ );, drownings in bathtubs (U.S. Ex. 22; Dep. Hedson, 96-98); drownings in the Schuylkill River (Ap p . V. III 67); an eleven year old strangling when tied to a chair by restraints (P1. Ex. 62); aspiration or aspiration pneumonia, conditions created by improper feeding techniques such as feeding in a supine position (U.S. Exs. 12, 13; App. V. III -61).

M

- a-

-l g -

8/ Dep. Boyle 56-58) and hands.+

The lack of adequate training for residents is due largely

to lack of professional staff (App. V. III 124). Estimates of

the number of staff required to give minimal training to Pennhurst

residents compared to actual number are (App. V. III 122-124):

Necessary

Actual

Physicians

7

6

Psychologists

23

23

Dentists

7

4

Registered Nurses

95

54

Vocational Therapists

5

4

Recreational Therapists

23

0

Occupational Therapists

18

10

Special Education Teachers

51

8

Physical Therapists

14

2

Speech and Hearing Specialists

14

Social Workers

40

9 9/
6

8/ The staff person ". . .[ p ] ic ked up a crippled, small, retarded child, male . . . by the back of his T-shirt and . . . threw him in the air approximately five to seven feet and he landed on his stomach on the cement floor. He then went over and he hit the patient across the face . . . with his right hand" (Tr. 3-113).
9 / These calculations were as of 1975; since that time nineteen professionals have left and their positions have been changed to direct care p ositions to permit recruiting of direct care persons (App. V. III 58). Such calculations are based upon the minimum standards set forth by the district court in Wyatt v. Stick ncy, 344 F. Supp. 387 (N.D. Ala. 3972). The standards by which these figures are calculated are generally accepted by persons in the field (App. V. III 125).

1

-20-

Residents at Pennhurst average 15 minutes a day in active

programs (Tr. 14-60). The professionally recognized standard for

habilitative programming specifies a minimum of six hours a day

during the weekdays (App. V. III 34). As a result of staffing

deficiencies, most, if not all residents, have needs which Pennhurst

is unable to meet. Waiting lists exist for all programs (Dep.

Foster 42). Many referrals for specific programming are not made

because of the likelihood that space will not be available in any

particular program (Dep. Foster 42).

In virtually every program department resident needs are not

being met. One hundred and five school age children attend school

(Tr. 3-143); however, when not in school, they are also idle (Tr.

3-140 to 3•-142; 1482).

An e%x Yet L (.

4 J. J J4

• 1 x a /5

There is no activity taking place there. This is what I described as enforced idleness. These individuals are simply vegetating there and there seems to be no systematic activity.

The confinement and the crowded, isolated institutional en-

vironment without meaningful activity may cause aggressive and

10 /

pathological behavior

(App. V. II1 543-544). One resident bit

off three-quarters of the ear of another resident (App. V. III

67-68); through self-destructive behavior one resident blinded her-

self (Tr. 22-43); one resident--
would run to the doors that led to the seclusion room area and batter his body against the doors in an attempt to get into
)o/ L.q., stereotyped behavior, rhythmic motions such as rocking;
self-injury; severe aggression toward others. Such behavior_ is associated with lack of stimulation and boredom. Professionals also refer to this behavior as "maladaptive" and "stereotypic" (Tr. 5-112; App. V. III 12-13).

-21-
the . . . room and when we would not allow him in there he would assault the ... other residents and the staff. [Tr. 19-64]. Participation in programmed activities is basic to the growth and development of mentally retarded persons (App. V. III 32; Tr. 5-87 to 5-88; App. V. III 367, 373; App. V. III 425). Analysis of Pennhurst records confirms the observations of experts: residents are riot engaged in minimally adequate habilitative care and treatment programs (App. V. III 45; Tr. 5-111, 6-134, 14-64). Resident control is maintained through the use of physical
11/ restraints, chemical restraints (Tr. 3-81), and the placement of residents alone in a locked room, e., seclusion or solitary confinement (App. V. III 50; Tr. 5-120). Each has been used improperly and is harmful to residents.
Physi -. 1 r^-tra ; nt-s ,ar Q no n—i11" h azardous and can create conditions in which physical injuries are more likely to occur (App. V. III 177, 549). Another element of harm caused by physical restraints is the incapacitation of the resident from learning or exercising self care skills, e.g., eating or dressing. Residents at Pennhurst have spent protracted periods of time in physical restraints (U.S. Exs. 39, 40); e.q., one person was tied to a bed for 720 hours in August, 1976, 674 hours in September, 1976 and 647 hours in October, 1976. (Dsp. Mathews 64-66). jinother person was confined in hand restraints for 123 hours in a one month period (Id. at 69). Another was in hand-feet restraints for 690 hours in October, 1975 (id. at 71). Seclusion is professionally unacceptable because the practice fails to incu.l11/ E.g., shackles, straightjackets, chest restraints, security belts, face masks, halters, and feet restraints, helmets, mittens, muffs and muff shackles (Dep. Mathews 62; photos 47-49).

-n

-22-

cate appropriate behavior and it has been found to engender further

deviancy in individuals (App. V. III 49; Tr. 5-1.19-20).

Medication and drug practices at Pennhurst are appreciably

below minimally acceptable professional standards (App. V. III

243). Such.deficiencies which endanger resident health and

12/

safety include excessive dosages of psychautropic drugs,

13/

polypharmacy

(App. V. III 232), and administration of drugs by

14/

nonprofessional personne 1 on a "P.R.N.° basis (App. V. III

234-235). A random sample indicates that 40% of Pennhurst residents

who are receiving medication are subjected to polypharmacy practices

(App. V. III 228-29).

Psychautropic medication is being used excessively at Pennhurst

soley for the convenience of staff, and has been used frequently

i.

C.aLIvi:S programming.

.ch i..;ag

,_.... Mutes r1

restraints of residents (Tr. 3-81). A random sample of records in-

dicates that 51% of the residents receive psychautropic drugs; based

on nationwide practices, only 25% of institutionalized mentally retarded

individuals might be expected to be receiving such drugs ('ter. 3--37-38;

App. V. III 236).

12/ Drugs used to control behavior (App. V. III, 213-214).

13/ Prescribing two or more drugs at the same time. "There are a whole range of hazards [of] giving two or more drugs at one time. * * * [T]hey combine and create problems * * * [t]hat's called potentiaticn interaction.

Also, there are a number of contraindications * * * in the medical literature, that this particular druq should not be given with another particular drug, so there is an additional hazard * * *. Finally, if one is attempting to assess, to monitor the effects of the medication * * * it is next to impossible to figure out which drug is causing what * * *" (App. V. III 229).

14/ Pro re nata, Latin for "as needed" (App. V. III 236).

-23-
Approximately 30% of orders for psychautropic medication are
on a P.R.N. basis (App. V. III 234). At Pennhurst this means that
an aide merely calls a nurse prior to administering the drug; there
is no professional examination of the resident (Dep. Boyle 38; Tr.
16-79) Two months prior to trial, an effort was made at Pennhurst to
stop this practice (Dep. Hedson 79; Tr. 17-93, 17-94). Pennhurst has
failed to assure that medication practices meet minimal professional
standards (App. V. III 242-43). Indeed, residents are put at risk
of health and life due to the drug practices extant at Pennhurst
(App. V. III 180-81).
Despite physical improvements since the late 1960's,
Pennhurst has (App. V. III 486):
. . . an invisible fence; it is a segre g ated communit y . One
i.n -he°- -' ' off f ;._ ±-, world.
• . . some people have passes to go Out, but essentially it is a closed institution with an environment where some of life's most basic satisfactions - eating, for instance, still takes place under very unsatisfying circumstances. One's senses are still being assaulted - the smell, the noise the visual distortion - and this, you see, is for the very people who are in Pennhurst supposedly so that they develop to have a basic sensitive experience.
(See also App. V. III 543-44).
A team of three specialists in training mentally retarded
persons commissioned by the state to evaluate Pennhurst. found it
a "dehumanizing" and "inhumane" place to live and saw no way it
could be made adequate (Tr. 14-58 to 14-59).

C

-24-

3. Alternative Facilities and Services

Community-based facilities provide a wide range of services

in normalized settings which provide mentally retarded persons with

maximum opportunity to develop their abilities. Such facilities

provide for more personal li b erty for persons of all levels of

mental and physical handicaps than is or can be provided at Pennhurst.

Every expert witness testifying at trial recommended that every

resident of Pennhurst be placed in appropriate community settings 15/
which meet their individual needs as soon as possible

Responsible Pennhurst officials have taken an indentical

position seeking the expansion of appropriate community-based

mental retardation facilities and the placement of each Pennhurst

resident in such a setting which meets the individuals' specific

habilitation nPed q't Youngberg teed

(Tr. 22-1.71 to 22-172):

Q. As a professional, do you think it would be to the advantage and benefit of the retarded population . . . to be serviced in a community setting or serviced in an institutional setting?

*

*

*

A. . . . [Y]es, to the community . . . .

As to the future, we would like to antici-

pate the day when Pennhurst would not need

to exist, that the needs of all citizens

with retarded behavior cou3..d be met within

-•

the community settin*. Ts I said a number

15 / 'ft . 1-183 (Roos), 2-124 (Clements), 6-182 (Settle), 7-68 (Dybwad).. 5 -161 to 5 -62 (Girardeau), 6-35 (Glenn), 4-80 (Lancaster -- Cage),
1-140 (Hersh), 14-21 (Walker), 14-73 (Thurman). Drs. Hersh, Walker
and Thurman, three experts originally retained by defendants, testified
on behalf of plaintiff-intervenor PARC.

-25of times, it is not mental retardation per se that requires the institution. It is just the lack of alternative resources. . . .
I often say that it is not a matter of our people getting ready to return. It is a matter of the community getting ready to take their people back.
(See Dep. Youngberg 102. See also Tr. 22-77; Dep.
Foster 63; and Dep. Rice 180- - 81; Tr. 26-22). While the various states have chosen to operate community-
based mental retardation programs in diverse forms and under different nomenclatures, the principles and goals of the continuum of necessary services, including those of Pennsylvania, are essentially the same. The needs of mentally retarded individuals for a life in a community setting are not unlike those of any person, i.e., shelter, educational and vocational opportunities, and leisure time activities (App. V. III 22-26, 362-371).
The full range of services necessary to meet the needs of ynentally retarded persons is available in the various communities in the five county area surrounding Pennhurst (App. V. III 405413). Such programs and facilities have the capacity to ,expand (App. V. III 414). Such programs and facilities provide .~uality services which adequately meet the habilitativc and treatment needs of retarded persons, including a few former Pennhurst residents (App. V. III 41.5).
The continuun of necessary services includes ear.', y intervention and infant stimulation programs; nursery and pre-school programs; special education programming integrated into elementary and high school curricula; pre-vocational and vocational training; and leisure time activities (App. V. III 362-369). The necessary

-26-

continuum of services was described extensively at trial through 16/
oral testimony and photographs.

The testimony of three former residents of Pennhurst offers

concrete examples of the progress and development of skills typi-

cally shown by individuals returning to the community. Robert

Troester now lives in a group home and works at the.Ivyland Workshop in Doylestown, Pennyslvania (Tr. 8-16). Robert Hill lives in a group home and is now employed five days a week at a restaurant

(Tr. 8-29). Herman Vaughn, a resident at Pennhurst for 13 years,

now lives in a group home and is employed at a department store

(Tr. 8-40 ) . A project director for a corporation which provides

community living arrangements, Russell Kulp, testified that many

former Pennhurst residents had made significant gains since place--

ment in the Ltnun:_ L y

as & xu, ,r1e,

n

after 17 years at Pennhurst, progressed through the community

programs to competitive employment, independent living and

attending night school classes (Tr. 1.1-80). These examples of

growth and development of social and employment, skills are typical

of former residents of Pennhurst who return to the community
(Tr . 10 -74, 10-75, 10 -87, 10-110, 10 -166 to 0 -67, 11--72 to 11-73,
11-80 to 11-311.
Community based treatment and habilitation implies living
in the community. Just as there should be a continuum of educa-
16/ For testimony re: early intervention and infant stimulation programs, see, App. V. III 341; Ti. 10-45, 65, 11-32, photo 89; nursery and pre-school programs, App. V. III 365-367; Tr. 10-60, 11-31; public school programs, App. V. III 471; Tr. 5-161, prevocational and vocational training, App. V. III 472-474; Tr. 5-142, 6-14; employment opportunities, App. V. III 359, 419-422, 672, Tn. 11-43-44, photos 57, 58, 93.

-27_

tional and vocational, services and programs, a continuum of

residential alternatives should also be available to mentally

retarded persons. Such community living arangements ma_„ include,

inter alia, the parental home; subsidized relative's home;

specialized foster care homes; group homes; supervised apartment

clusters; and wholly independent living (App. V. III 186-187,

373-375; Tr. 6-18-20). Quality community living arrangements

exist in the Southeastern region of Pennsylvania. Linda Glenn,

designer of the PASS evaluation system used to evaluate community

residential programs in Pennsylvania, testified (App. V. III 485)

Pennsylvania has had ... five or six years, developing community service and it is very good ... [Tjhey monitor, quality ... very extensively based on the same principles [ofl ... normalization.

111 I.iC Vv1C L., lttr

iUClt l_1Ci J.. L1r O_•.

grams were certainly leading a full life.

They were involved in all kinds of com-

munity activities. They had access to

adult basic education when they wanted it.

They would decide for themselves ... about
the type of activities, the jobs they had,

the way they interfaced with the community.

Community living arrangements offer habilitative care and
17/ treatment in normalized settings.

INTRODUCTION AND SUMMARY OF ARGUMENT

This case involves the extent to which agents of the state may
infringe upon fundamental liberties of the plaintiff clr ss"-mentally

retarded persons who reside in .The Perinhurst State School and Hospital

17/ Photos raphs ire App. V. III depict some of the residences visited by expert.s Glenn, Seattle and Girardeau. Apartments and group residences, in Victorianera houses arid modern ranch homes, are represented in these photo g raphs. Photographs of community living arrangements are numbers 59-68, 69-85, and 90_.92.

_28__
or who may reside there in the future. Confinement at Pennhurst is a debilitating experience which results, for many residents, in intellectual, physical and emotional regression, threat of
physical harm and the deprivation of opportunities to form rela-
tionships with other persons, and to learn and develop in as
close to "normal" as each individual i_s capable. This brief urges that the treatment of the plaintiff class
revealed by the record in this case violates federal law in, at least, three ways.
First, it is urged, in Part , that Section 504 of the Rehabilitation Act of 1973 is being violated by the subjection of mentally retarded persons to conditions at Pennhurst. Services there, measured by the standards established by re g ulations issued to entorce ttiat Act, are patently unequal to services provideu ,.y the state in the various communities, and they are unnecessarily separate from those services.
Second, under a similar analysis, confinement at Pennhurst, violates the Equal Protection Clause of the Fourteenth Amendment. Because the discrimination inherent in confining a class of persons to an institution affects well-recognized "fundamental liberties,"
such discrimination, if it is to stand, must be jusitified by a
compelling need on the part of the state, in view of the acceptance
by the state of the principle that their purpose can be better
served by more effectual and more economical community mental retardation delivery systems, no compelling need is present here.
The nature and extent of the fundamental liberties which are infringed by a stay at Pennhurst are discussed in Part III. In addition to the liberty interests inherent in freedom from confinement,

-29_
this case implicates the interests in freedom from institutional
conditions which fall below those quvranteed to persons held in
state custody. The Due Process clause of the Fourteenth i mand-
ment requires that the pr. iv.)te interests at stake and the state
interests in. maintaining the infrineement of liberties be balanced,
and where "fundamental" liberties are involved, the state's in-terest, as with Equal Protection standards, must be "compelling" to continue the infringement. tThere there are available to the state less drastic, or less restrictive means to accouplish their purpose, such a compelling interest cannot be shown. In Part III, it is urged that the objections raised by the defendants to the relief ordered by the district court do riot justify reversal or modification of the injunctive order.
ARGUMENT I
DEFENDANTS ARE DISCR-MINATING AGAINST THE PLAINTIFFS IN VIOLATION OF SECTION 50 4 OF THE REHABILITATION Aui' OF 1973 Federal courts must decide cases on statutory grounds if that avoids reaching constitutional issues, Ashwander v. TVA, 297 U.S. 288, 346-348 (1936), and we believe that a violation of Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. (Supp. V) 794, has occurred which supports the relief ordered by the district court. Section 504 states:
No otherwise qualified handicapped individual in the United States, . . . shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activitiy receiving Federal financial assistance.

-30 -
A. Section 50 4 Provides A Right Of Action To The Plaintiff Class
In Cort v. Ash, 422 U.S. 66, 78 (1975), the Supreme Court
set down the tests for determining whether a private right of
action exists under a particular statute:
First, is the plaintiff "one of the class for whose especial benefit the statute was enacted" ... that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legilative intent, explicit or implicit, either to create such a remedy or to deny one? ... Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintif? ... And Finally, is the cause of action one traditionally relegated to state law, in an .area basically the concern of the States,
so tr]ai- i_.- -,) t i'. 6.)e in pLJL (Stir late t0
infer a cause of action based solely on federal law? (Emphasis in original; citations omitted.)
All three circuits which have considered whether Section
504 creates a private remedy have held that it does. United
Handica pedFederation v. Andre, 558 F.2d 413 (8th Cir. 1977);
Kam^meier v. i uist, 553 F.2d 296 (2d Cir. 1977); Lloyd v. Regional
Transp. Autharit1, 548 F.2d 1277 (7th Cir. 1977).
1. The plaintiff class--mentally retarded individuals--is
certainly within the class "for whose especial benefit the statute
was enacted." They are "hand' -api:ed" within the meaning of the 18/
statute, and regulations implementing i-he statute explicitly
designate "mentally retarded" persons as being within the statute's
18/ They have a "mental impairment which substantially limits ... major life activities" and they are "regarded as having such an impairment." 29 U.S.C. (Sapp. V) 706(6).
ir

19/ protection.

-31-

More importantly, however, Senator Humphrey, in introducing a

bill which embodied the principles 'Later enacted in Section 504 made

reference to the need for protection of the very kind of persons who

are plaintiffs in this case.

The time has come when we can rio longer tolerate the invisibility of the handicapped in America. * * * I am calling for public attention to three-fourths of the Nation's institutionalized mentally retarded, who live in public and private residential facilities which are more than 50 years old, functionally inadequate, and designed simply to isolate these persons from society.[20/]

19/ 45 C.F.R. 84.3(7)(2)('-)(B).
20/ 118 Cong. Rec. 525 (1.972). Senator Humphreys bill, S. 30 44; 92d Cong. 2d Sess. , was to amend Title 117I of the Civil Rights TTct of 1964 so as to put handicap on a par with race, color and national origin. The bill would have made Section 601 of the 1964 act read, in pertinent part:
No person in the United States shall., uo Le ground of . . . physical or mental handicap, be excluded from participation in, be denied the benefits of, or be subjected to disci imi-nation under any program or activity receiving Federal financial assistance unless lack of such physical or mental handicap is a bona fide qualification reasonably necessary to the normal operation of such program or activity.
See 118 Cong. Rec. 526 and 42 U.S.C. 2000d. _T definition of handicap was proposed which would have included mental retardation. Wording similar to present Section 504 was added to H.R. 8395, 92d Cong. 2d Sass., by the Senate as Section 604, 118 Cong. Rec. 32302, and Senator Humphrey noted (id. at 32310):
I am deepl y gratified at the inclusion of these provisions, which carry through the intent of [the] original bills which T_ introduced jointly with the Senator from Illinois (: sir. Percy), earlier -his year, S. 3044 * * *. The time has come to firmly establish the right of these Americans to dignity an self-respect as equal and contributing members of society, and to end the virtual isolation of millions of children and adults from s-cicty.
(Continued)

-32-

Although the statute was enacted pursuant to Congress' spending

power (cf. Lau v. Nichols, 414 U.S. 563 (1974)), the statute is more

than a means to control money. Previous measures introduced to ac-

complish the purpose of Section 504 represented "an effort. to provide 21/
equal opportunity for the handicapped of. our Nation."

2. The legislative history shows a purpose to create a

private right of action. In considering the 1974 amendments to

the Rehabilitation Act, the Senate Committee reported that Section

504--

was patterned after, and is almost identical to, the antidiscrimination language of section 601 of the Civil Rights Act of 1964 ... and section 901 of the Education Amendments of 1972 * * *.
The language of section 504, in following
the a hm , e _ri i ed rfi further envisions tale im-
plementaitJ.on ci a cu u 1i.anici' program wh c i is similar to those Acts * * :^. * * This approach to implementation of section 504 ... would insure . . . administrative consistenc y within the Federal government as well as relative ease of implementation, and permit a judicial remedy through a private action. [22,1

20/ (Footnote continued from previous page) H.R. 8395 was enacted (id. at 32317), but vetoed (118 Cony. Rec. 37203-37204). The present wording of Section 504 was then included as Section 705 of S. 7, 93d Conc. 1st Sess. (1973) also passed, 119 Cong. Rec. 5915, 7154, 8008), but vetoed (119 Cong. Rec. 9597-9598). Congress then produced the present Act which was a compromise with the Administration, settling differences unrelated to Section 504, preserving the same wording as was in the vetoed bills. 119 Cong. Rec. 16676, 1.8127 (1973). In supporting the final product, Representative Vanik said: "[7]t pleases me that the adoption of my proposals to protect the rights of handicapped peo p le in employment, and in the issuance of Federal grants, have been iu,.or_porated into this compromise bill." 119 Cong. Rec. 1.8137.

21/ 117 Cong. Rec. 45974 (Dec. 9, 1971.).

2^./ S. Rep. Nos. 93-1139 and 93-1297, 93d Cong., 2d Sess. 24-25

and 39-40 (1974), quoted at greater length in Llo yd v. Regional

Tr.ansp. Authorit y , supra, 548 F.2d at 1285-1286. _

—

-

-33---
It is thus clear that Congress believed that the enactment
of the statute as written, would provide for both administrative
remedies and a private right of action since that had been the
practice adopted for Title VI. In January of the year the report
was issued, the Supreme Court had decided Lau v. Nichols ; supra,
which involved a private action under Title VI, and several lower
courts had held, prior to the report, that a private right of
action had been created for enforcement of Title VI rights. See,
e.g., Bossier Parish School Bd. v. Lermlon, 370 F.2d 847 (5th Cir.
1967), certiorari denied, 388 U.S.. 91.1; Gautreax v. Chi.cago Housing
Authority, 265 F. Supp. 582 (N.D. Ill.- 1967) .
Defendants suggest that Lloyd v. Regional Transp. Authority,
supra, is not controlling because that opinion, 548 F.2d at 3.286,
7, C -ii1eu 'premature" the que:t.ion of wnether rbe privat.e
right would continue after "consolidated procedural enforcement
regulation are issued to implement Section 504." The Department
of Health, Education and Welfare, the agency having responsibility
for establishing standards for "handicapped individuals" and for
determining what are "discriminatory practices" as well as
coordinating the implementation of Section 504 by all federal
23/ In the Supreme Court's latest opinion involving Title VI,
Regents of the University of California v. Bakke, 46 U.S.L.W.
4896 (June 28, 1978), four justices (Powell, Brennan, Marshall and Blackmun) assumed for purposes of the case that a private right of action existed (id., at 4900); opinion of Brennan, White, Marshall
and Bl;.,kmun, (id., at 4912); one justice believed that no right of action existed, see opinion of White, (id., at 4925-4927); the
four justices (Stevens, the Chief Justice, Stewart and Rehnquist) who joined Powell to make a majority in the judgment of the Court
held that affirmance of the court below was required unless the "language [of the statute] misstates the actual int'nt of the Congress that enacted the statute or the statute is not enforceable in a private action. Neither conclusion i.s warranted" (id., at 4934).

_34-

24/

25/

agencies, issued regulations on May 1'_, 1977. These regulations

26/

address a number of substantive matters in detail, but the pro-

cedural regulation simply states:

The procedural provisions applicable to Title VI of the Civil Rights Act of 1964 apply to this part. [27/]

HEW, adopted this procedure, it explained, until ". .

such time as they are superseded by . . . consolidate procedural

regulations applicable to all . . . civil rights statutes and

executive orders administered by the Department" 45 C.F.R. Part

84, App. A., p. 391. This is in accord with the 1974 Senate, Report.

28/

addressing the parallel with Title Vi.

As with Title VI, the

existence of an adminstrative procedure to terminate federal 29/
financial assistance to a recipient, is neither inconsistent

with a clas. tioi, for ]—',;r.::tive

.:e '_:d v.

Transp.Authorit_, supra, 548 F.2d at 1287, nor would it provide

adequate pre-suit administrative relief, depending, as it does,
on federal discretion for its exercise and on federal conciliation

24/ See Executive Order No. 11914, 41 Fed. Reg. 17871.

25/ 42 Fed. Reg. 22677; 45 C.F.R. 84.1 et seq.

26/ E.g., "Discrimination prohibited, id., at 84.4; "Remedial action,
voluntary action, and self-evaluation," id., at 84.6; "Definitions,"
id., at 84.3.
27/ Id., at 84.6. In its explanatory comment or. the regulation,
HEW said: "Several comments urged that the regulation incorporate provision granting beneficiaries a p rivate right of action against recipients under Section 504. To confer such a right i' beyond the authority of the executive branch of Government. There is,
however, case law holding that such a right exists. LJ.o V.
Regional Transportation Authority,48 F.2d 1277 (7th Cir. 1977) ...; cf. Lau v. Nichols, supra" (other citations omitted). 45 C.F.R. Part 84, App. A, p. 378. `-----
28/ See pp. 32, supra.

29/ 45 C.F.R. 80.6-80.10 and Part 81.

30 / efforts.~

-35-

3. To imply a private right of action under Section 504

would be consistent with and would promote one of the underlying

purposes of the Act. Private suits by persons acting as "private

attorneys general" are an invaluable supplement to government civil

rights enforcement and help to vindicate the nondiscrimination poli-

cies.to which Congress afforded a high priority. See Trafficante v.

Metropolitan Life Ins. Co., 409 U.S. 205, 211 (1972); Newman v.

Piggie Park Enterprises, Inc., 390 U.S. 400, 401-40 2 (1968) .

In view of the large number of recipients of federal finan-

cial assistance who are covered by the nondiscrimination provision

of Section 504, "the Act's laudable goal could be severely hampered

. . . if each citizen were required to depend solely on litiga-

tion 1nstlLuLcu at merle oration of

. _,.,- ;v _:. t,.,.."

Allen v. State Board of Elections, 393 U.S. 544, 556 (1969). See

also Drennon v. Philadelphia General Hospital, 428 F. Supp. 809,

815 (E.D. Pa. 1977).

4. Finally, this case is not one "traditionally relegated

to state law." Congress intended to deal with discrimination against

the handicapped on a national basis. Lloyd v. Regional Transp.

Authority supra, 548 F'.2d at 1286-1287. In addition, it is entirely

inappropriate to leave to state law, the vindication of rights secured

by federal law which are made conditions of receiving federal funds.

30/ See 45 C.F.R. 80.7(d). Formal administrative proceedings take place only if HEW proceeds with fund termination. Thus, if a complaint is not acted upon, or the complaint does not have merit in the view of a "responsible official," there are no administrative procedures available to supplant a judicial remedy. Fund termination proceedings do not protect individual plaintiffs since beyond making complaints, they have no standing in the process, nor would they be afforded a postiori review.

s

-36-
Thus, this action satisfies all the tests of Cort v. Ash,
supra, and this Court should hold that plaintiffs have a right of
action under Section 504.
B. Defendants Are Violating Section 504
Section 504 prohibits handicapped persons from being "excluded
from the participation in, ... denied the benefits of, or ... subjected
to discrimination under" programs receiving federal financial assist31/
ance "solely by reason of his handicap"
1. The federally funded program
Defendant county officials receive, through the state
defendants, federal service grants under Title XX of the Social 32/
Security Act which are used in mental retardation programs. The
state Department of Public Welfare supervises the county defendants,
and operates Pennhurst where many of the retarded persons are placed
at county initiative. Title XX funds are, in part, for "prevent-
ing or reducing inappropriate institutional care by providing for
community-based care, home-based care, or other forms of less in-
tensive care," and pay for up to 75% of the costs of a variety 33/
of community social services. 34/
In addition, federal Medicaid funds are paid to health
care providers by the defendant Department of Public Welfare in
31/ Federal financial assistance includes grants, loans, contracts, or any other arrangement by which assistance is made available to a program or activity. 45 C.F.R. 84.3(h).
32/ App. V.III 1202, 1213. ee 42 U.S.C. (Supp. V) 1397 et seq. The state apparently paid $13.8 million to various counties for 1.975-76 (App. V. II 290).
33/ 42 U.S.C. (Supp. V) 1397a
34/ 42 U.S.C. (Supp. V) 1396 et secy.. Sometimes called "Title 19" funds for Title XIX of the Social Security Act, as amended.

-37-

35/

accordance with a state plan.

Medicaid payments are made for

36/

the care of 55% of the residents at Pennhurst, and are included

37/

in the Pennhurst budget.

The Department of Public Welfare has also received grants

which it has furnished to various counties, such as, Developmental

38/

39/

Disabilities, and Public Health Service grants, and the Department

of Public Welfare receives funds through the Department of Education

which is furnished to the counties under the Ecucation for all Handi40 /
capped Children Act.

2. The discrimination

In using the word "discrimination" in Section 504, Congress

was, no doubt, aware that the term had been employed frequently in

application of the Equal. Protection Clause of the Fourteenth Amend-

ment. The similarity of the language of Section 504 to that used in

35/ 42 U.S.C. (Supp.V) 1396a.

36/ App. V. III 1182

37/ Tr. 26-13. For fiscal 1975-76, federal payments to Pennhurst were $5,870,000 (Tr. 26-14). Medicaid funds are intended for a variety of medical services, but one of the purposes for which these funds may be used is for care in "intermediate care facilities," 42 U.S.C. (Supp. V) 1396d, such as Pennhurst. If Pennhurst residents were in community living arrangements, Medicaid payments would pay only for those services normally thought of as "medical." Id., at 1396d(a)(15), (c) and (d). However, if the residents of Pennhurst were in community living arrangments housing under sixteen persons, they could receive $210.10 per month in federally supported Supplementary Security Income (SSI) which could defray the costs of room and board (Tr. 27-39 to 27-90). See 42 U.S.C. (Supp. V) 1382 et seq. While in Pennhurst, residents receive $25.00 per month in SSI (Tr. 27-88).

38/ 42 U.S.C. (Stipp. V) 6010 et sue. The various counties received X661,705 in 1975-76. App. V. II 292.

39/ App. V. III 1214; App. V. II 292.

40/ App. V. II 292; App. V. III 1218-1220; see 20 U.S.C. 1401 et seq.

-38Section 601 of the Civil Rights Act of 1964, as well as the parallell
41/ with that section noted in legislative history indicates an intent to give heightened protection from discrimination to handicapped per-
sons. On its face, however, section 504 has some distinguishing char-
acteristics from prohibitions on racial and gender-based discrimination.
It does not protect persons who do not have a handicap; rather, it provides broadly worded protection for a special class of persons, and the term, "solely by reason of handicap" has no parallel in Title VI.
"Discrimination" as used in the context of claimed unequal treatment has long been understood to mean singling out a person, or persons, to their disadvantage without a reasonable basis for doing so judged sufficient under standards appropriate to
Lice ciassifitdLioii. H iirt,ue% v. iexa5, 34/ U.S. 475 (1954),
McGowan v. Maryland, 366 U.S. 420 (1961). Some classifications, such as age, will be sustained under constitutional analysis if the disparate treatment is rationally related to any legitimate governmental objective. Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307 (1976). Where the classification, or the disparate treatment, has been a "suspect" one, or infringe upon "fundamental" rights, however, that classification has received the most exacting judicial scrutiny, and states must demonstrate a "compelling" interest to sustain it. Strauder v. West Virginia, 100 U.S. 303 (1880); Regents of the Univer_sicf California v. Bakke, su p ra, 47 U.S.L.W. at 4904; Cf. San Antonio School District v. Rodriguez, 411 U.S. 1, 28-29 (1973).
41/ See pp. 31, 32, supra.

-39-When Congress selected the language which it used in Section 504, and likened it to the prohibition on racial discrimi-

nation found in Title VI of the Civil Rights Act of 1964, it clearly

intended that disparate treatment of handicapped persons is to

be judged by a standard which requires more governmental justifi-

cation than is required under the traditional "rational basis"

test. To supply standards, Congress intended that regulations be
42 / promulgated. In Lau v. Nichols, 414 U.S. 563, 568 (1974), the Supreme

Court applied regulations within the scope of Title VI of the Civil

Rights Act of 1964 (42 U.S.C. 2000d et seq.) issued to enforce that

43 /

statute.

The Department of Health, Education and Welfare, the

agency responsible not only for disbursing the federal funds in this 44 /
case, but for coordinating the enforcement of Section 504 generally,

has publish cu iegUlatiuiio wiilu-h prov'±ut hubs a:t_.i.cl

i.ty t!)

conclude that discrimination prohibited by section 504 has occurred 45 /
i.n this case.

42/ "[Although the Section 504] does not specifically require the issuance of regulations or expressly provide for enforcement procedures ... it is clearly mandatory in form, and such regulations, and enforcement are intended." S. Rep. No. 93-1297, supra.

43 / Concurring, Justice Stewart, joined by the Chief Justice and Justice Blackmun, said such regulations were entitled to "great
weight." 414 U.S. 571.

44/ See Executive Order No. 11914, 41 Fed. Reg. 17871.

45 / It might be argued in some handicap discrimination cases, a standard like that used for gender discrimination, see, e.g., Frontiero v. Richardson, 411 U.S. 677 (1973); Craig v. •Dr en, 429 U.S. 190, 197 (1976) (classification must be "substantially related to the achievement of [important governmental] objectives"),
should be used. To use such a standard in this case, which involves
"fundamental liberties," would mean that the state would have a lesser burden under the statute than under the constitution. Analogy to
gender based classifications helps the plaintiff in this case,
(Continued)

-40 Defendants, through a combination of actions, have set apart a group of handicapped persons in a setting which subjects them to

harmful, dangerous and inhumane conditions, have restricted their

liberties and have denied them the benefits of community education,

care and associations under programs financed, in part, with federal

funds.

The services provided for Pennhurst residents are unneces-

sarily separate both from the community and from community mental

retardation services which the district court found were more con-

cucive to "normalization," a principle which defendants have accepted

( App . 275). In explanation of its final regulations, HEW said:

It must be emphasized that, although

separate services must be required in some

in :c

t._ roc. : _on f riec1Sariiy

separate or different services is discrimi-

natory. The addition to paragraph (b)(2) of

the phrase "in the most integrated setting

appropriated [sir.] to the person's needs"

is intended to reinforce this general con-

cept.[46/]

Defendants are not providing Pennhurst residents with an

"equal opportunity ... in the most integrated setting appropriate to

45/ (Footnote continued from previous page) however, since they have been struck down under an equal protection theory when supported by "archaic and overbroad" generalizations about sex differences. Weinberger v. Wisenfeld, 420 U.S. 636, 643 (1975). Similarly, Pennhurst is a relic of archaic attitudes about the need to simply separate the mentally retarded from society (App. V. II 180, 181; App. V. III 7, 8, 11).

46/ 45 C.F.R., Part 84, App. A, p. 377. The regulation section discussed there reads: "[A]ids, benefits, and services, to be equally effective, are not required to produce the identical results or level of achievment for handicapped and nonhandicapped persons, but must afford handicapped persons equal opportunity to obtain the same result, to gain the same benefits, or to reach the same level of achievment, in the most integrated setting appropriate to the perons needs. 45 C.F.R. 81t.4(b)(2).

S
-41-[their] needs." The record reveals conditions that would not be
tolerable even in prisons; non-retarded persons and retarded persons
in community facilities are not subjected to such conditions under the Medicaid, SSI, or other federal programs. The residents are separated from the rest of society to their detriment, and they are separated from effective programs in which other mentally retarded
persons are receiving community services. The district court found that Pennhurst residents not only do not progress in their learning, but they suffer physical deterioration and intellectual and behavioral regression (App. 268-269), in part, because of the "separateness"
47/ of Pennhurst (App. 274-275). The district court also found that Pennhurst was inappropriate and inadequate for habilitation of the retarded (App. 256). Repeatedly, the record establishes that Pennti`ur ' -do c: -nct r __± "minimal profes- ^ 'al tan'-' -" ppli C a d' to to
48/ such institutions.
In contrast, mentally retarded persons served in the federally funded community programs are afforded "normalzation" (App. 275), the essential aspect of habilitative care lacking at Pennhurst. For some, this even includes opportunities for employment (App. 277).
The regulations under Section 504, 45 C.F.R. 84.4(b), further require:
(1) A recipient,[49/] in providing any aid, benefit, or service, may not . . ., on the
47/ The district court was properly impressed with the progress of one former Pennhurst resident who managed to get into a community living arrangement and "learned more in the last 3 1/2 years . . . than in 38 years . . . in Pennhurst" (App. 275 n. 47). 48/ See "Evidence," supra, pp. 15, 17, 19, 20, 21, 23.

basis of handicap:

*

*

-42-

k

*

*

(ii) Afford a qualified handicapped person an opportunity to participate in or benefit from the aid, benefit, or service that is not equal to that afforded others;

(iii) Provide a qualified handicapped" person with an aid, benefit, or service that is not as effective as that provided to others;

(iv) Provide different or separate aid, benefits, or services to handicapped persons or to any class of handicapped persons unless such action is necessary to provide qualified handicapped persons with aid, benefits, or services that are as effective as those provided to others.

The base service units, for whom the county defendants

50/

are responsible,

have caused many mentally retarded persons

to be placed in Pennhurst. The defendant state officials super-

vise the county defendants and operate Pennhurst. All are denying

handicapped persons the benefit of community services, which the

district court found to afford far greater opportunities for

learning than could ever be realized at Pennhurst (App. 274-277).

Pennhurst is neither as equally effective nor does it afford the 51/
same opportunity as the community programs.

49/ "Recipient' includes defendants. See 45 C.F.R. 84.3(f).

50/ App. V. III 1074, 1095, 1116, 1140.

_51/ See note 20, supra. In addition to those referenc:_s, see 118 Cong. Rec. 526 (1972) (remarks of Senator Percy); 118 Cong. Rec. 9500 (additional remarks of Senator Humphrey); 117 Cong. Rec. 45974-45975 (1971) (remarks of Representative Vanik, "we still have the snake-pit mental institutions--institutions for confinement without treatm nt, where brutality and unexplained deaths are common").

-43-.-
The statutory and regulatory commands of equal treatment
mandate more than refraining from active mistreatment. The stan-
dard by which defendants' actions are measured is established by
the regulations describing discrimination, and which establish
that violations result from actions which have the "purpose or effect"
of discrimination. 45 C.F.R. 84.4(b)(4).
Defendants argue that the legislative history does not support
application of Section 504 to this case. Because section 504 was
attached to other more controversial provisions, references to
nondiscrimination in the debates are infrequent. However, of all
the possible specific kinds of problems encountered by handicapped
persons which could have been discussed, the debates mentioned, on
several occasions, those of institutionalized persons. 52/
In the aiscussiorn •^rhiun precedeu passage of H.R. 8395
in the Senate where the nondiscrimination provision was added,
Senator Javits said (118 Cong. Rec. 32305):
I am particularly pleased with the clear emphasis in the bill on beginning to do more for the severely disabled. For some time I have been particularly concerned about the situation of the handicapped, including the mentally retarded. We must find ways to remove as many as possible from the institutions and to help them qualify for suitable work and living within our communities. I hope--and expect---that the rehabilitation programs will be stimulated to take an even more active role in this endeavor a')ng with other community agencies and institutions.
The application of the term "discrimination" as used in Sec-
tion 504 to this case is consistent with the will of Congress. On at
52/ See note 20, supra.

-44-.
least two occasions since the enactment of Section 504 and the expla-
natory committee report of 1974, Congress has enacted statutes which
express a policy against institutions operated the way Pennhurst is 53 /
operated. One enactment, authorizing federal funds to help provide
community treatment facilities for mentally retarded persons, expres-
sly includes a reference to the right of developmentall y disabled
persons to--
appropriate treatment, services, and habilitation for such disabilities.
(2) The treatment, services, and habilitation for a person with developmental disabilities should be designed to maximize the developmental .potential of the person and should be provided in the setting that is least restrictive of the person's personal liberty.[54/]
Congress also asserted:
(3) The Federal Government and the States both have an obligation to assure that public funds are not provided to any institutional or other residential program for persons with developmental disabilities that--
(A) does not provide treatment, services, and habilitation which is appropriate to the needs of such persons; or
(B) does not meet . . . minimum standards [set out in the statute.55/]
53/ Pub. L. 93-647, 88 Stat. 2337, added Title XX to the Social Security Act on Jan. 4, 1975, discussed, supra, at p. 36; Pub. L. 94-103, 89 Stat. 502 (42 U.S.C. (Supp. V) 6010) 'Congressional Findings respecting rights of the developmentally disabled," October 4, 1975.
54/ 42 U.S.C. (Supp. V) 6010.
55/ Ibid. PARC included a claim under this section in its amended complaint (App. 181-182). However, the district court did not decide this claim. Commonwealth defendants have received funds under this statute, and the funds have been passed to counties (App. V. III 1216-1218; App. V. II 292),
(Continued)

-45--
Speaking on behalf of this measur, 121 Cong. Rec. S16549
(daily ed. Sept. 23, 1975), Senator Javits said:
I am particularly p?.eased that the conferees have included [the rights section] which I originally introduced ... in response to the tragic situation of institutionalized mentally retarded patients across the Nation.
The conference report, 121 Cong. Rec. H8712-H8724 (daily
ed. Sept. 15, 1975), which preceded passage of this act said:
These rights are generally included in the conference substitute in recognition by the conferees that the developmentally disabled, particularly those who have the misfortune to require institutionalization, have a right to receive appropriate treatment for the conditions for which they are institutionalized, and that this right should be protected and assured by the Congress and the courts.
Where the Congressional intent expressed is to broadly pro-
tect handicapped persons, and the discrimination is well within the
Congressionally authorized regulations, the question is not--as
defendants would state it--whether Congress has declared that all
institutions for the mentally retarded should be closed forthwith,
but whether Congress intended to allow federal funds to subsidize
conditions such as those at Pennhurst, especially where the
institutionalization results in separation of mentally retarded
persons for no permissible reason. In our view, that is "discrimina-
tion," and a violation of Section 504 if it is supported by federal
funds. It is also a violation of that statute where that insitution-
alization is not as "effective as . . .," and does not "afford . . .
an opportunity . . . equal to that afforded others."
55/ (Footnote continued from previous page) but the record is not clear that the funds have gone to the counties involved in this case. In any event, the declaration of rights appears not to be limited to programs receiving Developmental Disabilities grants since it speaks of broad obligations on the part of federal and state governments and requires "all programs" t.o meet certain standards. 42 C.S.C. (Supp. V) 6010(3) and (4).

-46-
II
THE DISCRIMINATION AGAINST PLAINTIFFS VIOLATES THE EQUAL PROTECTION CLAUSE

Under the constitutional standard for discrimination,

confining mentally retarded persons in Pennhurst affects funda-

56/

mental liberties.

It amounts to confinement for status,

Robinson v. California, 370 U.S. 660 (1962), and it is not supported

by compelling reasons. Moreover, to confine persons to "provide...

mental retardation services...," 50 Penn. Stat. 4202, and then to con-

fine them in Pennhurst where meaningful services are impossible is not

rational. This lack of either rationality or compelling need is

underscored by the district court's finding that all Pennhurst

residents can be served, and could better be served, in community
r. g=.ims ( Ar_ L - 2E--?0 7 '7A-271)
The apportionment of scarce resources does not require some

persons to be treated in Pennhurst and some to be treated in the

community. Rather, defendants are simply providing ineffectual

confinement to Pennhurst residents at great expense to both the state

and federal governments, while care, education and training, greater

freedom and opportunity, and freedom from confinement are provided to

other mentally retarded persons at a lesser per capita expense.

Deferral to legislative choices, see, e.g., Dandridge v.

Williams, 397 U.S. 471 (1970); New Orleans v. Dukes, 427 U.S. 297,

303 (1976), does not include deferral to the failure of defendants

to execute their own state policy choices in favor of community care

this 56/ In Part 111, infra, "fundamental liberties" at stake in case are discussed in more detail in connection with the Due Process claim.

-47..
for the mentally retarded when their action affects fundamental
rights.
Nor is this a case where equal treatment somehow impli-
cates a drain on scarce resources. Defendants' arguments to this effect simply do not acknowledge the district court finding that the cost of providing services to the mentally retarded in the communities is less than doing so in institutions (App, 277), and without the enormous expense of operating Pennhurst, more than adequate funds would be available (App. V. III 1259-1260).
III PLAINTIFFS ARE DEPRIVED OF THEIR LIBERTY WITHOUT DUE PROCESS OF LAW AT PENNHURST
The district court held that p y aintirfs have, under the uue
Process Clause, a right "to treatment" as a consequence of their having been "committed" to Pennhurst in order to be provided with services necessary to mentally retarded persons. In so doing, the court adopted the reasoning of several district courts, e.g_, Witt v. Stickne , 325 F. Supp. 781 (M.D. Ala. 1971), 334 F. Supp. 1341, 344 F. Supp. 373, 344 F. Supp. 387 (1972), aff'd sub nom.
Watt V. Aderholt, 503 F.2d 1305 (5th Cir. 1974); Welsch v. Likins,
373 F. Supp. 487, 499 (D. Minn. 1974), aff'd and vacated in part 550 F.2d 1122 (8th Cir. 1.977); Gary W. v. State of Louisiana, 437 F. Supp. 1209, 1219 (E.D. La. 1976); Davis v. Watkins,
57/ 384 F. Supp. 1196, 1206 (N.D. Ohio 1974).^ tl The rationale
7 The courts of appeals have been receptive to the theory. The
Fifth Circuit held in Donaldson v. O'Connor, 493 F. 2d 507,. 521 (1974) , that such a right exists. The Supreme Court vacated this opinion, O'Connor v. Donaldson, 422 U.S. 563 (1975), and declined
(Continued)

which is subsumed in the catch phras`, "right to treatment,"
is that the confinement of plaintiffs at Pennhurst infringes
on the well-established liberty interests of plaintiffs and that
the state can have no purpose in such an infringement except
to provide the training and care needed by plaintiffs. Having
fully deprived plaintiffs of the liberty interests at stake,
state officials then incur the duty to give, and the plaintiffs
the right to receive, the care and training which their condition
requires. As applied here, the district court concluded, plaintiffs
also have a right to be in the least restrictive circumstances
consistent with the purpose of the commitment (App. 292-293).
Applying these principles to plaintiffs, * the court said that
Pennhurst "should be regarded as a monumental example of uncon-
stitutiona! ity with respect to the lab .,.iitarion or- Ch retarded"
(App. 295).
The rights and duties at issue here have both procedural
and substantive aspects. In Gary W., supra, 437 F. Supp. at
1216, the court reasoned:
57/ (Footnote continued from previous page) to rule on the theory. In the interim, Wyatt v. Sticknev, supra, was affirmed and Burnham v. Department of Public Health of Georgia, 349 F. Sup. 1335 (N.D. Ga. 1972), was reversed, 503 F.2d 1319 and Wyatt v. Aderholt, supra, (5th Cit. 1947), based on Donaldson. The Supreme Court denied certiorari in Burnham, 422 U.S. 1057, four days after vacating Donaldson.
The Eighth Circuit, in Welsch v. Likins, supra, 550 F.2d at 1132, accepted the district court holding. This Ci.rcu;: reversed a dismissal of a "right to treatment" complaint, Scott v. Plante, 532 F.2d 939 (1976), declining to examine the theory in the absence of a full record. The District of Columbia Circuit has found a statutory right to treatment, but has suggested that absent the statute, serious Due Process problems would result in confinement of mentally ill persons, even dangerous ones, without treatment. Rouse v. Cameron, 373 F.2d 451 (1966). No court of appeals' opinion has held that the theory is without foundation.

-49-
Long-term detention of an individual is ordinarily a denial of due process except when he has been proved, in a proceeding subject to the rigorous constitutional limitations of the due p rocess clause
and the Bill of Rights, to have committed a specific act defined as an offense against the state, and for which incarceration is p ermitted for a fixed term only. If an individual, adult or child, healthy or ill, is confined by the government for some reason other than his commission of a criminal offense, the state must provide some benefit to the individual in return for the deprivation of his liberty.
Thus, the treatment afforded a person when he is detained
may be viewed as a continuation of the procedures under which he
is committed. To test the sufficiency of procedural standards,
the Supreme Cout, Math ews v. Eldridq e, 424 US. 319, 335 (1976),
has stated:
[T]he specific dictates of due process generally requires consideration of three dis1^ '. fa:.tor:. is t, the. is ivat terest than will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail. See, e•g., Goldber g v. Kelly, [397 U.S. 254], at 263271.
The liberty which receives substantive protection under
the Due Process Clause "is a rational continuum which, broadly
speaking, includes a freedom from all substantial arbitrary
impositions and purposeless restraints, . . . and which also
recognizes, what a reasonable and sensitive judgment must, that
certain interests require particularly careful. scrutiny of the
state needs asserted to justify their abridgment." Poe v.

-50•-

V. Ullman, 367 U.S. 497, 543 (1961) (Harlan, J., dissenting), quoted

in Moore v. City of East Cleveland, 431 U.S. 494, 502 (1977) (plurality

opinion), 543 (dissent). Clearly, the nature of the liberty

interests determine the extent of protection they should receive

from state interference. If the liberty is regarded as fundamental,

"the usual judicial deference [to state discretion] is inappropriate."

Moore v. City of East Cleveland, supra 431 U.S. at 499.

A. The Liberties at Stake

The plaintiffs' liberty interests in this case are ranked

high in our constitutional system. The residents of Pennhurst

are totally in the control of state agents. Commitment to state

custody for any purpose results in "massive curtailment of liberty."

Humphrey v. Cady, 405 U.S. 504, 509 (1972). Such commitment affects

fundamental rights. Baxstrom v. Herold, 383 U.S. 107, 113 (1966).

The Commonwealth (Br. 27), asserted:

A majority of the residents are voluntarily placed [at Pennhurst] for treatment.

The district court more accurately stated the facts

(App. 252):

Approximately half of the residents of Pennhurst have been admitted upon application of their parents or guardians, while the other half have been committed by a court. The average resident age is 36, and the average stay at the institution is 21 years.

And (App. 273):

•

21 of the 45 livinq units are locked

Those individuals over the age

of 18 who have been "voluntarily" ad-

mitted to Perinhurst are theoretically free

to leave the institution at any time. . . .

Those admitted on the petition of their

parents are informed by thier caseworker

when they reach the age of 18 that they

do not have to remain at Pennhurst. If

the residents state that they wish to leave

■

-51-
the institution and the staff determines that there is no place for them in the community, or believes that the individuals are not ready to go into the community, the staff will petition the courts to have the individual committed to the institution by
a court. . . those residents who either do not understand these alternatives, or are physically unable to indicate that they wish to leave Pennhurst, will be deemed to
have consented to . . continued placement. . . . As a practical matter, Pennhurst was and is [the] only alternative.
"Voluntariness" on the part of a parent or guardian, of
course, hardly represents a voluntary stay on the part of a
resident. Cf. Gary W. v. State of Louisiana, su ra, 437 F. Supp. 58/
at 1217.
Without challenging the district court findings directly,
the remainder of the first paragraph (Commonwealth Br. 27),
describes a situation_ cconisIc!eracly at ,adds with the district
court findings about care and training at Pennhurst. Without
again repeating the facts, see "Evidence," supra, we suggest
the district court was correct when it found "agreement
that Pennhurst as an institution is inappropriate and inadequate
for the habilitation of the retarded" (App. 256).
The true dimensions of the curtailment of liberty at
Pennhurst, whether curtailment is viewed as "procedural" or
"substantive" are apparent from consideration of the typical
stay there. The "average" stay at Pennhurst, 21 years, is
beyond the average prison sentence. Some residents have been
58/ The extent to which a minor must be given a voice in institutional placement independent of a parent or guardian in Pennsylvania is the subject of a pending appeal in the Supreme Court. Secretary of Public Welfare v. Institutionalized Juveniles, No. 77-1715, probable jurisdiction noted, 46 U.S.L.W. 3779.

-52-there most of their lives. None leave until alternative arrangements for care are made--an unlikely prospect. for most according to the district court findings (App. 273-279).
The qualitative demension implicates a number of substantive liberty interests which have received protection in some contexts independent of the right to be at large. The
oppressive condition and the absence of effective supervision and training inherently restrict the freedom to acquire knowledge. Meyer v. Nebraska, 262 U.S. 390 (7.923); Pierce v. Society of Sisters, 268 U.S. 510 (1925). The separate and isoltaed nature of Pennhurst restricts the freedom to join in associations, NAACP v. Alabama, 357 U.S. 449, 462 (1958); NAACP v. Button, 371 U.S. 415, 430-431 (1963); and the freedom to establish private family relationships, Criswcld v. Connecticutt, 381 U.S. 479, 480 (1)65) ; Moore v. City
of East Cleveland, supra. Physical conditions, and lack of staff
supervision, chemical and physical restraints and isolation rooms impinge upon the freedom to be secure in one's person, while in state custody, Screws v. United States, 325 U.S. 91 (1945). Spence v. Staras, 507 F.2d 554, 557 (7th Cir. 1974); United States v. Stokes, 506 F.2d 771 (5th Cir. 1975).
The district court found that Pennhurst residents are subjected to cruel and unusual punishment in violation of the Eighth Amendment at Pennhurst. Although there is ample reason to apply the Eighth Amendment to institutions such as Pennhurst, it is sufficient for purposes of this case to use that rationale
which this Court has followAd in cases involving pretrial detainees, e.g., Hampton v. Holmesburg Prison Officials, 546 F.2d 1077,
1079-1080 (3d Cir. 1976) which, while not applying the Eighth

J
-.53Amendment, as such, use Eighth Amendment standards for convicts to define minimum liberty interests of such nonconvicts. See also
Rhein v. Malcolm, 507 F.2d 333 (2d Cir. 1974); Duran v, Elrod, 542
F.2d 998 (7th Cir. 1976). If the residents of Pennhurst had been convicted of crimes
and sentenced to Pennhurst, this record would require a holding that both the totality of the conditions and a number of aspects of conditions there violate the prohibition of the Eighth Amendment against cruel and unusual punishment. The Supreme Court has defined the scope of the prohibition (Estelle v. Gamble, 429 U.S. 97, 102-103 (1976)) to be---
More than physically barbarous punishments. (Citations omitted.) The Amendment embodies "broad and idealistic concepts of dignity, civilized standards, humanity, and decenc y . . .," against
which we must evaiva^e penal m2asures. Thug,
we have held repugnant to the Eighth Amendment punishments which are incompatible with "the evolving standards of decency that mark the progress of a maturing society," * * * or which "involve the unnecessary and wanton infliction of pain" (citations omitted). Applying these standards, federal courts have found a variety of debilitating conditions and events in prisons to violate the Eighth Amendment. Cases involving denials of medical care, the subject of Estelle v. Gamble, supra, are most helpful, since "care" and "habilitation" are Pennhurst's raison d'etre. See Williams v. Vincent, 508 F.2d 541 (2d Cir. 1974) (doctor choosing the "easier and less efficacious treatment" for a prisoner); Bowring v. Godwin, 551 F.2d 44 (4th Cir. 1977) (medical care required by Estelle, supra, includes psychiatric treatment if needed tc qualify for parole); Finney v. Arkansas Board of Correction, 505 F.2d 194, 202 (8th Cir. 1974) (lack of sufficient personnel t.o provide

J.

-54-adequate medical care); McCray v. Burrell, 516 F.2d 357, 368 (4th Cir. 1975) (psychiatric care required when violent prisoner is

placed in isolation for protection of himself and to maintain

order); Newman v. Alabama, 503 F.2d 1320 (5th Cir. 1974), certiorari

denied, 421 U.S. 948 (1975); Barnes v. Vir g in Islands, 415 F. Supp.

1218, 1227-1228 (D. V.I. 1976) (medical care includes preventive

medicine and mental as well as physical health care).

Similarly, adverse living conditions and overcrowding in

prisons have conflicted with the Eighth Amendment. Battle v.

Anderson, 564 F.2d 388 (10th Cir. 1977) (overcrowding--prisoners

entitled to an environment which does not result in his degenera-

tion or which threatens his mental and physical well being);

Finney v. Arkansas Board of Correction, supra, 505 F.2d at 201

(ov rcrowdi. S

_nu

1' ^

i_

r::rs . '

safe t •, 1

fr

,m

__.:h

other); _W_oodnc^

Virginia, 487 F.2d 889, 890 (4th Cir. 1973) (freedom from constant

threat of violence from other inmates); Craig v. Hocker, 405 F.

Supp. 6, 56, 677 (D. Nev. 1975) (insufficient clothing and lack of

facilities for personal hygiene); Martinez Rodriquez v. Jimenez,

409 F. Supp. 582 (D. P.R. 1976) (inter alia, lack of proper

classification of prisoners and inadequate sleeping facilities);

Williams v. Edwards, 547 F.2d 1206, 1211 (5th Cir. 1977) (over-

crowding, lack of security, fire and safety hazards).

As the description of Pennhurst life, pp. 14-13, supra, illus-

trates, each of these conditions has an analogue at Pennhurst. Moreover,

some federal courts have applied the Eighth Amendment to conditions

in state-operated institutions where persons are confined for other

than penalogical reasons. Romeo v. Younbe^, No. 76-3429 (E,D. Pa.

June 6, 1977); Welsch v. Likins, 373 F. Supp. 487, 502-503 (D. Minn.

-55-1974), aff'd and remanded in part, 550 F.2d 1122 (8th Cit. 1977);
New York State Ass'n for R etarded Children, Inc. v. r, Rockefelle
357 F. Supp. 752, 764 (E.D. N.Y. 1973). The rationale for application of the Eighth Amendment to such confinement arises from treatment of confinement as ''punishment". Robinson v. California, su ra.
There can be no doubt that Eighth Amendment standards are relevant to Penrihurst. In Ingraham v. Wright, 430 U.S. 651 (1977), on which the Supreme Court, in distinguishing children in public schools from prisoners for Eighth Amendment purposes, relied on the "harsh facts of criminal conviction and incarceration," which "deprives [the prisoner] of . the freedom 'to be with family and friends and to form the other enduring attachments of normal 1.i.f?....'" T. .+- X69.
Pennhur^t, unlike the public school of Ingraham, is not an open institution. Indeed, it is, to the persons who reside there, a prison. Its residents are not free to leave. When they try to leave the institution, they are returned to the facility by institutional personnel or the police. Some residents are subjected to seclusion or solitary confinement. Its residents are within the 24--hour custody and control of institutional keepers upon whom they must depend for the sustenance of life and the enjoyment of every freedom. Cf. Estelle v. Gamble, supra, 429 U.S. at 103. Many .gave been institutionalized over long periods of time and have lost all contact with their families and the community and, as such, have no person other than institutional peronnel upon whom to depend for assistance and help. Morales v. Turman, 383 F. Supp. 53, 123 (E.D. Tex. 1976), vacated and remanded,
P

-56-562 F.2d 993 (5th Cir. 1977) teaches:
[IJsolated institutions often construct unreal worlds that are very real to the needs
of the institution but are very unreal to the
needs of_ a person functioning in cur society.
As handicapped individuals, the institutionalized mentally
retarded are among all our citizens the least able to come forward to seek redress of individual grievances.
It is under these circumstances that openness cannot be effectively maintained and where common law restraints are inadequate to protect confined persons from conditions which result in death, physical injury, psychological harm and lack of care and training. The rationale of Newman v. Alabama, supra, and Estelle v. Gamble, supra, applies here--where persons are entrusted to the care of the state under conditions where they are confined 24 hours per day, they cannot be deliberately denied that aegree of care which they need.
Although convicts have no constitutional right to rehabilita-t:ion or treatment, the Supreme Court has found penal conditions to violate the Eighth Amendment where they are "so totally without penological justification that it results in the gratuitous infliction of suffering." Gregg v. Georgia, 428 U.S. 153, 183 (1976). Because many Pennhurst conditions are totally lacking in habilitative purpose, that rationale also applies. One such practice is the inadequate control, administration and review of drug therapy. Drug usages such as those found at Pennhurst which are not shown to be associated with training or medical treatment have been held to violate the Eighth Amendment. Knecht v. Gillman, 488 F.2d 1.136, 1139 (8th Cir. 1973).

-57Similarly, the use of seclusion and restraints in lieu of
care and training, the use of "P.R.N." orders for chemical restraints,

and the failure to remove residents from seclusion and restraint

at the earliest possible time constitute cruel and unusual punish-

ment. Welsch v. Likins, supra; Pena v. New York State Division

for Youth, 419 F. Supp. 203 (S.D. N.X. 1976).

Summarily stated, confinement of the plaintiff class in

Pennhurst "involve[s] the unnessary and wanton infliction of pain"

Estelle v. Gamble, supra, 429 U.S. at 103, quoting G q v. Georgi:a,

su ra, 428 U.S. at 173 (1976), ". . . results in their degeneration

[and] threatens [their] mental and physical well being." Battle

v. Anderson, supra, 564 F.2d at 403.

B. The State Purpose

All tnis is not to sa y that

„v. [+_C SLctLc too

ii 3iiii

some freedoms under some circumstances for some purposes. It is

to say that plaintiffs are deprived of their liberties by con-

finement at Pennhurst, and the state should have a compelling

need to restrict the freedom that it does in the manner that it

does. Cf. Bates v. City of Little Rock, 361 U.S. 516, 524 (1960).

The usual rule applied where fundam ental liberties are at stake

is to strike down the state actions if there are less drastic

or less restrictive means which can be used to accomplish the

state purposes. Shelton v. Tucker, 364 U.S. 479, 488 (1960);

Kus er v. Pontikes, 414 U.S. 51, 59 (1973); Dunn v. Blumstein,

405 U.S. 330, 343 (1972).

Undoubtedly, the state has a substantial interest in

the care and training of mentally retarded persons in the

same way that it has a substantial interest in the education

-58of the young. Meyer v. Nebraska, surpa; Pierce v. Society of

Sisters, supra. The state has no interest, however, in the

confinement, or institutionalization, per Se, however, of the

plaintiff class. Plaintiffs are not dangerous, they have com-

mitted no crimes, they have no communicable diseases, and, as

a class, they do not require the kind of control only a large

59/

confining institution can give.

Mentally retarded persons

are sent to, and retained at, Pennhurst simply because iL60 /
exists, and the state has not made room in alternative settings

Continuing the compulsory education analogy, defendants

cannot require that learning take place in a particular en-

vironment when fundamental liberties are infringed by that

requirement. Pierce v. Society of Sisters, su r.a. This is

particularly tiue when the sate may accomplish its purposes

in more practical and feasible ways which are not so restrictive

of fundamental liberties and which would provide, according to

59/ It may be, as described by the district court ; (App. 242), that there are some mentally retarded persons who are also mentally ill, perhaps to the extent that constant or intensive therapy is required in an appropriate psychiatric facility. Ascertaining the needs of persons at Pennhurst is part of the function of the individualized treatment plans ordered by the district court (App. 343). Whatever the individual characteristics of the population of Pennhurst, however, they get neither the plans (App. 260 ), nor the treatment they need, and no person was identified in the record as someone requiring institutionalization.

60/ The suggestion of the Philadelphia defendants (Br. 33), that s,.,me purpose other than habilitation could justify institutional confinement is in the record. The less ambitious purposes suggested as possible reasons for confinement of mentally disabled persons in the concurring opinion in O'Connor v. Donaldson, 422 U.S. 563, 581-583 (1975) simply are not present here. If they were, the reasoning would not change. For example. if the state sought only to provide subsistance, it could be provided in places less stultifying than Pennhurst.

-59..the unchallenged district court findin g s, more humane and more

effective results. Defendants apparently do not disagree

that community living arrangements are more efficacious.

The Supreme Court, in Jackson v. Indiana, 406 U.S. 715,

738 (1972) held:

At the least, due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed.

This holding, in a procedural case, has been cited in

a substantive context. Feeley v. Sampson, 570 F.2d 364, 369

(1st Cir. 1978). The holding in Jackson is peculiarly applicable

to this case. The court held that the state could not use a

procedure to confine a mentally defective person which used a

stanaar.d whicii mu IL

'y ":.ut he would ever

be released when there were other applicable procedures which

incorporated a more realistic promise of release. See also

Baxstrom v. Herold, supra. The inferior services, treatment

and conditions at Pennhurst bear a direct relationship to the

likelihood of release because of the lack of opportunity for

habilitation. By way of contrast, not only is habilitation

more likely in the community programs, but those programs

represent considerably less restrictions on "liberty". There

is no "compelling interest" demonstrated in this record to

continue to maintain Pennhurst indefinitely.

Courts have not hesitated to require orderly alterations

of institutional conditions where necessary to effect consti-

tutional protections. Rhem v. Malcolm, supra 507 F.2d at 340;

Costello v. Wainwright, 525 F.2d 1239 (5th Cir. ].976); Battle v.

-60 -
Anderson, supra; Wolfish v. Levi, 573 F.2d 118 (2d Cir. 1978),
cert. pending; Williams v. Edwards, 547 F.2d 1206 (5th Cir.
1977).
"[W]here federally protected rights have been invaded,
it has been the rule from the beginning that courts will be
alert to adjust their remedies so as to grant the necessary
relief." Bell. v. Hood, 327 U.S. 678, 684 (1946). Here, the Due
Process Clause requires an alteration in plaintiffs' state-
controlled environment which will remove the unnecessary
restrictions on their liberty interests and give them a
realistic opportunity for habilitation.
IV
THE ui Pi IC. r CC ui i rnvtERL,Y- iii rLI LJL L V1T? ILU'
PRINCIPLES IN GRANTING RELIEF
Faced with the massive violations of the rights of the
plaintiff class at Pennhurst, the district court was required
to enter some appropriate relief. The propriety of the order,
under this Court's rule in Evans v. Buchanan, 555 F.2d 373,
380 (1977), should be measured by this test-
Formulating a realistic, practical, and effective remedy is a job peculiarly within the province of the trial court, whose position gives it a quantum advantage over an appellate court in weighing the "practicalities of the situation". It is primarily for this reason that we defer to the trial court's exercise of remedial discretion when it has applied proper legal precepts and remained within determined legal boundaries. 1; * * [G]iven the nature of the judicial system . . . this court is required to fo]low a narrow compass.

-61-Several factors led the district court to enter the relief
that it did. First, since the district court found that there
were numerous aspects of the Pennhurst environment as well as the totality of that environment which infringed the rights of plaintiffs, ample precedent would have permitted a far-reaching order requiring considerable changes in the nature of Pennhurst itself, e.g., wolfish v. Levi, supra; Newman v. Alabama, supra; as well as the removal of Pennhurst residents to other facilities.
Rhem v. Malcolm, supra; Battle V. Anderson, supra; Costello v.
Wainwright, supra. This would, of course, require extensive expenditures on the part of the state, and an indefinite supervision of the district court over the affairs of Pennhurst. See G. Frug, The Judicial Power of the Purse, 126 U. Pa. L. Rev. 715 (1978).
The otrier alternative was *:o re^aui.re that the plaintiti class be removed in an orderly fashion from Pennhurst. Consideration which supported this course were:
1. It was demonstrated that more effective and unobjectionable alternatives could be devised.
2. The state was already committed to expansion of the alternative programs.
3. After the transition had been made, the care and training of the class would be less expensive than care at Pennhurst.
4. Because community living arrangements are inherently less restrictive, there would be less likelihood for a need for indefinite supervision b y the district court.
The district court's order is considerably less intrusive into state affairs than Commonwealth defendants assert. The

-62district court followed a procedure quite like that recommended by Detainees of the Brooklyn House of Detention v. Malcolm, 520
F.2d 392, 399 (2d Cir. 1975). First, the parties were given an opportunity to negotiate a plan for the correction of the conditions which offended the rights of the plaintiff. The nego-
tiation failing, plaintiffs and Commonwealth defendants submitted proposed orders to the court (App. 308, 334). The county defendants submitted no proposal. The state's plan was to either remove 169 Pennhurst residents by June 30, 1978, or to file a report explaining why it was not done. No proposal was made for improvement in the environment of the remaining residents of Pennhurst beyond physical improvements in the plant and reduction in the use of physical and chemical restraints, and seclusion ^.,,<<a .
The district court was justified in finding that defendants plan would not substantially alter the conditions which infringed plaintiffs rights.
None of the defendants more specific objections to the district court's relief, as we show below, require reversal or modification of the order.
A. The appointment of a Special Master is Warranted The district court's order of March 17, 1978, contemplates the appointment of a Special Master to plan, organize, direct, supervise, and monitor the implementation of its order, pursuant to Rule 53, Federal Rules. of Civil Procedure, and "in the exercise of the Court's equitable powers." The district court viewed execution of the order as " impossible without the appoint-

Va

-63-

61/ ment of a Special Master" (App. 343).

At this point, the Master's duty is essentially a planning function. He is charged with the task of drawing a

number of plans to effectuate the court's order. These plans

include (App. 344-346):

1. A plan specifying the quantity and type of community living arrangements and other community resources necessary for the habilitation of all plaintiffs in the least separate, most integrated, least restrictive setting.

2. A report specifying necessary resources and procedures to insure individual evaluations of residents for individual exit and community program plans . . . .

3. A plan to insure sufficient staff to

conduct such evaluations and assist in

the expansion of necessary community

bascU_

. . .

4. A plan to inform class members and their parents and relations of the status of the implementation of the order and how the order and its plans affect them,

5. A plan to provide employment alternatives to Pennhurst employees, and
6. a plan to address deficiencies at Pennhurst which endanger resident health and safety.

After formulation, each plan will be submitted to the district court. After a hearing at which all parties may be heard,

the court may adopt, reject or modify the plans. Following

adoption, they are to be implemented. The Special Master is then charged with the responsibility of monitoring the implementation

tit/ The court has appointed Dr. Robert Audette to be the Special Master and, by Order of July 27, 1978, set up an administrative structure and provisions for initial funding by which the Special Master may commence his duties.

-64-

of the plans by defendants. At all times the S p ecial. Master remains

accountable to and responsible to the court, and defendant officials

are in no way supplanted by the master. The master cannot require

anything of them except information.

It has been held, Hart v. Community Sch. Bd. of Brooklyn,

N.Y. Sch., D. #21, 383 F. Supp. 699, 766-767 (E.D. N.Y. 1974), that:

Rule 53's requirement that the case referred to a master be "exceptional" is more than satisfied when a court is faced with a polycentric problem that cannot easily be resolved through a traditional courtroom bound adjudicative process. * * * A skilled master, with expertise . . . is crucial if a just and workable remedy is to be devised.

In complex litigation courts have commonly requested masters

with expertise in the relevant subject matter to assist in fashioning

a remedy. - C ` -. ' :;.'r-_-_ '.. r

_'_ `_ cklenbuiBd, of r?T_:c`,

306 F. Supp. 1291, 1313 (M.D. N.C. 1969); Keyes v. School. District

No. 1, Denver, Colorado, 380 F. Supp. 673, 684 (D. Colo. 1974);

Hart v.. Community Sch. Bd. of Brooklyn, N.Y. Sch. D. #21, supra,

383 F. Supp. at 758-769; Bradley v. Milliken, 402 F. Supp. 1096,

1104 (E.D. Mich. 1975); Morgan v. Kerrigan, 401 F. Supp. 216, 227

(D. Mass. 1975). In litigation of this nature, the utilization of

Masters in various circumstances is not exceptional. Davis v. Watkins,

supra; Mills v. Bd. of Educ., 384 F. Supp. 866 (D. D.C. 1972);

Pennsylvania Ass'n for Retarded Children v. Commonwealth of

Pennsylvania, 334 F. Supp. 1257 (E.D. Pa. 1971).

In addition to the need for expert advice, appointment of

a master is warranted by defendants' inability to remedy the

adverse conditions at Pennhurst. After the failure of defendants

to present a promising plan, the district court stated (App. 341):

-65-

[T)he Commonwealth defendants agreed that the retarded should be removed from Pennhurst and readily admitted that the only reason that the litigation was necessary was because they wished to accomplish the closing of Pennhurst as a residence for the retarded pursuant to their own schedule which was vague and indefinite.

The record reflects that the defendants previous efforts

have failed of implementation. The district court found (App.

276 -277):

In November, 1970, Act 256 was signed

by the Governor of Pennsylvania. This leg-

islation appropriated twenty-one million

dollars for the purpose of planning, designing

and constructing community facilities which

would enable 900 Pennhurst residents to be

transferred to the community. In 1971, the

McDonald report was p repared at a cost of

$68,000. It detailed the programs and

services needed to support the 900 Pennhurst

residents in the community and provided a
blue p rint for the implementation of the Act.

Though seven yearn have passcd since the

Act was signed, few of the facilities have

become operational. . . . Over eighteen

million dollars of these funds remain un-

spent but is allocated to build these

facilities.

. As of April 25, 1977,

however, only 37 residents have directly

benefitted from the Act.

The district court was amply justified in finding that

a special master is necessary to plan and monitor implementation

of relief.

B. The Relief Is Not Vaque

Commonwealth defendants point to four paragraphs of

the injunctive order which th(y allege are vague. These

paragraphs namely, paragraphs 1, 2, 12, 14, are all matters

which are to be addressed in plans to be drawn by the Special

Master, e.g., paragraph 1 which enjoins defendants to provide

suitable community living arrangements together with such

W

ziC community services as are necessary to provide class members with minimally adequate habilitation is the subject of most of the plans the Special Master is directed to draw and submit to the court for its approval. The paragraph simply states the basic relief required, and more specific standards and guidelines will obviously be enunciated in plans to be drawn by the Special Master. Upon approval by the court, they will provide more than enough guidance to the Commonwealth.
1. Commonwealth defendants' argument, that the Department of General Services (D.G.S.) is a necessary party in order that Commonwealth and County defendants may "implement with dispatch Act 256 of the 1970 Pennsylvania General Assembly" upon a schedule to be set by the court, is without merit. Defendants have responsibility for operation or the ment.dl Lt:L.d!_ 1n- IUii uc.iivCL_y system in Pennsylvania. They plan what is to be built. It is doubtful that D.G.S. will be uncooperative in letting the contracts required by defendants; if they are, they can be added as parties.
2. Paragraph 3 of the order regarding monitoring requires defendants to insure that the mentally retarded persons under their care, custody, or control obtain adequate services by enjoining them from failing "to provide all" necessary and proper monitoring mechanisms (App. 343). This provision is intended, of course, to insure that there is a method or mechanism available to detect inadequacies in the care and treatment of a class mem"er in a community program. As such, it requires that defendants scrutinize services provided and the quality of service provided to the retarded. No where does it

-67--
require that defendants exercise control or supervisory powers over "general community services, such as medical and dental care" (Commonwealth Br. 58). The injunction requires defendants to
carefully monitor and review periodically the retarded persons themselves to ascertain if they are receiving the care that they need. This aspect of the monitoring process, about which there can be little disagreement, may provide the best indication of whether particular retarded persons are receiving adequate services.
C. The Scope of the Remedy Does Not Exceed the Violation Found
The Commonwealth defendants attack the order as providing relief for violations not found by the district court. On the contrary, each provison of the district court's order is carefully tailored to "correct the condition that offends the Constitution." Milliken v. Bradley, 418 U.S. 717, 738 (1974).
1. Professional standards recognize that individualized program plans should be reviewed at least annually by an interdisciplinary team of professional persons to reevaluate programs of individual residents with a view to revising such plans and planning for the provision of necessary programming for the following year. At such reviews, the program of care and training of residents is reviewed and discussed by professionals who are providing a services. To the extent possible, parental involvement i.n such a planning process is recognized to be essential to the planning process. It provides relevant information and assists in maintaining parental interest. It strengthens the inclusion of the retarded person in the family. Manifestly, the order does not provide "procedural rights" and eventual

.i

"judicial review".

2. Commonwealth defendants argue that the order's incorportion

of Pennsylvania regulations concerning the use of physical restraints

is improper because the regulations, not in effect at time of trial,

could not have been shown to have been violated. Not complying

with the regulations, of course, is not the relevant violation.

The violations were the unconstitutional use of physical restraints.

Compliance with the lately devised regulation is one remedy which

should be an unintrusive method of correcting those conditions in 62/
the future. The objection to this portion of the order is parti-

larly curious since it was a part of the Commonwealth's proposal

(compare App. 336, para. 5 with App. 348 • , para. 13).

3. Effective monitoring of services and the individual needs

of mentally

ardC d

s necc 33 u_ •r vv i....u_ i:7 : w,. uaax

system of services, including community-based mental retardation

services, provides adequate care. The district court has ordered

that the plan for necessary community monitoring services include

the provision of "friend--advocates to assist in the protection of

the rights of each member of the plaintiff class." The requirement

is grounded on the need to protect the oftviolated rights of the

class on an individual basis, not in 42 U.S.C. 6012 as defendants

suggest. Because that statute makes such a system a requirement

of some federal grants does not bar an order requiring the same

thing as a remedy to protect against future violations of the rights

62/ Commonwealth defendants allege that this injunction prohibits
them from efforts to "improve and refine these regulations." If such defendants wish to make the requirements for use of physical restraints
more stringent, defendants may move the court for a modification of the
order. Undoubtedly, there would be no objection.

-69-
in issue.
4. Commonwealth appellants suggest that the requirement
that the Master's plan include provisions regarding opportunities for alternative employment for Pennhurst residents guarantees an "absolute. right to public employment" (Br. 55). Clearly, it does not provide such a right.
D. The Order Does Not Violate the Eleventh Amendment
The Eleventh Amendment does not require that prospective injunctions against state officials be free from ancillary costs to a state. Edelman v. Jordan, 415 U.S. 651 (1974). There is simply nothing in the relief required in this case that requires defendants to compensate plaintiffs for past violations of their rights. Cf. Fanty v. Comm. of Pa. Department of Public Welfare, 551 F.2d 2 (3d Cir. 1977). Indeed, they are not required to compensate plaintiffs in a monetary sense at all. They are required to modify a system for delivery of mental retardation services so that plaintiffs' liberties will be less infringed in the future, or assuming the order is upheld under Section 504, to meet their duty as recipients of federal funds.
Nor is the relief barred simply because the ancillary costs are large. Milliken v. Bradl, 433 U.S. 267, 289 (1977), cited by Commonwealth defendants (Br. 65) approved a prospective remedy which '.uld cost the State of Michigan nearly $6 million in a
63/ school desegregation case. 63/ In any event, as previously mentioned, the ultimate substitution of community service s for Pennhurst will cost the state less in operating costs.

n
d0Z
Moreover, the restructuring of a school system, which defendants concede is prospective, could not be more analogous to the alteration of a mental retardation service delivery system
even if the alteration could be regarded as compensating for past infringements as was the remedy in Milliken.
V THE TRIAL JUDGE PROPERLY EXERCISED DISCRETION TO ALLOW THE UNITED STATES TO INTERVENE IN THE CASE In their Challenge to the presence of the United States in this case, Commonwealth defendants rely almost exclusively on United States v. Solomon, 563 F.2d 1121 (4th Cir. 1977), a case which held that without explicit statutory authority the United States could not initiate litigation to protect the constitutional rights of mentally retarded persons confined to an institution. Neither is there explicit statutory authority for the intervention by the Executive Branch of the United States Government in this case. Because of this, it is important to identify clearly the rationale for the Solomon court's frustration of executive acts, despite well settled principles of law recognizing the authority of the United States to initiate lawsuits to protect established public or governmental interests. See, e.g., United States v. San Jacinto Tin Co., 125 U.S. 273 (1888); United States v. American Bell. Telephone Co., 128 U.S. 315 (1888); In re Debs; 158 U.S. 564 (1895'; Kern River Co. v. United States, 257 U.S. 147 (1921); United States v. Arlington County, Comm. of —Va., 326 F.2d 929 (4th Cir. 1964). The Solomon court, after reviewing the authorities upholding suits by the United States not authorized by statute,

-71--
concluded that the principles described in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), required it to conclude that the "separation of powers" doctrine forbade the exercise of the authority to initiate lawsuits in the "civil rights" area without explicit authorization by Congress. United States v. Solomon, supra, 563 F.2d at 1128-1129. In this regard, the Fourth Circuit panel seemed impressed with the rejection by Congress of measures to grant broad authority to the Attorney General to file civil rights suits at the same time that it was granting suit authority in specific kinds of civil rights cases.
None of these considerations are present here. A suit initiated and pressed solely by the federal executive
without congressional authorization is cons1derac :y different from a suit initiated by the injured parties, clearly autho-
rized by statute, in which the trial court permits the federal executive to participate. In the former, judicial power would be brought to bear against defendant state officials in a context not explicitly mandated by Congress. In the latter, the judicial power does have such a mandate in the form of statutes authorizing suits against state officials (42 U.S.C. 1983) and against recipients of federal funds (Section 504). No factors bearing on the '"equilibrium established by our constitutional system," United States v. Solomon, sU ra, at 1129, quoting Youngstown (concurring opinion), are present. At least two factors afford .sufficient imprimatur on executive action here to relieve <;ny suspicion that the executive is acting only
". . . upon hi: -i independent power. . ." or upon ". . . his

-72-

own constitutional powers, minus any powers of Congress. , ."

Youngstown Sheet & Tube Co. v. Saw j, supra, 343 U.S. at 637.

First, since the Solomon decision, congressional

action has significantly reduced the weight to be given the

action of previous Congresses in rejecting the broad civil

rights suit authority relied upon by the Fourth Cirucit

64/

panel.

On July 28, 1978, the House of Representatives

passed H.R. 9400, 95th Cong., 2d Sess., a bill which would

provide explicit statutory authority for the Attorney General

to bring suits such as this one. 124 Cong. Rec. H7489-H7490

(daily ed.). The Senate has not yet acted.

Second, in permitting the United States to intervene,

the district court was acting well within Rule 24, Federal Rules

65/

♦. i. Ci jl I:L VI.CUUi C•

Rule 24(a)(21

ovi s J_'DL J. 1' l l-C'L Vent l'V 11

of right---

when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest * * *•

64/ We adhere to the view we expressed in the Solomon case that congressional rejection of provisions which would authorize suits for any type of Fourteenth Amendment violation, see United States v. Solomon, supra, 563 F.2d a`. 1125, n. 4, is not rejection of authority to bring suits for relief of conditions in institutions in which the United States has significant interests. Cf. United States v. California, 332 U.S. 1° (1947).
65/ The district court order allowing intervention did not specify whether intervention was allowed under Rule 24(a) or (b). The action should be sustained if it is sustainable under either provision. Reversal of the district court's discretion under Rule 24(b) requires a showing of "clear
abuse." Allen Calculators, Inc. v. Nat'l. Cash Regi.s_ter Co.,
322 U.S..137, 142 (1944).

-73-

Rule 24(b)(2) permits the district court to allow intervention--

when an applicant's claim or defense and the main action have a question of law or fact in common.

Rule 24(b) further provides:

When a party to an action relies for ground of claim or defense upon any statute or executive order administered by a federal or state governmental officer or agency or upon any regulation, order, requirement, or agreement issued or made pursuant to the statute or executive order, the officer or agency upon timely application may be permitted to intervene in the action.

The development of intervention law in the federal

system has been increasingly favorable to intervention.

See D. Shapiro, Some Thoughts on Intervention Before Courts,

Agencies, And Arbitrators, 81 Harv. L. Rev. 721 (1968). The

specia _l provls.iun iii h.0 24(U) Li

v rinuent l interventioei

was added to avoid an "exclusionary construction" of Rule

24(b) and to allow the trial court to consider "the govern-

mental application with a fresh and more hospitable approach."

Nuesse v. Camp, 385 F.2d 695, 705 (D.C. ''ir. 1967). In that

case, and in others, see,

, SEC v. United States Real

& Improvement Co., 310 U.S. 434, 459 (1940); O'Keefe v. New

York City Board of Education, 246 F. Supp. 978, 980-981 (S.D.

N.Y. 1965), courts have allowed intervention by government

agencies where the case affected a subject matter in the

public interest and the agency has an "interest" in that

matter even though a "claim or defense" in the usual sense

on the part of the agency was not identified. See also

-74-

66/ 3B Moore's Federal Practice 5;24.10[2] (2d ed.).

Here, the United States has an important interest in

the protection of the rights of the institutionalized

mentally retarded persons on whose behalf the suit was 67/
brought--an interest recognized by the Solomon court.

First, as discussed, in Part 1, supra,

, extensive

federal legislation has been enacted to protect the rights and well being of mentally retarded persons, and HEW has been given

important responsibilities with respect to those statutes. One of

those statutes recognizes the federal government-'s "obligation to

assure that public funds are not provided to any institutional program. . . that . . . does not provide treatment, services, and habilitation appropriate to the needs of [mentally retarded persons]." 42 U.S.C. 6010(3); see pp. 44-45, supra.

Second, this suit was brought under 42 U.S.C. 1983 and 1985,

statutes which are in pani materia to broadly worded criminal

statutes, 18 U.S.C. 241 and 242. Baldwin v. Morgan, 251 F.2d 780,
66/ One district court, in a suit almost identical to this, held that it is "clear that the court in its discretion could properly permit the United States to intervene . . . notwithstanding the possibility that it could not have initiated the lawsuit." Horacek & United States v. Exon, C.A. No. 72L-299 (D, Neb., Jan. 23, 1977).
67/ "We have no doubt that the United States has an interest, in the generic sense, in the subject matter of the suit, and that it has an interest, in the generic sense, in seeing that the var i ous funds which it pays to Rosewood are properly expended. We note that the suit is not one against the State of Plaryland to enforece the condition of a grant or for breach of a contract pursuant to which a grant was made. Where we differ from the government's conception of the issue before us is that we view the case as one of a question of authority and not simply of interest." United States v. So] omon, sum a, 563 F.2d at 1125-1126.

-75789 (5th Cit. 1958). In discussing a similar intervention, Judge Tuttle, In re Estelle, 516 F.2d 480, 486-487 (5th Cit. 1975),

certiorari denied, 426 U.S. 925 (1976) urgued:

The effect of overlapping coverage of these

statutes is to grant power if not to place a duty

on the United States to prosecute, with the

criminal sanction, the same deprivations of rights

of which [inmates who brought a civil action].

complain * * *. However, it is extremely doubtful

that criminal penalties would be effective * * *•

The complaints allege widespread, systemic and systematic deprivation of civil rights * * *.

The criminal sanction is singularly inappropriate

in these instances, because it reaches only • . . individuals attached to the facility

and not the root of the deprivation--the facility itself. * * * I decline, as the Supreme Court did in United States v. Republic Steel Corp. 362 U.S. 482, 492 . . . [1960] to impute "to Congress a futility inconsistent with the great

design of this legislation." Instead, I believe

that where "criminal liability [is] inadequate

to ensure the full effectiveness of the statute

which^;^,;gre^s hr.0 1;tejded, . ;,^.

,:

United States, 389 U.S. 191, 20 2 ... [1967] ,

the United States may seek a civil "remedy that

ensures the full effectiveness of the Act." rd.,

389 U.S. at 204 * * *.

Third, the Department of Justice was directed by a President

to take appropriate legal action to strengthen the rights of mentally

retarded persons. See 7 Weekly Comp. of Pres. Doc., No. 47, p. 1530,

Nov. 22, 1971.

See also Executive Order No. 11776, 39 Fed. Reg.

11865, concerning mental retardation generally. A litigation program

has been established in this area and a description of it is reported

to Congress annually. Annual Reports of the Attorney General:

1974, p. 7374; 1975, pp. 85-86; 1976, pp. 111-112; 1977, pp. 161-162.

There is no better means to carry out this duty than to participate

-76-

68/ in suits such as this one.

Fourth, as noted, Part I B1, supra, large amounts of

federal funds have flowed to Pennsylvania's mental retardation

program. Had the United States chosen to do so, it could have

brought suit under the facts as alleged in the complaint, or

as found by the district court, to enforce conditions attached

to those grants through regulations issued by the Secretary of

69/

HEW.

Such authority is well established. United States v.

Frazer, 297 F. Supp. 319 (M.D. Ala. 1968), 317 F. Supp. 1079

(1970); United States v. Solomon, su ra, 563 F.2d at 1129 (concurring

opinion); United States v. County School Bd., Prince George County,

Va., 221 F. Supp. 93 (E.D. Va. 1963); United States v. Rock

Island Centennial Brid g e Comm., 230 F. Supp. 654 (S.D. Ill. 1964),

aff'd, 346 F.2d 361 (7th Cir. 1965). The existence of such an

68/ District courts have permitted intervention in all but one case of this nature where the United States has sought intervention. Evans v. Washington, C.A. No. 76-0293 (D. D.C. Jan. 28, 1977); Horacek v. Exon, su p ra; Gary W. v. Stewart, C.A. No. 74-2412-C (E.D. La. April 9, 1975); North Carolina Assn for Retarded Children v. North Carolina, C.A. No. 3050 (E.D. N.C. Jan. 17, 1974); Rone v. Fireman, C.A. No. 75-355A (N.D. Ohio May 25, 1976); Stamus v. Leonhardt, C.A. No. 73-126-2 (S.D. Iowa Feb. 21, 1975). The lone exception is Alexander v. Hall, C.A. No. 72-209 (D. S.C., June 14, 1978), in which intervention was revoked following Solomon after it had previously been granted under the rationale that the United States could have initiated a separate suit. Alexander. v. Hall, 64 F.R.D. 152, 157 (D. S.C. 1974).

69/ At the time intervention was granted, only constitutional claims had been raised (App. 26-47). However, the subsequently raise('. Section 504 claim is identical on these facts to the constitutional claims and when brought into the case supplied even more interest for the United States to be in the case, by bringing the case squarely within the second sentence of Rule 24(b).

a

_77_

independent claim, at least, gives the district court discretion

to allow the United States to intervene in an existing case

seeking the relief which would be included in that sought by

original plainitffs.

For all of these reasons, Commonwealth defendants are in

error when they assert (Br. 47), that °'the United States has no

legally cognizable stake in the operation of Pennhurst Center."

All of these duties and responsibilities assigned to the federal

executive give rise to substantial "interests" which meet the

requirements of permissive intervention under Rule 24(b). They

may well provide a basis for intervention of right under Rule

24(a) in view of the extensive public interests in the case.

Donaldson v. United States, 400 U.S. 517, 531 (1971); Nuesse
V. Camp, supL a.

The district court did not abuse its discretion in granting

the United States' motion to intervene.

CONCLUSION

For these reasons, the United States urges that the

judgment and order of the district court be affirmed.

Respectfully submitted,

ROBERT DeLUCA United States Attorney

DREW S. DAYS, III Assistant. Attorney General

JAIME FERNANDEZ Attorney Office of General Counsel Department of Health,
Education and Welfare Washington, D.C.
Of Counsel

r RI — ANK. LANDSBERG FRANK D. ALLEN, JR. ARTHUR E. PEABODY, JR. Attorneys Department of Justice Washington, D. C. 20 530

CERTIFICATE OF SERVICE u
I hereby certify that on October 2, 1978, I served copies
of the foregoing Brief for the United States on the attorney of
record listed below by first class mail postage paid.
David Ferleger Mental Patient Civil Liberties Project 2321 Sansom Street Philadelphia, PA 19107
Thomas K. Gilhool Frank Laski Public Interest Law Center 1315 Walnut Street, Suite 1600 Philadelphia, PA 19107
Norman J. Watkins Deputy Attorney General Department of Justice Commonwealth of Pennsylvania Harrisburg, PA 17120
Marc Myers Assistant City Solicitor i.^10 <<iuni u,:.Lpai 0CLvice: DL. Philadelphia, PA 1910 9
Thomas M. Kittredge 2107 Fidelity Building Philadelphia, PA 1910 9
Joseph Goldberg 1315 Walnut Street Philadelphia, PA 19107
FRANK D. ALLEN, JR.' Attorney Department o Justice Washington, D.C. 20530

 
 Nos. 78-1490, 78-1564, 78-1602

IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

TERRI LEE HALDERMAN, et al., Plaintiffs-Appellees
UNITED STATES OF AMERICA and
PENNSYLVANIA ASSOCIATION FOR RETARDED CITIZENS, et al., Plaintiffs-Intervenor-Appellees V.
PENNHURST STATE SCHOOL AND HOSPITAL, et al., Defendants-Appellants
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
BRIEF FOR THE UNITED STATES

PETER F. VAIRA, JR. United States Attorney

WM. BRADFORD REYNOLDS Assistant Attorney General
BRIAN K. LANDSBERG FRANK D. ALLEN, JR.
Attorneys Department of Justice Washington, D.C. 20530

TABLE OF CONTENTS

Page

QUESTIONS P RESENT ED ........................................ 1

STATEMENT................................................... 2

A. The District Court Proceedings .................. 2

B. Appellate Proceedings ........................... 3

C. Facts ........................................... 4
1. Conditions at Pennhurst ..................... 4

2. Preentnasrydlavtainoina'.s..p.r.o.g.r.a.m..f.o.r..m.e.n.t.a.l............. 7

3. Alternative habilitative settings in Pennsylvania ................................ 9

ARGUMENT:
INTRODUCTION AND SUMMARY OF ARGUMENT ....................... 11

I. DEFENDANTS HAVE VIOLATED PLAINTIFFS' SUBSTANTIVE AND PROCEDURAL DUE PROCESS RIGHTS AND THEIR
ESNTVAITREONLMAEWNTRIG.H.T..T.O..A..P.R.O.P.E.R..H.A.B.I.L.I.T.A.T.I.V.E.......... 14

A. Plaintiffs' due process right to be free from physical harm inflicted by the conditions of their state confinement ....... 14

B. The due process right that the nature of confinement bear some reasonable relationship
tcoommtihtetepdurp.o.s.e..f.o.r..w.h.i.c.h..t.h.e..i.n.d.i.v.i.d.u.a.l..i..s... 17

1. Independent federal liberty interest .... 17

.......... 2. State-created liberty interest

18

3. Procedural due process .................. 19

1

Page C. The right to individual professional treatment
decisions concerning the proper habilitative placement ....................................21 1. Federal right to a less restrictive
placement than Pennhurst ................. 21 2. State right to a less restrictive place-
ment than Pennhurst ...................... 23 D. The Violation of Section 504 ................. 25 II. THE RELIEF THE EN BANC COURT PREVIOUSLY APPROVED IS PROPER IN LIGHT OF THE VIOLATION ANDSTATE LAW .................................... 27 III. THE RECORD IS INSUFFICIENT TO SUPPORT A JUDGMENT FOR THE PLAINTIFFS UNDER THE STATE PLAN REQUIREMENTS OF THE DEVELOPMENTALLY DISABLED ASSISTANCE AND BILL OFRIGHTS ACT .................................... 30 CONCLUSION.................................................. 31
ii

TABLE OF AUTHORITIES

Cases:

Basista v. Weir, 340 F.2d 74 (3d Cir. 1965) --------------- 15

Bates V. City of Little Rock, 361 U.S. 516 (1960) --------- 12

Baxstrom V. Herold, 383 U.S. 107 (1966) ------------------- 19

Bell v. Burson, 402 U.S. 535 (1971) ----------------------- 19

Bellv. Wolfish, 441 U.S. 520 (1979) ---------------------- 15 Bolden V. City of Mobile, 626 F.2d 1324 (5th Cir. 1980) --- 31

Byrd v. Brishke, 466 F.2d 6 (7th Cir. 1972) --------------- 15

Catlette v. United States, 132 F.2d 902 (4th Cir. 1943) --- 15

Doe v. Colautti, 592 F.2d 704 (3d Cir. 1979) -------------- 26

Downie v. Powers, 193 F.2d 760 (10th Cir. 1951) ----------- 15

Dunn V. Blumstein, 405 U.S. 330 (1972) -------------------- 12

Fuentes v. Shevin, 407 U.S. 67 (1972) --------------------- 19

Hagans v. Lavine, 415 U.S. 528 (1974) --------------------- 16,25 Humphrey V. Cady, 405 U.S. 504 (1972) --------------------- 19

Ingraham v. Wright, 430 U.S. 651 (1977) ------------------- 15

Jackson v. Indiana, 406 U.S. 715 (1972) ------------------- 17,18,22

Mathews v. Eldridge, 424 U.S. 319 (1976) ------------------
Metropolitan Housing Corp. V. Village of Arlington Heights, 616 F.2d 1006 (7th Cir. 1980) ------------------

12,18 31

Moore v. City of East Cleveland, 431 U.S. 494 (1977) ------ 12
New York State Ass'n for Retarded Children, Inc. V. Carey, 393 F. Supp. 715 (E.D.N.Y. 1975) ----------------- 15

O'Connor v. Donaldson, 422 U.S. 563 (1975) ---------------- 12,17

1

Cases (continued):

Page

Parham V. J.R., 442 U.S. 584 (1979) ----------------------- 20,21,22

Parratt v. Taylor, 49 U.S.L.W. 4509 (U.S. May 18, 1981) ---------------------------------------------------20

Rhodes v. Cha man, 49 U.S.L.W. 4677 (U.S. June 15, 1981) ,-- -------------------------------------------- 15

Romeo v. Youngberg, 644 F.2d 147 (3d Cir. 1980) ----------- 22

Rouse v. Cameron, 373 F.2d 451 (D.C. Cir. 1966) ----------- 18

Schmidt, In re, 429 A.2d 631 (Pa. 1981) ------------------- 12,23,24,29

Screws v. United States, 325 U.S. 91 (1945) --------------- 15

Shelton v. Tucker, 364 U.S. 479 (1960) -------------------- 12
Southeastern Community College V. Davis, 442 U.S. 397 (1979) --------------------------------------------------27

United Mine Workers v. Gibbs, 383 U.S. 715 (1966) --------- 13,25 Vitek v. Jones, 445 U.S. 480 (1980) ----------------------- 19,20

Withers v. Levine, 615 F.2d 158 (4th Cir.), cert. denied, 49 U.S.L.W. 3247 (U.S. Oct. 6, 1980) ------------ 15

Wolff v. McDonnell, 418 U.S. 539 (1974) ------------------- 19

Woodhous v. Virginia, 487 F.2d 889 (4th Cir. 1973) -------- 15
Wyatt V. Stickney, 325 F. Supp. 781 (M.D. Ala. 1971), aff'd sub nom. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974) ----------------------------------------- 18,22

Constitution and statutes:
Constitution of the United States: EleventhAmendment -------------------------------------- 13,25 FourteenthAmendment ------------------------------------ 2 DueProcess Clause ------------------------------------- 15,18,19, 20,29
Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. 6000 et seq. ----------------------------- 2,8,14,26, 29,31
42 U.S.C. 6010 ------------------------------------------ 3 42 U.S.C. 6011 ------------------------------------------ 26,31 42 U.S.C. 6063 ------------------------------------------ 1,3,4,30

Statutes (continued):

Page

42 U.S.C. 6063(b)(2)(A) --------------------------------42 U.S.C. 6063(b)(2)(B) --------------------------------42 U.S.C. 6063(b)(5)(C) (Supp. II 1978) ----------------Rehabilitation Act of 1973, Section 504, 29 U.S.C. 794 ----
42 U.S.C. 1396d ------------------------------------------Pa. Stat. Ann. tit. 50, § 4201 et seq. (Purdon 1969) ------

31 31 31 2, 14, 26, 27 9 19, 23

4201(1)

8

§ 4302 -------------------------------------------------- 8

§ 4406(b) ----------------------------------------------- 18

§ 4416 -------------------------------------------------- 23

§ 4416(C) ----------------------------------------------- 23

§ 4418 -------------------------------------------------- 23

§ 4420 -------------------------------------------------- 23

Mental Health and Mental Retardation Act of 1966, Pa. Stat. Ann. tit. 50, § 4101 - § 4704 --------------------------- 23

iii

IN THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
Nos. 78-1490, 78-1564, 78-1602
TERRI LEE HALDERMAN, et al.,
Plaintiffs-Appellees UNITED STATES OF AMERICA
and PENNSYLVANIA ASSOCIATION FOR
RETARDED CITIZENS, et al., Plaintiffs-Intervenor-Appellees
M
PENNHURST STATE SCHOOL AND HOSPITAL, et al., Defendants-Appellants
On Appeal from the United States District Court for the Eastern District of Pennsylvania
BRIEF FOR THE UNITED STATES
QUESTIONS PRESENTED 1. Whether plaintiffs' constitutional and/or statutory rights were violated by the conditions at Pennhurst and the failure to place plaintiffs on the basis of an individualized reasoned professional treatment judgment. 2. Whether the relief this en banc court previously ordered is proper in light of the violations of federal and state law. 3. Whether the record supports relief under the state plan requirements of the - Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. 6063.

-2SENT
A. The district court proceedings This class action was commenced on May 30, 1974 by Terri
Lee Halderman, a minor retarded resident of Pennhurst State School and Hospital, against that institution and various state officials responsible for operating it and for providing mentally retarded persons who are in state custody with a residential habilitative placement. Subsequently, the United States and the Pennsylvania Association for Retarded Citizens (PARC) intervened as plaintiff-intervenors. All plaintiffs alleged that the lack of proper habilitative care for persons confined at Pennhurst violated the Fourteenth Amendment. Subsequently, PARC alleged violations of the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. 6000 et seq. (DD Act), and Halderman and PARC claimed that Section 504 of the Rehabilitation Act, 29 U.S.C. 794, was also violated.
After trial, the district court, 446 F. Supp. 1295, held that plaintiffs' rights under the Fourteenth Amendment, state statutes and Section 504 of the Rehabilitation Act were being violated. The court found that Pennhurst was unsafe, inhumane and inadequate to serve its intended habilitative purpose and that the state of Pennsylvania had embraced the concept of providing habilitative services for mentally retarded persons in as "normal" an environment as is possible, i.e., in a non-institutional setting.

-3-
After further proceedings on relief, the court ordered
that plans be developed for transferring all residents of Pennhurst to community living arrangements as soon as feasible, and in the interim, for improving the safety of Pennhurst residents. A special master was appointed to monitor the planning and execution
of the court's orders. B. Appellate proceedings
All defendants appealed to this court. On December 13, 1979, this court, sitting en banc, affirmed in most respects and remanded the case for further proceedings. 612 F.2d 84. However, the court disapproved those portions of the district court's order directing the eventual closing of Pennhurst. The affirmance was based on Pennsylvania law and on Section 111 of the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. 6010. Three judges, in dissent, agreed that conditions at Pennhurst violated statutory and constitutional rights, but disagreed with the portion of the majority "opinion mandating a general right to individualized treatment in the least restrictive environment." 612 F.2d at 117.
All defendants, and the Pennhurst Parents-Staff Association, which intervened, successfully petitioned for certiorari.
On April 20, 1981, the Supreme Court reversed and remanded, holding that 42 U.S.C. 6010 created no rights or duties. The Court remanded to consider the issues not reached in this court's en banc opinion, including whether plaintiffs were entitled to relief under the state plan requirements of the DD Act, 42 U.S.C.

I'
-4-
6063. It also remanded for reconsideration of the holdings on
state law. In view of the remand, the Supreme Court did not rule on the issues raised relating to the relief.
Following this Court's judgment of December 13, 1979, the district court modified its original orders to require the individual determinations required by this Court's mandate and established a procedure for reviewing those determinations. This relief is now in effect. C. Facts
As the Supreme Court noted, 49 U.S.L.W. 4363, 4364-4365 (U.S. April 20, 1981), the district court's findings of fact regarding conditions at Pennhurst "are undisputed: Conditions at Pennhurst are not only dangerous, with the residents often physically abused or drugged by staff members, but inadequate for the 'habilitation' of the retarded. Indeed, the court found that the physical, intellectual and emotional skills of some residents have deteriorated at Pennhurst."
1. Conditions at Pennhurst The Commonwealth of Pennsylvania owns and operates Pennhurst for the purpose of providing care, education and training to its residents. It is a self-contained unit, and its residents do not participate to the degree each is able in normal community life outside of the institution, Halderman v. Pennhurst, 446 F. Supp.
1/ 1295, 1302, 1303, 1311-1312 (E.D. Pa. 1978). About half of the
1 446 F. Supp. references are to the findings in the District Court opinion. "Tr." references are to the transcript of the trial.

-5-

residents of Pennhurst were committed there by court order and

half were placed there by a parent or other guardian (446 F. Supp.

at 1302). Those who are over eighteen and who indicate a desire

to leave are kept there by court order if the Pennhurst staff

ascertains that they are not "ready to go into the community" or

if there is no available placement for them in the community

(id. at 1310). The residents are not mentally or emotionally

ill, and are not a danger to society (id. at 1313). The average 2/
Pennhurst resident has spent 21 years there and is 36 years old.

While at Pennhurst, the residents regress, both intel-

lectually and behaviorally; instead of learning self-care skills,

3/

4/

they lose them. Maladaptive behavior and regression result

from over-crowded wards, lack of privacy, lack of training

programs, and an oppressive environment (id. at 1303-1305,

1308-1309). The district court also found all those conditions

2/ Forty-three percent of the residents had no contact with their families within three years of the trial (446 F. Supp. at ).302).
3/ Terri Lee Halderman lost her ability to speak (446 F. Supp. at 1309). Linda Taub, who is blind in addition to being retarded, spent her time sitting and rocking; she was strapped to a wheel chair, though she is able to walk, so the staff "would know exactly were Linda was." Nancy Beth Bowman developed maladaptive behavior -- biting and pushing (id. at 1309-1310).
4/ Maladaptive behavior includes rhythmic motions such as rocking, as well as self injury or severe aggression. This behavior is associated with lack of stimulation and boredom (Tr. 1-96 to 1-98, 5-112). Moreover, exclusive association with others who engage in deviant behavior encourages maladaptive behavior (Tr. 1-151, 2-59, 5-91 to 5-92, 5-113).

-6-
to be typical at Pennhurst. See U.S. Ex. 48, photos 1-10, 15-17, 5/
19, 21, 23, 24, 26-33, 40-44, 50, 52-56, 97-108.
The district court also found that the residents at 6/
Pennhurst are harmed physically (446 F. Supp. at 1308-1309).
Many physical injuries are the product of staff neglect and
7/
abuse. In addition, the void left by the lack of proper habilita-
tion is filled by extreme use of physical and chemical restraints 8/
and seclusion (id. at 1303-1308). Physical restraints and seclu-
5/ There is often excrement and urine on ward floors. Infectious diseases are common (446 F. Supp. at 1308). Obnoxious odors and excessive noise are prevalent. The noise level is frequently so high that many residents stop speaking. Meals are eaten in large groups without adequate staff supervision where residents may steal food from each other, so some do not get enough to eat (ibid.). U.S. Ex. 48, photos 34, 36, 37.
6/ Plaintiff Terri Lee Halderman, a resident for eleven years, suffered lost teeth, fractured fingers and toes, and numerous lacerations (446 F. Supp. at 1309). Plaintiffs DiNolfi (a resident for 34 years), Robert and Theresa Sobetsky (residents since 1971), Hight (a resident for two and one-half weeks), Sorotos (a resident for seven years), Larry and Kenny Taylor (residents for 14 years), Bowman and Taub all received physical injuries, including one resulting in loss of an eye, bruises, bites, scratches, welts, and injuries causing lost teeth (id. at 1309-1310).
During the single month of January 1977 there were 25 major and 833 minor injuries reported (id. at 1308-1309).
7/ Staff neglect has even resulted in deaths (446 F. Supp. at 1308-1309).
8/ One resident was physically restrained for 651 hours in June 1976, 720 hours in August 1976, 674 hours in September 1976, and 647 hours in October 1976 (446 F. Supp. at 1307).

- 7 -
sion not only have caused physical injuries, but they also prevent
residents from learning and using self-care skills (446 F. Supp. at 9/
1307, 1310).
The "extraordinarily high" (id. at 1307) administration of
drugs at Pennhurst is also harmful. It not only causes hazardous
side effects, e.g., hypersensitivity to sunlight, inability to
maintain balance and gait, inflammation, bleeding and growth of
gum tissue; it also impedes the habilitation of Pennhurst residents 10/
when used as a control device (id. at 1307-1308)
In sum, the district court found that Pennhurst provides
"confinement and isolation, the antithesis of habilitation"
(id. at 1318). Its atmosphere is not conducive to the "normaliza-
tion which is so vital to the retarded if they are to be given
the opportunity to acquire, maintain and improve their life skills" (ibid.).
2. Pennsylvania's program for mental retardation
Pennsylvania's objective in maintaining a mental retardation program is to provide services that will help mentally
retarded persons learn and develop (id. at 1311, 1313-1314). The
Pennsylvania Department of Welfare, which operates Pennhurst
9/ The seclusion rooms at Pennhurst have hard surfaces, exposed radiators and other dangerous features (446 F. Supp. at 1306 n. 34; see U.S. Ex. 48 photos 97, 98, 100, 101). Seclusion is often used as a substitute for staff attention (id. at 1306). 10/ Larry Taylor was given unnecessary medication that caused him to fall asleep in school (446 F. Supp. at 1310).

- 8 (id. at 1302, 1313-1314) has overall responsibility for assuring "the availability and equitable provision of, adequate * * * mental retardation services for all persons who need them." Pa. Stat. Ann. tit. 50, § 4201(1) (Purdon). County officials in
Pennsylvania are responsible for identifying mentally retarded
persons in need of services. Through their "base service units," they determine the setting in which individuals will receive these services. (446 F. Supp. at 1312-1313); see Pa. Stat. Ann tit. 50, § 4302 (Purdon)). Although State policy strongly favors habilitation of retarded individuals within their communities, the defendant county officials have failed substantially to provide the necessary services and living arrangements to provide Pennhurst residents with the benefit of these services (446 F. Supp. at 1311-1313).
The Department of Welfare receives funding requests from the counties, reviews them and incorporates them into the appropriation requests for mental health and mental retardation services. The funds are then made available to the counties through the Department of Welfare (Rice Dep. 77-86, 89-92, 9597). Funds available under federal law for mental retardation services are paid to the Department of Welfare, which includes these funds in its spending allocations. For example, the federal funds paid to Pennsylvania under the DD Act are included in the state budget for mental retardation services, and are distributed by the state to the counties through the Department of Welfare

W
-9-
(Rice Dep. 121A-125A, 136A, 138A-140A). Similarly, part of
Pennsylvania's "Medicaid" funds (42 U.S.C. 1396d) are used to il/
fund Pennhurst (Rice Dep. 126-127).
3. Alternative habilitative settings in Pennsylvania
The placement which Pennsylvania has adopted for the care
and training of mentally retarded persons range from confinement
in a large institution such as Pennhurst at one extreme to various 12/
types of community living arrangements. Pennsylvania now follows
a policy of preferring community living arrangments. (446 F. Supp.
at 1311-1312). The district court found that policy was based
on two considerations: First, it gives effect to the principle
11 Defendants assert that all beds at Pennhurst have now been "certified" for receipt of Medicaid funds compared to 40% of those beds at trial time. With the slight reduction in population (apparently to 920 (Def. Br. 10 n.9)), this would mean that Medicaid subsidization of Pennhurst has approximately doubled from what it was at trial. For fiscal 1976, the subsidy was $5,870,000 (Tr. 26-14). It appears that defendants achieved this certification by waiving certain requirements. Letter, Eileen M. Schoen to Elmer McSurdy, August 14, 1981, at 2 (attached to Def. Application For Stay Pending Appeal, August 17, 1981). In addition, defendants have taken steps since trial to use Medicaid funds to support community mental health services (No. 81-1232, App. 25-26, 28).
12/ In community living arrangements, retarded persons live in appropriately structured environments in family-type dwellings in residential neighborhoods. They participate in the life of the community to the extent that they are able to do so; for example, they may attend educational programs in local schools and churches, work at suitable jobs, enjoy community recreation facilities, or shop in community stores (Tr. 5-141 to 5-142, 5-160 to 5-161, 6-7 to 6-10, 6-29 to 6-31, 6-170 to 6-172, 6-173
to 6-174, 6-176 to 6-177, 7 -69 to 7-70, 8-4 to 8 -44, 8 -47, 8 -51
to 8-52, 10-66 to 10-108, 10-104 to 10-174, 11-38 to 11-52, 1162 to 11-78, 11-80, 11-81, 11-109). Pennsylvania has adopted eight types of community living arrangements, ranging from developmental maximization units to family relief (PARC Ex. 63).

0 - 10 -
of "normalization" that Pennsylvania authorities espouse--namely,
that the retarded person should be treated as much like the 13/
non-retarded person as possible (ibid.). Second, the costs of
providing habilitative services in the community are markedly
lower than the cost of maintaining persons in Pennhurst (446
F. Supp. at 1312).
The services required to habilitate mentally retarded
persons locally exist in the five counties from which Pennhurst
draws its residents. Persons of all levels of retardation
reside in various living arrangements in these counties and
receive the services they need (id. at 1311-1312). Moreover, in
1970, the Pennsylvania legislature appropriated $21 million
for planning, designing and constructing additional community
facilities to enable 900 Pennhurst residents to be transferred
to the community. By trial time in 1977, however, only 37 Pennhurst residents had been transferred to new facilities,
and more than $18 million of the appropriation remained un14/
sperrt (id. at 1311-1312).
13/ The district court agreed that this principle was a proper one, crediting evidence that the "smaller the living unit on which the retarded individual lived, the higher the level of behavioral functioning shown by the individual" (446 F. Supp. at 1311), and that "once removed from depressing, restrictive routines, the retarded have been able to accomplish a great deal" (ibid.).
14/ At trial time, defendants planned to spend $1,028,327 at Pennhurst to correct Safety Code violations, and $2,367,500 to meet medical care standards. 446 F. Supp. at 1302 n. 14.

- 11 -
ARGUMENT
INTRODUCTION AND SUMMARY OF ARGUMENT The undisputed findings of the district court reveal inhumane and anti-habilitative conditions at Pennhurst which cause its residents to deterioriate. Pennhurst thus fulfills neither of the possible purposes of confining persons there: protection from harm or habilitation. Although Pennsylvania provides a wide range of placements designed to fit the individual habilitation needs of a corresponding range of retarded persons, residents of Pennhurst have been denied individualized professional treatment plans which would otherwise result in less restrictive placements. Appellants ignore these uncontested facts and instead attempt to recast the issues in this case as involving abstract issues: the right to confinement in the least restrictive alternative and state obligation to create a system of community based facilities. However, the requirement to consider less restrictive placements than Pennhurst is firmly grounded in the violations found there, and the relief conforms to Pennsylvania's existing system of community facilities and its existing policy favoring placement in them. The original district court opinion found that plaintiffs' rights had been violated because of the conditions at Pennhurst and because an institution in the nature of Pennhurst could not provide the minimum habilitation which plaintiffs need to

- 12 reach their developmental potential; in short, Pennhurst was found to be harmful. The district court found further that Pennhurst could not be so improved that the rights of all residents would be protected and, therefore, ordered that the residents of Pennhurst be removed and put into the Community Living Arrangements which Pennsylvania was establishing.
As we argued in our original brief in this Court, a state may not infringe fundamental liberties of human beings to serve some state purpose if there are clear alternatives which will serve that state purpose equally well and which would not infringe those liberties or would not infringe them to the same extent. Shelton v. Tucker, 364 U.S. 479 (1960); Dunn v. Blumstein, 405 U.S. 330 (1972); O'Connor v. Donaldson, 422 U.S. 563 (1975). Assessment of state needs and infringements of protected interests often involves a balancing of the strength and importance of the competing interests. Bates v. City of Little Rock, 361 U.S. 516 (1960); Moore v. City of East Cleveland, 431 U.S. 494 (1977); Mathews v. Eldridge, 424 U.S. 319 (1976).
In light of the violations, the district court properly required transfer of those residents who would benefit from community living arrangements. It also properly required improvements to conditions at Pennhurst. However, this Court has disapproved the requirement that Pennhurst be closed, because it believed that, assuming there is a right to be habilitated in the least restrictive environment consistent with individual

- 13 -

needs, "[w]hatever the Constitution requires by way of least restrictive alternative, it does not preclude resort to institutionalization of patients for whom life in an institution has been found to be the least restrictive environment in which they

can survive." 612 F.2d at 115. The Pennsylvania Supreme Court

has made it clear that state law requires, as a matter of substan-

tive rights, that the proper habilitative placement must be

provided, and that the placement must be as unrestrictive as the

needs of an individual will permit. In re Schmidt, 429 A.2d 631

(Pa. 1981) In this sense, Pennsylvania has legislatively adopted

a policy of providing services to mentally retarded persons in the 15/
"least restrictive alternative."

The relief now in effect essentially requires individual

judgments regarding the proper habilitative placement. Moreover,

it will result not only in proper habilitative placements, but

in improved living conditions in Pennhurst and improved quality

of care by reducing staff-resident ratios for those who must

remain there.

While the adequacy of services and the living conditions

at Pennhurst are certainly factors to be taken into account in

making the individual professional judgments which the law

requires, two reasons show that this Court should not base its

i7

is no Eleventh Amendment issue here (see Def. Br. 42).

The federal claim has merit and is a fortiori substantial.

Jurisdiction over the case is not based solely on the state law

claim. Rather, that claim is pendant to the federal claim. See

United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966).

- 14 -
decision on defendants' extra-record assertion of post-judgment
changes in the facts: First, regardless of improvements to Penn-
burst, due process simply will not permit institutionalization
of a person who does not require institutionalization under
state law standards. Second, defendants, in essence, seek relief from judgment on appeal without first making their case in the district court. If there are changes so substantial that they would justify relief from judgment, defendants should make appropriate motions in the district court and obtain new fact findings.
This brief also concludes that the DD Act issues should be remanded to the district court for proper fact findings and initial legal conclusions if the case is not disposed of by decisions on the other issues. We also adhere to our previous arguments that Section 504 of the Rehabilitation Act was violated.
I DEFENDANTS HAVE VIOLATED PLAINTIFFS' SUBSTANTIVE AND PROCEDURAL DUE PROCESS RIGHTS AND THEIR STATE LAW RIGHT TO A PROPER HABILITATIVE ENVIRONMENT A. Plaintiffs' due process right to be free from
physical harm inflicted by the conditions of state confinement Institutional conditions at Pennhurst infringe fundamental personal freedoms. Physical restraints, drugs, seclusion rooms, and enforced idleness have no "treatment" or "habilitative" justification as they are used at Pennhurst. Where these infringements are deliberate, their purpose is to serve some purely institutional need, not the needs of the residents. Where the

r
- 15 conditions, such as the unhealthy environment, the lack of programming, the lack of trained staff, or the lack of protection from physical injuries result from inaction, they do not serve even an institutional need, let alone advance the paramount state purpose of providing care and habilitation to the residents. The findings amply demonstrate that this is another case where "harm can result not only from neglect but from conditions which cause regression or which prevent development of an individual's capabilities." New York State Assn for Retarded Children, Inc. v. Carey, 393 F. Supp. 715, 718 (E.D. N.Y. 1975).
Infringements such as these transgress the most fundamental freedom protected by the Due Process Clause. Quite apart from institutionalization, all persons subject to the Constitution have a right against arbitrary and purposeless physical harm inflicted by state agents. Ingraham v. Wright, 430 U.S. 651 (1977); Screws v. United States, 325 U.S. 91 (1945); Basista V. Weir, 340 F.2d 74, 81-82 (3d Cir. 1965). Nor may state agents permit others under their control to inflict physical harm which they may not inflict themselves. Withers v. Levine, 615 F.2d 158 (4th Cir.), cert. denied, 49 U.S.L.W. 3247 (U.S. Oct. 6, 1980); Woodhous v. Virginia, 487 F.2d 889 (4th Cir. 1973); Byrd v. Brishke, 466 F.2d 6, 10-11 (7th Cir. 1972); cf. Downie v. Powers, 193 F.2d 760 (10th Cir. 1951); Catlette v. United States, 132 F.2d 902 (4th Cir. 1943).

- 16 Persons civilly committed to state custody have a due process right to be free from these types of bodily infringements.
See Halderman v. Pennhurst State School and Hospital, 612 F.2d
84, 117 (3d Cir. 1979), Seitz, C.J. dissenting. ("Understaffing,
filth, violence, enforced inactivity, and other horrors make Pennhurst, in the opinion of one well-traveled expert, one of the worst institutions of its kind in the world. Under these circumstances the federal courts have a right and a duty to intervene and to secure for Pennhurst's residents, at the very least, adequate living conditions.") See also Bell v. Wolfish, 441 U.S. 520 (1979); cf., Rhodes v. Chapman, 49 U.S.L.W. 4677, 4679 (U.S. June 15, 1981), Brennan, J., concurring at 4683-4684.
Defendants no longer question their duty to correct the conditions at Pennhurst which violate this fundamental right to freedom from oppressive conditions. They only assert that, under pressure of existing court orders, living conditions have improved. Defendants' acquiescence in this relief does not negate the correctness of the finding of a constitutional violation, nor does it remove the violation from the case as a basis for relief. These violations support both the relief (see, infra, pp. 28-29) and pendant jurisdiction over the state law claim (see, infra, pp. 18, 23-24) of a right to adequate habilitative services. Hagans V. Lavine, 415 U.S. 528, 545-550 (1974).

J,
- 17 -
B. The due process right that the nature of
confinement bear some reasonable relationship
to the purpose for which the individual is
committed
Although no party has challenged the justification for
confinement of plaintiffs to state custody, or challenged the
pre-commitment procedures, defendants have not adequately protected plaintiffs' rights. Plaintiffs' post-commitment rights arise from two sources.
1. Independent federal liberty interest Whether the purpose of confinement is to protect the mentally retarded individual from danger to self or to provide needed treatment, see Jackson V. Indiana, 406 U.S. 715, 737 (1972); O'Connor v. Donaldson, 422 U.S. 563, 574 n. 9 (1975); Halderman V. Pennhurst State School and Hospital, supra, 612 F.2d at 124-125, Seitz, C.J., dissenting, the conditions at Pennhurst bear no reasonable relation to the purpose of confinement. For not only is it undisputed that conditions at Pennhurst are "inadequate for the 'habilitation' of the retarded," Pennhurst State School and Hospital v. Halderman, 49 U.S.L.W. 4363, 4365 (U.S. April 20, 1981), but "the physical, intellectual and emotional skills of
16/ some residents have deteriorated at Pennhurst," ibid.). The lack of habilitation affirmatively harms residents of Pennhurst and is thus inconsistent with either possible purpose of confine-
16/ "There is a technical difference between 'treatment,' which applies to curable mental illness, and 'habilitation,' which consists of education and training for those, such as the mentally retarded, who are not ill." Id. at n. 2

- 18 -
ment. This lack of reasonable relationship between the nature
and the purpose of confinement violates the Due Process Clause
of the Fourteenth Amendment. Jackson v. Indiana, supra.
"Liberty" as used in the Due Process Clause means, at the
least, the right to remain free of state control. To deprive
someone of this liberty, the state must follow procedures sufficient to minimize the risk of an erroneous deprivation. Mathews v. Eldridge, 424 U.S. 319 (1976). But Pennhurst not only denies plaintiffs freedom from bodily harm and freedom from restraint, but it also denies them the care and "habilitation" which is supposed to justify restraint. Wyatt v. Stickney, 325 F. Supp. 781 (M.D. Ala. 1971), aff'd sub nom. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974); Rouse v. Cameron, 373 F.2d 451 (D.C. Cir. 1966).
2. State-created liberty interest The due process violation is buttressed by state statutes which create a post-commitment liberty interest in the form of an entitlement to care and "treatment." Those who are at Pennhurst through court commitment were committed there under a statute (Pa. Stat. Ann. tit. 50, § 4406(b) (Purdon)) which states:
If, upon examination, it is determined that such person is in need of care at a facility, the examining physicians or director, as the case may be, shall immediately report to said court which may order the commitment of such person for care and treatment. (Emphasis added.)

- 19 -
In addition, all mentally defective persons in state
custody, whether in that status through court commitment or
otherwise, are entitled to (Pa. Stat. Ann. tit. 50, § 4201
(Purdon))
the availability and equitable provision of adequate mental retardation services * * *.
These statutes create a liberty interest under the Due
Process Clause to receive the care and treatment that the statutes
establish as the duty of the defendants to provide. Vitek v.
Jones, 445 U.S. 480 (1980); Wolff v. McDonnell, 418 U.S. 539 17/
(1974). 3. Procedural due process
The state statutes lead to a "massive curtailment of
liberty." Humphrey v. Cady, 405 U.S. 504, 509 (1972); Baxstrom
v. Herold, 383 U.S. 107, 113 (1966). The right to receive proper
care and training while in state custody is clearly as important
to plaintiffs' lives as a drivers license, Bell v. Burson, 402
U.S. 535, 539 (1971); personal chattels, Fuentes v. Shevin, 407
U.S. 67 (1972); or a prisoner's "good time," Wolff v. McDonnell,
supra. Yet, none of these may be taken without a pre-deprivation
17/ Vitek and Wolff refer, of course, to state statutes which "create liberty interests that are entitled to the procedural protections of the Due Process Clause." Vitek, supra, 445 U.S. at 488. It is not necessary to determine here whether state statutes may create substantive due process rights, since the defendants have denied habilitation without even making a reasoned judgment following a due process hearing. Nonetheless, it seems likely that the state statute creates substantive as well as procedural federal constitutional rights.

- 20 -
hearing. Nor may states negligently take away even the most
insignificant "property" without at least a post-deprivation
proceeding for recompense. Parratt v. Taylor, 49 U.S.L.W. 4509
(U.S. May 18, 1981).
Neither the Due Process Clause nor the state statute
contemplate that procedural regularity may end when the decision
is made to take mentally retarded persons into state custody. Vitek v. Jones, supra. In Parham v. J.R., 442 U.S. 584 (1979), the Supreme Court held that even persons who are "voluntarily"
in state custody for the purpose of treatment for mental defects are entitled to neutral professional evaluations of their conditions to determine their need for institutionalization. This procedure, the Court held, was sufficient to protect the very fundamental right to freedom from unwarranted confinement.
Here, the district court found that not only were the Pennhurst facilities inadequate to provide habilitation because of their austerity and lack of programs, but that defendants have totally failed to make the most basic professional decisions
18/ for Pennhurst residents
18/ See 446 F. Supp. 1305 and n. 29: "Not only is the programming at Pennhurst inadequate to meet professional standards * * * but so are the evaluations performed on the residents to determine what is required to adequately habilitate the individuals. None of the residents at Pennhurst had a full multi-discipline assessment as of January, 1977 * * *. Twenty and six -tenths percent of the residents have not received a limited multi-discipline assessment since January, 1975 * * *•" 446 F. Supp. 1306.

- 21 -
These professional decisions are essential if plaintiffs'
rights to freedom from unnecessary restrictions and to receive
the adequate habilitative services contemplated by the statutes
are to be respected. Due process requires, at a minimum, that
plaintiffs not be held at Pennhurst and simply ignored without any professional judgments made about their continuing needs. While Parham, supra, 442 U.S. at 617, left open the scope of post-admission reviews that due process requires, it made clear that the Constitution requires some professional post-custody procedures. It will not permit the abdication of professional resposibility which this record demonstrates.
C. The right to individual professional treatment decisions concerning the proper habilitative placement
1. Federal right to a less restrictive placement than Pennhurst
The district court found that institutionalization in a large congregate isolated facility such as Pennhurst is not the only alternative for care and habilitation of retarded persons in Pennsylvania. At the time of trial, the Community Living Arrangements were more home-like, i.e., more consistent with the "normalization" principle than Pennhurst; contrasted sharply in environmental quality with Pennhurst; and had a record of providing "habilitation" for retarded persons which Pennhurst did not have. Because of this factual record, the likelihood was that

- 22 -
plaintiffs' rights to be free from harm would be better respected
in one of the available alternative habilitation facilities than 19/
in Pennhurst. The record also demonstrates that where a retarded
person is placed, i.e., Pennhurst or a CLA, affects his or her
"habilitation." A sound professional judgment about the care
and training a mentally retarded person should have, therefore,
necessarily requires a decision about the environment where he
or she should be placed. Wyatt v. Stickney, supra.
Under the reasoning of Jackson v. Indiana, supra, a state
with a range of possible involuntary placements must have a
rational basis for placing a person in a setting which restricts
liberty more severely than alternative placements. At this stage
of the case, there is no need to decide what due process may 20/
require to insure the efficacy of individual placement decisions.
All the court need hold is that due process requires at a minimum
a Parham-like decision about each Pennhurst resident, or potential
19/ Defendants do not assert that changes have occurred to the eff°cacy and living conditions in the CLA's, but assert that conditions at Pennhurst have improved. If so, this may affect the outcome of some placement decisions. It should not avoid the requirement that a placement judgment be made for each person at Pennhurst.
20/ In Romeo v. Youngberg, 644 F.2d 147 (3d Cir. 1980), this Court recognized a generalized right to placement in the least restrictive alternative. While Romeo may be controlling here, we argue for affirmance on other grounds in light of the pending Supreme Court review of Romeo.

- 23 21/
resident, concerning his or her proper placement. Adherence to
state law by defendants in making placement decisions is adequate
substantive protection.
2. State right to a less restrictive placement than Pennhurst
This Court previously held, 612 F.2d at 102, that state
law provides "that to the extent Pennsylvania maintains facilities
for the mentally handicapped, those facilities must provide
adequate treatment or habilitation." This holding was not reversed
by the Supreme Court. Nothing has occurred since the court's
previous opinion to cast doubt on the court's holding that Pa.
Stat. Ann. tit. 50, § 4201 sets a quality minimum within Pennsyl-
vania retardation facilities and programs.
However, the Pennsylvania Supreme Court has since ruled
that the Mental Health and Mental Retardation Act of 1966, id.
at §§ 4101-4704 is directed at more than institutional quality.
In re Schmidt, 429 A.2d 631 (Pa. 1981). That court held that
the state defendants must provide a mentally retarded individual
21/ State statutes also provide for re-evaluation following commitment. Defendants may transfer any mentally disabled person from one state facility to another and from a state facility to a local facility. Pa. Stat. Ann. tit. 50, § 4416. Transfers to local facilities may be "for diagnosis, care, treatment, or aftercare, or for any other purpose whenever the best interests of such mentally disabled person require such transfer." Id. at (C). Persons committed through court order for an indefinite period "may be detained until care or treatment is no longer necessary." Pa. Stat. Ann. tit. 50, § 4418. See also § 4420. "Discharge by department."

- 24 -
with an environment sufficiently structured to meet his needs
even though such a placement did not then exist. In so holding,
the court explained, id. at 636, that
the legislative scheme was designed to require the county to provide those supportive services where they would eliminate
the necessity of institutionalization, even where those services would be required on a long term basis.
* * * The concept of normalization envisions that the mentally retarded person and his or her family shall have the right to live a life as close as possible to that which is typical for the general population. Consistent with this concept is the requirement that the least restriction consistent with adequate treatment and required care shall be employed.
If, however, the "concept of normalization is not a con-
sideration" and "institutionalization can neither be prevented
nor minimized," the state defendants must provide an adequate
structured placement. Id. at 637.
The county defendants must make placement decisions about
those for whose care they are responsible. Their authority "to
establish additional services and programs 'designed to prevent
* * * the necessity of admitting or committing the mentally dis-
abled to a facility' was intended to be utilized by the counties
to minimize the necessity of institutionalization. It was more
than a mere grant of power to be used at the county's option."
Ibid.

Y,
- 25 -
Thus, state law requires: first, that a decision be made
about whether institutionalization of a mentally retarded person
can be avoided; second, if institutionalization cannot be avoided,
that the state provide the needed structured services; third, if
a person can be treated in the community, that the counties 22/
provide the needed services there.
D. The violation of Section 504
Residents of Pennhurst have been removed from the community,
solely because of their handicap, and without regard to whether
they are "otherwise qualified" to participate in other federally
funded programs or activities through more appropriate placement 23/
in alternative available facilities in the state As we have
22/ Defendants assume that if this Court holds in their favor on each federal constitutional and statutory ground on the limited challenge to the relief which they make, the suit then becomes one based "solely on state law" and the court must rule in their favor on the state law issue on Eleventh Amendment jurisdictional grounds. The flaw in this argument is that the Eleventh Amendment issue should never be reached. If a federal claim is "substantial," the case is not based solely on state law in a jurisdictional sense regardless of the ultimate merits of that claim. United Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966). Under the order of decision prescribed by Hagans v. Lavine, 415 U.S. 528, 545-550 (1974), the Court should, assuming substantiality of the federal claim, decide the state law issue first. If that disposes of the case, the "merits" of the federal constitutional claim should not be reached. The discussion, supra, pp. 16 to 21, shows that the federal claim is not only substantial, but a basis for relief here.
23/ The dissenting opinion in the prior en banc review of this case states that "the United States * * * concedes that the record fails to demonstrate that any programs using such funds were available to anyone in the five-county area served by Pennhurst." 612 F.2d at 121 (Seitz, C.J.). However, our prior
(continued)

- 26 -
previously pointed out (Brief for the United States, pp. 36-45)
such unconsidered placement decisions on treatment violate Section 24/
504 of the Rehabilitation Act of 1973, 29 U.S.C. 794 At a
minimum, Section 504 compels the state to determine that the
person committed to an institution on account of handicap is
not "otherwise qualified" to participate in some other available
federally assisted program or activity providing more appropriate
care and treatment. In the context of this case, this means
that before determining that a handicapped individual should be
placed in one federally assisted program rather than another the
state must make an individualized judgment, based on reasoned 25/
professional advice. (Brief for the United States, pp. 40-42)
23/ continued brief detailed at pp. 36-37 some of the federal funds which flow to Pennsylvania. At oral argument before the en banc court Mr. Days, arguing for the United States, did note that at that time Pennsylvania had not sought Title 19 (Medicaid) funds for communityliving arrangments. (Tr. of Oral Reargument, Sept. 6, 1979 at 77). However, this statement did not address other programs or other sources of funding. Moreover, the record on appeal No. 81-1232, App. 25-26, 28, relating to contempt, suggests that some community living arrangments are now classified as Intermediate Care Facilities for the Mentally Retarded and receiving funding under some title of the Social Security Act, just as the dissent noted was being done in Michigan, Minnesota, Nebraska and Oklahoma. 612 F.2d at 121.
24/ It is now settled in this Circuit that there is a private right of action to enforce Section 504. Doe v. Colautti, 592 F.2d 704, 708 n. 8 (3d Cir. 1979).
25/ A handicapped person's right under Section 504 to an individualized determination whether he is "otherwise qualified" to participate in a program funded by the Developmentally Disabled Assistance and Bill of Rights Act is consistent with by the requirement in 42 U.S.C. 6011 that persons receiving services funded by that Act must have an habilitation plan.

- 27 -
Thus, Section 504 supports the district court's holding that the 26/
rights of plaintiff class members were being denied
The issue here is not whether Section 504 would require
Pennsylvania to create or expand a system of community facilities.
Nor does the United States here urge any such interpretation of
the statute. Indeed, Southeastern Community College v. Davis,
442 U.S. 397 (1979), suggests that Section 504 does not create
such an obligation. But in this case, Pennsylvania already
maintains such a system. In such circumstances, Pennsylvania
violates Section 504 by indiscriminately subjecting handicapped
persons to Pennhurst without first making an individual reasoned
professional judgment as to the appropriate placement for each such
person among all available alternatives.
II
THE RELIEF THE EN BANC COURT PREVIOUSLY APPROVED IS PROPER IN LIGHT OF THE VIOLATION AND STATE LAW
As a result of the Court's previous judgment and mandate,
the relief in effect is not the same as that originally entered
by the district court. In place of an order to remove all Pennhurst
26/ This holding depends on the court's finding that the discrimination occurred in federally assisted programs or activities. It is probable that in the intervening years the value and extent of such funding and of the recipients have changed. In addition, the opinions in this case in the Supreme Court suggest that if relief were based solely on the receipt of federal funds the State should have the alternative of foregoing further funding rather than being subjected to a detailed regulatory injunction. Thus, if the Section 504 issue is reached, a remand to explore those issues may be appropriate. However, the relief should be upheld on the other bases discussed in this brief.

- 28 residents to Community Living Arrangement, is an order which
requires defendants to form individual program plans for each resident of Pennhurst which contains a judgment about whether
that resident can benefit from placement in the community. This plan is drawn by a team of professionals and the parent or guardian of the resident. It includes a designation of a proposed residential placement. If there is objection to the proposed residential placement, a hearing is conducted before a Hearing Master who decides whether the proposed placement will be beneficial to the resident.
As a result of a stay obtained by the Parents-Staff Association from the Supreme Court while the case was pending there, the Hearing Master must determine, as to each proposed move from Pennhurst to a community residential setting, whether that move is "voluntary" on the part of the resident. Although the stay, by its terms, expired when the case was remanded here, the district court: has continued this procedure.
This relief is well suited to remedy the violation of plaintiffs rights shown by the record. First, it provides the kind of professional decisions which must be made to justify holding a person in state custody and to provide the adequate treatment mandated by state law.
Second, the potential for a hearing on the needs of an individual not only protects residents from harmful living conditions, but effectively reduces the Pennhurst population, thereby

- 29 -
helping to eliminate staffing shortages and calling attention to 27/
individual needs for protective care.
Third, the relief supports the state statute's "commit[ment]
* * * to a rejection of the former view that indiscriminate
institutionalization was the panacea for the resolution of the
problems presented by citizens who were not self-sufficient because of mental retardation." In re Schmidt, supra, 429 A.2d at 633-634. The testimony of the officials responsible for Pennhurst is to similar effect. See, e.g., Youngberg Dep. at 102.
The district court has determined that the Masters are necessary to assist it in supervising these procedures. This is fully in accord with the remand from this Court "for individual determinations by the court, or by the Special Master, as to the appropriateness of an improved Pennhurst." 612 F.2d at 114. Contrary to appellants' arguments (Br. 63) the Supreme Court has not determined otherwise. At most, the Court held that relief under the DD Act should not include a judgment by a federal cou;t about which persons should stay in Pennhurst and which should be removed.
The district court, however, was obliged to fashion a remedy for substantive and procedural violations of due process. While the Due Process Clause theoretically gives defendants the
27/ According to defendants (Br. 10 n.9), the improvement in staff to resident ratio since the time of trial has occurred almost entirely by reduction in resident populations. Defendants state that at the time of trial there were 1500 staff for 1230 residents and there are now 1550 staff for 920 residents.

- 30 -
option to correct the violations or forego institutionalization
of mentally disabled persons, that option is hardly available
under a state statute which provides that defendants have a duty
to "assure * * * the availability and equitable provision of"
habilitative services for mentally retarded persons. Thus, it
is entirely appropriate for the district court to levy mandatory requirements on defendants and to enlist the aid necessary to
remain informed that there is continuing adherence to those
measures which will remedy the violations. See 612 F.2d at 111-112 and authorities cited there.
Nor does this relief entail the district court making individual judgments itself. State professionals must make, and are making under the district court order, the judgments that due process requires.
III THE RECORD IS INSUFFICIENT TO SUPPORT A JUDGMENT FOR THE PLAINTIFFS UNDER THE STATE PLAN REQUIREMENTS OF THE DEVELOPMENTALLY DISABLED ASSISTANCE AND BILL OF RIGHTS ACT The Supreme Court remand calls for consideration whether the state plan requirements of the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. 6063, provide judicially enforceable rights. Several considerations suggest that the appropriate disposition of this question is to remand to the district court.

- 31 -
First, the court's ruling on the other issues in the case may render it unnecessary to address the complex questions the Supreme Court has asked regarding whether the judgment may be upheld under the state plan requirements of the Act. Moreover, although the Supreme Court requires identification of the "programs assisted" under the DD Act, 49 U.S.L.W. 4370, the record does not contain the state plan, which must describe such programs assisted. 42 U.S.C. 6063(b)(2)(A),(B). Indeed, the district court did not address the question of liability under the state plan requirements, and the same considerations which prompted a remand to this court suggest a further remand to the district court. See, e.g., Bolden v. City of Mobile, 626 F.2d 1324 (5th Cir. 1980); Metropolitan Housing Corp. v. Village of Arlington Heights, 616 F.2d 1006, 1008 (7th Cir. 1980).
Finally, should it be necessary to rely on Sections 6011 and 6063(b)(5)(C) (Supp. II 1978), the district court is in the best position to hear the parties' evidence and arguments and to deal initially with other questions raised by the Supreme Court, such as whether the assurances provided by the state plan are adequate, 49 U.S.L.W. 4370, "whether the express remedy contained in this Act is exclusive" (ibid.), and what the appropriate remedy would be for violation of the state plan requirements. 49 U.S.L.W. 4370-4071.

- 32 -

CONCLUSION

For the foregoing reasons, the relief now in effect should be affirmed.

Respectfully submitted

PETER F. VAIRA, JR. United States Attorney

WM. BRADFORD REYNOLDS sistant Attorney General

.c.

,

RIAN K. L NDSBERG

FRANK D. ALLEN, JR.

Attorneys

Department of Justice

CERTIFICATE OF SERVICE
I hereby certify that on October 14, 1981 I served copies
of the foregoing brief for the United States by first class mail
postage paid on:
Hon. Allen C. Warshaw Hon. Robert B. Hoffman 16th Floor, Strawberry Square Harrisburg, Pa. 17120
Hon. Alan J. Davis Hon. Mark A. Aronchick Hon. Pauline Cohen 1510 Municipal Services Building Philadelphia, Pa. 19109
Thomas M. Kittredge, Esq. Morgan, Lewis & Bockius 2107 The Fidelity Building Philadelphia, Pa. 19109
Joel I. Klein, Esq. Onek, Klein & Farr 2550 M Street, N.W. Suite 425 Washington, D.C. 20037
Thomas E. Gilhool, Esq. 1315 Walnut Street, Suite 1600 Philadelphia, Pa. 19107
David Ferleger, Esq. 37 South 20th Street, Suite 601 Philadelphia, Pa. 19103
Frank D. Allen, Jr. Attorney

 
 446 F.Supp. 1295 (1977)
Terri Lee HALDERMAN, a retarded citizen, by her mother and guardian, Winifred Halderman, et al., Plaintiffs,
Pennsylvania Association for Retarded Citizens et al., on behalf of themselves and all others similarly situated, Plaintiffs-Intervenors, United States of America, Plaintiff-Intervenor, v.
PENNHURST STATE SCHOOL & HOSPITAL et al., Defendants.
Civ. A. No. 74-1345.
United States District Court, E. D. Pennsylvania.
December 23, 1977. On Injunctive Relief March 17, 1978.
12967 *1296 *1297 David Ferleger, Philadelphia, Pa., for plaintiffs.
The Public Interest Law Center of Philadelphia, by Thomas K. Gilhool, Chief Counsel, Frank J. Laski and Edward A. Stutman, Philadelphia, Pa., for plaintiff-intervenors, Pennsylvania Assn. for Retarded Citizens and Jo Suzanne Moskowitz, Robert Hight, David Preusch, and Charles DiNolfi.
Peter A. Glascott, James M. McNamara, Asst. City Sol., Doylestown, Pa., for County of Bucks, George Metzer, Roger Bowers, Joseph Catania and Peter Bodenheimer.
David W. Marston, U. S. Atty., Washington, D. C., J. Stanley Pottinger, Asst. Atty. Gen., Civ. Rights Div., U. S. Dept. of Justice, Arthur E. Peabody, Jr., Louis M. Thrasher, Karin Christensen, Jose de Jesus Rivera, Attys., U. S. Dept. of Justice, Washington, D. C., for U. S.
Frank, Margolis, Edelstein & Scherlis, Joseph Goldberg, Philadelphia, Pa., for Margaret Green, Betty Uphold, Alice Barton, P. E. Klick, Dr. Parocca and Helen Francis.
Thomas M. Kittredge, Philadelphia, Pa., Patricia H. Jenkins, Media, Pa., for Faith Whittlesey, Char. Keeler, Wm. Spingle, Comm. of Delaware County, P. P. Burrichter-Delaware County.
Thomas F. Schilpp, Luchsinger, Schilpp, Murphy & Noel, Media, Pa., for Commissioners of County of Delaware and Paul Burrichter, Administrator.
Thomas M. Kittredge, Morgan, Lewis & Bockius, Philadelphia, Pa., for Robert Strebl, Earl Baker, Leo McDermott and William McKendry.
Paul Sacks, Asst. City Sol., Philadelphia, Pa., for Mayor Frank L. Rizzo, City Counsel of Philadelphia, and Leon Soffer.
Roger B. Reynolds, Montgomery County Sol., Ward A. Cotton, Sol., Montgomery, Joseph A. Smyth, Asst. Montgomery County Sol., Norristown, Pa., for A. Russell Parkhouse, Frank W. Jenkins, Lawrence H. Curry, Montgomery County Comm., and Hermann A. Roether.
1298 *1298 Norman Watkins, Jeffrey Cooper, Deputy Attys. Gen., Dept. of Justice, Harrisburg, Pa., for Pennhurst State School & Hospital, Dept. of Public Welfare, Frank S. Beal, Stanley Meyers, Aldo Colautti, Wilbur Hobbs, Russell Rice, Jr., and C. Duane Youngberg.
INDEX

Page
I. Procedural History ............................. 1300 II. Parties ........................................ 1300 III. Education, Training and Care (Habilitation)
Afforded the Retarded at Pennhurst ..................................... 1302 A. Staffing .................................... 1303 B. Habilitation at Pennhurst ................... 1304 C. Restraints at Pennhurst ..................... 1306 D. Deterioration and Abuse of the
Residents at Pennhurst ...................... 1308 E. Voluntariness ............................... 1310 F. Community Services in the Five
County Area ................................. 1311 G. County Participation ........................ 1312 IV. The Merits ..................................... 1313 A. Constitutional Right to Minimally
Adequate Habilitation ....................... 1314 B. Constitutional Right to be Free
from Harm ................................... 1320 C. Constitutional Right to Non-Discriminatory
Habilitation ................................ 1321 D. Pennsylvania Statutory Right to
Minimally Adequate Habilitation ............. 1322 E. Federal Statutory Right to Non-Discriminatory
Habilitation ................................ 1323 V. Liability of the Individual Defendants ...... 1324 VI. Conclusion .................................. 1325
OPINION
RAYMOND J. BRODERICK, District Judge.
This is a class action in which the named plaintiffs are either residents or former residents of Pennhurst State School and Hospital, now known as Pennhurst Center ("Pennhurst"), an institution owned and operated by the Commonwealth of Pennsylvania, located in Spring City, Pennsylvania. These plaintiffs are all retarded persons, or their representatives, who claim injury based on violations of certain state[1] and federal[2] statutes as well as violations of certain constitutional rights[3] in connection with their institutionalization at Pennhurst. The plaintiffs seek both damages and broad equitable relief including the closing of Pennhurst, and mandating that the defendants provide them with education, training and care in their respective communities. "Habilitation" is the term of art used to refer to that education, training and care required by retarded individuals to reach their maximum development.
This matter was tried before the Court, sitting without a jury, over a period of thirty-two days, testimony being limited solely to the issue of liability. In connection therewith, the Court makes the following findings of fact and conclusions of law:
Mental retardation, by definition, is an impairment in learning capacity and adaptive behavior.[4] (Roos, N.T. 1-86). Retardation is wholly distinct from mental illness. Retarded individuals, just as other members of society, may suffer from mental illness. Mental retardation is primarily an educational problem and not a disease which can be cured through drugs or treatment. However, with proper habilitation, the level of functioning of every retarded person may be improved. (Glenn, N.T. 5-186).[5]

The incidence of mental retardation is about 3% in the general population. There are four basic levels of mental retardation: (1) mild (I.Q. 52-69) which comprises 89% of the mentally retarded population; (2) moderate (I.Q. 1299 36-51) which comprises 6% of the *1299 mentally retarded population; (3) severe (I.Q. 20-35) which in conjunction with (4) profound (I.Q. less than 20) comprises 5% of the mentally retarded population. (Roos, N.T. 1-89, 1-90).
Pennhurst, as an institution for the retarded, was on trial. Recent years have witnessed an assault upon such institutions.[6] At issue is whether the residents at Pennhurst have been the victims of violations of their statutory or constitutional rights; specifically whether Pennhurst as an institution has been violating the statutory or constitutional rights of its retarded residents in failing to provide them with minimally adequate education, training and care.
History is replete with misunderstanding and mistreatment of the retarded. As Wolf Wolfensberger points out in The Origin and Nature of Our Institutional Models 3 (1975):
It is chastening to recall that the retarded in American history were long grouped with other types of deviant groups. In early America, the Puritans looked with suspicion on any deviation from behavioral norms, and irregular conduct was often explained in terms of the supernatural, such as witchcraft. There is reason to believe that retarded individuals were hanged and burned on this suspicion. Later in New England, records show that lunatics, "distracted" persons, people who were non compos mentis, and those who had "fits" were all classed together, perhaps with vagabonds and paupers thrown in . . .. Connecticut's first house of correction in 1722 was for rogues, vagabonds, the idle, beggars, fortune tellers, diviners, musicians, runaways, drunkards, prostitutes, pilferers, brawlers 0907 and the mentally afflicted . . .. As late as about 1820, the retarded, together with other dependent deviant groups such as aged paupers, the sick poor, or the mentally distracted were publicly "sold" ("bid off") to the lowest bidder, i. e., bound over to the person who offered to take responsibility for them for the lowest amount of public support . . ..
The 10th (1880) U.S. census first combined "defectives," "dependents," and "delinquents" for reporting purposes. The Public Health Service combined "criminals, defectives, and delinquents" as late as the 1920's.
The National Conference on Charities and Correction, between about 1875 and 1920, often grouped the idiotic, imbecilic and feeble-minded with the deaf, dumb, blind, epileptic, insane, delinquent and offenders into one general class of "defectives." Few of us today are aware of the fact that the more contemporary term "mental defective" was coined to distinguish the retarded from these other "defectives," and it is no coincidence that many state institutions were for both the retarded and the epileptic. During the "indictment period," discussed later, an incredible range of deviances were associated with retardation; indeed, they were seen to be caused by it: illness, physical impediments; poverty; vagrancy; unemployment; alcoholism; sex offenses of various types, including prostitution and illegitimacy; crime; mental illness; and epilepsy. All these were called the "degeneracies."
Institutions for a number of "deviant" groups were founded in the United States in the mid-nineteenth century for the purpose of making the deviant less deviant. They were originally relatively small centers, often located within the community, in which intensive training could be concentrated on the deviants. Their emphasis was on education; they were viewed as temporary boarding schools, geared toward returning the individuals to their family or living group once appropriate skills were learned. By the late nineteenth century, however, these schools 1300 were replaced by asylums isolated from the community, where instead of providing the individual *1300 with the education and training necessary to return to the community, they provided the protection and care it was thought that these individuals required. The asylum grew to be viewed as a permanent residential facility for the deviant. In the more progressive states, the retarded received their own facilities separated from other "deviant" groups. With this concept came increased isolation and increased size permitting little time for habilitation. See generally, W. Wolfensberger, supra at 24-56. Pennhurst was the product of this era.[7]

I. Procedural History
This action was commenced in May, 1974. On November 26, 1976, it was certified by the Court as a class action, with the plaintiff class of retarded persons defined as:
All persons who as of May 30, 1974, and at any time subsequent, have been or may become residents of Pennhurst State School and Hospital. The members of the class are persons resident at Pennhurst State School and Hospital, persons residing in Bucks, Chester, Delaware, Montgomery and Philadelphia Counties who are on a waiting list for placement at Pennhurst State School and Hospital, and persons residing in Bucks, Chester, Delaware, Montgomery and Philadelphia Counties, who, because of the unavailability of alternate services in the community, may be placed at the Pennhurst State School and Hospital.
On February 4, 1977, by agreement of the parties, we entered an Order trifurcating the trial. This Order reads, in pertinent, part, as follows:
Said trial will be bifurcated 0907 the first phase limited solely to the issue of liability. At such time as the Court issues its findings of fact and conclusions of law thereafter, a date shall be set for the second phase of the trial 0907 to determine what relief, if any, a federal court can and should grant in this situation. At the conclusion of the second phase of the trial, a date shall be set for the third phase of the trial, if one is deemed necessary, 0907 to determine damages due Plaintiffs.
The first phase of this non-jury trial began on April 18, 1977 and ended on June 13, 1977, occupying thirty-two court days.
II. The Parties
The original complaint in this action was filed as a class action by Terri Lee Halderman, a retarded individual who 1301 had been admitted to Pennhurst on the application of her parents pursuant to 50 P.S. § 4402[8] in *1301 1966.
On July 29, 1974, the first amended complaint was filed, adding as name plaintiffs seven other retarded individuals[9] who had been admitted to Pennhurst upon the application of their parents. The amended complaint also added as a plaintiff the Parents and Family Association of Pennhurst representing 200 parents of retarded residents at Pennhurst. The Association was organized in 1967 to protect the rights of retarded citizens at Pennhurst and other institutions. (First amended complaint at 4).
On January 17, 1975, the Court granted the United States of America leave to intervene as a party plaintiff.[10] On November 12, 1975, the Court, without opposition, granted leave to intervene to the Pennsylvania Association for Retarded Citizens ("PARC") and four retarded individuals,[11] three of whom were court committed to Pennhurst pursuant to 50 P.S. § 4406[12] or an earlier statute. PARC is a non-profit corporation which was founded in 1950 (Schmidt, N.T. 14-108) and has member chapters in fifty-seven of Pennsylvania's sixty-seven counties; its purpose being to advance the interest of retarded persons in Pennsylvania. The members of PARC include parents, other relatives, guardians, and next friends of persons residing at Pennhurst, and those in jeopardy of residing there.
1302 Defendants are: Pennhurst; the Pennsylvania Department of Public Welfare; *1302 various state and county[13] officials responsible for supervising the Commonwealth's and the counties' retardation programs; and the superintendent and various employees of Pennhurst.

III. Education, Training and Care (Habilitation) Afforded the Retarded at Pennhurst
Pennhurst, a residential institution for the retarded, was founded in 1908. It is owned and operated by the Commonwealth of Pennsylvania, and is located in Spring City, Pennsylvania about 30 miles from Philadelphia. Since its founding in 1908, the institution has been overcrowded and understaffed. (PARC Exhibit 40, R. Smilovitz, Pennhurst in Perspective: Purpose, Programs, Possibilities.) The present resident population is approximately 1,230, reduced from a high of nearly 4,000 in the early 1960's. (Youngberg, N.T. 22-123). Its staff numbers approximately 1,500. All parties concede that the institution has undergone tremendous improvement since the 1950's when, at best, the residents' treatment could be described as "warehousing". Even with these improvements, it was admitted by the defendants that Pennhurst does not presently meet minimum standards for the habilitation of its residents. (Rice, N.T. 26-24; Youngberg, Deposition at 22-31).[14]
Approximately half of the residents at Pennhurst have been admitted upon application of their parents or guardians, while the other half have been committed by a court. (Youngberg, N.T. 22-122). No distinction is made in the services extended to either group. The average[15] resident age at Pennhurst is 36, and the average stay at the institution is 21 years. Forty-three percent of the residents have had no family contact within the last three years.[16] Seventy-four percent of the residents are severely to profoundly retarded.[17] The average resident has had one psychological evaluation every three years and one vocational adjustment service report every 10 years. Those residents who have had more than one Vineland examination (measuring social quotient) during their residency at the institution, have, on the basis of this test, shown a decline rather than an increase in social skills while at Pennhurst (they declined an average of 7.542 points during their residence at Pennhurst, a loss of .596 points per year.)[18]
1303 *1303 At its best, Pennhurst is typical of large residential state institutions for the retarded.[19] These institutions are the most isolated and restrictive settings in which to treat the retarded. (Lancaster-Gaye, N.T. 4-79). Pennhurst is almost totally impersonal. (Id., N.T. 4-71). Its residents have no privacy (Roos, N.T. 1-149) 0907 they sleep in large, overcrowded wards (Youngberg, Deposition at 22), spend their waking hours together in large day rooms and eat in a large group setting. (Clements, N.T. 2-57, 2-71, 2-72). They must conform to the schedule of the institution which allows for no individual flexibility. Thus, for example, all residents on Unit 7[20] go to bed between 8:00 and 8:30 p. m., are awakened and taken to the toilet at 12:00-12:30 a. m. and return to sleep until 5:30 a. m. when they are awakened for the day (Barton, Deposition at 21-26, 33-34; Roos, N.T. 1-50), which begins with being toileted and then having to wait for a 7:00 a. m. breakfast.
A. Staffing
On the whole, the staff at Pennhurst appears to be dedicated and trying hard to cope with the inadequacies of the institution. (Hersh, N.T. 13-130).[21] Many of the problems at Pennhurst result from overcrowding and understaffing.[22] As professionals leave the staff, they are often not replaced, their jobs being turned over to direct care staff; thus, in the last two years nineteen professionals have left the staff without being replaced. (Roos, N.T. 1-153). Nearly every witness who testified concerning Pennhurst stated that it was grossly understaffed to adequately habilitate the residents. None of the standard reference sources now generally used by professionals in the field of mental retardation define the qualifications and minimal numbers of mental retardation professionals necessary to provide minimally adequate programs of habilitation. (Clements Report at 6). However, the court in Wyatt v. Stickney, 344 F.Supp. 387 (N.D.Ala.1972), attempted to provide such guidelines. A comparison of the Wyatt ratios to those at Pennhurst in 1975[23] reveals:
Wyatt Standards Pennhurst

a. Psychologists b. Social Workers c. Vocational Therapists d. Recreation Therapists e. Occupational Therapists f. Registered Nurses g. Physicians h. Physical Therapists i. Speech and Hearing
Therapists j. Dentists k. Chaplains l. Teachers[24]

23 40
5 23 18 95
7 14
14 7 7
51

23 6 4 0
10 54
6 2
9 4 4
8

(Clements, N.T. 2-26, 2-27).

1304 *1304 No psychologists are on duty at Pennhurst at night or over the weekend, thus, if a resident has an emotional crisis, he or she may go without treatment until the next morning or until the weekend is over. (Riznyk, N.T. 17-182). Moreover, routine housekeeping services are not available during evenings and weekends, thus it is common to find urine and feces on ward floors over these periods. (Smith, Deposition at 41; Roos, N.T. 1-158).

B. Habilitation at Pennhurst

All parties to this litigation are in agreement that Pennhurst as an institution is inappropriate and inadequate for the habilitation of the retarded. It is also admitted that the inadequacies in programming at Pennhurst are directly attributable to staff shortages. Residents' records commonly contain a notation that they would benefit from specific types of programming. However, such programming has, for the most part, been unavailable to the individual because of staff shortages. (Foster, Deposition at 42; DeAngelis, N.T. 16-49). The average resident receives only 1½ hours of programming per weekday and no programming on weekends. (Thurman, N.T. 14-60; DeAngelis, N.T. 16-31). No one, except those in school, gets more than 3½ to 4 hours per day. If one factors out those programs which are not considered beneficial, the average drops to about fifteen minutes per day. (Thurman, N.T. 14-60).[25] Some residents receive no programming due to their extreme hyperactivity, medical problems, or their own refusal of treatment. (DeAngelis, N.T. 16-32; Cooper, N.T. 29-46). Some individuals have not been accepted into occupational therapy, since only group programs are available and they require individual attention. Some Pennhurst residents have been dropped from existing programs due to lack of progress and motivation. The record indicates that the residents at Pennhurst are made to fit into existing programs, and that the programs are not altered to fit the needs of the individuals. Further, it appears that an individual's motivation and not his or her needs determine whether the resident continues with the program. (Hare, N.T. 8-180, 8-181). [26]
Residents are referred to special programs at Pennhurst, but often, due to staff shortages, placements are not made. (DeAngelis, N.T. 16-40, 16-41). Almost every service offered at Pennhurst has a long waiting list. (Foster, Deposition at 42). For example, as of April 15, 1977, there were 511 residents on the referral list for occupational therapy. (Hilker, N.T. 20-43). While 50-60 Pennhurst residents have wheelchairs which have been individually adapted to meet the individual's needs, 75-100 residents need such adaptions. (Fekula, N.T. 20-99). The 1305 consequences for the resident not having his or her wheelchair adapted are especially grave, including: (1) *1305 loss of vital functions; (2) severe muscular contractions; and (3) loss of ability to be programmed. (Id., N.T. 20-101). While over 300 residents at the institution have hearing impairments, only 51 have been fitted with hearing aids. There are 106 residents on the waiting list for speech therapy, and nearly every resident at Pennhurst could benefit from some type of communication programming. (Riggot, N.T. 20-155).[27] Three to four hundred residents presently need physical therapy to prevent physical deterioration, however, only 143 are receiving this therapy. (Rossi, Deposition at 12, 22).[28]

Pennhurst has established a communication center for 22 non-verbal individuals, but the institution has approximately 300 non-verbal residents. In theory, the residents in the communication center spend their day in classes learning signing (i. e., sign language skills), academics, and self-care skills. However, when there is only minimal staff coverage, classes are not offered since the staff is totally occupied with custodial tasks. During the month of April, 1977, there were 5 days during which there was minimal coverage on the first shift (7:00 a. m.09074:00 p. m.); 25 days of minimal coverage on the second shift (4:00 p. m. 090711:00 p. m.); and thirty days of minimal coverage on the third shift (11:00 p. m.09077:00 a. m.) 0907 on five of these days during the third shift, there was less than minimum staff coverage. (Nelson, N.T. 21-23, 21-24).
Not only is the programming at Pennhurst inadequate to meet minimum professional standards (Rice, Deposition at 179, 180), but so are the evaluations performed on the residents to determine what is required to adequately habilitate the individual. None of the residents at Pennhurst had a full multi-discipline assessment as of January, 1977. (PARC Exhibit 53; Flueck, N.T. 4-9). Twenty and six-tenths percent of the residents have not received a limited multi-discipline assessment since January, 1975, and those assessments which have been made are generally limited to psychological, speech and hearing skills and are rarely concerned with vocational or self-care skills. (Hare, N.T. 8-165, 8-166). Proper habilitation cannot be provided to retarded persons unless those responsible for providing such programs are aware of the individual's needs.
Defendants have not made "full exit plans," i. e., plans delineating: (1) a place for each individual to live outside of Pennhurst; (2) the daily activity necessary for each individual living outside Pennhurst; (3) necessary support services; and (4) the person who would be responsible, for any Pennhurst resident.[29] Such plans are very important in planning for the resident's eventual return to the community from the institution.
Defendants have also failed to make full "program plans," i. e., plans containing: (1) identification of long and short term goals; (2) specification of the conditions under which the individual might achieve these goals; and (3) specification of the criteria to evaluate the individual's mastery of the goals, for Pennhurst residents.[30]
1306 *1306 The record keeping at Pennhurst is also below acceptable minimum standards. (Clements, N.T. 2-22). Adequate record keeping is essential for proper habilitation of the residents.[31] Without such records, the staff will not know what the individual is already able to do, what type of care he or she should be receiving, and how to evaluate progress made by the individual. (Id.)
Pennsylvania's immediate plans for Pennhurst call for a reduction of the population at the institution to 850[32] and to provide, by July 1, 1978, 2½ hours of programming per resident per day. Dr. Rice, the Commissioner of Mental Retardation for Southeast Pennsylvania felt that such programming would fulfill the minimum requirements to qualify for medical assistance (i. e., federal financing). However, he knew of no other set of standards which would consider this level of programming minimally acceptable, and personally did not feel that it was adequate. (N.T. 27-78). As a matter of practice, the Department of Mental Retardation for the Southeast Region will not approve a community living arrangement for a mentally retarded individual unless it provides for programming of at least five and one-half hours per day. (Rice, N.T. 27-80).
C. Restraints at Pennhurst
At Pennhurst, restraints are used as control measures in lieu of adequate staffing.[33] (Clements, N.T. 2-82, 2-84; Roos, N.T. 1-135; Sprague, N.T. 3-44; Hersh, N.T. 13-153, Foster, Deposition at 81). This is not to say that restraints should never be used in the habilitation of the retarded. When an individual's aggressive behavior interferes with his or her ability to take advantage of other programming which the individual should receive, or poses a physical threat to him or herself and others it may be proper to restrain that person. Soon, it is hoped, once the individual has benefited from the other programming, the restraint will not be needed. (Clements, N.T. 2-86). It is generally conceded that most, if not all, outbursts of violence by the retarded can be prevented by adequate programming.

Seclusion rooms[34] have been used to punish aggressive behavior. One eighteen year old individual spent six consecutive days in seclusion in 1974 for assaulting a Down's Syndrome resident. (Lowrie, N.T. 5-6, 5-7). In 1975, a committee was formed to investigate the use of seclusion rooms at Pennhurst. It recommended that seclusion rooms, if they were to be used at all, should be limited to medical emergencies and should not be utilized for punishment. (Lowrie, N.T. 5-5). Seclusion rooms are still in use at Pennhurst (M. Conley, N.T. 16-150; Boyle, N.T. 17-72, 17-73; L. Miller, N.T. 77-102; Malone, N.T. 17-140, 17-141; Lowrie, N.T. 5-71), though the incidence of their use is less than it was in years past. There is now a policy that seclusion rooms be used only 1307 for medical emergency, when a resident becomes extremely *1307 abusive, and no other alternative will control the individual. One-to-one interaction with staff members is often effective in calming the resident and stopping this maladaptive behavior. However, since normally the wards are, at best, minimally staffed, there frequently is not a staff person who can be spared to participate in this intensive interaction. (Lowrie, N.T. 5-9; Miller, N.T. 17-122). Thus, seclusion is often necessary only because there is insufficient staff. (Lowrie, N.T. 4-131).[35]
Often physical restraints are also used due to staff shortages. An extreme example is a female resident who, during the month of June 1976, was in a physical restraint for 651 hours 5 minutes; for the month of August, 1976, was in physical restraints for 720 hours; during September, 1976, was in physical restraints for 674 hours 20 minutes; and during the month of October, 1976, was in physical restraints for 647 hours 5 minutes. (Matthews, Deposition at 64-68). This resident was extremely self-destructive 0907 she totally blinded herself. She was not enrolled in occupational therapy until early 1977. Once initiated, her programming has apparently been quite successful, and she is now able to be out of restraints for as much as four hours per day. (Foster, N.T. 23-43). Had this programming been initiated earlier, her self-inflicted injuries might have been avoided or at least lessened.
Physical restraints are potentially physically harmful and can create conditions in which physical injuries are more likely to occur (Clements, N.T. 2-87; Hirst, N.T. 7-131; Roos, N.T. 1-166),[36] and prevent residents from learning or exercising self-care skills. (Clements, N.T. 2-87).
Psychotropic drugs at Pennhurst are often used for control and not for treatment, and the rate of drug use on some of the units is extraordinarily high. (Hersh, N.T. 13-153).[37] Dr. Sprague, an expert in psychopharmacology,[38] testifying on behalf of the United States, conducted a survey of 39 residents at Pennhurst, a group which he considered to be statistically representative of the residents at Pennhurst. He found that 51% of the group were receiving psychotropic drugs, 35% of the group were receiving anti-convulsant medication, and 40% were receiving two or more psychotropic drugs at one time. (N.T. 3-36). In comparison with similar institutions throughout the country, Dr. Sprague stated that these percentages were very high, though he said that some institutions administer comparable levels.[39]
Dr. Sprague also found that Pennhurst residents on drugs were inadequately monitored. Without monitoring, one cannot determine whether the drug has been effective and whether it should be continued. Dr. Sprague found 1308 that in only 29% of the cases in which a drug was administered *1308 were its effects on the individual evaluated. (N.T. 3-45). He further testified that the drug practice at Pennhurst does not meet minimally professional standards and is physically hazardous to the residents. (N.T. 3-55, 3-90).
One of the side effects of the use of psychotropic medication is that it may make the individual receiving it lethargic 0907 so much so that the recipient may fall asleep during school, or during other times when activities and/ or programming are being attempted. (Lowrie, N.T. 5-22). Other hazardous side effects of these drugs include hypersensitivity to sunlight; ataxia (inability to maintain balance and gait); and gingival hyperplasia (gum tissue condition marked by inflammation, bleeding and increased growth). (Hedson, Deposition at 59-61). Thus, the administration of such drugs actually impedes the habilitation of the resident, especially when used as a control rather than a habilitation device.

D. Deterioration and Abuse of the Residents at Pennhurst
The physical environment at Pennhurst is hazardous to the residents, both physically and psychologically. (Clements, N.T. 2-59). There is often excrement and urine on ward floors (Roos, N.T. 1-158; Smith, Deposition at 41), and the living areas do not meet minimal professional standards for cleanliness. (Youngberg, Deposition at 24). Outbreaks of pinworms and infectious disease are common (M. Conley, N.T. 16-193; Lowrie, N.T. 4-153; Hedson, Deposition at 122). As Superintendent Youngberg noted:
There is not adequate space for [the residents. The living areas do] not provide privacy for those persons who can handle privacy. There does not seem to be adequate activity areas or program areas or even general activity areas within the general living area or even adequate activity program areas away from the home living area. (Deposition at 23).
The environment at Pennhurst is not only not conducive to learning new skills, but it is so poor that it contributes to losing skills already learned.[40] (Clements, N.T. 2-59). For example, Pennhurst has a toilet training program, but one who has successfully completed the program may not be able to practice the newly learned skill, and is therefore likely to lose it. (Clement, N.T. 2-36, 2-37). Moreover, most toilet areas do not have towels, soap or toilet paper,[41] and the bathroom facilities are often filthy and in a state of disrepair. Obnoxious odors and excessive noise permeate the atmosphere at Pennhurst. Such conditions are not conducive to habilitation. (Dybwad, N.T. 7-52). Moreover, the noise level in the day rooms is often so high that many residents simply stop speaking. (Clements, N.T. 2-59).
Meals are eaten in a large group setting. Staff supervision is at a minimum, and residents are often free to steal food from other residents 0907 which results in some residents not getting enough to eat. (Clements, N.T. 2-73). Obviously, diet control in such an environment is almost impossible.
Injuries to residents by other residents, and through self-abuse, are common. For example, on January 8, 1975, one individual bit off three-quarters of the earlobe and part of the outer ear of another resident while the second resident was asleep. (Matthews, Deposition at 83). About this same period, one resident pushed a second to the floor, resulting in the death of the second resident. (Barton, Deposition at 67, 68). Such resident abuse of 1309 residents continues. In January, 1977 alone, there were *1309 833 minor and 25 major injuries reported.[42] (Youngberg, Deposition at 83).
In addition, there is some staff abuse of residents. In 1976, one resident was raped by a staff person (Ruddick, N.T. 3-115 to 3-117); one resident was badly bruised when a staff person hit him with a set of keys (Barton, Deposition at 40); another resident was thrown several feet across a room by a staff person (Ruddick, N.T. 3-113; Caranfa, N.T. 12-79); and one resident was hit by a staff person with a shackle belt (Bowman, N.T. 13-83; Pirmann, N.T. 19-94). On each occasion, an investigation was conducted and the staff person responsible was suspended and/or terminated (Ruddick, N.T. 3-114; Bowman, N.T. 13-82, 13-83, 13-84; Pirmann, N.T. 19-94).
Many of the residents have suffered physical deterioration and intellectual and behavioral regression during their residency at Pennhurst. Terri Lee Halderman, the original plaintiff in this action, was admitted to Pennhurst in 1966 when she was twelve years of age. During her eleven years at Pennhurst, as a result of attacks and accidents, she has lost several teeth and suffered a fractured jaw, fractured fingers, a fractured toe and numerous lacerations, cuts, scratches and bites.[43] Prior to her admission to Pennhurst, Terri Lee could say "dadda", "mamma", "noynoy" (no), "baba" (goodby) and "nana" (grandmother). She no longer speaks. (Halderman, N.T. 9-69, 9-71, 9-78, 9-87, 9-88).
Plaintiff Charles DiNolfi was admitted to Pennhurst when he was nine years old; he is now forty-five and has resided at the institution continually except for short stays at White Haven State School and Hospital. (Hunsicker, N.T. 9-39). Dorothy Hunsicker, his sister, testified that whenever she or her family visited him, Mr. DiNolfi had some type of bandage on. (Id.) Twenty-six years ago, while at Pennhurst, Mr. DiNolfi lost an eye. A Pennhurst physician told Ms. Hunsicker that Mr. DiNolfi slipped while taking a shower, and hit the spigot with his eye. The

sight in his remaining eye has been impaired due to injury. (Id., N.T. 9-46, 9-47). He has only a few teeth remaining and his nose has been battered. (Id., N.T. 9-41).
Plaintiffs Robert and Theresa Sobetsky were admitted to Pennhurst on November 29, 1971.[44] They were placed on extremely overcrowded wards where beds were placed in the aisles. Robert was never assigned to a particular bed. (Sobetsky, N.T. 9-145, 9-146). During his residency at Pennhurst, Robert Sobetsky suffered from bruises, bites, scratches, welts and he smelled of urine. (Id., N.T. 9-147, 9-148). His record shows a number of reported injuries, some of which, though labeled minor injuries, represented bruises that were three to five inches in length. (Id., 9-151, 9-152). Theresa also suffered such injuries. (Id., N.T. 9-148).
Plaintiff Robert Hight, born in 1965, was admitted to Pennhurst in September, 1974. He was placed on a ward with forty-five other residents. His parents visited him two and one-half weeks after his admission and found that he was badly bruised, his mouth was cut, he was heavily drugged and did not recognize his mother. On this visit, the Hights observed twenty-five residents walking the ward naked, others were only partially dressed. During this short period of time, Robert had lost skills that he had possessed prior to his admission. The Hights promptly removed Robert from the institution, Mrs. Hight commenting that she "wouldn't leave a dog in conditions like that." (N.T. 11-22, 11-23).
Plaintiff George Sorotos entered Pennhurst in 1970 at the age of seven. In the seven years that George has been 1310 at Pennhurst, his former foster mother, Marion *1310 Caranfa,[45] testified that in her weekly visits to Pennhurst
there have been only four occasions when George was not injured. (N.T. 12-63). During this period, he has suffered from numerous reported injuries, including bites, scratches, black eyes and loss of teeth. In addition, Mrs. Caranfa testified that she recently observed what appeared to be cigarette burns on George's chest. (N.T. 12-65).
Plaintiffs Larry and Kenny Taylor entered Pennhurst on February 28, 1961. In the early 1970's, Mrs. Taylor questioned the staff about the medication being given to Larry. He was very lethargic, falling asleep at school and barely able to walk. (Taylor, N.T. 13-24). The physician in charge of Larry's unit, checked Larry's medical record and found that he was on dilantin, a drug used to control epileptic seizures. Mrs. Taylor testified that Larry had had only one seizure that she knew of and that had been when he was a baby. Larry was removed from dilantin and placed on mellaril, a psychotropic drug. This, too, made him lethargic. (Id., N.T. 13-26 to 13-28). Larry and Kenny were transferred to Woodhaven in 1975 where Mrs. Taylor testified that Larry does not receive any psychotropic medication, and is able to walk independently. (Id., N.T. 13-32). Larry was often injured while at Pennhurst; on one occasion, he was hospitalized for two weeks because of head and face injuries he received as a result of a beating by another resident. (Id., N.T. 13-30). Kenny, too, suffered serious injuries while at Pennhurst. (Id., 13-29).
Plaintiff Nancy Beth Bowman entered Pennhurst at the age of ten in 1961. She was placed on a large ward which had sixty-five residents and often only two child-care aides in attendance. (Bowman, N.T. 13-71; Pirmann, N.T. 19-89). During her residency at Pennhurst she developed maladaptive behavior, i. e., biting and pushing. (Bowman, Id.) As a result of this maladaptive behavior she has been placed in seclusion for days at a time. (Id., N.T. 13-71). While at Pennhurst, she has lost teeth, been badly bruised and has been abused by the staff. (Id., N.T. 13-72, 13-73, 13-81). When asked about her present physical condition Nancy Beth's mother replied, "Nancy Beth will be scarred for the rest of her life." (Id., N.T. 13-94).
Plaintiff Linda Taub, who is blind in addition to being retarded, was admitted to Pennhurst in 1966 at the age of fifteen. According to her father, during her nine year residency at Pennhurst Linda received only custodial care and she experienced regression rather than growth. (Taub, N.T. 2-170). Time on the ward was spent sitting and rocking, with few activities. (Id., N.T. 2-155). During one of their visits in 1968, Linda's parents found Linda, a person capable of walking, strapped to a wheelchair by a straightjacket. A staff member explained that by strapping her into the chair, they would know exactly where Linda was. (Id., N.T. 2-152, 2-153). While at the institution, Linda was badly bruised and scarred. (Id., N.T. 2-164).

E. Voluntariness
Approximately 21 of the 45 living units at Pennhurst are locked (Matthews, Deposition at 34) to prevent individuals from leaving their living units. (Uphold, Deposition at 139). Those individuals over the age of 18 who have been "voluntarily" admitted to Pennhurst are theoretically free to leave the institution at any time. (Allen, N.T. 21-185). Those admitted on the petition of their parents are informed by their caseworker when they reach the age of 18 that they do not have to remain at Pennhurst. If the residents state that they wish to leave the institution and the staff determines that there is no place for them in the community, or believes that the individuals are not ready to go into the community, the staff will petition the courts to have the individuals committed to the institution 1311 by a court. (Id., N.T. 21-186, 21-205). Furthermore, *1311 those residents who either do not understand their alternatives, or are physically unable to indicate that they wish to leave Pennhurst, will be deemed to have consented to their continued placement at the institution. (Id., N.T. 21-210). Thus, the notion of voluntariness in connection with admission as well as in connection with the right to leave Pennhurst is an illusory concept. Few if any residents now have, nor did they have at the time of their admission, any adequate alternative to their institutionalization. As a practical matter, Pennhurst was and is their only alternative.[46]
F. Community Services in the Five County Area
Since the early 1960's there has been a distinct humanistic renaissance, replete with the acceptance of the theory of normalization for the habilitation of the retarded. Mason & Menolascino, supra note 6, at 136. The principles of normalization are an outgrowth of studies showing that those in large institutions suffered from apathy, stunted growth and loss in I. Q., and that the smaller the living unit on which the retarded individual lived, the higher the level of behavioral functioning shown by the individual. (Roos, N.T. 1-96 to 1-104). Under the principles of normalization, the retarded individual is treated as much like the non-retarded person as possible. ( Id., N.T. 1-106, 1-107). The basic tenet of normalization is that a person responds according to the way he or she is treated. (Glenn, N.T. 5-186, 5-187). The thrust of habilitation through normalization is the remediation of the delayed learning process so as to develop the maximum growth potential by the acquisition of self-help, language, personal, social, educational, vocational and recreation skills. Mason & Menolascino, supra note 6, at 139-140. The older theories of habilitating the retarded stressed protecting the individual, and were characterized by little expectation of growth. Given this lack of expectation, the individual rarely exhibited growth. However, once removed from depressing, restrictive routines, the retarded have been able to accomplish a great deal. (Dybwad, N.T. 7-160).[47]
The environment at Pennhurst is not conducive to normalization. It does not reflect society. It is separate and isolated from society and represents group rather than family living. (Hirst, N.T. 7-124). The principles of normalization have been accepted by the administration of Pennhurst and by the Department of Public Welfare, which is responsible for the administration of programs for the retarded in the five county area (Youngberg, N.T. 22-171; Rice, N.T. 26-43 to 26-45; Bilyew, N.T. 24-13; Hirst, N.T. 7-120), and the current intention of the Department of Public Welfare is to transfer all residents from Pennhurst by the early 1980's. (Rice, N.T. 28-48).
The five county area (Bucks, Chester, Delaware, Montgomery and Philadelphia) has some community facilities providing for the education, training and care of the retarded covering all ages of retardation, including the profoundly retarded with multiple handicaps. (Girardeau, N.T. 4-140, 4-141). These community facilities have been an outgrowth of the acceptance of the principle of normalization and the rejection of institutions such as Pennhurst in connection with the habilitation of the retarded.
Many individuals now living at Pennhurst could be moved immediately into the community and would be able to 1312 cope with little *1312 or no supervision. (Settle, N.T. 6-126; Hirst, N.T. 7-116). All the parties in this litigation are in
agreement that given appropriate community facilities, all the residents at Pennhurst, even the most profoundly retarded with multiple handicaps, should be living in the community. (Dybwad, N.T. 7-68).

The primary limiting factor in the transfer of Pennhurst residents to community facilities has been the failure of the Commonwealth and its subdivisions to provide sufficient living units, vocational and day care facilities and other support services at the community level. Since fiscal year 1972, only 186 Pennhurst residents have been transferred from the institution directly into community living units (Bilyew, N.T. 24-50); although 176 others were transferred from Pennhurst to other institutions during 1974 and 1975. (Clark, N.T. 21-170).
In November, 1970, Act 256 was signed by the Governor of Pennsylvania. This legislation appropriated twentyone million dollars for the purpose of planning, designing and constructing community facilities which would enable 900 Pennhurst residents to be transferred to the community. In 1971, the McDowell report was prepared at a cost of $68,000. It detailed the programs and services needed to support the 900 Pennhurst residents in the community and provided a blueprint for the implementation of the Act. (Samuels, N.T. 23-9, 23-10, 23-55). Though seven years have passed since the Act was signed, few of the facilities have become operational. The Department of Public Welfare now expects this program to be completed by 1980. (Id., N.T. 23-44). Over eighteen million dollars of this fund remains unspent but is allocated to building these facilities. (Stipulation, N.T. 7-97). As of April 25, 1977, however, only 37 Pennhurst residents have directly benefited from the Act. (Samuels, N.T. 23-80).
Comparable facilities in the community are generally less expensive than large isolated state institutions. Services can be purchased at regular rates, rather than at rates which must be paid to attract individuals to work in a setting like Pennhurst. (Conley, N.T. 11-107). The cost of running Pennhurst in 1976 was $27.8 million dollars, or $60 per resident per day. (Id., N.T. 12-28). This does not include the fair rental value of the buildings at Pennhurst (estimated at $3-$4 per resident per day). (Id., N.T. 11-114). The statewide cost of community living arrangements in Pennsylvania for 1976 was $17.64 per individual per day. (PARC Exhibit 63, 64). Program services, which 1/3 of mentally retarded individuals would need, average approximately $10 per individual per day. (Conley, N.T. 11-116, 11-117). Moreover, keeping the retarded individual in the community makes it possible for him or her to get employment. Eighty-five percent of the mentally retarded can be employed, though not all are capable of competitive employment. (Settle, N.T. 7-4). The lifetime earnings of a mildly retarded individual often exceeds $500,000. (Conley, N.T. 12-21). For those with an I.Q. between 25 and 50, 45% of men and 12% of women earn about 20% of the average wage. (Id., N.T. 12-31). When the retarded can work, the amount of financial support which society must provide decreases and the individuals may benefit society with the taxes they pay. Furthermore, the investment per individual at Pennhurst is primarily for warehousing and not for the individual's well-being or future planning, as is the case with community facilities. (Id., N.T. 11-23, 11-24).
G. County Participation
The counties presently have a financial incentive to send their retarded to Pennhurst rather than provide them with habilitation within the community. When a retarded individual is placed in a state institution, such as Pennhurst, the Commonwealth pays 100% of the costs incurred in the habilitation of the individual. However, if the individual receives services within the community, the county must provide 10% of the funds necessary to provide some of the services.
1313 *1313 Every mentally retarded individual within the Commonwealth is assigned to a Base Service Unit (BSU) which is the county unit responsible for arranging community and institutional placements and for coordinating services for the individual. (Rice, N.T. 25-67). Pennhurst residents are assigned to a BSU either on the basis of where they resided prior to admission to the institution, or where their family presently resides. Almost all of the parents of Pennhurst residents who testified stated that they had little or no contact with their child's BSU. (Hunsicker, N.T. 9-49; Taylor, N.T. 13-30). The BSU's are invited to attend their residents' annual program review, but almost never do. (Roy, N.T. 15-134; Hare, N.T. 8-176). The BSU's often fail to investigate the least restrictive alternative for the retarded individual under their charge. Placement at Pennhurst is often the only alternative presented to the committing judge at court commitment proceedings.[48]
The BSU's have been doing little to prepare Pennhurst residents to leave Pennhurst. Although the Pennsylvania Department of Public Welfare, Pennhurst staff and county officials are in complete agreement that the residents

of Pennhurst should be transferred as soon as practicable to appropriate community facilities, apparently no one has taken the initiative to accomplish this objective. (Hersh, N.T. 13-136).
The five county defendants are not in compliance with the Commonwealth's Community Living Arrangement (CLA) policy that at least 50% of the residents for these living facilities must be drawn from institutions. In contrast to other regions in the state, the counties which Pennhurst serves have a lower percentage of CLA residents drawn from institutions than from the community. (Knowlton, Deposition at 52).
IV. The Merits
This case concerns the constitutional and statutory rights of retarded persons institutionalized at Pennhurst. Our discussion herein pertains to the retarded, individuals who, because of circumstances beyond their control, are unable to function at the same educational and behavioral levels as the rest of society. It concerns solely the retarded and not persons who are mentally or emotionally ill. These are individuals who have not broken any laws, carry no contagious disease and are not in any way a danger to society. If anyone is in need of training, education and care, they are. At issue is whether the Commonwealth's system of incarcerating the retarded in an institution known as Pennhurst in any way violates their constitutional or statutory rights.
Having concluded the trial phase of the liability portion of this litigation, it has become apparent that by and large the parties share the same goals: all desire to improve the education, training and care provided the retarded in Pennsylvania and believe that Pennhurst should be closed and that all the residents should be educated, trained and cared for in the community. All agree that institutions such as Pennhurst are inappropriate and inadequate for the habilitation of the retarded. Defendants agree with plaintiffs' contention that the habilitation provided Pennhurst residents does not meet minimally acceptable professional standards. The Commonwealth in recent years has been attempting to upgrade Pennhurst and the education, training and care provided therein to its retarded residents. Moreover, the Pennsylvania Department of Public Welfare's current plans call for the transfer of all Pennhurst residents from the institution into the community (though perhaps temporarily into other institutions) by the early 1980's. Defendants contend, however, that they are neither constitutionally nor statutorily mandated to make these transfers or to upgrade the care, education and training provided at Pennhurst. It is their 1314 position that no constitutional or statutory rights have been violated. We disagree. Moreover, *1314 defendants' plans to upgrade and eventually close Pennhurst have little, if any, bearing on the issue of whether the statutory or constitutional rights of Pennhurst's retarded residents have been, or are being, violated. As the court in Welsch v. Likins, 373 F.Supp. 487, 498 (D.Minn.1974), aff'd in part, vacated and remanded in part, 550 F.2d 1122 (8th Cir. 1977), stated:
good faith is not at issue here. "[R]ather the issue is of the protection of the constitutional rights" of the residents. . . It does not suffice, therefore, to show that conditions have been upgraded at [the institution], that the situation will continue to improve in the future, and that even more achievements would be forthcoming were it not for the restrictions imposed by the legislature. It is the Court's duty, under the Constitution, to assure that every resident of [the institution] receives at least minimally adequate care and treatment consonant with the full and true meaning of the due process clause.
A. Constitutional Right to Minimally Adequate Habilitation
The Supreme Court has not as yet stated that the retarded have a constitutional right to habilitation. It has, however, discussed the right to treatment of the mentally ill. O'Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975). Donaldson had been civilly committed to a state mental hospital in 1957 and had remained there involuntarily for nearly fifteen years. Repeatedly, but without success, he had demanded his release, contending that he was neither dangerous nor mentally ill, and that even if he were mentally ill, that he should be released since the hospital had not provided him with treatment for his illness. The Donaldson holding is very narrow: "a State cannot constitutionally confine without more a nondangerous individual who is capable of surviving safely in freedom by himself or with the help of willing and responsible family members or friends." Id. at 576, 95 S.Ct. at 2494.

Donaldson allegedly was suffering from "paranoid schizophrenia", id. at 565, 95 S.Ct. 2486, and was not retarded. When dealing with the retarded, the concern is for "habilitation" rather than for "treatment".[49]
The use of the concept "habilitation" instead of "treatment" in the context of mental retardation reflects an awareness that "mental illness" is not synonymous with "mental retardation." Mental illness concerns an inability to cope with one's environment regardless of intellectual level. Mental illness can occur at any stage of life while mental retardation is considered to be a developmental disability beginning in the early years.
Mason & Menolascino, supra note 6, at 147 n. 72 (1976). Although we are convinced that the concept of "habilitation" for the retarded and "treatment" for the mentally and emotionally ill are separate and distinct concepts which should never be confused, in dealing with the question of the right of the retarded to adequate habilitation one must consider, to the extent applicable, those cases which deal with the right to treatment of the mentally ill.[50]
1315 *1315 A great deal of scholarly and judicial attention has been focused on the question of a constitutional right to treatment and habilitation since Dr. Morton Birnbaum's seminal work, The Right to Treatment, 46 A.B.A.J. 499 (1960).[51]
Rouse v. Cameron, 125 U.S.App.D.C. 366, 373 F.2d 451 (1966), was one of the first federal cases to deal with the right to treatment. Rouse had been involuntarily committed to a mental hospital following his acquittal by reason of insanity of a misdemeanor for which the maximum term of imprisonment was one year. Rouse filed a petition for habeas corpus which the district court denied, contending that he had a right to be released if he was not accorded adequate treatment. Although the Circuit Court reversed on the basis of a District of Columbia statute, Chief Judge Bazelon stated that "involuntary confinement without treatment is `shocking'", id. 125 U.S.App. D.C. at 370, 373 F.2d at 455, and noted that the purpose of involuntary hospitalization is treatment and not punishment. Id. 125 U.S.App.D.C. at 367, 373 F.2d at 452. He pointed out that a statute which provides for the mandatory commitment of an individual acquitted of a criminal offense by reason of insanity is permissible only because of its "humane therapeutic goals," and concluded that if treatment were not required under the statute, the statute might violate the Due Process, Equal Protection and Cruel and Unusual Punishment Clauses of the Constitution. Id. 125 U.S. App.D.C. at 368, 373 F.2d at 453.
Civil commitment entails a "massive curtailment of liberty". Humphrey v. Cady, 405 U.S. 504, 509, 92 S.Ct. 1048, 31 L.Ed.2d 394 (1972). The only permissible justifications for committing the mentally ill are: (1) danger to the individual, (2) danger to others, and (3) need for treatment. Jackson v. Indiana, 406 U.S. 715, 737, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972); Wyatt v. Aderholt, 503 F.2d 1305, 1312 (5th Cir. 1974). Although this Court entertains serious doubts as to whether retarded individuals should ever be subjected to "commitment", there is no doubt that under the present case law, the only possible justification for committing the retarded to an institution such as Pennhurst is to provide them with habilitation, i. e., education, training and care. Failure to provide adequate habilitation may well mean commitment for the life of the retarded individual. Welsch v. Likins, 373 F.Supp. 487, 497 (D.Minn.1974), aff'd in part and vacated and remanded in part, 550 F.2d 1122 (8th Cir. 1977). In fact, at Pennhurst the average residency is twenty-one years.
Moreover, as the Court stated in Jackson v. Indiana, 406 U.S. at 738, 92 S.Ct. at 1858, "[a]t the least, due process requires that the nature and duration of commitment bear some reasonable relation to the purposes for 1316 which the individual is committed." Since the only justifiable purpose *1316 for the commitment of the retarded is habilitation, if habilitation is not provided, the nature of the commitment bears no reasonable relation to its purpose and the individual's due process rights have been violated. Wyatt v. Aderholt, 503 F.2d 1305, 1312 (5th Cir. 1974); Donaldson v. O'Connor, 493 F.2d 507, 521 (5th Cir. 1974), vacated, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975).[52]
In Robinson v. California, 370 U.S. 660, 82 S.Ct. 1417, 8 L.Ed.2d 758 (1962), the Supreme Court held that incarceration solely on the basis of an individual's status constitutes cruel and unusual punishment. (Robinson was convicted of being a narcotics addict.) As was pointed out in Welsch:

because plaintiffs [retarded individuals] have not been guilty of any criminal offenses against society, treatment is the only constitutionally permissible purpose of their confinement, regardless of procedural protections under the governing civil commitment statute. . . . This argument rests upon the Eighth and Fourteenth Amendments, relying principally upon the Supreme Court's decision in Robinson v. California . . .. The plaintiffs in the instant action are not criminals; they are victims of uncontrollable "status."

If they are subject to "detention for mere illness 0907 without a curative program," . . . plaintiffs will be within the ambit of the Robinson proscription.

373 F.Supp. at 496. Thus, commitment of the retarded can withstand constitutional scrutiny only when it is coupled with minimally adequate habilitation. See United States v. Jackson, 179 U.S.App.D.C. 375, 385, 553 F.2d 109, 119 (1976).

Of the federal courts which have considered the right to habilitation issue in connection with involuntarily committed retarded individuals and the right to treatment of involuntarily committed mentally or emotionally ill individuals, only two reported cases have been called to our attention which denied the existence of such a constitutional right: Burnham v. Department of Public Health of the State of Georgia, 349 F.Supp. 1335 (N.D.Ga.1972), and New York State Ass'n for Retarded Children, Inc. v. Rockefeller, 357 F.Supp. 752 (E.D.N.Y.1973). Burnham was reversed by the Fifth Circuit, 503 F.2d 1319 (5th Cir. 1974), cert. denied, 422 U.S. 1057, 95 S.Ct. 2680, 45 L.Ed.2d 709 (1975), and the Rockefeller court, in approving a consent decree in that action appeared to be questioning its earlier finding of no constitutional right to treatment:

1317

Somewhat different legal rubrics have been employed in [the Donaldson, Wyatt line of] cases 0907 "protection from harm" in this case and "right to treatment" and "need for care" in others. It appears that there is no bright line separating these standards. In the present posture of this case, there is no need for the court *1317 to re-examine the constitutional standard properly applicable to Willowbrook's residents. The relief which the parties agreed to will advance the very rights enunciated in the case law since this court's 1973 ruling.

New York State Ass'n for Retarded Children, Inc. v. Carey, 393 F.Supp. 715, 719 (E.D.N.Y.1975).

The other courts which have examined the issue have all found a constitutional right to treatment or habilitation. See, e. g., Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974); Donaldson v. O'Connor, 493 F.2d 507 (5th Cir. 1974), vacated 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975); Gary W. v. Louisiana, 437 F.Supp. 1209 at 1219, (E.D. La.), modified, October 28, 1976 (involuntarily committed retarded children have a constitutional right "to a program of treatment that affords the individual a reasonable chance to acquire and maintain those life skills that enable him to cope as effectively as his own capacities permit with the demands of his own person and of his environment and to raise the level of his physical, mental and social efficiency"); Woe v. Mathews, 408 F.Supp. 419, 429 (E.D.N.Y. 1976), remanded in part, dismissed in part sub nom. Woe v. Weinberger, 556 F.2d 563 (2d Cir. 1977) ("[a]s a tentative formulation it would seem encumbent upon the State as confiner . . . to employ whatever means are necessary, including such care and treatment as are reasonably possible in the circumstance of the case, to promote the speedy release and return to liberty of the person confined."); Davis v. Watkins, 384 F.Supp. 1196, 1197 (N.D.Ohio 1974) (the court, dealing with a state facility apparently serving both mentally ill and retarded individuals held that "the State, upon committing an individual `until he regains his sanity', incurs a responsibility to provide such care as is reasonably calculated to achieve that goal."); Saville v. Treadway, 404 F.Supp. 430 (M.D.Tenn.1974) (three-judge court), consent agreement approved, 404 F.Supp. 433 (retarded individuals in state institutions have right to habilitative services); Welsch v. Likins, 373 F.Supp. 487 (D.Minn.1974), aff'd in part and vacated and remanded in part, 550 F.2d 1122 (8th Cir. 1977) (retarded individuals involuntarily committed to state institutions have a constitutional right to treatment).

The Third Circuit has not yet decided the right to treatment or habilitation question. However, in Scott v. Plante, 532 F.2d 939, 947 (1976) it reversed a district court's F.R. Civ.P. 12(b)(6) dismissal of a right to treatment claim by an involuntarily committed mentally ill patient, stating:

The Supreme Court did not reach the issue in O'Connor v. Donaldson, supra. Nor has this court considered it. It is not the kind of issue, however, which we should attempt to resolve definitively on the record that is before us. . . . It suffices for present purposes to say that it does not appear to a certainty that Scott would be entitled to no relief on his right to treatment claim under any state of facts he could prove in support of that claim. Thus, a Rule 12(b)(6) dismissal was improper.[53]
1318 We hold that when a state involuntarily commits retarded persons, it must *1318 provide them with such habilitation as will afford them a reasonable opportunity to acquire and maintain those life skills necessary to cope as effectively as their capacities permit. See Gary W. v. Louisiana, 437 F.Supp. 1209 at 1219, (E.D.La.), modified, October 28, 1976. On the basis of the evidence presented in these proceedings, we find that the retarded residents of Pennhurst have not received, and are not receiving, minimally adequate habilitation. Furthermore, on the basis of this record we find that minimally adequate habilitation cannot be provided in an institution such as Pennhurst. As the Court has heretofore found, Pennhurst does not provide an atmosphere conducive to normalization which is so vital to the retarded if they are to be given the opportunity to acquire, maintain and improve their life skills. Pennhurst provides confinement and isolation, the antithesis of habilitation. We found that Pennhurst has produced regression and in many instances has destroyed life skills possessed by its retarded residents at the time of their admission.[54] We are inclined to agree with the following comments of Mason & Menolascino, supra note 6, at 156-7 (footnotes omitted):
Although Wyatt and Welsch are significant in their recognition of the principles of normalization and the developmental model for the factual foundation of their formulation of the constitutional right to habilitation, their approach can be considered only the rudimentary beginning. The logic of normalization and the developmental model which Wyatt and Welsch recognized suggests full implementation of habilitation can only be achieved in a non-institutional setting. Institutions, by their very structure 0907 a closed and segregated society founded on obsolete custodial models 0907 can rarely normalize and habilitate the mentally retarded citizen to the extent of community programs created and modeled upon the normalization and developmental approach components of habilitation. Neither Wyatt nor Welsch fully implemented the right to habilitation in that they failed to challenge the very existence of the institution. Consequently, the two institutional characteristics most antithetical to the application of the normalization principle remain intact: segregation from the community and the total sheltering of retarded citizens in all spheres of their lives.
We wish to make it clear that our finding that the retarded at Pennhurst are being deprived of their constitutional right to minimally adequate habilitation is not limited to those residents who were court committed. Nearly fifty percent of the residents at Pennhurst did not go through court commitment procedures. They have been, and are being, deprived of minimally adequate habilitation to the same extent as those who were court committed. Moreover, as we have heretofore found, voluntariness in connection with admission and exit from Pennhurst is an illusory concept. The record in this case shows that Pennhurst residents had no practical alternative at the time of their admission and at the present time, they have no place else to go.
No constitutional mandate has been called to our attention which would require a state to provide habilitation for its retarded citizens. However, whenever a state accepts retarded individuals into its facilities, it cannot create or maintain those facilities in a manner which deprives those individuals of the basic necessities of life. In the case of the retarded, this constitutes an obligation to provide them with minimally adequate habilitation. See Welsch v. Likins, 550 F.2d 1122, 1132 (8th Cir. 1977); Nelson v. Heyne, 491 F.2d 352, 360 (7th Cir.), cert. denied, 417 U.S. 976, 94 S.Ct. 3183, 41 L.Ed.2d 1146 (1974); Vanderzeil v. Hudspeth, No. J76-262(R) at 6 (S.D.Miss., filed February 11, 1977).
1319 *1319 Once admitted to a state facility, the residents have a constitutional right to be provided with minimally adequate habilitation under the least restrictive conditions consistent with the purpose of the commitment. Eubanks v. Clarke, 434 F.Supp. 1022, 1028, (E.D.Pa.1977); J. L. v. Parham, 412 F.Supp. 112, 139 (M.D.Ga.1976) (three-judge court), appeal pending 431 U.S. 936, 97 S.Ct. 2647, 53 L.Ed.2d 253 (1977); Gary W. v. Louisiana, 437 F.Supp. 1209, (E.D. La.), modified, October 28, 1976; Woe v. Mathews, 408 F.Supp. 419, 428

(E.D.N.Y. 1976), remanded in part, dismissed in part sub nom. Woe v. Weinberger, 556 F.2d 563 (2d Cir. 1977); Suzuki v. Quisenberry, 411 F.Supp. 1113, 1132-33 (D.Hawaii 1976); Lynch v. Baxley, 386 F.Supp. 378, 392 (M.D. Ala.1974); Davis v. Watkins, 384 F.Supp. 1196, 1206 (N.D.Ohio 1974); Saville v. Treadway, 404 F.Supp. 430, 437 (M.D.Tenn. 1974); Welsch v. Likins, 373 F.Supp. 487, 502 (D.Minn.1974), aff'd in part and vacated and remanded in part, 550 F.2d 1122 (8th Cir. 1977); Morales v. Turman, 383 F.Supp. 53, 124 (E.D.Tex.1974), rev'd on other grounds, 535 F.2d 864 (5th Cir. 1976), judgment of Court of Appeals rev'd and remanded, 430 U.S. 322, 97 S.Ct. 1189, 51 L.Ed.2d 368 (1977); Wyatt v. Stickney, 344 F.Supp. 387 (M.D.Ala.1972), aff'd in part, remanded in part and decision reserved in part sub nom. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974); Lessard v. Schmidt, 349 F.Supp. 1078, 1096 (E.D.Wis.1972) (three-judge court), vacated and remanded on other grounds, 414 U.S. 473, 94 S.Ct. 713, 38 L.Ed.2d 661 (1974); Dixon v. Attorney General of the Commonwealth of Pennsylvania, 325 F.Supp. 966, 973-4 (M.D.Pa.1971) (consent decree), but see Patton v. Dumpson, 425 F.Supp. 621, 624 (S.D.N.Y.1977).[55]
The right to minimally adequate habilitation in the least restrictive alternative stems from the Supreme Court's decision in Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960), in which the Court, addressing itself to the question of permissible abridgment of constitutional liberties, stated:
even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose.
All admissions to state facilities, be it through court commitment, or otherwise, entail an infringement on fundamental rights and freedoms. See Eubanks v. Clarke, 434 F.Supp. 1022, 1028, (E.D.Pa. 1977). Because of this, due process demands that if a state undertakes the habilitation of a retarded person, it must do so in the least restrictive setting consistent with that individual's habilitative needs. As we have heretofore pointed out, isolation and confinement are counter-productive in the habilitation of the retarded. Furthermore, since the law 1320 recognizes that habilitation other than in the least restrictive setting is a violation of one's constitutional rights, *1320 there is no question that Pennhurst, as an institution for the retarded, should be regarded as a monumental example of unconstitutionality with respect to the habilitation of the retarded.[56] The Commonwealth and its subdivisions have a constitutional duty to explore and provide the least stringent practicable alternatives to confinement of retarded individuals at Pennhurst. Welsch v. Likins, 373 F.Supp. 487, 502 (D.Minn.1974), aff'd in part and vacated and remanded in part, 550 F.2d 1122 (8th Cir. 1977). On the basis of this record, we find that the Commonwealth and its subdivisions did not fulfill and are not fulfilling this constitutional obligation with respect to the retarded at Pennhurst.
B. Constitutional Right to be Free from Harm
The retarded at Pennhurst have been physically abused. Lack of adequate supervision has produced an atmosphere of danger to the residents. Occasionally, there have been incidents of staff abuse of residents, including rape and beatings. Hundreds of injuries, both major and minor, are reported every month.
Residents of state institutions for the retarded have both an Eighth and Fourteenth Amendment right to freedom from harm. Spence v. Staras, 507 F.2d 554, 557 (7th Cir. 1974); Romeo v. Youngberg, No. 76-3429 at 3 (E.D.Pa., filed June 6, 1977); Welsch v. Likins, 373 F.Supp. 487, 502-3 (D.Minn.1974), aff'd in part and vacated and remanded in part, 550 F.2d 1122 (8th Cir. 1977); New York State Association for Retarded Children, Inc. v. Rockefeller, 357 F.Supp. 752, 764 (E.D.N.Y.1973). Defendants have argued that the recent Supreme Court decision, Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977), limits the applicability of the Eighth Amendment to those convicted of crimes. Ingraham held that the use of corporal punishment in public schools did not violate the student's Eighth Amendment rights. Id. 97 S.Ct. at 1409. In reaching this result, the Court reasoned:

The schoolchild has little need for the protection of the Eighth Amendment. Though attendance may not always be voluntary, the public school remains an open institution. Except perhaps when very young, the child is not physically restrained from leaving school during school hours; and at the end of the school day, the child is invariably free to return home. Even while at school, the child brings with him the support of family and friends and is rarely apart from teachers and other pupils who may witness and protest any instances of mistreatment.
The openness of the public school and its supervision by the community afford significant safeguards against the kinds of abuses from which the Eighth Amendment protects the prisoner. In virtually every community where corporal punishment is permitted in the schools, these safeguards are reinforced by the legal constraints of the common law. Public schoolteachers and administrators are privileged at common law to inflict only such corporal punishment as is reasonably necessary for the proper education and discipline of the child; any punishment going beyond the privilege may result in both civil and criminal liability. . . . As long as the schools are open to public scrutiny, there is no reason to believe that the common law constraints will not effectively remedy and deter excess such as those alleged in this case.
Id. 97 S.Ct. at 1412 (footnote omitted). The retarded at Pennhurst have none of these safeguards. Due to their 1321 own handicaps, *1321 few of the retarded are in a position to aid or protect their fellow residents, or to complain
about their own treatment. Pennhurst is isolated and segregated from the community. The residents are not free to leave at the end of the day. In addition, few, if any, of the physically abusive incidents at Pennhurst were committed as disciplinary measures. Furthermore, the Ingraham Court specifically reserved the question of the availability of the Eighth Amendment to individuals confined in "mental" institutions. Id. 97 S.Ct. at 1411 n. 37.
As stated by Judge Judd in New York Association for Retarded Children, Inc. v. Rockefeller, 357 F.Supp. 752, 764-5 (E.D.N.Y.1973):
Since Willowbrook [an institution for the retarded] residents are for the most part confined behind locked gates, and are held without the possibility of a meaningful waiver of their right to freedom, they must be entitled to at least the same living conditions as prisoners.. . One of the basic rights of a person in confinement is protection from assaults by fellow inmates or by staff. . . . Another is the correction of conditions which violate "basic standards of human decency."
On the basis of the evidence in this record, we find that the constitutional right to be free from harm of the retarded residents at Pennhurst has been violated.
C. Constitutional Right to Non-Discriminatory Habilitation
In a three-judge decision emanating from this court, Pennsylvania Association for Retarded Children v. Commonwealth of Pennsylvania, 343 F.Supp. 279 (E.D.Pa.1972), it was legally recognized for the first time that the retarded had a constitutional right pursuant to the Equal Protection Clause of the Fourteenth Amendment to receive at least as much education and training as was being afforded by the Commonwealth to others.
As stated by Professor Burt in "Beyond the Right to Habilitation", in The Mentally Retarded Citizen and the Law 425-32 (1976):
The PARC theory can and should mean that any state program that segregates mentally retarded citizens as such from others is highly suspect and that courts will require states to treat mentally retarded persons indistinguishably from others, except in ways that are both very limited and very clearly beneficial to the individual. By this test, segregation of the mentally retarded in a remote large-scale institution could never pass constitutional muster . . ..
[E]xisting large-scale geographically remote institutions cannot by their nature provide adequate programs to remedy the intellectual and emotional shortcomings and the galling social stigma that led the retarded residents to these institutions. If this evidence is fully marshaled in litigation,

courts can . . . rule that present patterns of state segregation of retarded persons for "habilitation" or "educational" purposes are impermissible. Courts can . . . force states to close the Partlows and Willowbrooks and, even more important, to require alternative programs for mentally retarded persons which treat them as indistinguishably as possible from other persons . . ..
A powerful case can thus be mounted that courts should command states to use extraordinary effort to avoid institutionalizing retarded citizens. By this analysis, Wyatt clearly was wrong in failing to address directly the adequacy of community alternatives to geographically remote residential institutional care. In this analysis, the adequacy of in-community resources is not an afterthought. It is central to the inquiry into whether separate treatment for the mentally retarded person is not inherently unequal just as racially segregated education was found inherently unequal in Brown v. Board of Education.
In this record, the evidence has been "fully marshaled" and we find that the confinement and isolation of the 1322 retarded in the institution called Pennhurst is *1322 segregation in a facility that clearly is separate and not equal.
We are convinced that the same equal protection principles enunciated by the court in Pennsylvania Association of Retarded Children v. Commonwealth of Pennsylvania, 343 F.Supp. 279 (E.D.Pa.1972), prohibit the segregation of the retarded in an isolated institution such as Pennhurst where habilitation does not measure up to minimally adequate standards. As we have heretofore discussed in this opinion, the retarded at Pennhurst have been segregated in an institution in which they have been and are being denied minimally adequate habilitation. Thus, on the basis of this record we find that the retarded at Pennhurst have been and presently are being denied their Equal Protection Rights as guaranteed by the Fourteenth Amendment to the Constitution.
D. Pennsylvania Statutory Right to Minimally Adequate Habilitation.
The question has also been presented to the Court as to whether the residents at Pennhurst have a statutory right to minimally adequate habilitation. 50 P.S. § 4201 provides in pertinent part:
The department [of public welfare] shall have power, and its duty shall be:
(1) To assure within the State the availability and equitable provision of adequate mental health and mental retardation services for all persons who need them . . ..
This statute was first interpreted in In Re: Joyce Z., a minor child, No. 2035-69 (Common Pleas, Allegheny County, filed March 31, 1975). Joyce Z.'s caseworker petitioned the court, pursuant to 50 P.S. § 4406,[57] to commit Joyce to a state facility for care and treatment. The caseworker suggested Western State School and Hospital as a proper facility for Joyce's commitment. A commitment hearing was held at which all the witnesses, including the superintendent of the institution itself, testified that Joyce would not receive adequate treatment at Western State School and Hospital. Id. at 9. In fact, the Commissioner of Mental Retardation for the Department of Welfare, Western Region, testified that if Joyce were placed in the institution, the regression which she was presently experiencing would continue because she would not be able to interact with staff due to staff shortages. Id. at 4. In its opinion the court, in construing 50 P.S. § 4201, stated:
These are brave words. We mean to see that the State, acting through the Department of Public Welfare, abides by them.
Joyce has a right to life given to her by the Constitution of the United States; she has a right to treatment given to her by the Mental Health and Mental Retardation Act of Pennsylvania; this court may order that course of treatment best suited to meet Joyce's needs.
Id. at 10-11. (Emphasis supplied).
It is abundantly clear that the Mental Health and Mental Retardation Act, 50 P.S. §§ 4201 et seq., grants to the retarded in Pennsylvania the statutory right to minimally adequate habilitation. See Eubanks v. Clarke, 434 F.Supp. 1022, 1027 (E.D.Pa.1977); In Re Joyce Z.[58] Furthermore, it is equally clear that the Commonwealth

and the counties have been charged under the Act with the responsibility of providing such minimally adequate habilitation to the retarded. The Act envisions

1323

a comprehensive cooperative State-county (or multi-county) program for the care, treatment and rehabilitation of persons who are . . . mentally retarded . . .. The State, through the Department of Welfare, is responsible for the overall supervision and control of the program to assure the availability of and equitable provision for adequate . . mental retardation facilities, and the counties, separately or in concert, are assigned responsibilities as to particular *1323 programs. Hoolick v. Retreat State Hospital, 24 Pa.Cmwlth. 218, 221-22, 354 A.2d 609, 611 (1976). See also, 50 P.S. § 4201(8).[59]

On the basis of this record, we find that both the Commonwealth and the counties have violated their statutory obligation to provide minimally adequate habilitation to the retarded residents at Pennhurst. In particular, the Commonwealth has violated its statutory mandate to supervise and control the program of minimally adequate habilitation to these individuals.

E. Federal Statutory Right to Non-Discriminatory Habilitation

The question has also been presented whether Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, grants federal statutory rights to the retarded residents at Pennhurst which have been violated. Section 504 provides:
No otherwise qualified handicapped individual in the United States, as defined in section 706(6) of this title, shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
There is no question that the retarded are "handicapped individuals" within the meaning of the Act, 42 Fed.Reg. 22678; cf. Rhode Island Society for Autistic Children v. Board of Regents for Education for the State of Rhode Island, No. 5081 at 8 (D.R.I., filed August 1, 1975), nor is there any question that Pennhurst is a "program or activity receiving Federal financial assistance."
In enacting Section 504 of the Rehabilitation Act of 1973, Congress has in effect codified the constitutional right to equal protection. Section 504 was originally introduced in 1971-72 as a bill to include the handicapped in the Civil Rights Act of 1964. Introducing the bill in the Senate on January 20, 1972, Senator Humphrey, its primary sponsor there, said:
I introduce . . . a bill . . . to insure equal opportunities for the handicapped by prohibiting needless discrimination in programs receiving Federal financial assistance . . .. The time has come when we can no longer tolerate the invisibility of the handicapped in America . . .. I am calling for public attention to three-fourths of the Nation's institutionalized mentally retarded, who live in public and private residential facilities which are more than 50 years old, functionally inadequate, and designed simply to isolate these persons from society . . .. These people have the right to live, to work to the best of their ability 0907 to know the dignity to which every human being is entitled. But too often we keep children, whom we regard as "different" or a "disturbing influence" out of our schools and community activities altogether . . .. Where is the cost-effectiveness in consigning them to . . . "terminal" care in an institution?
These are people who can and must be helped to help themselves. That this is their constitutional right is clearly affirmed in a number of recent decisions in various judicial jurisdictions.
118 Cong. Rec. 525 (1972).
In view of our finding that the Equal Protection Clause of the Fourteenth Amendment prohibits the segregation of the retarded in an isolated institution such as Pennhurst where the habilitation provided the retarded does not meet minimally adequate standards, consistency requires that we find that the Pennhurst residents' federal

statutory right to habilitation in a nondiscriminatory manner has been violated. See Nattie T. v. Charles E. Holladay, No. DC 75-31-S (N.D.Miss., filed July 20, 1977). We hold that Section 504 confers a private right of action; that it imposes affirmative obligations on state and local governmental officials and that under Section 504 1324 unnecessarily separate and minimally inadequate *1324 services are discriminatory and unlawful. Lloyd v. Regional Transportation Authority, 548 F.2d 1277 (7th Cir. 1977); Barnes v. Converse College, 436 F.Supp. 635 (D.S.C., filed July 12, 1977); Gurmankin v. Costanzo, 411 F.Supp. 982 (E.D.Pa.1976) aff'd, 556 F.2d 184 (3d Cir. 1977); 42 Fed.Reg. 22687 (1977); cf. Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974). On the basis of this record, we find that the rights of the retarded at Pennhurst under Section 504 of the Rehabilitation Act of 1973 have been and are being violated.
V. Liability of the Individual Defendants
Plaintiffs Terri Lee Halderman, Larry Taylor, Kenny Taylor, Robert Sobetsky, Theresa Sobetsky, Nancy Beth Bowman, George Sorotos, and Linda Taub[60] are retarded individuals who resided at Pennhurst. They seek monetary damages for injuries received while at the institution from the following defendants: Frank S. Beal (Secretary of the Pennsylvania Department of Public Welfare); Stanley Meyers (Deputy Secretary for Mental Retardation, Pennsylvania Department of Public Welfare); Helen Wohlgemuth (former Secretary of the Pennsylvania Department of Public Welfare); Aldo Colautti (Executive Deputy Secretary, Pennsylvania Department of Public Welfare); Wilbur Hobbs (Deputy Secretary for Southeastern Region, Pennsylvania Department of Public Welfare); Russell Rice, Jr. (Commissioner of Mental Retardation for Southeastern Region, Pennsylvania Department of Public Welfare); C. Duane Youngberg (Superintendent of Pennhurst); Robert Smilovitz (former Assistant Superintendent of Pennsylvania); Joseph Foster (Assistant Superintendent of Pennhurst); Margaret Green (employee at Pennhurst); Betty Uphold (a supervisor on Unit 9 at Pennhurst); Alice Barton (a supervisor on Unit 7 at Pennhurst); P. E. (Pauline) Klick (charge aid on Unit 7 at Pennhurst); Dr. Parocca (a former Pennhurst physician) and Helen Francis (Director of Nursing at Pennhurst).
As the Court heretofore found, these plaintiffs did suffer serious injury during their residence at Pennhurst. However, there was no evidence introduced at trial that any one of the above named defendants was, in any way, personally involved with the physical abuses inflicted upon these residents. To the contrary, the evidence shows that the defendants acted in the utmost good faith and that they did not know nor reasonably should have known that the actions which they took, or failed to take, within the sphere of their official responsibilities were in any way violative of the rights of the retarded residents at Pennhurst. For the most part, the evidence showed that those affiliated with the administration of Pennhurst were dedicated and sincere in their efforts to habilitate the retarded who came within the sphere of their supervision. They apparently took every means available to them to reduce the incidents of abuse and injury, but were constantly faced with staff shortages. In addition, as we have already found, the administration at Pennhurst was saddled with an institution which by its very nature produced an atmosphere conducive to injury. The Court, therefore, finds that the defendants have met their burden of convincing us by a preponderance of the evidence that they are entitled to the good faith immunity from damages afforded to such officials in connection with the injuries suffered by the named plaintiffs. O'Connor v. Donaldson, 422 U.S. 563, 576-77, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975); Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975); Thompson v. Burke, 556 F.2d 231, 239-40 (3d Cir. 1977); Skehan v. Board of Trustees of Bloomsburg State College, 538 F.2d 53, 59-62 (3d Cir. 1976). We find that the individual defendants are dedicated professionals in the field of retardation who were given very little with which to accomplish the habilitation of the retarded at Pennhurst.
Accordingly, we find that there is no basis for awarding monetary damages in this case.
1325 *1325 VI. Conclusion
This opinion is in lieu of Findings of Fact and Conclusions of Law, pursuant to Rule 52(a) of the Federal Rules of Civil Procedure. As we have attempted to make clear, our Findings and Conclusions pertain solely to the retarded at Pennhurst.

For the reasons heretofore enunciated, the Court finds that the retarded at Pennhurst have been and are presently being denied certain constitutional and statutory rights in connection with their institutionalization at Pennhurst.
In an Order filed this date, we have scheduled a hearing for Friday, January 6, 1978 at 9:00 a. m. in Courtroom 10-B of this United States Courthouse, 601 Market Street, Philadelphia, Pennsylvania for the purpose of determining the appropriate relief to be granted.
ON INJUNCTIVE RELIEF
In an opinion filed on December 23, 1977, this Court made findings of fact and conclusions of law in this matter. Upon its findings, the Court held that the constitutional and statutory rights of the retarded at Pennhurst State School and Hospital ("Pennhurst") had been and are being violated. Some of the determinations made by the Court in its opinion were:
1. That when a state institutionalizes individuals because they are retarded, the United States Constitution (Eighth and Fourteenth Amendments) and the laws of Pennsylvania (50 P.S. §§ 4101 et seq.) require the state to provide such minimally adequate habilitation as will afford a reasonable opportunity for them to acquire and maintain such life skills as are necessary to enable them to cope as effectively as their capacities permit.
2. That the Rehabilitation Act of 1973, 29 U.S.C. § 794, grants rights to the retarded residents of Pennhurst, which rights have been and are being violated.
3. That the retarded at Pennhurst are not receiving minimally adequate habilitation and that such minimally adequate habilitation cannot be provided at Pennhurst because it does not provide an atmosphere conducive to normalization, which the experts all agree is vital to the minimally adequate habilitation of the retarded.
Having concluded the liability phase of this litigation, we must now determine the appropriate relief. In view of the Court's finding that institutionalization at Pennhurst is not conducive to normalization, which is vital to the habilitation of the retarded, our Order must provide that immediate steps be taken to remove the retarded residents from Pennhurst. Great caution and care must be exercised, however, to make certain that each and every retarded resident who is moved from Pennhurst can be accommodated in a community facility which will provide minimally adequate habilitation. Furthermore, the Court's Order shall not be construed to limit in any manner the use of the Pennhurst facilities from any other purpose in the future.
A hearing was held on January 6, 1978, at which the Court requested that the parties meet and attempt to agree upon a Court Order which would be acceptable to all the litigants. After meeting, the parties informed the Court that they had been unable to agree and would never be able to agree. The Court then directed that the parties submit proposed Orders detailing their views as to the appropriate relief for the Court to grant together with a memorandum pointing out what they considered unacceptable in their opponent's proposed Order.
The Order submitted by the Commonwealth defendants contained a plan which was essentially the same plan introduced by them at the trial in May, 1977. As was pointed out in this Court's opinion, the Commonwealth defendants agreed that the retarded should be removed from Pennhurst and readily admitted that the only reason that the litigation was necessary was because they wished to accomplish the closing of Pennhurst as a residence for the retarded, pursuant to their own schedule which was vague and indefinite.
1326 *1326 A final hearing was held on January 16, 1978, at which time the parties informed the Court that they did not intend to introduce any additional evidence. All the parties agreed that the record in this case contained all the evidence necessary for the Court to formulate its Order.
Accordingly, we shall this date enter an Order of judgment in favor of the plaintiffs and against the defendants, and shall mandate the appropriate injunctive relief necessary to remedy the constitutional and statutory violations which the Court in its Opinion of December 23, 1977 found are being suffered by the retarded residents at Pennhurst.

ORDER

AND NOW, this 17th day of March, 1978, pursuant to findings of fact and conclusions of law made by the Court in an Opinion filed December 23, 1977, it is hereby ORDERED that judgment is entered in favor of the plaintiffs and against the defendants, and injunctive relief is ORDERED as follows:

1. Commonwealth and county defendants, their successors, and their officers, agents, servants, employees, attorneys and all persons in active concert or participation with them are permanently enjoined to provide suitable community living arrangements for the retarded residents of Pennhurst, and those retarded persons on its waiting list, together with such community services as are necessary to provide them with minimally adequate habilitation until such time as the retarded individual is no longer in need of such living arrangement and/or community service.

2. Commonwealth and county defendants, as aforesaid, are permanently enjoined to develop and to provide a written individualized program plan, formulated in accordance with professional standards (Opinion, page 25; Roos N.T. 1-115, 1-116, Hare N.T. 8-168) to each member of plaintiff class, to provide to each an individualized habilitation program, to provide annual periodic review thereof and the opportunity to each member of plaintiff class and to his or her next friend to be heard thereon.

3. Commonwealth and county defendants, as aforesaid, are permanently enjoined to provide all necessary and proper monitoring mechanisms to assure that community living arrangements and other community services of the necessary quantity and quality are provided and maintained.

4. Commonwealth and county defendants, as aforesaid, are permanently enjoined to implement with dispatch Act 256 of the 1970 Pennsylvania General Assembly, the specific schedule to be set by further Order of this Court upon recommendation of the Master as set forth in paragraph 6(a) below.

5. The Court, on the basis of nine weeks' testimony in this case and the submissions of all parties, finds that the implementation of this Order will be impossible without the appointment of a Special Master, and, therefore, pursuant to Rule 53, Fed.R. Civ.P., and in the exercise of the Court's equitable powers, the Court shall appoint a Special Master with the power and duty to plan, organize, direct, supervise and monitor the implementation of this and any further Orders of the Court. Commonwealth and county defendants, their successors, officers, agents, servants, employees, attorneys and all persons in active concert or participation with them shall provide the Master with access to all premises, records, documents and personnel and residents and with every other cooperation and service necessary to the discharge of the Master's duties and shall make available to the Master all professional and other resources of the Department of Public Welfare, the Pennhurst State School and Hospital, the County Offices of Mental Retardation and the Base Service Units as may be necessary to execute this Court's Orders.

6. The Special Master shall prepare and present to this Court for its approval and Order a Plan of Implementation which shall include the following:

1327

(a) A plan specifying the quantity and type of community living arrangements and other community services necessary for the habilitation of all plaintiffs in the *1327 least separate, most integrated, least restrictive community setting, taking into account the existing community services in the five county area and including, by county, specification of the residential, program and staffing patterns necessary, the delineation of responsibility for their creation and maintenance, their funding and a specified time frame for their provision.

(b) A report specifying resources, procedures, and a schedule for individual evaluations and the formulation of individual exit and community program plans required for the habilitation of each member of plaintiff class and for their periodic review.

(c) A plan for the recruitment, hiring and training of a sufficient number of qualified community staff to be detailed to each Base Service Unit to manage the preparation of individual exit and

community program plans for each member of plaintiff class and upon completion of such plans to assist in the execution of the responsibility to create, develop, maintain, and monitor the community living arrangements and other services required.
(d) A plan for the creation, development and maintenance of mechanisms to monitor a system of community services to assure that community living arrangements and other community services of the necessary quality and quantity are continuously provided to retarded persons in the least separate, most integrated, least restrictive community setting, which plan shall include but shall not be limited to the provision of friend-advocates to assist in the protection of the rights of each member of plaintiff class.
(e) A plan to provide retarded people, members of the class, with continuing information concerning the effect and the implementation of the Court's decision, concerning the plans to provide all necessary community living arrangements and other community services to them and any other general or specific information regarding the conditions necessary to habilitation of retarded persons and to provide for consultation with them.
(f) A plan to provide parents and family of the members of the class with continuing information concerning the effect and the implementation of the Court's decision, concerning the plans to provide all necessary community living arrangements and other community services to their relative and any other general or specific information regarding the conditions necessary to habilitation of retarded persons and to provide for consultation with them.
(g) A plan to provide opportunities for alternative employment to each employee of Pennhurst State School and Hospital, including employment in community programs and otherwise.
7. Within not more than sixty (60) days after appointment, the Master shall file with this Court the reports required at paragraphs 6(a) and (b) above and 11 below. A hearing will then be scheduled by the Court within fifteen (15) days from the date of their filing. Following the adoption of any plan by Order of the Court, it shall be implemented forthwith.
8. The Master shall engage such staff of his or her own as he or she finds necessary, subject to the approval of the Court. The Master and his or her staff shall be compensated by commonwealth defendants at a rate to be set by the Court; the expenses of the mastership shall be borne by the commonwealth defendants. The Master shall promptly submit to the Court a form of Order with respect to these matters.
9. County defendants, as aforesaid, are hereby enjoined from recommending or in any way counselling that any individual be committed to Pennhurst, and from petitioning for the commitment of any individual to Pennhurst, and from advancing in any way any application for admission to Pennhurst, and are herewith enjoined from participating in any program or activity in connection with the placement in the future or commitment in the future of any retarded person at Pennhurst.
1328 10. Commonwealth defendants, as aforesaid, are hereby enjoined from recommending *1328 or in any way counselling that any individual be committed to Pennhurst, and from petitioning for the commitment of any individual to Pennhurst, and from advancing in any way any application for admission to Pennhurst, and are herewith enjoined from participating in any program or activity in connection with the placement in the future or commitment in the future of any retarded person at Pennhurst. Commonwealth defendants are further enjoined from providing a residence and/or habilitation at Pennhurst to any retarded person who is not as of this date a resident at Pennhurst.
11. The Special Master, as aforesaid, shall prepare and present to the Court for its Order a plan for the interim operation of Pennhurst pending its prompt replacement by community living arrangements and other community services. The plan shall address, but need not be limited to, the matters referenced in paragraphs 12-19 below, any other condition at Pennhurst which threatens the life, safety or well-being of any Pennhurst resident, and measures to assure that the interim operation of Pennhurst, including all activities therein, contributes to the prompt provision of services in the community necessary to the habilitation of each Pennhurst resident.

12. Commonwealth defendants are hereby mandated to take every precaution to prevent the physical or psychological abuse, neglect or mistreatment of any Pennhurst resident. Each and every alleged incident of abuse, neglect or mistreatment shall be promptly investigated. The manner and mechanisms of such investigations shall be developed and established by the plan referenced in paragraph 11.
13. Commonwealth defendants are hereby enjoined to exert the maximum effort in enforcing the following Department of Public Welfare regulations on the "Use of Restraints in Treating Patients/Residents" and "Personnel Rules and Institutional Policy on Acts of Abuse Against Patients/Residents" (promulgated in 7 Pennsylvania Bulletin 3199 (October 29, 1977)) which include inter alia the following requirements:
a. That mechanical restraints controlling involuntary movement or lack of muscular control due to organic conditions be employed only as part of an individual program plan, upon a finding of the program team trained in the use of such restraints, and only when necessary to 1) prevent injury to self or others, or 2) promote normative body positioning and physical functioning.
b. That restraints shall be used to control acute or episodic, aggressive behavior only when a resident is acting in such a manner as to be a clear and present danger to self or others and only when less restrictive measures and techniques have been proven to be less effective.
c. That mechanical restraints may be used only upon the order of a qualified mental retardation professional for a period not to exceed two hours; that the resident must be checked every fifteen minutes and must be examined by a physician before the initial order is renewed.
d. That chemical restraints may be administered only upon the order of a physician.
e. That seclusion (practice of placing a resident alone in a locked room) is prohibited in all cases except where it is apparent that there exists a clear and present danger to the resident, other residents or staff and all other less restrictive methods have failed or have been deemed inappropriate. (Title XIX0907ICF-MR 249.13 and State Agency Letter No. 77-30 issued December 14, 1977.)
f. That individual program plans shall require and document that all possible attempts be made at preventing assaultive behavior by positive, constructive intervention.
g. That acts of abuse by employees directed at residents are absolutely prohibited and are cause for disciplinary action including dismissal.
h. That an abusive act is any action which may cause or causes physical or emotional harm or injury and includes any willful action which violates the regulations on use of restraints.
1329 *1329 14. Commonwealth defendants are hereby enjoined from:
(a) Administering excessive or unnecessary medications to class members;
(b) Using medication as punishment, for the convenience of the staff, as a substitute for programming, or in quantities that interfere with a Pennhurst resident's functioning;
(c) Failing to ensure that only appropriately trained staff are allowed to administer drugs to residents;
(d) Failing to provide training programs to staff who administer drugs to residents. The nature of such training programs, and the qualifications to be required of staff members who administer drugs to residents shall be established in the plan;
(e) Administering drugs to residents on a p. r. n. basis. Written policies and procedures governing the safe administration and handling of medications shall be established pursuant to guidelines developed in the plan;

(f) Failing to monitor and to provide for at least monthly reviews by a physician of each resident's medications.
15. Commonwealth defendants are enjoined from failing to provide a program of medical and health related services for residents which provides accessibility, quality and continuity of care for physical illness or injury. The plan of implementation shall develop and establish detailed standards for the provision of adequate medical and health related services to residents.
16. Commonwealth defendants are hereby enjoined from failing to provide individualized adaptive wheelchairs to each physically handicapped resident who needs them. Each and every individual resident shall be immediately evaluated to ascertain the need for such equipment.
17. Commonwealth defendants are hereby enjoined from feeding any resident in the supine position or in any position less than the maximum upright position consistent with their capabilities and handicaps.
18. Commonwealth defendants are hereby enjoined from denying any resident programmed activities as punishment.
19. Commonwealth defendants are enjoined to take every precaution to keep every Pennhurst building currently housing residents clean, odorless and insect-free at all times.
20. All bulletins, memoranda, directives of official policy issued by the defendants in connection with the implementation of this Court's Order, shall, upon issuance, be sent to counsel for each of the plaintiffs.
21. Jurisdiction is retained by this Court until further Order.
[1] 50 P.S. §§ 4101 et seq., 4507, 4509.
[2] 29 U.S.C. § 794; 42 U.S.C. §§ 1983, 1986, 6010.
[3] First, Eighth, Ninth, and Fourteenth Amendments to the United States Constitution.
[4] Intelligence is generally measured through intelligence quotient tests (I.Q.), while ability to deal with social environment is measured through social quotient tests.
[5] An individual may be functioning at a retarded level due to lack of education and/or training, and once supplied with that education and/or training, may be removed from the ranks of the retarded.
[6] See, e. g., Mason & Menolascino, The Right to Treatment for Mentally Retarded Citizens: An Evolving Legal and Scientific Interface, 10 Creighton L.Rev. 124 (1976) [hereinafter cited as Mason & Menolascino].
[7] From 1860 to 1960 there had been a marked increase in the number of mentally retarded individuals residing in our nation's institutions. Since 1966, this number has been decreasing. In 1966, 99 out of every 100,000 mentally retarded individuals were institutionalized. By 1976, that number had dropped to 71 out of every 100,000. In 1976, 154,000 mentally retarded individuals were residing in state public institutions, 32,000 were in hospitals for the mentally ill and 32,000 were in private institutions of various kinds. (Roos, N.T. 1-92, 1-93).
[8] 50 P.S. § 4402 provides:
(a) Application for voluntary admission to a facility for examination, treatment and care may be made by:
(1) Any person over eighteen years of age.
(2) A parent, guardian or individual standing in loco parentis to the person to be admitted, if such person is eighteen years of age or younger.
(b) When an application is made, the director of the facility shall cause an examination to be made. If it is determined that the person named in the application is in need of care or observation, he may be admitted.

(c) Except where application for admission has been made under the provisions of section 402(a)(2) and the person admitted is still eighteen years of age or younger, any person voluntarily admitted shall be free to withdraw at any time. Where application has been made under the provisions of section 402(a)(2), only the applicant or his successor shall be free to withdraw the admitted person so long as the admitted person is eighteen years of age or younger.
(d) Each admission under the provisions of this section shall be reviewed at least annually by a committee, appointed by the director from the professional staff of the facility wherein the person is admitted, to determine whether continued care is necessary. Said committee shall make written recommendations to the director which shall be filed at the facility and be open to inspection and review by the department and such other persons as the secretary by regulation may permit. Where the admission is under the provisions of section 402(a)(2), the person admitted shall be informed at least each sixty days of the voluntary nature of his status at the facility.
[9] Larry Taylor, Kenny Taylor, Robert Sobetsky, Theresa Sobetsky, Nancy Beth Bowman, Linda Taub, and George Sorotos.
[10] On November 29, 1976, we denied defendants' motion to dismiss the United States for lack of standing. Defendants' attempt to mandamus this Court to dismiss the United States failed. Beal v. Broderick (3d Cir. 1976), cert. denied, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977).
[11] Jo Suzanne Moskowitz, Robert Hight, David Preusch, and Charles DiNolfi.
[12] 50 P.S. § 4406 provides:
(a) Whenever a person is believed to be mentally disabled, and in need of care or treatment by reason of such mental disability, and examination of such person has been made by a physician or physicians, or for any reason the examination of such person cannot be made, a petition may be presented to the court of common pleas of the county in which a person resides or is, for his immediate examination or commitment to an appropriate facility for examination, observation and diagnosis.
(1) The petition may be made by a relative, guardian, friend, individual standing in loco parentis or by the executive officer or an authorized agent of a governmental or recognized nonprofit health and welfare organization or agency or any responsible person.
(2) The petition shall set forth the facts upon which the petitioner bases his belief of mental disability and the efforts made to secure examination of the person by a physician.
(3) Said court upon consideration of such petition shall: (i) issue a warrant requiring that such person be brought before said court; (ii) fix a date for a hearing which shall be as soon as the warrant is executed, and (iii) notify the parties in interest.
(4) After hearing, said court may: (i) order an immediate examination by two physicians appointed by said court, or (ii) order the commitment of the person believed to be mentally disabled, to a facility for a period not exceeding ten days for the purpose of examination. If the examination can be accomplished by partial hospitalization said court may so direct.
(b) If, upon examination, it is determined that such person is in need of care at a facility, the examining physicians or director, as the case may be, shall immediately report to said court which may order the commitment of such person for care and treatment.
In its order of commitment, said court may permit partial hospitalization or outpatient care, or if at any time thereafter the director shall determine such partial hospitalization or outpatient care to be beneficial to the person so committed, the same may be permitted by said court upon application by the director.
The court in Goldy v. Beal, 429 F.Supp. 640 (M.D.Pa.1976) (three-judge court) found this statute unconstitutionally vague with respect to the commitment of mentally ill persons. Pennsylvania's procedure for the

involuntary commitment of mentally ill persons is now found in 50 P.S. §§ 7301-7306. The constitutionality of § 4406 as it applies to the retarded is not challenged in this litigation.
[13] Representing Bucks, Chester, Delaware, Montgomery and Philadelphia Counties.
[14] Pennhurst must satisfy both federal and state licensing standards to qualify for federal medical assistance (Title XIX funds), standards which Dr. Youngberg and Dr. Rice equated with minimally acceptable professional standards. (Rice, N.T. 27-57; Youngberg, Deposition at 27). Both the individual and the area in which he or she resides must be certified in order for the institution to qualify for funds. At Pennhurst only 16 out of the 40 living areas have been certified, though a majority of these areas have deficiencies. The deficiencies have either been waived, or Pennhurst has filed plans for correcting the deficiencies. (Pool, N.T. 18-27, 28-28). Five hundred fourteen residents live on these 16 wards and are eligible for funding. Another 600 Pennhurst residents would be eligible were they to reside on a certified ward. (Id., N.T. 17-209).
To meet medical assistance living standards, the population of Pennhurst must be reduced to 850 residents. In addition, $1,028,327 is being expended to correct Life Safety Code violations 0907the completion date of this project is December 31, 1977 (the project was awarded in December, 1975, with an original completion date of April, 1977).
To meet medical assistance care standards, Pennsylvania is planning to expend an additional $2,367,500. (Rice, N.T. 26-6). The institution is presently in jeopardy of losing its current certification if the waivers it presently has, contingent on repairs being made, are withdrawn. (Id., at 26-13, 26-14).
[15] The statistics set forth in this paragraph are taken from a systematic sampling of 10% of the resident population at Pennhurst. (PARC Exhibit 48).
[16] It is unclear what percentage of the residents have family members still living.
[17] See text following note 5, supra.
[18] It appears that the Vineland has an inherent bias against retarded individuals from age ten through twentyfive, in that social quotients over this period, as measured by the Vineland, have a tendency to decline. (Hare, N.T. 8-195, 8-196). This phenomena ceases once the individual reaches the age of twenty-five. (Id., N.T. 8-203). An analysis of those Pennhurst residents who had received at least two Vineland examinations since their twenty-fifth birthday showed an average regression of 2.3 points. (Id., N.T. 9-16).
[19] Dr. Gunnar Dybwad, who has visited institutions for the retarded in 49 states testified that Pennhurst was in the bottom category of the large residential state institutions for the retarded. (N.T. 7-62).
[20] Pennhurst is organized around the unit system and is composed of nine units, representing various levels of educational and behavioral development and physical handicap. (United States of America Exhibit 10).
[21] As defendants themselves have expressed it: "The staff at Pennhurst is a dedicated lot with precious little to work with." Commonwealth Defendants' Post-Trial Proposed Findings of Fact and Legal Arguments at 5.
[22] In his budget proposal for fiscal year 1977-78, Superintendent Youngberg requested 23 additional ward clerks, 1 additional unit secretary and 717 mental retardation aides. (Youngberg, Deposition at 42).
[23] There was no testimony that these ratios have changed dramatically in the intervening two years, though 19 professional positions have been eliminated since Dr. Clements' tour of Pennhurst. (Roos, N.T. 1-153).
[24] In 1975, 206 school age residents were enrolled in the school program operated by IU teachers. There teachers were excluded from the calculation.
[25] For example, the programming for residents on Unit 8, the unit in which the most aggressive residents reside, includes several hours per day during which the residents watch TV. Mr. Pirmann the Director of the unit, testified that this was to increase the residents' attention span and to teach them to sit and tolerate the presence of others. (N.T. 19-104, 19-105). "Programming" such as this appears to be primarily for the convenience of the staff, rather than for the benefit of the residents. (Thurman, N.T. 14-68).

[26] George Sorotos, a named plaintiff, was enrolled in speech therapy at the end of 1972. At that time, he was unable to communicate, and his program was designed to develop his communicative skills. Though initially he made progress, he soon plateaued. In August, 1973, he was switched to a manual communication program. This continued for six months, again with some initial success. During each program, he was self abusive, which the staff attributed to frustration. He was never able to use these skills for communication. George Sorotos was terminated from all speech activity because the director of the speech and hearing department determined that her time would be better spent with other residents with whom she could accomplish more. (Riggott, N.T. 20-160 to 20-164). Thus, since George Sorotos did not respond well and was self abusive, he was denied speech therapy, a skill essential for his habilitation.
Similarly, plaintiff Terri Lee Halderman was initially included in speech therapy, but because of abusive tendencies, both to herself and to others, she was dropped from the program. (Id., N.T. 20-164 to 20-166).
[27] Some residents have been on the waiting list for at least 3½ years. (Nelson, N.T. 21-27).
[28] Pennhurst does an especially inadequate job for those with motor disabilities. Dr. Lancaster-Gaye, an expert in, among other things, the management of services for severely disabled persons (N.T. 4-69), toured the institution in March, 1977 and reported that young retarded individuals who suffered from cerebral palsy were sitting on the floor in positions which would lead to physical deterioration. He stated that these individuals were receiving little physical therapy and that without such therapy, the muscles in the limbs of these youths would contract and become useless. (N.T. 4-74, 4-75).
[29] Sixty and eight-tenths percent of the residents had no mention of the community or of an exit plan in their files, and those that had some indication that the individual's eventual exit from the institution had been considered, never specified the type of placement which would be required nor who would be responsible for the individual. (Hare, N.T. 8-167).
[30] Twenty-eight and nine-tenths percent had no program plan. Those that did have some plan rarely had a precise statement of goals and objectives. (Hare, N.T. 8-166).
[31] An individual's record should contain: (1) a current comprehensive evaluation of the individual; (2) a list of short and long term goals for the individual; (3) a specific plan outlining the procedures to accomplish these goals. The program should also provide for on-going monitoring, periodic re-evaluations of the individual, and periodic modifications of the objectives and procedures to reflect the findings of the re-evaluations. (Roos, N.T. 1-115, 1-116).
[32] Decreasing the population to 850 is contingent on an increase in funds appropriated by the Pennsylvania legislature, along with an ambitious placement program 0907 unfortunately much of this placement is from one institution (Pennhurst) to other institutions rather than to the community.
[33] Restraints can be either physical or chemical. The physical restraints range from placing the individual into a seclusion room to binding the person's hands or ankles with muffs or poseys, and binding the individual to a bed or a chair. Chemical restraints are usually psychotropic (i. e., tranquilizing) drugs.
[34] The seclusion rooms at Pennhurst are small rooms generally with one window and one door. The walls are masonry, the floors either tile or terrazzo 0907 both hard surfaces. None of the rooms are padded. Many have exposed radiators, and other potentials for danger to the resident placed within it. (Youngberg, Deposition at 69; Lowrie, N.T. 4-183 to 4-190).
[35] One young male resident had a tendency to run away from the institution. When he was given one-to-one interaction with staff, he would not attempt to run away. When the program of one-to-one interaction was dropped due to staff shortages, he again began running away. He was warned that he would be put on a locked ward if his behavior continued, and he became abusive to staff. As a result of this behavior, he was put into a seclusion room. (Foster, N.T. 22-44 to 22-46).
[36] In 1972, an eleven year old child strangled to death when tied to a chair in "soft" restraints. (Lowrie, N.T. 4-133 09074-135).

[37] Until March, 1977, Pennhurst had no written policy against the use of PRN orders ("pro re nata" or "as needed") for restraints or seclusion. In its most extreme form, a doctor would prescribe a restraint or seclusion for a patient to be administered in the discretion of a direct care aide or a nurse. (Boyle, N.T. 17-93, 17-94). At best, the doctor would be called prior to administration of the drug, but he or she seldom personally visited the resident either before or shortly after the medication or physical restraint was administered. (Boyle, Deposition at 22).
[38] "Psychopharmacology" is the area of study dealing with prescription medicines that are prescribed for mind alteration for behavior control. (Sprague, N.T. 3-12, 3-13).
[39] Dr. Sprague testified that at a state institution in Georgia serving the most severely retarded individuals, only 25% of the residents were on drugs. (N.T. 3-38).
[40] A survey conducted by Dr. Betty Hare revealed that 34% of the individuals in the group surveyed had some notation of regression in their records. (PARC Exhibit 53, Hare, N.T. 8-167). Those "skills" which are learned at Pennhurst are often antisocial. (Roos, N.T. 1-139; Clements, N.T. 2-84).
[41] Direct care aides testified that there was no soap or towels in the toilet areas because when placed there, the residents stuffed them down the toilets. (Roy, N.T. 15-108). These same aides also testified, however, that no programming had been conducted to try to negate this behavior. (Id., N.T. 15-127).
[42] This figure includes injuries due to self-abuse and to accidents.
[43] Terri Lee Halderman's medical records contain a listing of over forty reported injuries.
[44] Since January, 1976, they have been residing at Woodhaven, a Pennsylvania institution for the mentally retarded run by Temple University.
[45] The Caranfas were made George Sorotos' foster parents when he was six weeks old. Sometime after he entered Pennhurst, the agency which had supervision over George removed them as his foster parents. They still consider him as one of their family and have continued their visits. (Caranfa, N.T. 12-62, 12-105).
[46] Nearly all the parents of Pennhurst residents who testified stated that they placed their children in Pennhurst only as a last resort, and had there been community facilities or aid programs, their children would not have been placed at Pennhurst. (Sobetsky, N.T. 9-142; Hight, N.T. 11-21).
[47] Mrs. Grace Auerback testified concerning the changes she has observed in her son, Sid, since his transfer from Pennhurst into a community home in 1973. While at Pennhurst, he was subdued and never talked; now, she testified, you cannot stop him. He is now able to cook, work and keep his own bank account. She testified that Sid had learned more in the last 3½ years while in the community than he had in the 38 years that he had resided at Pennhurst. (N.T. 8-47, 8-48, 8-49, 8-51).
[48] One Philadelphia BSU made a referral to Pennhurst for a child it had decided needed a structured environment with one-to-one interaction, even though it knew that the individual would not receive such individualized treatment at Pennhurst. (Cooper, N.T. 29-74).
[49] Often, those courts which have dealt with mentally ill and retarded individuals have blurred the issues involved. The "right to treatment" is frequently used in conjunction with the retarded, when in fact, these individuals are not in need of medical treatment, but of education and training. In part, this blurring is due to the fact that some of the cases involved several facilities, some for the retarded and some for the mentally ill, see, e. g., Wyatt v. Stickney, 325 F.Supp. 781 (M.D.Ala.1971) (mentally ill), 344 F.Supp. 387 (M.D.Ala.1972) (retarded), and others involved a single facility serving both retarded and mentally ill individuals, see e. g., Davis v. Watkins, 384 F.Supp. 1196 (N.D.Ohio 1974).
[50] Of course, as the Supreme Court has noted, "careful attention must be paid to the differences between mentally ill and mentally retarded . . .." Kremens v. Bartley, 431 U.S. 119, 135, 97 S.Ct. 1709, 1718, 52 L.Ed.2d 184 (1977). However, as one court has noted: "[i]n the context of the right to appropriate care for people civilly confined to public mental institutions, no viable distinction can be made between the mentally ill and the mentally

retarded." Wyatt v. Stickney, 344 F.Supp. 387, 390 (M.D.Ala.1972), aff'd in part, rev'd in part and remanded in part sub nom. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974).
[51] Dr. Birnbaum wrote:
It is proposed . . . that the courts under their traditional powers to protect the constitutional rights of our citizens begin to consider the problem of whether or not a person who has been institutionalized solely because he is sufficiently mentally ill to require institutionalization for care and treatment actually does receive adequate medical treatment so that he may regain his health, and therefore his liberty, as soon as possible; that the courts do this by means of recognizing and enforcing the right to treatment; and, that the courts do this independent of any action by any legislature, as necessary and overdue development of our present concept of due process of law. 46 A.B.A.J. at 503.
See, e. g.: Mason & Menolascino, supra note 6; Developments in the Law 0907 Civil Commitment of the Mentally Ill, 87 Harv.L.Rev. 1190 (1974); Herr, Civil Rights, Uncivil Asylums and the Retarded, 43 Cin.L.Rev. 679 (1974); Drake, Enforcing the Right to Treatment; Wyatt v. Stickney, 10 Amer.Crim.L.Rev. 587 (1972); Case Comment, Wyatt v. Stickney and the Right of Civilly Committed Mental Patients to Adequate Treatment, 86 Harv.L.Rev. 1282 (1973); Note, The Wyatt Case: Implementation of a Judicial Decree Ordering Institutional Change, 84 Yale L.J. 1338 (1975); Hoffman and Dunn, Beyond Rouse and Wyatt: An Administrative-Law Model for Expanding and Implementing the Mental Patient's Right to Treatment, 61 Va.L.Rev. 297 (1975).
[52] As heretofore pointed out, the Supreme Court's decision in Donaldson was very narrow; the Court did not pass upon the issue of the right to treatment or habilitation. The Court vacated the Fifth Circuit's broad holding and stated: "[o]f necessity our decision vacating the judgment of the Court of Appeals deprives that court's opinion of precedential effect, leaving this Court's opinion and judgment as the sole law of the case." 422 U.S. 563, 577 n. 12, 95 S.Ct. 2486, 2495, 45 L.Ed.2d 396 (1975). Prior to the Supreme Court's decision, the Fifth Circuit rendered a second right to treatment decision which relied heavily on its Donaldson opinion, Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974), which like Donaldson was authored by Judge Wisdom. At least one commentator suggests "that Wyatt is still good law, thus leaving the right to treatment issue where it was before." "What More": A Constitutional Right to Treatment? 22 Loyola L.Rev. 373, 383 (1976). In support of this proposition, it should be noted that four days after deciding Donaldson, the Supreme Court denied certiorari in yet another Fifth Circuit right to treatment case. The Department of Human Resources of the State of Georgia v. Burnham, 422 U.S. 1057, 95 S.Ct. 2680, 45 L.Ed.2d 709 (1975). In Burnham, the district court had found that there was no constitutional right to treatment. 349 F.Supp. 1335 (N.D.Ga.1972). The Fifth Circuit reversed on the basis of its Donaldson and Aderholt decisions. 503 F.2d 1319 (5th Cir. 1974). Even though the Supreme Court had vacated the Donaldson decision only four days before, it denied certiorari in Burnham, apparently allowing Aderholt, with its holding of a constitutional right to treatment to remain as the law of the Fifth Circuit.
[53] The constitutional right to treatment and habilitation has been extended to include other classes of involuntarily committed non-criminal offenders. See, e. g., McRedmond v. Wilson, 533 F.2d 757 (2d Cir. 1976) (wayward juveniles who have been institutionalized have a constitutional right to treatment); Nelson v. Heyne, 491 F.2d 352, 358 (7th Cir.), cert. denied, 417 U.S. 976, 94 S.Ct. 3183, 41 L.Ed.2d 1146 (1974) (juveniles who were involuntarily committed0907one-third for non-criminal offenses 0907 to a correctional institution have a constitutional right to rehabilitative treatment); Pena v. New York State Division for Youth, 419 F.Supp. 203, 207 (S.D.N.Y.1976) ("this court finds that the detention of a youth under a juvenile justice system absent provision for the rehabilitative treatment of such youth is a violation of due process rights guaranteed under the Fourteenth Amendment."); see also, Morgan v. Sproat, 432 F.Supp. 1130, 1136 (S.D.Miss.1977); Morales v. Turman, 383 F.Supp. 53, 124 (E.D.Tex. 1974), rev'd on other grounds, 535 F.2d 864 (5th Cir. 1976), judgment of Court of Appeals rev'd and remanded, 430 U.S. 322, 97 S.Ct. 1189, 51 L.Ed.2d 368 (1977); Inmates of Boys' Training School v. Affleck, 346 F.Supp. 1354, 1372 (D.R.I.1972); Stachulak v. Coughlin, 364 F.Supp. 686 (N.D.Ill.1973); and Martarella v. Kelley, 349 F.Supp. 575, 600 (S.D.N.Y.1972).
[54] There has been no evidence introduced that any of the plaintiffs were committed to Pennhurst because they posed a danger to society, and, thus, we are not faced with that issue in this case. Moreover, as we have heretofore pointed out, the retarded pose no danger of physical harm to society. Retarded individuals who suffer

from emotional and mental problems may pose a danger to society; however, these are due to mental and emotional problems which do not come within the purview of this opinion.
[55] The Patton court was troubled by the fact that in Sanchez v. New Mexico, 396 U.S. 276, 90 S.Ct. 588, 24 L.Ed.2d 469 (1970), the Supreme Court dismissed an appeal from a case which had rejected the least restrictive alternative for "want of a substantial federal question." For the precedential effect of a summary dismissal for want of a substantial federal question See Mandel v. Bradley, 432 U.S. 173, 97 S.Ct. 2238, 2240, 53 L.Ed.2d 199 (1977) ("Summary actions, however . . . should not be understood as breaking new ground but as applying principles established by prior decisions to the particular facts involved.") Moreover, the constitutional right to treatment and habilitation is a newly developed area of the law. Nearly all of the federal cases dealing with a constitutional right to treatment for mentally ill individuals and a constitutional right to habilitation for retarded individuals have arisen since Sanchez. See, e. g., O'Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975); Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974); Welsch v. Likins, 373 F.Supp. 487 (D.Minn.1974), aff'd in part and vacated and remanded in part, 550 F.2d 1122 (8th Cir. 1977). We feel that when the Court next examines the issue, it will find that there is such a constitutional right. See Welsch, 373 F.Supp. at 501-2; Lynch, 386 F.Supp. at 392. See also, Developments in the Law 0907 Civil Commitment of the Mentally Ill, 87 Harv.L.Rev. 1190, 1247-8 (1974).
[56] Moreover, habilitation in the least restrictive setting answers one of Chief Justice Burger's concerns, expressed in his concurrence in Donaldson, with respect to a constitutional right to treatment. His concern is that a state constitutionally might be able to justify indiscriminate confinement of individuals merely by providing treatment. O'Connor v. Donaldson, 422 U.S. 563, 589, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975). Since a state cannot constitutionally confine an individual in other than the least restrictive setting consistent with that individual's habilitative needs, it cannot confine a retarded person in a Pennhurst-like institution if that individual could benefit from habilitation in a less restrictive setting.
[57] See supra note 12.
[58] Cf. Janet D. v. Carros, 240 Pa.Super. 291, 362 A.2d 1060 (1976) (Juvenile Court Act, 11 P.S. §§ 50-101 et seq., provides civilly committed juveniles a right to treatment).
[59] The counties also have the power to establish "[a]ny other service or program designed to prevent . . . the necessity of admitting or committing the mentally disabled to a facility." 50 P.S. § 4301(e)(3).
[60] Mr. Taub testified that neither he nor his daughter, Linda, seek monetary damages despite the allegation in the complaint to the contrary.
Save trees - read court opinions online on Google Scholar.

 
 612 F.2d 84 (1979)

Terri Lee HALDERMAN, a retarded citizen, by her mother and guardian, Winifred Halderman; Larry Taylor, a retarded citizen, by his parents and guardians, Elmer and Doris Taylor; Kenny Taylor, a minor, a retarded citizen, by his parents and guardians, Elmer and Doris Taylor; Robert Sobetsky, a minor, a retarded citizen, by his parents and guardians, Frank and Angela Sobetsky; Theresa Sobetsky, a retarded citizen, by her parents and guardians, Frank and Angela Sobetsky; Nancy Beth Bowman, a retarded
citizen, by her parents and guardians, Mr. and Ms. Horace Bowman; Linda Taub, a retarded citizen, by her parents and guardians, Mr. and Mrs. Allen Taub; George Sorotos,
a minor, a retarded citizen by his foster parents, William and Marion Caranfa, all of the above individually and on behalf of all others similarly situated; the Parents and Family
Association of Pennhurst Pennsylvania Association for Retarded Citizens, Jo Suzanne Moskowitz, a minor, by her parents and next friends, Leonard and Nancy Moskowitz, Robert Hight, a minor, by his parents and next friends, John and Jeanne Hight, David Preusch, a minor by his parents
and next friends, Calvin and Elizabeth Preusch, and Charles DiNolfi, on behalf of themselves and all others similarly situated, Plaintiffs-Intervenors United States of America, Plaintiff-Intervenor v.
PENNHURST STATE SCHOOL & HOSPITAL, Department of Public Welfare of the Commonwealth of Pennsylvania, Frank S. Beal, Secretary of the Department of Public Welfare, Stanley Meyers, Deputy Secretary for Mental Retardation, Department of Public Welfare, Helene Wohlgemuth, Former Secretary, Department of Public Welfare, Aldo
Colautti, Executive Deputy Secretary, Department of Public Welfare, Wilbur Hobbs, Deputy Secretary for Southeastern Region, Department of Public Welfare, Russell Rice, Jr., Commissioner of Mental Retardation for Southeastern Region, Department of Public Welfare, C. Duane Youngberg, Superintendent, Pennhurst State School & Hospital, Robert Smilovitz, Former Assistant Superintendent, Pennhurst State School & Hospital, Joseph Foster, Assistant Superintendent, Pennhurst State School & Hospital, Margaret Green, Betty Uphold, Alice Barton, P. E. Klick, Dr. Parocca, Helen Francis, employees and agent
of Pennhurst State School & Hospital, John Doctor, James Nurse, Jane Aide, Jill Therapist, Richard Roe, Jane Doe, unknown and unnamed staff, employees and agents of Pennhurst State School & Hospital, each individual Defendant sued individually and in his
or her official capacity, George Metzger, Joseph Catania, and Roger Bowers, Commissioners for Bucks County, Robert Strebl, Earl Baker, and Leo McDermott, Commissioners for Chester County, Faith R. Whittlesey, Charles Keeler and William Spingler, Commissioners for Delaware County, A. Russell Parkhouse, Frank W. Jenkins and Lawrence H. Curry, Commissioners for Montgomery County, Mayor Frank L. Rizzo and the City Council of Philadelphia, as Authorities for Philadelphia County, Peter Bodenheimber, Mental Health/Mental Retardation Administrator for Bucks County, William A. McKendry, Mental Health/Mental Retardation Administrator for Chester County, P. Paul Burrichter, Mental Health/Mental Retardation Administrator for Delaware County, Hermann A. Roether, Mental Health/Mental Retardation Administrator for Montgomery County, and Leon Soffer, Mental Health/Mental Retardation Administrator for Philadelphia County, Commonwealth of Pennsylvania, Defendants Pennhurst State School & Hospital, Department of Public Welfare of the Commonwealth of Pennsylvania, Frank S. Beal,

Stanley Meyers, Helene Wohlgemuth, Aldo Colautti, Wilbur Hobbs, Russell Rice, Jr., C.

85

Duane *85 Youngberg, Robert Smilovitz, Joseph Foster, Margaret Green, Betty Uphold,

Alice Barton, P. E. Klick, Dr. Parocca, and Helen Francis, Appellants in No. 78-1490

George Metzger, Joseph Catania, and Roger Bowers, Commissioners for Bucks County,

and Peter Bodenheimber, Mental Health/Mental Retardation Administrator for Bucks

County, Robert G. Strebl, Earl M. Baker, and Leo McDermott, Commissioners for Chester

County, and William A. McKendry, Mental Health/Mental Retardation Administrator for

Chester County, Faith Ryan Whittlesey, Charles C. Keller, and William A. Spingler,

Commissioners for Delaware County, and P. Paul Burrichter, Mental Health/Mental

Retardation Administrator for Delaware County, and A. Russell Parkhouse, Frank W.

Jenkins, and Lawrence H. Curry, Commissioners for Montgomery County, and Hermann

A. Roether, Mental Health/Mental Retardation Administrator for Montgomery County,

Appellants in No. 78-1564

Mayor Frank L. Rizzo, the City Council of Philadelphia, and Leon Soffer, Appellants in No.

78-1602.

Nos. 78-1490, 78-1564 and 78-1602.
United States Court of Appeals, Third Circuit.
Argued January 9, 1979. Reargued September 6, 1979. Decided December 13, 1979. As Amended December 19, 1979.
867 *86 *87 Norman J. Watkins (argued), Deputy Atty. Gen., Dept. of Justice, Chief, Civil Litigation, Harrisburg, Pa., for Commonwealth, appellants in No. 78-1490.
88 *88 David Ferleger (argued), Philadelphia, Pa., for appellees, Terri Lee Halderman, et al.
Robert B. Hoffman, Deputy Atty. Gen., Gerald Gornish, Acting Atty. Gen., Pa. Dept. of Justice, Harrisburg, Pa., for Commonwealth appellants.
Thomas M. Kittredge (argued), Morgan, Lewis & Bockius, Philadelphia, Pa., for the Suburban County, appellants in No. 78-1564.
Robert N. DeLuca, U. S. Atty., Philadelphia, Pa., Drew S. Days, III (argued), Asst. Atty. Gen., Brian K. Landsberg, Frank D. Allen, Jr., Arthur E. Peabody, Jr., Attys., Dept. of Justice, Washington, D. C., for United States; Jaime Fernandez, Atty., Dept. of Health, Ed. and Welfare, Washington, D. C., of counsel.
Sheldon L. Albert, City Sol., Theodore H. Lunine, Deputy City Sol., Joseph M. Davidson, Asst. City Sol., Marc H. Myers (argued), Asst. City Sol., Philadelphia, Pa., for City of Philadelphia, appellants in No. 78-1602.
Stephen A. Sheller (argued), Bruce M. Ludwig, Philadelphia, Pa., for The Pennhurst Parents-Staff Ass'n, et al., amicus curiae.
Thomas K. Gilhool (argued), Frank J. Laski, Edward A. Stutman, Public Interest Law Center of Philadelphia, Philadelphia, Pa., for appellees Pennsylvania Ass'n for Retarded Citizens, et al.; Michael Churchill, James J. Raggio, Philadelphia, Pa., of counsel.
James D. Crawford (argued), Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., for amici curiae, Nat. Ass'n for Retarded Citizens, United Cerebral Palsy Ass'n, Inc. and Epilepsy Foundation of America.
Richard Kirschner, Robert C. Cohen, Markowitz & Kirschner, Philadelphia, Pa., for amicus curiae.
Before SEITZ, Chief Judge, and GIBBONS and HIGGINBOTHAM, Circuit Judges.

Before SEITZ, Chief Judge, and ALDISERT, GIBBONS, ROSENN, HUNTER, WEIS, GARTH, HIGGINBOTHAM and SLOVITER, Circuit Judges.
Reargued en banc September 6, 1979.
Argued Jan. 9, 1979.
Before SEITZ, Chief Judge, and GIBBONS and HIGGINBOTHAM, Circuit Judges.
Reargued en banc Sept. 6, 1979.
Before SEITZ, Chief Judge, and ALDISERT, GIBBONS, ROSENN, HUNTER, WEIS, GARTH, HIGGINBOTHAM and SLOVITER, Circuit Judges.
OPINION OF THE COURT
GIBBONS, Circuit Judge:
This is an appeal from an order granting class action injunctive relief against the continued maintenance of Pennhurst State School and Hospital (Pennhurst), a facility for the care and training of persons suffering mental retardation. Located in Spring City, Pennsylvania, Pennhurst is operated under the direction of the Pennsylvania Department of Public Welfare. The appellants are Pennhurst, its superintendent and various other officials of the Commonwealth of Pennsylvania responsible for the operation of Pennhurst (the Commonwealth defendants), and five counties in southeastern Pennsylvania from which mentally retarded persons are admitted to Pennhurst (the County defendants).[1] The appellees are the original and intervening plaintiffs, described more fully below. We affirm the trial court's finding of liability, and modify in part the court's decree.
I. PROCEEDINGS BELOW
The action commenced on May 30, 1974, when Terri Lee Halderman, a minor retarded resident of Pennhurst, for herself and all other Pennhurst residents, filed a complaint against the Commonwealth defendants. The complaint alleged that the residents, all of whom are mentally retarded, live in inhumane and dangerous conditions, are subjected to unnecessary physical restraints, are given unnecessary and dangerous medication, 89 are consigned to lives of idleness *89 because of lack of habilitative programs, and are subjected to numerous physical injuries resulting from a lack of adequate supervision. The complaint further charged that the regimen of Pennhurst caused Halderman and her class to deteriorate and regress emotionally, intellectually, and physically. The conditions to which residents were subjected, she claimed, denied the class members due process and equal protection of the law, and inflicted on them cruel and unusual punishment. Halderman sought both injunctive relief against the conditions at Pennhurst and money damages for past injuries.
In November 1974, the United States moved pursuant to Rule 24, Fed.R.Civ.P. 24, to intervene as a plaintiff. Its complaint sought injunctive relief against the Commonwealth defendants, citing the same conditions about which Halderman had complained. The Commonwealth defendants opposed intervention by the United States, but it was granted on January 17, 1975.[2]
On June 3, 1975, the Pennsylvania Association for Retarded Citizens (PARC) and several additional mentally retarded residents of Pennhurst moved to intervene. Like the United States, PARC and the additional individual plaintiffs sought only injunctive relief and proceeded only against the Commonwealth defendants.
Thereafter PARC and Halderman amended their complaints to seek relief, not only against the Commonwealth defendants, but also against the County defendants, who it was alleged, were responsible for the commitment of the mentally retarded to Pennhurst and also for the lack of local community facilities, access to which the class

members were entitled. In the amended complaint the PARC and Halderman plaintiffs alleged violations of various rights arising under the eighth and fourteenth amendments of the United States Constitution; under section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1976); under the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. §§ 6001-6081 (1976); under the Pennsylvania Mental Health and Mental Retardation Act of 1966, Pa.Stat.Ann. tit. 50, §§ 4101-4704 (Purdon 1969). The district court, on November 29, 1976, denied motions to dismiss filed by the various defendants, and entered an order determining that the action should be maintained as a class action, the class consisting of "all persons who as of May 30, 1974, and at any time subsequent, have been or may become residents of Pennhurst. ..." This included, besides current residents of the institution, all mentally retarded residents of the five counties of southeastern Pennsylvania who might in the future be placed in Pennhurst.
After extensive pretrial discovery, trial of the action commenced on April 18, 1977, and continued until June 13, 1977. On December 23, 1977, the trial judge made findings of fact and conclusions of law holding that the defendants were violating the rights of members of the mentally retarded class secured to them by section 504 of the Rehabilitation Act of 1973, by the Pennsylvania Mental Health and Mental Retardation Act of 1966, Pa.Stat.Ann. tit. 50, §§ 4101-4704 (Purdon 1969), by the due process and equal protection clauses of the fourteenth amendment, and by the eighth amendment prohibition against cruel and unusual punishment.[3] The court held that the mentally retarded have a federal statutory right to nondiscriminatory habilitation, a Pennsylvania statutory right to minimally adequate habilitation, and federal constitutional rights to nondiscriminatory habilitation, freedom from harm, and adequate treatment by the least restrictive means. Each of these rights was found to have been violated by the conditions of confinement at Pennhurst. Thereafter, on 90 January 6, 1978, the court held a separate hearing *90 on relief. The court requested that the parties meet and attempt to agree upon an order satisfactory to all the litigants. After meeting, the parties informed the court that they could not, and would not be able to, agree on an order. The court then asked the parties to submit separate proposed orders.
On March 17, 1978, the court issued the order from which these appeals were taken.[4] The court ordered that Pennhurst eventually be closed and suitable community living arrangements and necessary support services provided for all Pennhurst residents (approximately 1200); that individualized program plans be developed for each resident with the participation of each class member or his next friend at the formulation and implementation stages; and that plans for the removal of Pennhurst residents to appropriate community based mental retardation programs, meeting individual needs and structured in the least restrictive, most integrated setting, be developed and submitted to the court. The order also provided for the appointment of a Special Master to supervise the planning and implementation of arrangements for placing Pennhurst residents elsewhere, and for the operation of Pennhurst until such placements were accomplished. It enjoined the County defendants from recommending future commitments of mentally retarded persons to Pennhurst, and forbade the Commonwealth defendants from placing additional persons there. It also established a "friend-advocate" program to represent the class members in monitoring the provision of community living arrangements. During the period of gradual phase-out of Pennhurst as a home for the mentally retarded, the Commonwealth defendants were ordered to take steps to prevent any recurrence of some of the more egregious abuses of residents which the court found to have occurred in the past. The order further empowered the Master to establish a plan to provide alternative employment for all Pennhurst employees. An application for a stay of the March 17, 1978 order was denied by the district court,[5] and a panel of this court denied a stay pending appeal.
A panel of this court heard argument in the case on January 9, 1979. When no single opinion could command majority support, the case was set down for en banc disposition. Thereafter, renewed motions for a stay pending appeal were considered by the court en banc and on August 6, 1979, the court reserved judgment thereon, except that the order appealed from was "stayed to the extent that it shall not apply to transfers out of Pennhurst of any resident whose parents or guardian fails to sign a written consent to such transfer." In other respects, its implementation has gone forward pending appeal.

II. UNITED STATES INTERVENTION
The Commonwealth defendants, relying on United States v. Solomon, 563 F.2d 1121 (4th Cir. 1977), contend that the court erred in permitting the United States to intervene as a plaintiff. In Solomon the United States filed a complaint charging the State of Maryland with violating the rights of mentally retarded residents of the Rosewood State Hospital. The district court dismissed the action, holding that the United States lacked authority to bring it. The Fourth Circuit affirmed. In the instant case, equating intervention under Rule 24 with the original action in Solomon, the Commonwealth defendants urge that Solomon be followed and intervention by the United States disapproved. Of course, since the Halderman and PARC appeals defend the order appealed from on all the same grounds that the United States does, the resolution of the federal government's right to participate has no effect on the merits of the appeal. But its standing as an intervenor would determine the standing of the United States to seek or oppose Supreme Court review. Thus it is appropriate that we address that question.
91 *91 In Solomon the Fourth Circuit acknowledged the numerous federal statutes evidencing a federal interest in, concern for, and activity with respect to the mentally retarded.[6] It pointed out that no statute expressly authorized the United States to bring suit to challenge the alleged deprivation of the rights of the retarded. Reviewing and purporting to distinguish numerous cases sustaining the authority of the United States to sue in the absence of such express statutory authorization,[7] the court said:
[W]e decline to hold that in the absence of specific authority the United States may sue in the instant case. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 [, 72 S.Ct. 863, 96 L.Ed. 1153] (1952)0907the so-called "Steel Seizure Case" is 0907 one of the reasons for our decision. It raised the question of whether the President had the authority to seize the nation's steel industry in an effort to prevent a crippling steel strike during the Korean War. Because the President had no statutory or constitutional authority to seize the mills, the Court held that the seizure was illegal and improper.
The case is important here because of the light that it sheds on the doctrine of separation of powers.
563 F.2d at 1128.
We do not find persuasive the Solomon court's analogy between President Truman's nonjudicial seizure of the steel mills by military force and a judicial proceeding to obtain injunctive relief enforcing legislative policies in aid of the mentally retarded. There is all the difference in the world for separation of powers purposes between a naked exercise of executive power and executive branch resort to the judicial branch for relief which Congress has not expressly prohibited. The President is, after all, charged with the responsibility to "take Care that the Laws be faithfully executed ..." U.S.Const. art. II, § 3. When, in an effort to do so, he resorts to an Article III court under a recognized grant of federal jurisdiction such as 28 U.S.C. § 1345, and that court finds no legislative 92 prohibition against that resort, the lawsuit cannot reasonably *92 be seen as an invasion of the powers of Congress. Before relief can be given in such a suit, one branch, the executive, must seek it, while a second branch, the judiciary, must agree that it is authorized by the law promulgated by a third branch. If the judiciary has, in an individual case, misconstrued the law, Congress can, constitutional pronouncements aside, change the rule for the future. If Congress wishes to withhold from the executive branch the civil remedies available under the Federal Rules of Civil Procedure, it can by specific legislation say so. Thus, we find unconvincing the separation of powers argument invoked by the Solomon court to reject executive branch enforcement of federal law.[8]
In this case, however, we need not decide whether absent the Halderman action the United States could independently have sued. The suit was already pending. Moreover, in its constitutional dimensions the suit was expressly authorized by 42 U.S.C. § 1983. We hold that the initial plaintiffs have standing to enforce federal statutory claims as well. See p. 95 infra. Thus Congress has made the decision that someone could seek the injunctive relief in question. Intervention presented no danger that the federal executive would be initiating a

lawsuit that Congress somehow never intended. Intervention was sought pursuant to Rule 24, Fed.R.Civ.P. 24, and there was ample justification for permitting it. Under Rule 24(b)(2), a district court may allow intervention when an applicant's claim or defense and the main action have common questions of law or fact. Rule 24(b) makes specific provision for intervention by governmental agencies interested in statutes, regulations, or agreements relied upon by the parties in the action. Here, as noted below, there is extensive federal legislation directed toward the well-being of the mentally retarded. Several executive branch agencies, especially the Department of Health, Education and Welfare (HEW), have important responsibilities under that legislation. Large amounts of federal funds flow to Pennsylvania from the federal government, and the United States is vitally interested in the enforcement of the conditions on which those grants are made. One such condition is compliance with governing federal law. Had the United States sought to do so, it could have brought suit to enforce the conditions attached to its grants.[9] Clearly, then, the district court did not abuse its discretion in permitting intervention under Rule 24.
III. FACTUAL FINDINGS
Neither the Commonwealth nor the County defendants take serious issue with the court's findings of fact respecting the abominable conditions to which Pennhurst residents have been subjected. They do contend, however, that despite those findings there was no legal basis for the grant of any injunctive relief, and, alternatively, that the scope of the relief ordered was broader than was warranted by the facts or the law.
At the time of trial Pennhurst housed 1230 mentally retarded individuals, some of whom also suffered from physical disabilities. The residents are not mentally ill, have broken no laws, and are not a danger to others, although, in severe cases, some are unable to care for themselves. Mental retardation is an impairment in learning capacity and adaptive behavior, and is not treatable, like mental illness, by means of drugs or psychotherapy. While the mentally retarded do suffer educational difficulties, the level of their functioning can be improved by individualized training.
Residents come to Pennhurst either because of a commitment order from a state court, or by a "voluntary" admission initiated by a parent or guardian. In either case, the admission is arranged through Base Service Units, 93 operated by the County defendants pursuant to the Pennsylvania *93 Mental Health and Mental Retardation Act. [10] The Base Service Units are responsible for evaluating the needs of retarded individuals and determining the appropriate habilitative services.
In addition to large residential institutions like Pennhurst, Pennsylvania operates smaller and less isolated programs referred to as Community Living Arrangements (CLAs). The latter programs reflect a recognition of the principles of normalization for the habilitation of the retarded.[11] Under normalization principles, retarded persons are treated as much as possible like nonretarded persons. The purpose of such treatment is remediation of the delayed learning process so as to develop maximum potential in self-help, language, personal, social, educational, vocational, and recreational skills. These remediation efforts, the trial court found, are in general, much more likely to succeed in smaller living units which are closer to and more reflective of the normal society. In large separate isolated institutions like Pennhurst, however, the retarded generally suffer apathy, stunted growth, and even regression in the skills referred to. The effective result is the imposition or facilitation of increased retardation. Such large institutions, the court also determined, are more expensive to operate than community based alternatives. Perhaps for those and other reasons, it had been the current intention of the Department of Public Welfare to transfer residents from Pennhurst to community residential facilities, supported by specialized services, by some time in the early 1980's. In the five county area, 530 retarded persons already live in CLAs, including 186 former Pennhurst residents.
The district court also found that the environment at Pennhurst is not merely inconsistent with normalization principles, but is actually hazardous to residents. Because of the inadequacies in programming attributable to staff shortages, residents were found to have lost skills already learned. Organized programs of appropriate education and training were found to be inadequate or unavailable. Evaluations of resident progress do not meet minimum professional standards, and record keeping is inadequate.

Moreover, the Pennhurst environment was found to be unsanitary. There is often urine and excrement on the ward floors. Infectious diseases are common. Obnoxious odors and excessive noise permeate the institution. Most toilet areas do not have towels, soap or toilet paper. Injuries to residents by other residents or through selfabuse are common. Serious injuries inflicted by staff members, including sexual assaults, have occurred. Physical restraints, which may be physically harmful and which have caused injuries and at least one death, are resorted to more frequently than appropriate because of shortages of staff. Dangerous psychotropic drugs are used for purposes of behavior control and staff convenience, rather than for legitimate treatment needs. Such drug misuse produces lethargy, hypersensitivity to sunlight, inability to maintain gait, and other disabilities. Seclusion in solitary confinement has been used to punish aggressive behavior which might not have occurred if a proper regimen of training were available. Diet control is not possible because residents dine in large group eating areas without adequate staff supervision.
The federal government is a substantial partner in the Commonwealth's and Counties' provision of services 94 generally available, although not always provided, to the *94 mentally retarded. The Commonwealth Department
of Welfare receives federal grants under both the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. §§ 6001-6081 (1976), and the Education for All Handicapped Children Act of 1975, 20 U.S.C. §§ 1401-1461 (1976). The Commonwealth, in turn, makes funds available to the Counties for purposes of developing and maintaining their CLAs. Thus it is clear that there are county based programs open and available to the mentally retarded which receive federal financial assistance. The trial court found that the Counties have made an insufficient effort to provide community based services to the retarded.[12] The population of Pennhurst has thus remained high, effectively precluding the residents from taking advantage not only of federally funded programs expressly intended for the care of the retarded, but also of various other federally funded facilities such as education and transportation.
The court held that the isolation at Pennhurst is attributable, across the board, to state action. It found that about half of the Pennhurst residents had been committed there by order of a Pennsylvania court, while the other half had been admitted upon application of a parent or guardian. Although the latter group of residents are referred to in some of the briefs as voluntary admittees, theoretically free to leave when of age, the court found that when a resident wishes to leave and the Pennhurst staff determines that there is no place for him in the community, or that he is not ready for community living, a petition for involuntary commitment is made. The court found, moreover, that many residents do not understand the available alternatives to institutionalization, or are physically unable to express an interest in leaving, or have no adequate alternative living arrangement. Thus the notion of voluntariness in admission and retention was found to be illusory.
IV. PREFERRED LEGAL BASES FOR RELIEF
Appellants, as we noted above, do not quarrel with the facts; they dispute only the legal significance of those facts. They reject both the court's conclusion that the mentally retarded have a legal right to treatment or habilitation and its conclusion that treatment or habilitation must be provided in the least restrictive environment. Moreover, even assuming that these rights exist, appellants challenge the court's injunctive order as overbroad. We consider in turn each of these objections.
The district court's determination that appellees have a right to treatment was predicated upon constitutional, federal, and state statutory grounds. The federal courts have long been directed to decide whether causes of action can be supported on statutory grounds before they adjudicate constitutional law issues.[13]
Moreover, while federal courts can interpret federal legislation definitively, subject only to Supreme Court review, their interpretation of a state statute arguably supporting the judgment might be rejected by the state's courts. The preferred order, therefore, is to turn first to the federal statutory issues. Thereafter, we will consider state statutory grounds for the trial court's decision.
95 *95 V. THE RIGHT TO TREATMENT OR HABILITATION[14]

A. Federal Statutory Law
In their second amended complaint, appellees asserted a cause of action under the Developmentally Disabled Assistance and Bill of Rights Act, Pub.L.No. 94-103, 89 Stat. 486 (1975), codified at 42 U.S.C. §§ 6001-6081 (1976) [hereinafter "the Act"]. The trial court did not reach the question of defendants' possible liability under this statute. The parties have nevertheless supplied this court with detailed briefing on the statute. We are persuaded that the Act provides the mentally retarded with a right to treatment.
The Act was passed in 1975 as an amendment to the Developmental Disabilities Services and Facilities Construction Act. It established particular rights and benefits for the developmentally disabled, a class of persons which included the mentally retarded. 42 U.S.C. § 6001(7)(A)(i). Among those was a right to the least restrictive environment, about which we will have more to say in Section VI A below. In addition, however, the Act expressly provided that the developmentally disabled have a right to treatment or habilitation. In the so-called Bill of Rights section, 42 U.S.C. § 6010, Congress made plain its intention to establish a right to treatment.[15] Congress found 96 *96 that "[p]ersons with developmental disabilities have a right to appropriate treatment, services, and habilitation for such disabilities." 42 U.S.C. § 6010(1). Moreover, both "[t]he Federal Government and the States ... have an obligation to assure that public funds are not provided to any institutional or other residential program for persons with developmental disabilities that0907 (A) does not provide treatment, services, and habilitation which is appropriate to the needs of such persons ..." 42 U.S.C. § 6010(3)(A). It is hard to see how Congress could have been any more precise in revealing its intention to confer a right to treatment or habilitation.
Another section of the Act reaffirms the right to treatment. Section 6063 provides that any state which wishes to take advantage of the subchapter must submit a plan to the Secretary of HEW. That plan must contain a program designed, inter alia, "to improve the quality of care and the state of surroundings of persons for whom institutional care is appropriate. ..." 42 U.S.C. § 6063(b)(20)(B). While this section was deleted in the 1978 revision of the Act, it did apply until that date and retains legal significance for purposes of this litigation. Moreover, the revised statute contains a section requiring states to conform their plans to the dictates of the Bill of Rights provision, section 6010. See 42 U.S.C. § 6063(b)(5)(C) (Supp.1979).
The legislative history of Pub.L.No. 94-103 also supports the recognition of a statutory right to treatment for the mentally retarded. Congressman Carter, in introducing H.R. 4005 (later enacted as Pub.L.No. 94-103) in the House, stated that among its many purposes "[t]his legislation ... directs that States should devote attention to improving the facilities and surroundings of institutions where people have been appropriately institutionalized." 121 Cong. Rec. 9976 (1975). The bill was introduced in the Senate as S. 462. 121 Cong. Rec. 16,470. Senator Stafford, discussing the purpose of Title II0907the Bill of Rights 0907stated "Title II was added to the bill to assist in the protection of the rights guaranteed under our Constitution for those individuals that will require institutionalization. ..." Id. at 16,516. Senator Javits added that "Congress should reaffirm its belief in equal rights for all citizens0907including the developmentally disabled. Congress should provide the leadership to change the tragic warehousing of human beings that has been the product of insensitive Federal support of facilities providing inhumane care and treatment of the mentally retarded." Id. at 16,519. Senator Cranston observed that while the bill endorsed deinstitutionalization, it "recognize[d] that the need for some long-term residential programs will remain. The bill specifically provides that where institutional programs are appropriate, adequate support should be planned for them so that necessary treatment and habilitation programs can be given residential patients to develop their full potential." Id. at 16,520. Senator Schweiker described one of the requirements of the proposed legislative Bill of Rights as "[h]umane care, treatment, rehabilitation, and protection in residential facilities. ..." Id. at 16,522.
The bill went to conference, in part because the Senate bill contained an expanded version of Title II 0907specifying in great detail the standards for appropriate care0907 with which the House did not concur. The Conference Committee compromised on details, and produced the more general, yet equally forceful Bill of Rights provisions, now codified in section 6010. A right to treatment was, as we noted above, specifically proclaimed. Thus, the Conference Report for the bill states that "the developmentally disabled have a right to appropriate treatment, 97 services and habilitation ...." H.R.Conf.Rep. No. 94-473, 94th Cong., 1st Sess. 42 (1975), reprinted in *97 [1975]

U.S.Code Cong. & Ad. News, 943, 961. In addition, Senators Javits, Schweiker and Williams, in approving the Conference Report, all called attention to the critical role of the right to treatment. 121 Cong.Rec. 29,820-21. We therefore hold that the Developmentally Disabled Assistance and Bill of Rights Act grants to the mentally retarded a right to treatment and habilitation.
We further hold that retarded persons have a private right of action under the Act. To date, only one other court has considered whether private litigants may enforce the rights granted under the Act. In Naughton v. Bevilacqua, 458 F.Supp. 610 (D.R.I.1978), Judge Pettine concluded that there was a private right of action. Plaintiffs in Naughton were a mentally retarded, schizophrenic patient and his father. They brought suit for injunctive relief and damages, alleging that the child had sustained injuries as a result of drugs administered to him in a Rhode Island institution. Among their several causes of action, plaintiffs asserted a claim under 42 U.S.C. §§ 6001-6081.
The court, reviewing the statute, concluded that it intended to convey a private right of action. Judge Pettine offered several arguments supporting his view of Congressional intent. First, he noted, section 6010, the Bill of Rights provision, has two sections: the first "declares the right to appropriate treatment"; the second "provides that federal funds are available only to programs that meet certain basic minimum standards and offer `appropriate' treatment." 458 F.Supp. at 616. "This dichotomy in sec. 6010," the court reasoned, "suggests that denial of funds is not the only mechanism to enforce the declared statutory rights." Id. In addition, the court noted that the Conference Report expressly states that "`this right the Conference Report expressly states that "`this right [to receive appropriate treatment] should be protected and assured by the Congress and the courts.'" Id. (quoting [1975] U.S.Code Cong. & Ad. News 961). Furthermore, participating states are required under the Act "to establish an independent agency `to protect and advocate the rights of persons with developmental disabilities, and ... to pursue legal, administrative, and other appropriate remedies to insure the protection of the rights of such persons who are receiving treatment, services or habilitation within the State ....'" Id. (quoting 42 U.S.C. § 6012(a)). As the court observed, "[t]he enforcement of individual rights ... cannot be achieved solely by withholding federal funds; not only is the Secretary incapable of investigating every violation, but the Secretary may quite properly be unwilling to withhold funds for a single violation. Thus, the advocacy agency and a private right of action are crucial to protect the rights secured by the Act." Id. Finding that the developmentally disabled were the "especial benefi[ciaries]" of the Act, that private suits would effectuate the policies of the statute, and that they would not infringe traditional state prerogatives, the Naughton court concluded that there was a private right of action under 42 U.S.C. §§ 6001-6081.
We find the Naughton court's analysis persuasive. A private right of action eminently satisfies the standards articulated in Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975).[16] As developmentally disabled 98 persons, the mentally retarded undoubtedly qualify as "especial benefi[ciaries]" *98 of the section 6010 grant of a right to treatment. In addition, the Conference Report recognized the desirability of enforcement of the Act, in part, by the courts. Moreover, a private right of action would surely further the purposes of the Act. By permitting private suits, courts would facilitate improvements in the delivery of services to the disabled without forcing the federal government to resort to the drastic remedy of a cut-off of funds.
It may be argued, however, that while the first three Cort v. Ash criteria are satisfied, the implication of a private right of action would infringe basic state prerogatives, and transgress the bounds of federal law making competence, inasmuch as mental health policies have always been within the states' traditional police power authority. We are unpersuaded by that argument. While providing for the health and well-being of the citizenry is surely a legitimate state function, Congress' recognition of a right to treatment in section 6010 is not a simple displacement of that admittedly basic state concern.
In Ingraham v. Wright, 430 U.S. 651, 673, 97 S.Ct. 1401, 1413, 51 L.Ed.2d 711 (1977), the Supreme Court said that among the liberties protected by the fourteenth amendment is "a right to be free from and to obtain judicial relief, for unjustified intrusions on personal security." Section 5 of the fourteenth amendment vests Congress with authority "to enforce, by appropriate legislation, the provisions of this article." In Section 6010, Congress has legislated with respect to the state intrusions on personal security of the developmentally disabled.[17] Thus, in providing specific guarantees for a particular affected group, Congress' action is consistent with the Supreme Court's recognition of the broad underlying right protected against impairment by the state through the fourteenth amendment. Section 6010 does not go beyond what has been judicially declared to be the limits of the fourteenth

amendment but clearly is within those bounds.[18] Since the rights described in section 6010 are specified pursuant to section 5 of the fourteenth amendment, implication of a private cause of action from that statute rests upon the same constitutional footing. Thus we are not dealing with the implication of a private cause of action from a congressional enactment justified only by the spending power of the federal government, and we need not address the question whether such a statute could ever provide the predicate for private substantive rights. As the Supreme Court acknowledged in another context, Congress may, under section 5, establish certain restrictions that might otherwise implicate the prerogatives of the states.[19]
We also note that any suggestion that private enforcement of the Act usurps basic state concerns is vitiated by the structure of the Act itself. For example, section 6063(b)(20)(B), which until 1978 required states to produce a 99 plan providing for improved *99 quality of care, was applicable to all those states "desiring to take advantage of this subchapter." 42 U.S.C. § 6063(a). Congress thus invoked its spending clause powers to condition the grant of federal monies on the provision by the states of adequate care. Pennsylvania has accepted federal funds provided pursuant to the Act.[20] Whatever argument it might otherwise have had were it faced with an unexpected set of federal obligations is refuted by its obvious willingness to accept the benefits of the Act.[21]
Finally, we have recently decided that a private right of action exists for the enforcement of section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1976)0907another statute designed to improve the lives of handicapped persons. National Association for the Advancement of Colored People v. The Medical Center, Inc., 599 F.2d 1247, 1258-59 (3d Cir. 1979).[22] We did not feel, in that case, that the traditional police power duties of the 100 states foreclosed a private right of action. In view of these considerations, then, we hold that appellees have *100 standing to sue to enforce the Bill of Rights provisions of the Act.
One court, we note, has held that claims under the Act must be brought in state court. United States v. Solomon, 563 F.2d at 1125. The Solomon court acknowledged that the Conference Report on the Act stated that the right to treatment "should be protected and assured by the Congress and the courts." 563 F.2d at 1124. It held, however, that this language "manifestly refers to a state judicial forum and not to a federal judicial forum where the United States customarily sues." Id. at 1125.
With deference to the Fourth Circuit, we see nothing manifest in the Conference Report supporting that court's interpretation. If anything, the legislative history reflects a Congressional belief that States were not spending funds for the disabled effectively. The Developmentally Disabled Assistance and Bill of Rights Act sought to change the traditional spending habits of the states. It is most unlikely that Congress intended those changes to be enforceable only in state courts.[23] We would find it quite anomalous in the absence of a clear congressional expression to hold that a federal statute created a cause of action arising under federal law, but enforceable only in the state courts and not under 28 U.S.C. § 1331 (1976).
Accordingly, we hold that appellees have a federal statutory right to habilitation, that they may sue to enforce that right, and that such suit is properly lodged in federal court.
B. State Law
As an alternative ground for a right to adequate habilitation, appellees point to sections 101-704 of Pennsylvania's Mental Health and Mental Retardation Act of 1966 [hereinafter MH/MR Act of 1966], Pa.Stat. Ann. tit. 50, §§ 4101-4704 (Purdon 1969). The trial court accepted this contention, relying principally upon section 201 of the Act. That section, which establishes the responsibilities of the Department of Public Welfare, provides in pertinent part:
The department shall have power, and its duty shall be:
(1) To assure within the State the availability and equitable provision of adequate mental health and mental retardation services for all persons who need them ....

Pa.Stat.Ann. tit. 50, § 4201. The court held that this section grants retarded persons an affirmative right to minimally adequate habilitation. 446 F.Supp. at 1322. Moreover, it noted, the County defendants share in this statutory duty to supply adequate treatment. Id. at 1322-23.

Section 201 refers to the state's "duty" to "assure" the "availability ... of adequate mental health and mental retardation services for all persons who need them. ..." Pa.Stat.Ann. tit. 50, § 4201(1). That language is broad and determined: the obligation to provide services to the mentally handicapped on the basis of need. Had the Commonwealth intended to offer only confinement without more, it would hardly have spoken in terms of "adequate ... services." Id.

Our reading of the statutory language is amply supported by the legislative history of the MH/MR Act of 1966. Speaking on behalf of the Act in the Pennsylvania Senate, Senator Pechan elaborated its fundamental habilitative purposes.

The object of this legislation is to make it possible for every mentally disabled person to receive

the kind of treatment he needs, when and where he needs it. It will make those services available

to every citizen in every community which are now available only to a lucky few, in the more

progressive communities. It will open more beds in the local general hospitals. It will make

available the services of psychiatrists and psychologists, of psychiatric nurses and social workers,

101

of specially trained occupational therapists, of *101 speech and hearing therapists, of activities

directors and of child care workers. It will supplement the benefits of therapy with daytime and

evening programs of activity which will call back to reality the erring mind, which will re-create and

strengthen the ties which bind one human being to another and make us comfortable in each

others' company. It will provide productive activity for those who can work only in a sheltered

situation, and for those who are able, it will prepare them to go back to the customary world of

business and industry, or to go forth into it for the first time, as the case may be. For those in acute

distress, service will be available twenty-four hours a day, and the violent will find protective care

instead of the harsh custody of jail.

1966 Pa.Legis.J., 3d Spec.Sess.0907No. 33, 76 (Sept. 27, 1966). The Act, Senator Pechan declared, "will [make] it . . . easy for a mentally disabled person to find the treatment he needs. . . ." Id. Senator Sesler concurred, id. at 77, and added:

When you realize that practically one out of ten of every Pennsylvanian has some problem in mental health, you will realize how vast the scope of this problem is. However, I think, we now have sketched in broad, general terms the framework of a program which can provide a continuum of services0907out-patient, in-patient, diagnostic treatment, evaluation and research, a procedure of commitment under almost all conceivable types of circumstances.

Id.

Those few courts which have previously considered the MH/MR Act of 1966 have also gleaned from it a right to treatment for the mentally handicapped. In In re Joyce Z., 123 Pitt.L.J. 181 (1975), the Common Pleas Court for Allegheny County held that a profoundly retarded child had, under section 201 of the Act, a right to treatment. 123 Pitt.L.J. at 187. The court quoted the relevant language of section 201 and declared, "These are brave words. We mean to see that the State, acting through the Department of Public Welfare, abides by them." Id. In view of the statutory right to treatment, the court held that Pennsylvania was obliged to provide casework services to the child, her parents, and her foster parents, together with financial assistance to meet the child's physical needs. Id. at 190. Joyce Z establishes, as well, that the statutory right to treatment is under Pennsylvania law judicially enforceable in a private action.

To like effect was Chief Judge Lord's decision in Eubanks v. Clarke, 434 F.Supp. 1022 (E.D.Pa.1977). There, relying in part on section 201 of the MH/MR Act of 1966, Chief Judge Lord held that the plaintiff, an involuntarily committed schizophrenic, had a "state law right to treatment or release." 434 F.Supp. at 1027. Similarly, in Hoolick v. Retreat State Hospital, 24 Pa.Cmwlth. 218, 354 A.2d 609 (1976), aff'd 476 Pa. 317, 382 A.2d 739 (1978), a Pennsylvania court described the MH/MR Act of 1966 as envisioning a "comprehensive program for the

care, treatment and rehabilitation of mentally disabled and mentally retarded persons . . ." 24 Pa.Cmwlth. at 220, 354 A.2d at 611.[24]

Despite the apparent meaning of section 201, and the plain intentions of the state legislature,[25] several of the 102 appellants *102 object to the trial court's reliance on the MH/MR Act of 1966. The Commonwealth and the
Counties contend that section 509(5) of the Act belies any duty on their part to provide treatment. Section 509(5) empowers the Department of Public Welfare to distribute grant monies to the Counties where sufficient funds have not been appropriated by the state.

In the event that sufficient funds to pay the full amount of the grants to which the counties may be entitled under the provisions of this section have not been appropriated, to distribute State funds among the counties by a formula reasonably designed to achieve the objectives of this act, provided however, that in such event the counties' financial obligations under this act shall be reduced in accordance with the same formula and the counties shall be required to provide only those services for which sufficient funds are available.

Pa.Stat.Ann. tit. 50, § 4509(5). The Commonwealth contends that since services to the retarded can be reduced in light of insufficient funding, there cannot be "an unconditional right to those services." Brief for Commonwealth Appellants at 31. The Counties, on the other hand, rely on this section in making their argument that any duty to provide treatment rests solely on the state, and not them. Brief for Suburban County Appellants at 24-25.

We reject these contentions. Section 509(5) hardly relieves the Commonwealth of its statutory duties under section 201. Section 509(5) delineates nothing more than the method by which insufficient funds are to be distributed. It states the apparent truism that where the state has failed to provide Counties with full funding, the Counties need not supply a constant level of services. This may, to be sure, imply that the right to treatment is not "unconditional." But no right is without some limitations. All that section 201 promises, and all that we hold, is that to the extent Pennsylvania maintains facilities for the mentally handicapped, those facilities must provide adequate treatment or habilitation.

Nor do we agree with the Counties that section 509(5) absolves them of any duty to provide treatment. The MH/ MR Act of 1966 contemplated a joint venture between the Commonwealth and its subdivisions, the Counties, in the provision of services to the mentally handicapped. As Senator Sesler stated, in supporting the Act:

We want to make it clear, for the record, that we are giving this responsibility to our County Governments, and we are giving them a great deal of money. One of the amendments just adopted today has provided that the State will have to reimburse the counties for ninety per cent of the cost of the program. We are giving them a certain degree of freedom. However, we must remind them that the counties had a program of control for taking care of the mentally ill, prior to 1937, when they failed to do an adequate job. It may be that they lacked the finances at that time, and that they lacked the public's support. However, today, I think that the public's support is there. I trust that the Commonwealth will be there with the adequate finances.

. . . . .

I hope that we can focus attention on the local level, because if there was ever an example of a

cooperative effort, which involves so many citizens and private groups as this legislation, I do not

know what it is. We are going to give it control down on the local level; we are giving it a flexible

degree of control. So, I am saying today at 0907 least, I, speaking for myself 0907that we are charging

103

County *103 Governments with this tremendous responsibility. We hope that they will take these

words to heart . . ..

1966 P.Legis.J., 3d Spec.Sess.0907No. 33, 77 (Sept. 27, 1966). Section 509(5) in no way undercuts the intended partnership of the Counties and the Commonwealth.

The Counties contend, however, that while they may have some responsibilities under the Act to provide habilitation to the retarded, those responsibilities are exhaustively specified in section 301(d), and no other

duties0907such as habilitation at institutions or community living arrangements 0907can be imposed upon them.[26] We reject this suggestion. It is true that section 301(d) sets forth specific duties for the Counties. Nevertheless, the Counties' mandate under the Act is much broader. Section 301(a), for example, states, in pertinent part:
The local authorities of each county separately or in concert with another county or counties, as the secretary may approve, shall establish a county mental health and mental retardation program for the prevention of mental disability, and for the diagnosis, care, treatment, rehabilitation and detention of the mentally disabled and shall have power to make appropriations for such purposes.
Pa.Stat.Ann. tit. 50, § 4301(a). This section directs that local authorities establish a "mental health and mental retardation program for the . . . . treatment, rehabilitation and detention of the mentally disabled. . . ." Id. Thus, although section 4301(d) specifies certain facilities for which the Counties will be principally responsible, the Act as a whole contemplates County participation in all facets of the state's provision of services. Indeed, in the case of Pennhurst itself, the Counties have joined inextricably in the state's provision 0907 or lack of provision of 0907 treatment. As we noted in Part III above, the Counties arrange for admission to Pennhurst through their operation of Base Service Units. Often, the district court found, the County Base Service Units fail to investigate alternatives to institutional placements, thereby consigning the mentally retarded to inadequate living conditions. 446 F.Supp. at 1313. Having thus participated for so long in the institutional practices at Pennhurst, the Counties cannot at this late date escape0907by pointing the finger of responsibility elsewhere 0907the statutory duty to provide adequate habilitation.
Accordingly, we hold that the appellees have a state statutory right to habilitation, that they may sue to enforce that right, and that a federal court has pendent jurisdiction, which was properly exercised in this instance, to enforce that right.
VI. THE RIGHT TO THE LEAST RESTRICTIVE ENVIRONMENT
Having concluded that appellees have a right to treatment, we turn to a consideration of the setting in which that treatment must be provided. Plaintiffs contend that the state is obligated to provide habilitation in an environment 104 that infringes least on *104 the personal liberties of the mentally retarded. The trial court agreed, predicating the decision exclusively upon constitutional grounds. The court reasoned that because "[a]ll admissions to state facilities . . . entail an infringement on fundamental rights and freedoms . . .[,] due process demands that if a state undertakes the habilitation of a retarded person, it must do so in the least restrictive setting consistent with that individual's habilitative needs." 446 F.Supp. at 1319. While there is substantial caselaw support for the trial court's constitutional position,[27] our resolution of the present controversy on statutory grounds obviates the necessity for consideration of this constitutional issue. Two federal statutes were relied upon in the district court as sources of a right to the least restrictive environment: The Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. §§ 6001-6081 (1976), discussed at pp. 95-100 supra, and section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1976).[28]
A. The Developmentally Disabled Assistance and Bill of Rights Act.
In Part V A above we addressed the origins and development of this statute. We noted there that the Act enunciates a right to treatment for the developmentally disabled. In addition to that right, however, the Act expresses a clear congressional preference for deinstitutionalization. Section 6010 states plainly that "the treatment, services, and habilitation for a person with developmental disabilities should be designed to maximize the developmental potential of the person and should be provided in the setting that is least restrictive of the person's personal liberty." 42 U.S.C. § 6010(2). State plans were required, until 1978, to "contain a plan designed . . . to eliminate inappropriate placement in institutions of persons with developmental disabilities . . .." 42 U.S.C. § 6063(b)(20). Moreover, they were obligated to:

support the establishment of community programs as alternatives to institutionalization and support such programs which are designed to provide services for the care and habilitation of persons with developmental disabilities, and which utilize, to the maximum extent feasible, the resources and personnel in related community programs to assure full coordination with such programs and to assure the provision of appropriate supplemental health, educational, or social services for persons with developmental disabilities . . ..

42 U.S.C. § 6063(b)(23). Finally, the plans were required to provide:

the maximum utilization of all available community resources including volunteers serving under the Domestic Volunteer Service Act of 1973 (Public Law 93-113) and other appropriate voluntary organizations except that volunteer services shall supplement, but shall not be in lieu of, services of paid employees. . . .

42 U.S.C. § 6063(b)(26).

The legislative history of the Act supports the preference for deinstitutionalization. Introducing the bill in the House, Congressman Carter stated:

This bill encourages the States to adopt programs of deinstitutionalization. We, as a committee, are well aware that treatment of the developmentally disabled should be conducted in that person's community without unnecessarily institutionalizing him. Funds have been earmarked for this purpose.

121 Cong.Rec. 9976 (1975). Referring to another bill, Congressman Carter said its:

"main thrust . . . was to minimize the necessity for institutionalization. It has come to the attention

105

of the committee *105 that there needs to be particular attention paid to the same basic problem

as it applies to the developmentally disabled. There seems to be a tendency in some areas to

resort to inpatient treatment when other means of accomplishing the treatment might be possible.

Having recognized that this misuse of facilities has taken place, it is now necessary that we take

steps to review and correct the mistakes already made. The bill [H.R. 4005] requires that States

spend a specified percentage of allotments to tackle the problem and see that those who have

been inappropriately institutionalized be handled in some other manner.

Id. at 9977. Congressman Biaggi noted that "[t]he bill . . . recognizes the trend toward deinstitutionalization and propose[s] increased appropriations to carry out demonstration programs which will affect [sic] this goal." Id. at 9978. He added that "the cost of home health care can be . . . up to five times less expensive than care in a specialized facility." Id.

The House version of the bill passed by a vote of 398-5. Id. at 9981-82. As noted above, it was introduced in the Senate as S. 462. Id. at 16,470. Senator Williams, supporting the bill, described in detail the abuses of institutionalization to which the measure was addressed.

Over the past few years, the horrifying conditions which exist in most of the public residential institutions for the mentally retarded and other developmentally disabled persons have provided shocking testimony to the inhuman way we care for such persons. The conditions at Willowbrook, at Partlow in Alabama, and at Rosewood in Maryland, and at many other institutions have shown beyond a shadow of a doubt that the treatment of these individuals is worse then [sic] all of us would like to admit.

Steps to scale down many of these large custodial institutions have resulted in not-so-large institutions, often with not much improved care and with little follow-up. This has been true at Willowbrook: in 1965 and again in 1972, broad criticism has been levied at this institution; all indications point toward little change, unless substantial legal and advocacy pressure is forthcoming. While much can be said about the lack of available funds to improve conditions at these institutions, at some point this country must draw the line. The abuses are too commonplace

to point at a single institution, or a single abuse and say that it is an anomaly. Over the last 2 years the Committee on Labor and Public Welfare has taken testimony or received reports of: Inappropriate admissions because of lack of community services, inappropriate and inhuman experimentation with residents, sterilizations and other operations performed for convenience of treatment, starvation and malnutrition, abuse and physical punishment, inadequate food and living conditions, and death.
S. 462 provides a framework by which the constitutional rights of residents and other persons with developmental disabilities may be enforced.
Id. at 16,516-17. Senator Kennedy echoed these sentiments.
Last year in testimony on this legislation, Geraldo Rivera showed the committee portions of his documentary on Willowbrook, and if anyone needed convincing of the need for the establishment of institutional standards, that film provided it. This legislation provides for the establishment of such standards.
Id. at 16,517. So, too, did Senator Cranston, id. at 16,520 ("I believe one very clear basic goal has been enunciated in the legislation reported from committee. That is the need to move away from long-term institutionalization of individuals with developmental disabilities to the development of community-based programs utilizing all community resources related to treatment or habilitation of such individuals to provide comprehensive services in the home community."); Senator Schweiker, id. at 16,521 ("The last 5 years have seen a dramatic increase in public awareness of the needs of institutionalized mentally retarded and 106 developmentally disabled persons. This has been highlighted by scandals in many institutions, by court *106 cases, and by the efforts of the communications media. Testimony before the committee demonstrated that standards in institutions for the developmentally disabled are urgently needed and that the Federal Government should play a major role in improving the care and services provided to developmentally disabled citizens."); and Senator Beall, id. at 16,522 ("In addition, I would like to express my support of title II of this bill, which reflects the increasing concern of Congress and the public in general about persons who are institutionalized because they are developmentally disabled. Increased technological development, especially in regard to travel speeds, and the sociological stress that many of our citizens are experiencing, particularly in this time of economic strain and increased crime, evidence the sad fact that there will be an increased need for psychological care. Residential care outside the home is necessary in some instances, although I am glad to say that increased emphasis is being placed on similar community-based facilities rather than the larger State institutions. Title II assures those individuals who must be institutionalized of their civil and personal rights, and, at the same time, provides for the best possible care and services.")
The Senate substituted the text of S. 462 for the House bill, H.R. 4005, and passed it. Id. at 16,523. A conference was convened and as noted above, the Senate's expansive delineation of the standards for institutional and community care was dropped and a more general Bill of Rights (section 6010) was adopted. Nevertheless, the Congress was serious about the Bill of Rights. The Conference Report noted the difference between the Senate and House versions of the Act, and explained the resulting compromise:
Statement of Purpose
The Senate amendment, but not the House bill, states the purpose of the bill of rights to be establishing standards to assure the humane care, treatment, habilitation and protection of mentally retarded and other developmentally disabled individuals who are served by residential and community facilities and agencies.
The conference substitute contains a compromise which enumerates Congressional findings respecting the rights of persons with developmental disabilities. These include findings that the developmentally disabled have a right to appropriate treatment, services and habilitation; that such treatment, services and habilitation should be designed to maximize the developmental potential of the person and be provided in the setting that is least restrictive to his personal liberty; that the Federal government and the States have an obligation to assure that public funds are not

provided in programs which do not provide appropriate treatment, services and habilitation or do not meet minimum standards respecting diet, medical and dental services, use of restraints, visiting hours and compliance with fire and safety codes; and that programs for the developmentally disabled should meet appropriate standards including standards adjusted for the size of the institutions which are at least comparable to those promulgated under title 19 of the Social Security Act. (emphasis added).
H.R.Conf.Rep.No. 94-473, 41-42 (1975) reprinted in [1975] U.S.Code Cong. & Ad. News, 943, 961.
When the Conference Report was submitted to the Senate, the new version of Title II (the Bill of Rights) was specifically reprinted so as "to emphasize the importance of this title of the bill." 121 Cong. Rec. 29,819 (1975) (remarks of Sen. Stafford). Senators Javits, Schweiker, and Williams all called attention to the Bill of Rights in applauding the compromise measure. Id. at 29,820-21.
Yet, while it disfavored institutionalization, the Developmentally Disabled Assistance and Bill of Rights Act did not prohibit all institutions. Congressman Carter, introducing H.R. 4005, stated "[t]his legislation also directs that States should devote attention to improving the facilities and surroundings of institutions where people have been 107 appropriately institutionalized." Id. at 9976. Senator Stafford reported that *107 "Title II was added to the bill to assist in the protection of the rights guaranteed under our Constitution for those individuals that will require institutionalization . . ." Id. at 16,516. And Senator Cranston observed that "in encouraging the movement to community-based programs, I recognize that the need for some long-term residential programs will remain. The bill specifically provides that where institutional programs are appropriate, adequate support should be planned for them so that necessary treatment and habilitation programs can be given residential patients to develop their full potential." Id. at 16,520. These same points were reflected in the Conference Report. Explaining the Bill of Rights provisions, the Report stated:
These rights are generally included in the conference substitute in recognition by the conferees that the developmentally disabled, particularly those who have the misfortune to require institutionalization, have a right to receive appropriate treatment for the conditions for which they are institutionalized, and that this right should be protected and assured by the Congress and the courts.
H.R.Conf.Rep.No. 94-473, 42 (1975) reprinted in [1975] U.S.Code Cong. & Ad.News, 943, 961.
The Act does not, therefore, articulate a per se rule prohibiting institutions. That was not how the Congress understood the right to the least restrictive alternative. Rather, it seems that Congress believed that, for some patients, institutionalization might be "appropriate." In those individual cases, probably comparatively rare, adequate habilitation could not be accomplished in any setting less restrictive than an institution and the need for such habilitation could thereby justify institutionalization.
It is argued, however, that because the Act, until 1978, required states to spend a specific minimum amount for deinstitutionalization, the states were free to use institutions as much as they chose so long as they spent the specified amounts on alternative facilities. According to this thesis, states might retain full or nearly full institutionalization even for those patients for whom institutionalization was not "appropriate." We do not accept this contention. The spending requirement was clearly intended to encourage the development of alternative facilities. Congress rightly believed that the states were doing too little to develop alternatives to institutions. The minimum expenditure requirement must not be confused with a maximum duty on the states' parts; to do so would substantially undermine the rights articulated in section 6010 and the insistence on specific deinstitutionalization plans in section 6063.
We hold, therefore, that the Developmentally Disabled Assistance and Bill of Rights Act provides to mentally retarded persons the right to the least restrictive environment. For some patients, to be sure, the Act contemplates that institutionalization might be appropriate once adequate habilitation and living conditions are established. The clear preference of the Act, however, is deinstitutionalization, and for the reasons set forth in Part V A, we have no doubt about Congressional power to impose the least restrictive alternative requirement upon the states for patients who do not require institutionalization for adequate habilitation.

B. Section 504 of the Rehabilitation Act of 1973
Appellees argue that section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (1976), also reflects Congressional desire to discourage the institutionalization of the mentally handicapped.[29]
108 *108 While its language is somewhat opaque, appellees argue that the illuminating legislative history of section 504 supports the view that Congress sought in that section to combat, to the extent appropriate, the isolation of the handicapped from the community an 0907 isolation which it believed was ineluctably entailed by institutionalization.[30] Thus section 504, appellees argue, provides an alternative statutory basis for enforcing the right to a least restrictive environment or that the legislative history of section 504 offers powerful corroboration for the deinstitutionalist purposes of the Developmentally Disabled Assistance and Bill of Rights Act. However, because we have found clear expression of a least restrictive alternative requirement in the Developmentally Disabled Assistance and Bill of Rights Act, and ample confirmation of that expression in its legislative history, we find it unnecessary to consider these arguments. One clear federal statute announces the governing rule, and one is enough. Thus we decline to consider section 504 issues on this appeal.
VII. RELIEF
We have thus far concluded that the mentally retarded patients at Pennhurst have federal and state protected rights to habilitation in the least restrictive environment. Moreover, it goes almost without saying that Pennhurst, as it was constituted and operated at the time of the lawsuit, was in flagrant violation of those rights. The conditions at Pennhurst were unsanitary, programming was nonexistent, enforced idleness was substituted for meaningful habilitation, physical and chemical restraints were wantonly applied, and overcrowding and understaffing were the prevailing institutional norms. Yet, appellants contend that even if they were properly found liable under federal and state law, the trial court nevertheless erred in several respects in ordering the relief that it did. First, they argue, the court order violates the eleventh amendment insofar as its effectuation will require an allocation of funds from the state treasury. Second, they urge, the relief should not have been classwide since events have disclosed a material rupture within the affected class. Third appellants protest the appointment of a special master as beyond the scope of Rule 53(b), Fed.R.Civ.P. 53(b). Finally, they contend, several specific portions of the court order are legally unsupportable. These include: the requirement that patients and/or their next friend participate in the structuring of relief and review of the plan; the requirement that certain local rules on physical and chemical restraints be implemented; the requirement that a "friend-advocate" system be established; the requirement that alternate employment for each Pennhurst employee be found; and the requirement that Pennhurst be closed entirely and community living arrangements established in its place. While most of these objections are insubstantial, we do agree that the ordered relief is somewhat overbroad. Accordingly, the injunction will be modified in accordance with our discussion below.
109 *109 A. The Eleventh Amendment
The Commonwealth defendants assail the decree as a violation of the eleventh amendment. They urge that although the decree is couched in terms of prospective injunctive relief, its effectuation will nevertheless require the expenditure of Commonwealth funds. This result, it is urged, is forbidden by Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). Yet Edelman specifically acknowledges the continued availability of prospective injunctive relief even though such relief realistically does impose financial burdens. 415 U.S. at 667-68, 94 S.Ct. 1347. See Fitzpatrick v. Bitzer, 427 U.S. 445, 459-60, 96 S.Ct. 2666, 49 L.Ed.2d 614 (Stevens, J., concurring). All of the relief ordered here is prospective. We have told the Commonwealth before that Edelman "quite explicitly left intact the authority of federal courts to enter prospective decrees having fiscal consequences to a state treasury as the necessary result of compliance." Vecchione v. Wohlgemuth, 558 F.2d 150, 158 (3d Cir.), cert. denied, 434 U.S. 943, 98 S.Ct. 439, 54 L.Ed.2d 304 (1977). We have not changed our minds on that question.

We note, in addition, that the Supreme Court has recently reaffirmed this position. In Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979) the Court held that it was not a violation of the eleventh amendment for a federal court to order state officials to send an explanatory notice to members of a class advising them that there are state administrative procedures available by which they may receive a determination of whether they are entitled to past welfare benefits. The mere fact that such notices might eventually lead to an expenditure of funds by the state did not alter the fact that the relief was "properly viewed as ancillary to the prospective relief already ordered by the court." 440 U.S. at 349, 99 S.Ct. at 1149.
We therefore reject appellants' eleventh amendment objections.
B. Classwide Relief

On April 13, 1978, a motion to intervene in order to protest the possible closing of Pennhurst was filed on behalf of the Pennhurst Parents-Staff Association and six Pennhurst residents. That motion, which was made after the Commonwealth and Philadelphia defendants had filed their notices of appeal, was denied, and the appeal from that denial is considered separately at No. 78-1999. In their appeal in this case, the Commonwealth defendants rely on that motion to intervene as evidence that the interests of the plaintiffs were adverse to one another, and thus that the trial court erred, first, in certifying the class, and second, in granting classwide relief. We reject completely the first contention. The certification of the class for purposes of determining liability was entirely proper. Plainly, the violations of federal and state law which the trial court found and which we have affirmed, are violations affecting all of the plaintiffs, not simply those who wish a transfer from Pennhurst. At the liability stage, therefore, important questions of law were common to all members of the class. Thus, regardless of any subsequent disagreement among class members as to the appropriate relief, we can think of no persuasive reason to have fractionated the class at that early juncture. See Fed.R.Civ.P. 23(c)(4)(A) (permitting use of class action device for purposes of particular issues within lawsuit). As Judge Frankel observed in the context of class actions brought under Rule 23(b)(3), Fed.R.Civ.P. 23(b)(3):

In the cases to which I refer, assertedly under (b)(3) i. 0907 e., having both common issues and issues

affecting separately the individual members of the class0907district judges have apparently thought

that all members of the class would have to be brought before the court 0907for discovery as well as

trial0907before there could be any judgment affecting the class as a whole. Insofar as this premise

lurks in the cited cases, it would appear to be unwarranted. Take, for example, the simple model of

the case by an alleged class of securities purchasers charging fraudulent representations. There

110

are, *110 supposedly, common questions as to the nature of the alleged representations, falsity,

and materiality. If some or all such questions are decided against the plaintiff class, the complaint

will be dismissed and, always assuming adequate representation of the class, there will be a

judgment binding the class without requiring any but the representative members to have been

before the court.

On the other hand, if the plaintiff class prevails on the common questions, it will then 0907but only then0907become necessary to try or settle or otherwise dispose of individual questions like reliance, damages, or the like. If the common questions have been aptly defined, there should be no need at an earlier stage to have all the individual class members before the court for discovery or any other purpose.

Frankel, Some Preliminary Observations Concerning Civil Rule 23, 43 F.R.D. 39, 47 (1967) (footnote omitted).
See also Developments in the Law0907Class Actions, 89 Harv.L.Rev. 1318, 1491-92 (1976). It was not abuse of the trial court's discretion to certify the class for purposes of determining liability.[31]

The Commonwealth contends, however, that because some members of the plaintiff class are opposed to the closing of Pennhurst, the class should at least have been decertified for purposes of relief. Thus, it argues that classwide relief infringes on the dissenting members' rights. As we indicate in more detail below, the trial court did err in promulgating a blanket order closing Pennhurst without sufficiently canvassing the needs of individual patients. Accordingly, inasmuch as we modify the court order appealed from, our opinion takes account of the

differences within the class concerning relief. Nevertheless, we do not think that the implementation of the relief, as modified by our opinion, requires the decertification of the class. Two procedural alternatives, short of decertification, are available to the trial court on remand in implementing individuated relief.
First, the court can create subclasses within the plaintiff class pursuant to Rule 23(c)(4)(B). Through this process, individual patients who wish to remain at Pennhurst may be represented at the implementation hearings. We suggested this approach in Samuel v. University of Pittsburgh, 538 F.2d 991 (3d Cir. 1976) (Clark, J.). There, we reversed a trial court decision decertifying a class at the relief stage. We stated that "even if there were managerial difficulties [in litigating the appropriate relief], some investigation into the possible usefulness of subclasses as suggested by Rule 23(c)(4)(B) should have been undertaken before decertification was ordered." 538 F.2d at 996. See also Nix v. Grand Lodge of Int'l. Ass'n of Mach. & Aero. Workers, 479 F.2d 382, 385 (5th Cir.), cert. denied, 414 U.S. 1024, 94 S.Ct. 449, 38 L.Ed.2d 316 (1973); Developments in the Law0907Class Actions, 89 Harv.L.Rev. 1318, 1479-82 (1976).
Yet another means by which dissenting members may be represented at the relief stage is through intervention. See id. at 1482-85. We note in this connection that the trial court currently has under consideration a motion by the Pennhurst Parents-Staff Association0907who purport to represent patients opposed to closing Pennhurst to 0907 intervene at the relief stage.
Even should the trial court ultimately decline to pursue either of these two procedural alternatives to decertification, the interests of dissenting members will still be represented. As we suggested above, and as we will elaborate at greater length below, plaintiffs' right to habilitation in the least restrictive environment requires that they be given an individual opportunity to participate in the process by which their habilitation is chosen. Thus, whether they are represented as a group, through such procedural safeguards as subclasses or 111 intervention, or whether they participate as individuals, class members who wish continued *111 habilitation at Pennhurst will have a chance to state their position.
C. The Use of a Master
The court found that implementation of its order would be impossible without the assistance of a Special Master "with the power and duty to plan, organize, direct, supervise and monitor the implementation of this and any further Orders . . ." 446 F.Supp. at 1326. It directed the Commonwealth and County defendants to provide the Master with access to premises, records, documents, and residents, and to cooperate with him to the extent necessary to execute such orders. The Master was directed to prepare and present to the court for its approval various plans for the transfer of Pennhurst residents to CLAs and for the provision of services to the class members "in the least separate, most integrated, least restrictive community setting," taking into account available resources. Id. at 1326-27. The order also directed that the Master prepare a plan for the interim operation of Pennhurst pending its replacement by other living arrangements and services.
The appellants contend that appointment of a master was improper under Rule 53(b), Fed.R.Civ.P. 53(b). We disagree. It is abundantly clear that providing the 1200 Pennhurst residents with a right to habilitation in the least restrictive environment will be a complex and lengthy process, probably involving monitoring, dispute resolution, and development of detailed enforcement mechanisms. Were we to preclude the trial court from resorting to a master, we would help make self-fulfilling the frequently made prophecy that courts are institutionally incapable of remedying wholesale violations of legally protected rights. Masters have been used in a wide variety of remedial contexts. These include cases involving handicapped children,[32] as well as cases remedying various other statutory or constitutional violations.[33] Masters are peculiarly appropriate in the implementation of complex equitable decrees which require ongoing judicial supervision.[34]
Moreover, by use of a master, the judge can minimize his personal participation in the details of implementation without sacrificing direct control or efficacy.[35]
While they acknowledge that courts have frequently relied upon special masters, appellants nonetheless insist that the Master appointed by the trial court in this case will have excessive powers. "The proper role of a master

in federal litigation," appellants urge, "is narrowly circumscribed." Brief for Commonwealth Appellant at 49. Specifically, it is urged, a master may only find facts. Since the lower court has already found the facts, any use of a master for implementation purposes intrudes excessively into the proper domain of local autonomy. Id. at 51-52.
This argument is unpersuasive. First, the Commonwealth is simply incorrect in asserting that the scope of a 112 master's duties is narrow. As one commentator has properly noted, "[m]asters may be delegated the *112
authority to issue subpoenas, hear grievances, take sworn testimony, and make formal or binding recommendations, including contempt findings, to the court." Note, Implementation Problems in Institutional Reform Litigation, 91 Harv.L.Rev. 428, 451 (1977). In employment discrimination cases, for example, courtappointed administrators, who have the same powers as masters, have made frequent and successful use of rather wide-ranging powers. See Harris, The Title VII Administrator: A Case Study in Judicial Flexibility, 60 Cornell L.Rev. 53 (1974). Authorized to take all action necessary to implement the decree and to remedy breaches of compliance, these administrators have performed negotiating and investigatory functions, and have issued recommendations for future implementation. Id. at 55, 64. See Note, Implementation Problems in Institutional Reform Litigation, 91 Harv.L.Rev. 428, 452 (1977).
In this case, moreover, the court's resort to use of a master is particularly appropriate. After the decision on liability was announced, the appellants were afforded an opportunity to devise and present their own remedies for conditions at Pennhurst. They failed to do so. At that point, having received insufficient assistance from the officials directly involved, the court was faced with the choice of massive personal participation in devising a complex scheme for remedying the violations that were found, or of proceeding with the assistance of a master, whose functions would be supplementary to and supervisory over those of the Commonwealth and County defendants. We hold that the trial court chose correctly in ordering the appointment of a master. We are confident that the court will exercise appropriate supervision over the operations of the Master in order to minimize the expenditure of funds in the administration of his responsibilities and the manner in which he discharges his responsibilities under the decree in 0907 particular, the manner in which individualized habilitation programs are developed for each class member. As we understand the role of the Master under the decree, he is to supervise all implementation efforts with the aid and assistance of all parties to the lawsuit. The defendants will thus have an opportunity to participate in the structuring of relief. Moreover, their underlying obligation to provide habilitation in the least restrictive environment is derived, in part, from a state statute and federal statutes under which Pennsylvania has received federal funds. These duties were known and consented to. These considerations, in our view, vitiate whatever complaint the Commonwealth might otherwise have that the court order somehow violates whatever principles of federalism are relevant. Brief for Appellant at 59-62.
D. Specific Objections to the Court Order
Appellants also contest certain specific portions of the court's decree. They object to paragraph 2, 446 F.Supp. at 1326, which entitles members of the class and their next friend to participate in the development and review of the plan. They protest that paragraph 13, id. at 1328, requiring that certain local rules on physical and chemical restraints be implemented, is inapplicable since (1) the rules were not in effect long enough to permit a finding that they were violated, and (2) the rules are not statutorily compelled. In addition, appellants contend that paragraph 6, id. at 1326-27, imposes on the state duties which have no legal source; these duties include the establishment of a friend-advocate system and the provision of alternative employment for each Pennhurst employee. Finally, appellants argue that the trial court should not have ordered that Pennhurst be entirely closed, particularly in view of the apparent desire of certain members of the class to remain at the institution once it is improved.
Criteria for evaluating the trial court's exercise of discretion in effecting a remedy are set forth in Milliken v. Bradley, 433 U.S. 267, 279-288, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977) (Milliken II). There, the Court held that if an alleged injury is constitutionally (or presumably statutorily) cognizable, "the remedy does not `exceed' the 113 violation if the *113 remedy is tailored to cure the `"condition that offends the Constitution."'" Id. at 282, 97 S.Ct. at 2758 (quoting Milliken v. Bradley, 418 U.S. 717, 738, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974) (Milliken I)) (emphasis added by the Milliken II Court). In Milliken II, the Court affirmed a district court decision to order certain

remedial reading, testing, and counseling services. These remedies, the Court concluded, were found by the trial court to be necessary to "cure" the "condition" of de jure segregation in Detroit. Id. at 288, 97 S.Ct. 2749. The Supreme Court could find no reason to believe that the district court had abused its "broad and flexible equity powers" in reaching this determination. Id.

Under these liberal standards, we have no trouble upholding paragraphs 2 and 13 of the court order. In this case, the "condition" to be "cured" is the failure to provide the retarded with adequate habilitation in the least restrictive environment. Both paragraphs 2 and 13 are directly addressed to remedying this condition. Parental and patient participation in the design of alternative facilities is well-suited to redressing the violations of the rights of the retarded. So, too, are the restrictions imposed by the court against physical and chemical restraints.

In addition, we affirm that portion of paragraph 6 which establishes a friend-advocate system to monitor the continued availability of community services to the retarded. Not only will such a system help to effectuate the rights of the retarded but, by providing ongoing supervision of implementation efforts, it will reduce the need for judicial oversight.

The court's decree should be modified in two respects. First, we cannot agree with that portion of paragraph 6 requiring that alternative employment be provided to all Pennhurst employees. Even under the liberal standards of Milliken II, we do not see how this mandate is reasonably related to facilitating the right of the retarded to habilitation in the least restrictive environment. This section of the court's order must therefore be set aside.

Second, we cannot agree with the trial court that Pennhurst must be entirely closed. In so ruling, the court first noted that Pennhurst was not providing adequate habilitation at the time of the litigation. 446 F.Supp. at 1318. With that conclusion we obviously agree. But the court also held that Pennhurst could never provide adequate habilitation because of its very status as a large institution.

[O]n the basis of this record we find that minimally adequate habilitation cannot be provided in an institution such as Pennhurst. As the Court has heretofore found, Pennhurst does not provide an atmosphere conducive to normalization which is so vital to the retarded if they are to be given the opportunity to acquire, maintain and improve their life skills. Pennhurst provides confinement and isolation, the antithesis of habilitation. We found that Pennhurst has produced regression and in many instances has destroyed life skills possessed by its retarded residents at the time of their admission. We are inclined to agree with the following comments of Mason & Menolascino, . . . (footnotes omitted):

Although Wyatt and Welsh are significant in their recognition of the principles of normalization and

the developmental model for the factual foundation of their formulation of the constitutional right to

habilitation, their approach can be considered only the rudimentary beginning. The logic of

normalization and the developmental model which Wyatt and Welsh recognized suggests full

implementation of habilitation can only be achieved in a non-institutional setting. Institutions, by

their very structure a 0907 closed and segregated society founded on obsolete custodial models 0907can

rarely normalize and habilitate the mentally retarded citizen to the extent of community programs

created and modeled upon the normalization and developmental approach components of

114

habilitation. Neither Wyatt nor Welsh fully implemented *114 the right to habilitation in that they

failed to challenge the very existence of the institution. Consequently, the two institutional

characteristics most antithetical to the application of the normalization principle remain intact:

segregation from the community and the total sheltering of retarded citizens in all spheres of their

lives.

Id. (footnote omitted) (quoting Mason & Menolascino, The Right to Treatment for Mentally Retarded Citizens: An Evolving Legal and Scientific Interface, 10 Creighton L.Rev. 124, 156-57 (1976)). The court was thus apparently persuaded to the view, shared by many practitioners, that institutionalization of any sort is a deterrent to adequate habilitation.[36]

It is probably true, as the trial court found, that in general institutions are less effective than community living arrangements in facilitating the right to habilitation in the least restrictive setting. There is ample testimony on the

record indicating the shortcomings of institutions as places for habilitation. See, e. g., Record, vol. 1, at 96 (testimony of Dr. Roos); Record, vol. 4, at 73 (testimony of Mr. Lancaster-Gaye); Record, vol. 2, at 96 (testimony of Dr. Clements). Moreover, institutions would generally appear not to be the least restrictive environment in which to provide habilitation. See Record, vol. 4, at 79 (testimony of Mr. Lancaster-Gaye); Record, vol. 2, at 85 (testimony of Dr. Clements); Record, vol. 1, at 179 (testimony of Dr. Roos). Thus we cannot find clearly erroneous the trial court's determination that, for the retarded class members as a whole, Pennhurst cannot be an appropriate setting in which to provide habilitation.

But in making this wholesale judgment, the trial court did not adequately canvass the discrete needs of individual patients. For some patients a transfer from Pennhurst might be too unsettling a move. Longterm patients, for example, may have suffered such degeneration in the minimum skills needed for community living that habilitation outside an institution is a practical impossibility. Indeed, the Pennhurst Parents-Staff Association, which has participated as an amicus in this appeal, contends that this is true for many patients. Moreover, there seems to be some support among practitioners for this view as well.[37] We need not decide that issue here. All that we need recognize is that there may be some individual patients who, because of advanced age, profound degree of retardation, special needs or for some other reason, will not be able to adjust to life outside of an institution and thus will be harmed by such a change. The case must therefore be remanded for individual determinations by the court, or by the Special Master, as to the appropriateness of an improved Pennhurst for each such patient.

We base our ruling on the nature of the rights being enforced in this case. The framers of 42 U.S.C. §§ 6001-6081, as we have noted, did not anticipate a shutdown of all institutions when they endorsed a right to habilitation in the least restrictive environment. Rather, they recognized that for some patients institutions, once improved, might be appropriate. Similarly, we do not think that the Pennsylvania legislature, in providing a right to treatment in the Mental Health and Mental Retardation Act of 1966, intended to foreclose all institutionalization. In section 102 of that Act, for example, the legislature expressly included "institution[s]" within the category of "facilities" for which the Department of Public Welfare was responsible. Pa.Stat. Ann. tit. 50, § 4102. Thus, we see in the MH/MR Act of 1966 exactly the intent ascribed to it by Senator Pechan when he spoke in support of the measure.

115

The object of this legislation is to make it possible for every mentally disabled person *115 to

receive the kind of treatment he needs, when and where he needs it.

1966 Pa.Legis.J., 3d Spec.Secc., No. 33, 76 (Sept. 27, 1966). The state statute, like the federal statute, was focused on individual needs. Since the statutory rights to treatment, state and federal, vindicate the individual patient's fundamental interest in personal liberty, it is only fitting that the Commonwealth be required to undertake a case-by-case investigation into how each person's rights may best be facilitated.

The right to the least restrictive environment also supports an individualized approach. Insofar as the right derives from sections 6001-6081, it is plain that no per se rule against institutions was contemplated. Moreover, although we do not predicate our holding on a constitutional right to treatment in the least restrictive setting, we note that such a constitutional right would protect the liberty interest of individuals. It would be anomalous to recognize the right to the least restrictive environment but never inquire whether a given individual can adjust to the environment to which he has been consigned. Thus to the extent that the district court predicated its blanket prohibition against institutionalization in Pennhurst on the fourteenth amendment, we disagree. Whatever the Constitution requires by way of least restrictive alternatives, it does not preclude resort to institutionalization of patients for whom life in an institution has been found to be the least restrictive environment in which they can survive.

Of course, deinstitutionalization is the favored approach to habilitation. The federal statutory material makes that clear and we acknowledge that constitutional law developments incline in that direction as well.[38] Thus, on remand, the court or the Master should engage a presumption in favor of placing individuals in CLAs. But the special needs and desires of individual patients must not be neglected in the process.

Finally, consideration must be given to the order directed to the future activity of the Base Service Units. That order essentially imposes an absolute ban on admissions to Pennhurst, paragraphs 9, 10, 446 F.Supp. at 1327, and requires that the defendants provide CLAs for all persons on the Pennhurst waiting list, id. at 1326, paragraph 1.
As we have noted with respect to current residents of Pennhurst, the court or the Master should engage in a presumption that individuals should be placed in CLAs. This presumption is equally important, if not more so, with respect to applicants for future admission. However, we have recognized that although institutionalization is strongly disfavored, it is not foreclosed completely by the governing federal and state statutes. It is conceivable that in processing a given future application, a Base Service Unit will find that no available CLA is suitable for the 116 individual, life in the community is not possible, and no other *116 alternative institution in the relevant geographic area is available. Modification of the decree to permit admission to Pennhurst of such an individual while it remains open, but under court supervision as in the case of present residents, seems appropriate. This would provide for the interim accommodation of such persons while, as the decree contemplates, and the Commonwealth intends, Pennhurst is being phased out. We emphasize again, however, that any determination with respect to future applicants must always be made with the least restrictive alternative in mind and that the modification is appropriate only because an extreme situation calling for institutionalization might arise. The precise mechanism for court supervision of the Base Service Units in this regard we leave to the district court.
Naturally, nothing we have said here should be understood to disapprove the interim measures ordered by the trial court for the improvement of Pennhurst. Quite the reverse: state and federal laws plainly require that if Pennhurst is to remain open for at least some patients, it must be dramatically improved so as to provide adequate habilitation. Neither should our willingness to permit retention of Pennhurst as an institution available for those who cannot be treated in any less restrictive environment be construed as an invitation to the appellants to desist from opening up alternative community facilities. As we have said, institutionalization is a disfavored approach to habilitation. Only where the court or the Master finds that an improved Pennhurst is the only appropriate place for individual patients should it be used. For all other patients, CLAs must be provided.[39] We caution both the trial court and the Master that before ordering transfers to CLAs they must have assurances that the sanitary, staffings, and program deficiencies which were found at Pennhurst are not duplicated on a smaller scale in the CLAs. If staffing and programs are inadequate at the CLAs, then the goals of deinstitutionalization will not be met. Mere changes in the size of buildings and their location are not enough to meet the statutory requirements.
There are six other appeals pending in this court from orders entered subsequent to the March 17, 1978 order with which this opinion deals. By agreement of the parties, briefing has been postponed in these appeals pending disposition of this appeal. On remand, the district court should be free, despite the pendency of the appeals, to consider modification of the orders with which these appeals are concerned, in the light of the modification of the March 17, 1978 order that we have directed. Because the district court is free to consider modification of the orders subsequent to March 17, 1978, the motions for stays of those orders are denied without prejudice.
VIII. CONCLUSION
With the exception of the order to find alternative employment for all Pennhurst employees, the order directing the eventual closing of Pennhurst, and the order banning all future admissions to Pennhurst, the judgment of the trial court will be affirmed in all respects. To facilitate the inquiry into the appropriate setting for each patient's habilitation, the court may, if it chooses, permit particular organizations to intervene at the relief stage or create subclasses. Alternatively, it may allow the inquiry to proceed on a case-by-case basis. No matter how it is accomplished, however, an assessment of each class member's needs must be carried out. The case will therefore be remanded for further proceedings not inconsistent with this opinion. All parties shall bear their own costs.
SEITZ, Chief Judge, with whom ALDISERT and JAMES HUNTER, III, Circuit Judges, join, dissenting.

117 This case poses what is for the judiciary a singularly difficult and sensitive problem. *117 At a federal judicial level, we are asked to interpret relatively new and innovative legislation and to embark upon uncharted constitutional waters. At a factual level, the record presents a mass of social science and medical data from which judges are asked to fashion legal rules.
Initially, I have no trouble agreeing with the majority that the conditions at Pennhurst revealed in this record fall below a statutory or constitutional threshold of decency so as to merit judicial intervention. The district court adequately documented the deplorable conditions at Pennhurst. See 446 F.Supp. at 1302-11. Understaffing, filth, violence, enforced inactivity, and other horrors make Pennhurst, in the opinion of one well-traveled expert, one of the worst institutions of its kind in the world. Under these circumstances the federal courts have a right and a duty to intervene and to secure for Pennhurst's residents, at the very least, adequate living conditions. Cf. Norris v. Frame, 585 F.2d 1183 (3d Cir.1978) (scrutiny of pre-trial detainee's conditions of confinement). I thus have no hesitation in agreeing that the federal judiciary should take the necessary steps to eliminate those conditions at Pennhurst.
Pennhurst as it exists today, however, must not obscure what is an entirely severable legal issue. That issue is the legality of institutionalization of the mentally retarded. The inquiry is not whether institutionalization is outmoded, undesirable, or unjustifiably expensive. Rather, the question is, assuming a Pennhurst without the deplorable living conditions here, may a federal court step in and say institutionalization is illegal, and if it can, what standard will the court employ in determining that illegality. It is on this issue that I part company with the majority.
The district court held that no matter how much one might change Pennhurst, it would never be legal to place a person in such a large institution. Although the majority rejects that theory, its position is that even if all the deplorable living conditions at Pennhurst are eliminated, it still is impermissible to place persons there if a large institution is not the least restrictive environment for that individual.
Such a rule goes far beyond the proposition that federal courts should require the state to eliminate the deplorable conditions at Pennhurst. The effect of the rule is to require the state to create new facilities regardless of the feasibility or practicality of such a course of action. Moreover, because persons develop over time, the federal courts will become embroiled in almost continual supervision to ensure that each individual at any particular moment is in the least restrictive environment.
Although I believe improvement of Pennhurst to be mandatory, I do not believe a federal court may dictate to the state the type of treatment that best suits every individual. In my view, as long as the state runs all of its facilities free of the types of conditions that exist at Pennhurst today, then the state must be given latitude to choose in which of the facilities it will place a given individual. A federal court should remove a person from an institution or forbid a particular mode of treatment only in very limited circumstances. Because I can find no basis for the rule announced by the majority in statute or Constitution, I dissent from that portion of its opinion mandating a general right to individualized treatment in the least restrictive environment.
I. Statutory Basis
A. Developmentally Disabled Assistance and Bill of Rights Act
I will assume that the majority is correct in asserting, first, that patients at Pennhurst have a right to treatment under the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. §§ 6000-6081 (the Act); and, second, that patients have an implied cause of action under the Act to enforce that right. These two conclusions, however, bring one no closer to an answer in this case, for it means little to say that a person has a "right" without defining it in a particular context. In this case, one must ask exactly what are the contours and substance of the right to treatment.
118 *118 The starting point for an answer to this question is the nature and history of the implied cause of action. In England as early as the thirteenth century, the king's courts fashioned private remedies by looking to duties

imposed on the defendant by royal enactments. See generally J. Mashaw & R. Merrill, Introduction to the American Public Law System 969-71 (1975); Katz, The Jurisprudence of Remedies: Constitutional Legality and the Law of Torts in Bell v. Hood, 117 U.Pa.L.Rev. 1 (1968). The essence of the implied cause of action is that the defendant breaches a duty imposed on him by a statute, and the breach in some way harms the plaintiff, who then may supplement the statutory scheme through a private suit. See J. I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964). One cannot divorce the implied cause of action from a duty imposed on the defendant by the statute in question. Unless the defendant's activity violated the statute, there is nothing a court can properly redress.

Applying this precept to the case at hand, the question is whether the Act imposes a duty on the defendants to provide the least restrictive treatment possible to the plaintiffs. Unless it does, the Act cannot be a proper basis for the majority's holding. I agree with the majority that the legislative history indicates a preference for least restrictive treatment, but a preference cannot be elevated into a mandatory duty without explicit statutory authority.

The Act nowhere places such a duty of least restrictive treatment on those states accepting federal funding. The Act is extremely explicit as to the duties of those states that receive such funds. The heart of the state's duty under the Act is section 6063. Before the state can receive funds, it must submit a plan to the Secretary of Health, Education, and Welfare (HEW) for approval. Prior to the 1978 amendments, section 6063(b)(20) required that the state's submission to HEW contain:

a plan designed (A) to eliminate inappropriate placement in institutions of persons with
developmental disabilities, and (B) to improve the quality of care and the state of surroundings of persons for whom institutional care is appropriate.[1]

Moreover, the state must maintain individual habilitation plans and an advocacy system to ensure that the general plan approved by HEW is properly implemented. See 42 U.S.C. §§ 6011-6012. Cf. id. §§ 6007, 6067 (establishing state and national planning and advisory commissions).

The requirement in section 6063(b)(20), however, in no way imposes an absolute duty on the state to provide the least restrictive treatment. For example, the regulation dealing with this portion of a state's plan provides:

The State plan shall support the establishment of community programs as alternatives to institutionalization and support such programs designed to provide services for the care and habilitation of persons with developmental disabilities, and which utilize, to the maximum extent feasible, the resources and personnel in related community programs to assure full coordination with such programs and to assure the provision of appropriate supplemental health, educational, or social services for persons with developmental disabilities.

45 C.F.R. § 1386.43 (1978). I fail to see how a duty to "support" "feasible" non-institutional care can be elevated to an absolute duty to provide the least restrictive treatment for every individual regardless of cost or available resources.

The Act elsewhere demonstrates that the state's limited resources may qualify its duty to provide alternate habilitation. For example, the state has primary control over where the funds are to be allocated. See 42 U.S.C. § 6003. Indeed, the House Report on the 1975 version of the Act stated:

119

*119 Since the Committee is well aware that current theory with regard to the treatment and

support of the developmentally disabled emphasizes that this treatment should be conducted in

the individual's community without unnecessarily institutionalizing him, the Committee has chosen

to include a specific requirement that state programs plan for as much deinstitutionalization as is

feasible, and earmark monies for this purpose. Knowing that this may require some increase in

expenditures, the Committee has also increased the authorizations of appropriations.

It is anticipated that these requirements will prompt some movement of patients from State institutions back into their communities. It is hoped that corresponding amounts of State and other

funds currently being spent on institutional care will be re-budgeted for community care, an obvious rebudgeting that has not always occurred in conjunction with deinstitutionalization efforts.
House Rep.No. 94-58, 94th Cong., 1st Sess. 10, reprinted in 2 U.S.Code Cong. & Admin. News, 919, 928 (1975). This passage illustrates that Congress intended the Act as no more than an incentive to deinstitutionalization, not an imposition of a mandatory requirement regardless of fiscal concerns.
Thus the language and structure of the Act, the relevant regulations, and the legislative history all indicate that the states may consider their own resources in providing less restrictive treatment. The duty of the states under the Act is to provide alternative individual habilitation to the extent feasible, which includes a wide variety of fiscal concerns. Yet the import of the approach taken by the majority is exactly the opposite: it imposes a duty to provide less restrictive treatment, regardless of cost or available funds. This is an approach entirely inconsistent with the nature of an implied cause of action, which must rest on the breach of a statutory duty. In effect, the majority transforms the duty of providing feasible alternative treatment into an entirely different substantive obligation that has absolutely no basis in the statutory scheme. It is improper to say an implied statutory cause of action exists and then impose new substantive duties nowhere present in the statute in question.
The majority places great emphasis on section 6010, the bill of rights section. The broad rights declared in section 6010 can be given concrete meaning, however, only by reference to the other provisions in the Act. I do not believe, especially with a funding statute such as the one here, that general findings and declarations should be used as a charter for the creation of absolute obligations where Congress felt the states should be free to choose on their own as to the proper allocation of funds. Cf. Beal v. Doe, 432 U.S. 438, 97 S.Ct. 2366, 53 L.Ed.2d 464 (1977) (Title XIX gives states latitude as to whether to spend federal funds on abortion). In sum, where Congress establishes a funding scheme designed to encourage a course of conduct, that is no license to federal courts to make that conduct mandatory.
None of this is meant to denigrate the purpose of section 6010. The time has passed when retarded persons can be considered citizens without any rights whatsoever. Those rights conferred by this Act are important and a significant step on the road on which our nation has a far way to go. Yet the judiciary should not permit such feelings to exceed the obligations imposed on states by the Act. Because the Act nowhere imposes an absolute duty on funded states to provide the least restrictive treatment regardless of cost or feasibility, I would hold that the Act does not support those portions of the district court's order that create such an obligation.
B. Rehabilitation Act of 1973

The district court held that continued confinement at Pennhurst, which receives federal funds under Title XIX of the Social Security Act, 42 U.S.C. § 1396 et seq., violated section 504 of the Rehabilitation Act of 1973.[2] That
provision, as amended in 1978, states in relevant part:

120

*120 No otherwise qualified handicapped individual in the United States . . . shall, solely by reason

of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to

discrimination under any program or activity receiving Federal financial assistance . . .

29 U.S.C. § 794, as amended, Pub.L. 95-602, § 122(d)(2), 92 Stat. 2987 (1978).

The issue is whether section 504 mandates positive action by the state to create new, less restrictive habilitation facilities. On its face, the section merely says that states may not discriminate as to existing facilities; it does not require that the states take affirmative action. Thus in Southeastern Community College v. Davis, 442 U.S. 397, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979), the Supreme Court noted that section 504 did not require the state to create new facilities suitable for training nurses with hearing disabilities. After a thorough examination of the statutory structure and implementing regulations, the Court stated:

If these regulations were to require substantial adjustments in existing programs beyond those necessary to eliminate discrimination against otherwise qualified individuals, they would do more

than clarify the meaning of § 504. Instead, they would constitute an unauthorized extension of the obligations imposed by that statute.
. . . Section 504 does not refer at all to affirmative action, and except as it applies to federal employers it does not provide for implementation by administrative action. A comparison of these provisions demonstrates that Congress understood accommodation of the needs of handicapped individuals may require affirmative action and knew how to provide for it in those instances where it wished to do so.
Id. at 2369 (footnote omitted).
The conclusion that section 504 imposes no such obligation in this case is supported by the legislative history. Most of the controversy surrounding the Rehabilitation Act concerned provisions other than section 504. As a result, legislative remarks about the purpose of that section are scarce and tend to restate the obvious. The provision's major thrust clearly is directed toward ensuring the handicapped equal access to federally-funded programs. See, e. g., 118 Cong. Rec. 32,310 (Sept. 26, 1972) (remarks of Senator Humphrey); id. at 32,294 (Sept. 26, 1972) (remarks of Senator Cranston); Sen. Rep.No. 93-318, 93d Cong., 1st Sess., reprinted in 2 U.S.Code Cong. & Admin.News, pp. 2076, 2123, 2143 (1973).
Moreover, the structure and thrust of the Rehabilitation Acts of 1972 and 1973, of which section 504 was only one small part, undercuts plaintiffs' contention. The Acts essentially are funding statutes. They represent comprehensive attempts to deal with the plight of the handicapped, especially the most severely handicapped, see 29 U.S.C. § 701, through a system of federal grants to states for the development of the enumerated programs. See id. §§ 720, 721, 762. One of the clear purposes of these grants was to offer states financial incentives to deinstitutionalize the mentally retarded. See, e. g., 118 Cong.Rec. 32,305 (Sept. 26, 1972) (remarks of Senator Javits); id. at 36,414 (Oct. 14, 1972) (remarks of Congressman Badillo).
Given the emphasis in the Rehabilitation Acts of 1972 and 1973 on encouraging the states to deinstitutionalize, I do not believe that there should be read into section 504, included in both those acts, a legislative mandate for 121 deinstitutionalization. The carefully tailored system of programs and grants in the legislation as a whole belies *121 any congressional intention to impose an absolute duty to provide the least restrictive treatment.
Plaintiffs offer two less expansive arguments in support of the district court's holding that section 504 mandates Pennhurst's closing. First, they argue that section 504 requires the termination of a federal program designed exclusively for the handicapped if that program prevents its beneficiaries from participating in other federal programs. This is quite novel. No court that has granted relief under section 504 has even implied that such an interpretation is possible. See, e. g., Leary v. Crapsey, 566 F.2d 863 (2d Cir. 1977); United Handicapped Federation v. Andre, 558 F.2d 413 (8th Cir. 1977); Lloyd v. Regional Transportation Authority, 548 F.2d 1277 (7th Cir. 1977). Moreover, I believe that plaintiffs' argument cannot be justified on this record.
Plaintiffs allude throughout their briefs to a variety of federally-funded programs for the handicapped that are unavailable to Pennhurst's residents. The district court heard 32 days of testimony and argument in this case. The parties took 27 depositions. The exhibits included 108 photographs, a three-hour film, and 288 documents. An examination of this massive record does not reveal, however, a single federally-funded program from which Pennhurst residents have been excluded. Indeed, the United States, intervening on behalf of plaintiffs, concedes that the record fails to demonstrate that any programs using such funds were available to anyone in the fivecounty area served by Pennhurst. Thus plaintiffs' first argument is without merit.
Plaintiffs alternatively argue that Pennhurst violates section 504 by denying its residents the benefits of Pennsylvania's program of community living arrangements. This denial allegedly is based impermissibly upon the severity of the handicaps of those confined at Pennhurst.
Significantly, Pennsylvania accepts no federal funds for the operation of its community living arrangements, choosing instead to finance the program out of its own revenues. In 1976, Pennsylvania served 2069 persons in community living arrangements, 483 of whom were from the five-county region served by Pennhurst. During 1976, Pennhurst itself served approximately 1200 residents. As places have become available in community

living arrangements in the five-county area, Pennsylvania has filled half of them with residents of Pennhurst and half with other retarded individuals.
Plaintiffs would have us hold that this system violates section 504 because only the most severely handicapped persons are placed at Pennhurst. Almost fifty percent of Pennhurst's residents are profoundly retarded, having I.Q.'s of less than 20. Almost three quarters are at least severely retarded, with I.Q.'s of less than 36. In addition, many of the residents are multiply handicapped. Although, given proper facilities, all of these persons could be served "in the community," no one disputes that such severely handicapped persons pose difficult placement problems. Moreover, plaintiffs do not contend that Pennsylvania has now, or has ever had, adequate facilities in the community to cope with all, most, or even many of Pennhurst's present residents. Plaintiffs' only argument is that such facilities are feasible and that Pennsylvania violates section 504 by failing to develop them.
Presumably, such an expanded program of community living arrangements could be funded by federal grants under Titles XIV and XX of the Social Security Act, 42 U.S.C. §§ 1351 et seq., 1397 et seq. Four states, Michigan, Minnesota, Nebraska, and Oklahoma, presently finance such programs under these titles. Section 504, however, cannot be read as requiring states to accept federal funds for such a program. On the contrary, in his comments on the Rehabilitation Act of 1972, which included a provision identical to section 504 as enacted, Congressman Badillo specified that the Act would allow states "to explore the possibility of using, as much as 122 possible, a community-based treatment approach." 118 *122 Cong.Rec. 36,414 (Oct. 14, 1972). Plaintiffs now argue that Pennsylvania, which has chosen to use its own funds to "explore the possibility of using" community living arrangements, violates section 504 in failing to embrace that treatment approach completely and immediately. Because the legislative history reveals no more than a congressional intent to encourage deinstitutionalization, I believe that such a conclusion is untenable.
Therefore, I reject each of plaintiffs' arguments that institutionalization of the mentally retarded at Pennhurst violates section 504. Because that section supports neither the plaintiffs nor the majority, I must proceed to consider the other bases for the district court's order.
C. Pennsylvania Law
The majority holds that Pennsylvania's Mental Health and Mental Retardation Act of 1966 (MH&MRA), 50 P.S. § 4101 et seq., grants the retarded a statutory right to treatment and that the plaintiffs have a private cause of action under the statute to enforce that right. The majority seems to implicitly rest its least restrictive treatment rule in part on Pennsylvania law.
I will assume that the residents of Pennhurst have a statutory right to some kind of treatment under the 1966 legislation. I cannot say as a matter of Pennsylvania law, however, that whatever treatment the residents are entitled to receive must be provided in the least restrictive environment possible. The question is: If the deplorable conditions evidenced in the record were eliminated at Pennhurst, would some individual still have an absolute right as a matter of state law to be placed in a less restrictive setting?
Initially, as with any implied cause of action, the remedy must be tied to violation of an express statutory provision. General language may not obscure the need for concrete imposition of a specific duty. Article II of the MH&MRA sets out the duties of the state and nowhere does it mention a duty to provide the least restrictive treatment regardless of fiscal concerns.
Moreover, the structure of the MH&MRA itself implies that Pennsylvania's General Assembly, in enacting the legislation, contemplated no such absolute right to treatment outside a properly run institution if such were the least restrictive environment imaginable. A major purpose of the MH&MRA was to ensure proper division of responsibilities between the state's Department of Public Welfare (DPW) and local authorities, primarily cities and counties. See 50 P.S. §§ 4102, 4202(a), 4301(d), 4507(a)(1). This division of authority indicates that DPW was to operate regional facilities like Pennhurst while the localities were to concentrate on community-based services such as after-care. The very fact that both exist side by side in the legislative scheme without any language about placement in one or the other belies any theory that the General Assembly intended an absolute right to one to the exclusion of the other.

Buttressing my conclusion that the MH&MRA contemplated institutionalization of the mentally retarded are statistics, cited by the district court, indicating that institutionalization as a means of providing for the retarded was on the rise through 1966, the year of the MH&MRA's enactment. See 446 F.Supp. at 1300 n.7. The record shows that only in 1970 did Pennsylvania begin to explore the possibility of deinstitutionalizing Pennhurst's residents. See 446 id. at 1312. I believe it would be anomalous to attribute to the General Assembly of 1966 an intention to require treatment of the mentally retarded in a community setting because it would be less restrictive than an institution when the state did not even consider community treatment until 1970.
Nor do I believe that intervening changes in attitudes toward habilitation of the mentally retarded allow this court to reject the legislative judgment, implicit in the MH&MRA, that institutions, if properly run, can provide the mentally retarded with the requisite services. The General Assembly has not indicated that it has reached a contrary conclusion. Furthermore, the only Pennsylvania courts to consider analogous issues seem to have 123 assumed that institutionalization *123 is permissible without examining it as the least restrictive alternative under the MH&MRA. For example, in Hoolick v. Retreat State Hospital, 24 Pa. Cmwlth. 218, 354 A.2d 609 (1976), aff'd mem., 476 Pa. 317, 382 A.2d 739 (1978), the Commonwealth Court rejected a claim that the MH&MRA required DPW to continue to operate the Retreat State Hospital. In so ruling, the court noted that the hospital was "an institution within the framework of mental health facilities operated by the Commonwealth." Id. at 220, 354 A.2d at 610. According to the Commonwealth Court:
The manifest object of the General Assembly in enacting the Mental Health and Mental Retardation Act of 1966 was to create a cooperative State-county (or multi-county) program across the Commonwealth for those who suffer mental health or mental retardation afflictions. . . . To retard or restrict State action in the operation of such a program, a clear specific legislative intent that a particular mental health facility shall remain functional would be required.
Id. at 224, 354 A.2d at 612. Thus under Hoolick, the legislature gave the DPW wide latitude in choosing what type of an institution best suits an individual.
Moreover, the state's duty to treat individuals is subject to the financial limitations of its own treasury. Cf. County of Allegheny v. Commonwealth, 33 Pa. 267, 381 A.2d 1014 (1978) (state's liability to county not absolute). Indeed, in one case, the county placed an individual in a private home; because this was not authorized by the Act, the state was not liable to the county for the expenditure. In the interest of Wayne K., 34 Pa. 10, 382 A.2d 989 (1978). At the least, then, the state right to treatment does not include a right to placement in a private home, even if that is the least restrictive environment.
Absent legislative action indicating that a particular type of facility, acceptable to the General Assembly in 1966, no longer passes legislative muster, I cannot predict that a Pennsylvania court facing this same question would hold that an individual has an absolute right to treatment in another less restrictive institution. I would hold only that, according to Pennsylvania law, any right the mentally retarded may have under the MH&MRA to habilitation can be satisfied in an institutional setting properly maintained.
II. Constitutional Basis
A. Due Process
The final question presented by the plaintiffs is the constitutionality of the state statutory scheme of institutionalizing people in Pennhurst. The district court held that retarded persons, once admitted to a state facility, "have a constitutional right [under the due process clause] to be provided with minimally adequate habilitation under the least restrictive conditions consistent with the purpose of the commitment." 446 F.Supp. at 1319. Having found such a right, the district court further held that Pennhurst, because it is an institution, could never provide minimally adequate habilitation and that Pennhurst's residents were entitled to be placed in community living arrangements. Id. at 1318, 1320.

The majority holds that some individuals may remain in Pennhurst, thus rejecting the district court's thesis. It purports to do this on statutory grounds, thereby avoiding the constitutional issue. The majority's apparent justification for failing to reach the constitutional issue is that the legislation involved here does not require less than is mandated by the Constitution. The majority merely makes this statement without explaining why its unarticulated view of the Constitution is correct and the district court's theory is incorrect. If, as I believe, the statutes in question provide no cause of action to enforce a generalized absolute right to least restrictive treatment, then the only remaining basis for the majority's holding is the Constitution.
My approach presents two questions. First, decide what are the permissible governmental purposes that support 124 civil commitment of the mentally retarded. Second, determine whether those purposes are sufficient *124 to
support institutionalization or whether the state has a constitutional duty to employ means less restrictive of individual freedom.
In finding a constitutional right to habilitation, the district court relied on a series of cases that grant nondangerous mental patients who are involuntarily committed a right to psychiatric treatment. The seminal right-totreatment case was Rouse v. Cameron, 125 U.S.App.D.C. 366, 373 F.2d 451 (D.C.Cir.1966), which dealt with a statutory right to treatment. In dictum, the court indicated that the failure to treat a mental patient who had been committed by the state was sufficiently "shocking" to violate due process guarantees. See id. at 370, 373 F.2d at 455.
A number of courts have expanded upon Rouse's dictum. The Court of Appeals for the Fifth Circuit offered the strongest defense of the right to treatment in Donaldson v. O'Connor, 493 F.2d 507 (5th Cir. 1974), vacated on other grounds and remanded, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975), and Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974), aff'g, Wyatt v. Stickney, 325 F.Supp. 781 (M.D.Ala.1971) (Stickney I). Donaldson noted that involuntary confinement must be justified by a legitimate state purpose to survive scrutiny under the due process clause. See Jackson v. Indiana, 406 U.S. 715, 738, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972). Historically, civil commitment had been based on one of three grounds: danger to self, danger to others, or need for treatment. See id. at 737, 92 S.Ct. 1845. Because uncontradicted evidence demonstrated that Donaldson was dangerous neither to himself nor to others, the only legitimate basis for his confinement was the provision of treatment. According to the Fifth Circuit, the state of Florida, which confined Donaldson to treat him, had a constitutional duty to provide him with adequate and effective treatment, the "quid pro quo" for his confinement. See 493 F.2d at 518-27.[3]
The first case to apply the right-to-treatment rationale to the mentally retarded was Wyatt v. Stickney, 344 F.Supp. 387 (M.D.Ala.1972) (Stickney II), affirmed in relevant part sub nom. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974). Having determined in Stickney I that persons involuntarily committed to mental institutions had a right to treatment, the district court felt compelled to extend an analogous right to the mentally retarded. See 344 F.Supp. at 390.[4]
I can assume, without deciding, that a nondangerous individual committed by the state because of an alleged mental illness has a right to receive psychiatric treatment for his or her condition. I do not agree, however, with the assertion made in Stickney II that, in this regard, "no viable distinction can be made between the mentally ill and the mentally retarded." 344 F.Supp. at 390. On the contrary, as the Supreme Court has noted in another context, "careful attention must be paid to the differences between [the] mentally ill and [the] mentally retarded." Kremens v. Bartley, 431 U.S. 119, 135-36, 97 S.Ct. 1709, 1718, 52 L.Ed.2d 184 (1977). In particular, I believe that the government's purpose in depriving Pennhurst's residents of their liberty is quite different from the government's purpose in depriving a non-dangerous, mentally ill person of his or her liberty.
As noted earlier, the Supreme Court has identified three conditions that might justify civil commitment: danger to 125 self, danger *125 to others, and need for treatment. See Jackson v. Indiana, 406 U.S. 715, 737, 92 S.Ct. 1845,
32 L.Ed.2d 435 (1972). In O'Connor v. Donaldson, 422 U.S. 563, 574 n.9, 95 S.Ct. 2486, 2493, 45 L.Ed.2d 396 (1975), the Supreme Court briefly examined the "danger to self" rationale and indicated that it considered inability to care for oneself a permissible basis for civil commitment:

Of course, even if there is no foreseeable risk of self-injury or suicide, a person is literally "dangerous to himself" if for physical or other reasons he is helpless to avoid the hazards of freedom either through his own efforts or with the aid of willing family members or friends.
No one disputes that most, if not all, of Pennhurst's residents are dangerous to themselves in this sense. Severely or profoundly retarded, often with multiple handicaps, the residents obviously are unable to fend for themselves. Nor, as the district court's findings on voluntariness make clear, are there "willing family members or friends" available to shield them from the "hazards of freedom."
I believe that the residents' inability to live independently distinguishes this case from Donaldson and other cases granting non-dangerous mental patients a right to treatment. Moreover, I believe that the state's willingness to provide the residents with such necessities as food, shelter, medical care, and supervision, for which the residents have no other source, forms an adequate basis for some state-imposed restrictions on their liberty.
I am left, of course, with the question whether the residents' need for care and supervision justifies the magnitude of the restraint imposed by institutionalization. The Court of Appeals for the Fifth Circuit has argued that it does not. In Wyatt v. Aderholt, 503 F.2d 1305, 1313 (5th Cir. 1974) (affirming Stickney I and Stickney II), the court emphasized that commitment entailed "`massive curtailments' of individual liberty." The court continued:
Against the sweeping personal interests involved, [the state of Alabama] would have us weigh the state's interest, and the interests of the friends and families of the mentally handicapped in having private parties relieved of the "burden" of caring for the mentally ill. The state interest thus asserted may be, strictly speaking, a "rational" state interest. But we find it so trivial beside the major personal interests against which it is to be weighed that we cannot possibly accept it as a justification for the deprivations of liberty involved.
Several factors persuade me to reject Wyatt's reasoning in the context of this case. First, that decision preceded the Supreme Court's decision in Donaldson. As noted, the Supreme Court there indicated that the need to provide mentally handicapped persons with custodial care could, under some circumstances, support civil commitment. Moreover, to the extent that Wyatt's reasoning survived Donaldson, the realities of Pennhurst as recorded in the findings of the district court preclude its application in this case. The vast majority, almost 90 per cent, of Pennhurst's residents are 18 years of age or older. Under Pennsylvania law the duty of parents or relatives to contribute to the support of an unmarried person who has been committed or who is receiving services under the MH&MRA terminates upon that person's attainment of 18 years of age. See 50 P.S. § 4502. Moreover, relatives and friends who will accept responsibility for the care of Pennhurst's residents either do not exist or are unwilling or unable to do so. The district court found that 43 per cent of the residents have had no family contact in the past three years. The record does not show what percentage of the residents have family members still living. See 446 F.Supp. at 1302 & n.16. Even as to those residents under the age of 18, the district court found that Pennhurst "was and is their only alternative," id. at 1311 (footnote omitted), and that "they have no place else to go," id. at 1318. Given these findings, defendants are doing far more than relieving otherwise willing and able relatives of the burden of caring for the residents; they are acting as the residents' only source of 126 food, shelter, *126 supervision, and medical care. Far from being "trivial," these services are a matter of life or death to the residents. See generally New York State Association for Retarded Children, Inc. v. Rockefeller, 357 F.Supp. 752, 759-60 (E.D.N.Y.1973), consent judgment approved, 393 F.Supp. 715 (E.D.N.Y.1975), aff'd, 596 F.2d 27 (2d Cir.), cert. denied, ___ U.S. ____, 100 S.Ct. 70, 62 L.Ed.2d 46 (1979). But see Gary W. v. Louisiana, 437 F.Supp. 1209, 1217 (E.D.La. 1976) (all members of plaintiff class were minor children).
Having concluded that the residents' need for care and supervision can support significant restrictions on their personal liberty, it nevertheless must be decided whether Pennsylvania must provide for the residents' needs in a manner least restrictive of those liberties, or whether it is sufficient that the restrictions be rationally related to the purpose of confinement. The district court here felt that Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960), required use of less drastic means in general, and community living arrangements in particular. In Shelton the Supreme Court considered an Arkansas statute requiring every teacher to file an annual affidavit listing all organizations to which he or she belonged or contributed. In striking down the requirement as an unconstitutional abridgment of first amendment freedoms, the Court held that

even though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic means for achieving the same basic purpose.
Id. at 488, 81 S.Ct. at 252 (footnotes omitted).
It is quite possible that the Supreme Court has already rejected the contention that Shelton's less-drastic-means analysis applies to the conditions of civil commitment. See State v. Sanchez, 80 N.M. 438, 457 P.2d 370 (1968) (mentally ill), dismissed for want of a substantial federal question, 396 U.S. 276, 90 S.Ct. 588, 24 L.Ed.2d 469 (1970). See generally Mandel v. Bradley, 432 U.S. 173, 97 S.Ct. 2238, 53 L.Ed.2d 199 (1977) (per curiam); Hicks v. Miranda, 422 U.S. 332, 95 S.Ct. 2281, 45 L.Ed.2d 223 (1975); Halderman v. Pennhurst State School & Hospital, 446 F.Supp. at 1319 n.55; Patton v. Dumpson, 425 F.Supp. 621, 624 (S.D.N.Y.1977). Nevertheless, I believe that the importance of this issue merits a full examination of plaintiffs' argument.
In two cases dealing directly with the conditions and duration of civil confinement the Supreme Court has not been required to reach the question whether a state must provide its mental health services in a manner least restrictive of fundamental liberties. In Jackson v. Indiana, 406 U.S. 715, 92 S.Ct. 1845, 32 L.Ed.2d 435 (1972), the Court examined the constitutionality of a statutory scheme that permitted indefinite, and probably permanent, commitment of a person adjudged incompetent to stand trial on criminal charges. In holding that this procedure deprived the petitioner of due process of law, the Court reasoned that "[a]t the least, due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed." Id. at 738, 92 S.Ct. at 1858. Similarly, in O'Connor v. Donaldson, supra, 422 U.S. at 576, 95 S.Ct. at 2494, the Court explored the minimum protection afforded by due process, holding that "a State cannot constitutionally confine without more a nondangerous individual who is capable of surviving safely in freedom." In both Jackson and Donaldson the challenged restrictions were invalidated under this minimal scrutiny. But by employing the phrases "at the least" and "without more," the Supreme Court left open the possibility that it might apply stricter scrutiny in a proper case.
Recently, in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), the Supreme Court considered the constitutional requirements for the conditions under which pre-trial detainees may be confined. The plaintiff 127 detainees, who were *127 confined solely because of their inability to post bail, complained, inter alia, that the practice of assigning two detainees to a cell designed for one person denied them due process of law. In upholding the constitutionality of "double-bunking," the Supreme Court declined to apply the "compelling necessity" test that had been adopted by the Court of Appeals for the Second Circuit. Instead, the majority focused on whether double-bunking constituted infliction of punishment, and phrased the standard of review as whether "a particular condition or restriction of pretrial detention is reasonably related to a legitimate governmental objective." Id. at 1874.
Bell, although dealing with the conditions of confinement of pre-trial detainees is not dispositive of the standard of review to be applied in this case. The plaintiffs in Bell did not contend that double-bunking, as opposed to singlebunking, was unduly restrictive of any express constitutional guarantee. See id. at 1871. In this case, however, plaintiffs argue that institutions, when compared with community living arrangements, are more restrictive of such fundamental rights as freedom to travel and freedom of association. Assuming this to be the case, I will consider the applicability of some sort of less-drastic-means analysis.
The Supreme Court first formalized less-drastic-means analysis in Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960). Prior to that decision, the consideration of less restrictive alternatives was at least implicit in a number of opinions. See The Supreme Court, 1960 Term, 75 Harv.L.Rev. 40, 129 (1961) (collecting cases). Those earlier decisions, however, tended to treat less drastic alternatives as only one consideration in the overall assessment of an enactment's reasonableness. Compare Shelton v. Tucker, supra, at 488-90, 81 S.Ct. 247, with id. at 493-94, 81 S.Ct. 247 (Frankfurter, J., dissenting). In Shelton the Court seemed to hold that the existence of less drastic means would almost always invalidate a statute that impinged upon "fundamental personal liberties." See id. at 488, 81 S.Ct. 247.

Since 1960, application of less-drastic-means analysis has been far from uniform. See, e. g., United States v. Robel, 389 U.S. 258, 267, 88 S.Ct. 419, 425, 19 L.Ed.2d 508 (1967) ("It is not our function . . . to determine whether an industrial security screening program exhausts the possible alternatives to the statute under review."); L. Tribe, American Constitutional Law 722-23 (1978); Note, Less Drastic Means and the First Amendment, 78 Yale L.J. 464, 464-65 (1969). Moreover, even in the prototypical situation, where an allegedly overbroad statute impinges upon first amendment guarantees, the Supreme Court has been extremely cautious in employing the analysis. See Note, supra, at 472. Carried to its logical extreme less-drastic-means analysis is, as Justice Blackmun has noted, a "slippery slope":
A judge would be unimaginative indeed if he could not come up with something a little less "drastic" or a little less "restrictive" in almost any situation, and thereby enable himself to vote to strike legislation down.
Illinois State Board of Elections v. Socialist Workers Party, 440 U.S. 173, 99 S.Ct. 983, 993, 59 L.Ed.2d 230 (1979) (Blackmun, J., concurring).
I engage in this overview not to suggest abandonment of less-drastic-means analysis, but to emphasize the care with which it must be employed. In the proper context this mode of analysis is a useful instrument for detecting unconstitutional overbreadth. I believe, however, that the present case falls outside that context.
Implicit in rigid application of less-drastic-means analysis is a presumption that, absent countervailing governmental interests, an individual benefits from unfettered freedom. In some circumstances, of course, societal interests prevail and mandate restriction of that freedom. Nevertheless, the search for less drastic means is a judicial attempt to ensure that the intrusion is as small as possible.
This model falters where the individual, in the Supreme Court's words, is "helpless to avoid the hazards of 128 freedom." O'Connor *128 v. Donaldson, supra, 422 U.S. at 574 n.9, 95 S.Ct. at 2493. In such a case, the very
purpose of the governmental intrusion is to prevent the individual from exercising his or her freedom in a selfdestructive manner. Analytically, the difficulty is not an absence of less drastic means; in theory there will be some perfect balance between freedom and supervision, some "least restrictive alternative." Instead, the difficulty I perceive is a judicial inability to strike the perfect balance in any particular case. In an influential article cited with approval in Shelton, Elliot Richardson pinpointed the advantage of less-drastic-means analysis over the traditional balancing of interests employed by courts in first amendment cases:
With the question whether the restriction of expression is a necessary means of protecting some other interest, we come back to judgments of a more objective character. The efficacy of the restriction of speech as such a means . . . [is] a matter as to which it could more easily be said than in the case of the value of a threatened interest that a legislative judgment was or was not plainly wrong. The same is true of the question whether other means are available.
Richardson, Freedom of Expression and the Function of Courts, 65 Harv.L.Rev. 1, 40 (1951). See 364 U.S. at 488 n.9, 81 S.Ct. 247. It is this objectivity, this ability to identify a single, better alternative, that commends lessdrastic-means analysis.
This objectivity, however, counsels against use of the doctrine in the manner utilized by the district court. Here, there is not one ideal balance between freedom and supervision, but 1200, one for each of Pennhurst's residents. Some residents are capable of surviving with only minimal supervision. Others require complete, if temporary, physical restraint. See 446 F.Supp. at 1328. This complexity precludes a single, objective solution, making use of less-drastic-means analysis to declare institutions per se unconstitutional particularly inappropriate.
The problem is not solved by arguing that less-drastic-means analysis requires individualized determinations rather than condemnation of institutions as a class. In the first place, what is the least restrictive environment for any particular individual is primarily a medical question. As the record demonstrates, this concept is an uncertain one and has been the subject of fervent medical debate. I feel it inappropriate for courts to make such a judgment on the basis of a doctrine that contemplates an objective, single better alternative. Second, the least restrictive

alternative for any particular individual will change over time. Thus there is no single and final solution 0907the heart of the less-drastic-means analysis0907for each individual. By imposing upon a state a constitutional duty to provide its custodial care in the least restrictive manner, almost every decision concerning the care of a mentally retarded person would be subjected to ongoing judicial review.
Plaintiffs cannot salvage their proposed analysis by labelling community living arrangements as the least restrictive alternative. The definitional elasticity of the term "community living arrangement"[5] renders such an 129 argument quite circular. Whether *129 this setting is called a community living arrangement or something else, the federal courts would still be required to balance each resident's need for supervision and care against that resident's ability to cope with personal liberty. Such decisions traditionally, and I believe properly, have been left in the hands of physicians and mental health administrators.
Drawing from Jackson, Donaldson, and Bell, I would hold that where the state confines[6] a person against his or her will because of an inability of that person "to avoid the hazards of freedom," the conditions of that confinement must bear a reasonable relationship to the purpose of the confinement. I do not believe that a state can be constitutionally required to care for that person in a manner "least restrictive" of that person's freedom. Nevertheless, the availability of less drastic alternatives is one factor for a court to consider in determining the overall reasonableness of the challenged restraint. See, e. g., Bell v. Wolfish, supra, 99 S.Ct. at 1885 n.40.
In applying this standard of review to the case at bar, I again must stress that what is at issue here is not whether it is constitutional to place persons in Pennhurst as it existed when this record was created. There can be no question that Pennhurst is not providing its residents with minimally adequate supervision and care. Instead, the question is the constitutionality of institutions as they should be operated.
Moreover, my rejection of less-drastic-means analysis does not mean that I conceive of a "properly run institution" as a monolithic concept unrelated to the needs of particular individuals. What may be the appropriate treatment very likely will vary from person to person within the institution. The test I choose a 0907 right to treatment rationally related to the purpose of the state-imposed restraints on liberty 0907applies to every individual, whether inside or outside an institution. Thus in my view, the phrase "properly run institution" means properly run as to all those confined in it. Given the current medical definition of retardation and the fact that I do not know what a properly run Pennhurst would be like, I leave for future cases the question of whether a particular individual placed in an institution free of the deplorable conditions in the record here would ever have a constitutional right to treatment in a different environment.
With these caveats in mind, I conclude that institutionalization is not a constitutionally unreasonable means of providing for the care and supervision of the mentally retarded. A large-scale institution is quite capable of providing its residents with adequate food, shelter, medical care, and other necessities. Moreover, given the residents' need for such services, an institution does not necessarily restrict their liberty in an unreasonable fashion. I am not dissuaded from this conclusion by the feasibility of less restrictive, more effective, or even less expensive methods of caring for the retarded.[7]
The choice among models for the care of the retarded properly rests with state authorities. Federal courts may not interfere with that choice unless the selected model is not a reasonable means of delivering the services that support civil commitment in the first place. I leave for future cases the determination of whether a given method of 130 treatment is not rationally related to the *130 state's objective in confining a particular individual.
B. Equal Protection
The district court also held that confinement at Pennhurst violated the equal protection clause of the fourteenth amendment because it entailed "segregation in a facility that clearly is separate and not equal." 446 F.Supp. at 1322 (emphasis in original). As in the case of their due process claim, plaintiffs' equal protection claim turns primarily on the proper level of judicial scrutiny to be applied to institutionalization of the mentally retarded.
Initially, I reject plaintiffs' contention that mental retardation qualifies as a "suspect classification." In Doe v. Colautti, 592 F.2d 704, 710-11 (3d Cir. 1979), we held that mental illness was not a suspect classification. We

noted that, under Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 313, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976) (per curiam), "a class is not entitled to special solicitude under the Equal Protection Clause unless the members of the class have `been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities.'" 592 F.2d at 711. Applying this rule to the mentally ill, we noted:
Although the mentally ill have been the victims of stereotypes, the disabilities imposed on them have often reflected that many of the mentally ill do have reduced ability for personal relations, for economic activity, and for political choice. This is not to say that the legal disabilities have precisely fit the actual incapacities of the mentally ill individuals whom the law has burdened, but it is important that the legal disabilities have been related, even if imperfectly, to real inabilities from which many of the mentally ill suffer.
Id. I believe that this reasoning is equally applicable to the mentally retarded.
Alternatively, plaintiffs argue that where a classification burdens fundamental liberties, the state must show that the burden is necessary to achieve a "compelling" government interest. See Shapiro v. Thompson, 394 U.S. 618, 634, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). The state's interest in ensuring that these individuals receive adequate food, shelter, supervision, and medical care is compelling enough to justify the intrusion. Although Shapiro and other equal protection cases may imply that the state must employ less drastic means if they are available, see, e. g., 394 U.S. at 637, 89 S.Ct. 1322, I believe this analysis is inapposite for the reasons given in my discussion of the due process claim.
For these reasons I believe that, although Pennsylvania has classified the residents by institutionalizing them, such a classification is reasonably related to a legitimate, compelling state interest.
C. Eighth Amendment
The district court finally found that Pennhurst violated the residents' "Eighth and Fourteenth Amendment right to freedom from harm." 446 F.Supp. at 1320. To the extent that this alleged right would parallel the right to be free from punishment, recognized in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979), I have already expressed my view that institutionalization of the mentally retarded is "reasonably related to a legitimate governmental objective." See id. at 539, 99 S.Ct. at 1874. To the extent that the alleged right to be free from harm, founded in the eighth amendment, would exceed the protection outlined in Bell, I do not believe the district court's analysis survives that decision.
III. Summary
I agree with the majority that plaintiffs have a right to have Pennhurst brought up to statutory and constitutional standards. I nowhere find a right to treatment in the least restrictive environment. Thus I would reverse those 131 portions of the district court's judgment that contemplate a federal-court-ordered closing of Pennhurst or *131 creation of new, less restrictive facilities. Although some portions of the order dealt with conditions at Pennhurst, because the district court ordered it closed it did not deal extensively with that problem. Therefore, I would remand to the district court for it to decide in the first instance how best to bring Pennhurst in compliance with statutory and constitutional requirements. Finally, I leave open the possibility that certain individuals in the future may be able to show that their particular mode of treatment is not rationally related to the state's purpose in confining them.
The majority's definition of habilitation has real emotional appeal. But its implementation is being provided by doctors, experts, and legislators. There is a danger in a case such as this that a court will permit the technical data to provide the sole basis for a legal rule where the problem is essentially medical.
Furthermore, the majority's conclusion implicates massive and continual involvement of the federal judiciary in the multiple problems of the mentally retarded. I disagree with the majority because I cannot find any basis for holding that a federal court may require the state to create facilities for the retarded that the court deems to be

the least restrictive. That is a right that, in my view, neither Pennsylvania nor federal legislation nor the Constitution gives to the plaintiffs.
[1] The Commonwealth defendants are appellants in No. 78-1490. Appellants in No. 78-1564 include Bucks, Chester, Delaware, and Montgomery Counties. Philadelphia is appellant in No. 78-1602. In a related case, No. 78-1999, disposed of separately, Pennhurst Parents-Staff Association appeals from the denial of its motion to intervene.
[2] The Commonwealth defendants thereafter sought a writ of mandamus from this court to compel the district court to dismiss the United States as a party. The writ was denied, and petitions for certiorari and for a stay of this court's order were denied by the Supreme Court. Beal v. Broderick, 431 U.S. 933, 97 S.Ct. 2641, 53 L.Ed.2d 250 (1977).
[3] The district court's opinion is reported at 446 F.Supp. 1295.
[4] The court entered judgment in favor of the defendants on the claim for money damages, and no appeal has been taken from that determination.
[5] Halderman v. Pennhurst State Sch. & Hospital, 451 F.Supp. 233 (E.D.Pa.1978).
[6] These included §§ 1905(c) and (d) of Title XIX of the Social Security Act, 42 U.S.C. § 1396d(c), (d) (1976); the Education of the Handicapped Act, 20 U.S.C. §§ 1401-1461 (1976); the Developmental Disabilities Services and Facilities Construction Act, 42 U.S.C. §§ 2661-2666 and 2670-2677c, as amended by the Developmentally Disabled Assistance and Bill of Rights Act, Pub.L.No. 94-103, 89 Stat. 496, 42 U.S.C. §§ 6001-6081 (1976); the surplus food program, 7 U.S.C. § 1431 (1976); and the school lunch program for institutionalized children, 42 U.S.C. § 1761 (1976).
[7] See, e. g., New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971) (suit to enjoin publication of the Pentagon Papers); In re Debs, 158 U.S. 564, 15 S.Ct. 900, 39 L.Ed. 1092 (1895) (suit to enjoin strike affecting interstate commerce); United States v. San Jacinto Tin Co., 125 U.S. 273, 8 S.Ct. 850, 31 L.Ed. 747 (1888) (suit to set aside patent to land procured by fraud); United States v. Bell Telephone Co., 128 U.S. 315, 9 S.Ct. 90, 32 L.Ed. 450 (1888) (suit to set aside invention patent obtained by fraud); United States v. Brand Jewelers, Inc., 318 F.Supp. 1293 (S.D.N.Y.1970) (suit to enjoin systematic due process violations in collection of consumer credit obligations). Perhaps not surprisingly, the strongest resistance to the standing of the United States to sue in the absence of an express statutory authorization has arisen out of its efforts to enforce civil rights. As the Solomon court put it:
Congressional concern with federal-state relations in the area of civil rights is sufficiently great that we are reluctant to sustain nonstatutory executive acts in all but the clearest case.
563 F.2d at 1129. See also United States v. School Dist. of Ferndale, 400 F.Supp. 1122 (E.D.Mich.1975), aff'd in part and remanded in part, 577 F.2d 1339 (6th Cir. 1978); United States v. County School Bd., Prince George County, 221 F.Supp. 93 (E.D.Va.1963); United States v. Biloxi Mun. School Dist., 219 F.Supp. 691 (S.D.Miss.1963), and United States v. Madison County Bd. of Educ., 219 F.Supp. 60 (N.D.Ala.1963), both aff'd on other grounds, 326 F.2d 237 (5th Cir.), cert. denied, 379 U.S. 929, 85 S.Ct. 324, 13 L.Ed.2d 341 (1964). We see in the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. §§ 6001-6081 (1976) and § 504 more concern for the handicapped than for federal-state relations. Congress must be aware, from the annual reports of the Attorney General (1974, p. 7374; 1975, pp. 85-86; 1976, pp. 111-112; 1977, pp. 161-162), that a litigation program intended to strengthen the rights of mentally retarded persons is an ongoing Justice Department activity. It has not reacted negatively.
[8] See Gibbons, The Interdependence of Legitimacy: An Introduction to the Meaning of Separation of Powers, 5 Seton Hall L.Rev. 435 (1974).
[9] See United States v. Solomon, 563 F.2d at 1129 (Butzner, J., concurring), and cases cited.
[10] Pa.Stat.Ann. tit. 50 § 4301(d)(9) (Purdon 1969), states in relevant part:

(d) ... it shall be the duty of local authorities in cooperation with the department [of Public Welfare] to insure that the following mental health and mental retardation services are available:
* * * * * *
(9) Unified procedures for intake for all county services and a central place providing referral services and information.
[11] For a description of the normalization principle in the care of the mentally retarded, see B. Nirje, The Normalization Principle, Changing Patterns in Residential Services for the Mentally Retarded, President's Committee on Mental Retardation, 231 (Rev.ed.1976).
[12] The trial court found that because the Commonwealth has chosen to pay all of Pennhurst's costs not federally funded, while requiring the Counties to pay 10% of the cost of some community based services, the Counties have a financial incentive to send retarded residents to Pennhurst rather than attempting habilitation within the community. 446 F.Supp. at 1312. See Record, Vol. 30, at 12, 23 (testimony of Ms. E. A. Ballard). The County defendants urge that the finding that they have such a financial incentive is clearly erroneous. We need not resolve that question, since the basis on which we decide the legal issues is not dependent upon the motive of the Counties.
[13] See Hagans v. Lavine, 415 U.S. 528, 543, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974); Siler v. Louisville & Nashville R.R. Co., 213 U.S. 175, 193, 29 S.Ct. 451, 53 L.Ed. 753 (1909).
[14] Throughout this section the terms "treatment" and "habilitation" will be used interchangeably. Strictly speaking, since mental retardation is not a curable disability, the term "treatment" is inappropriate. Rather, "habilitation," which refers to "that education, training and care required by retarded individuals to reach their maximum development," 446 F.Supp. at 1298, is the more appropriate term. Nevertheless, because the relevant statutory and constitutional sources typically apply both to the mentally ill 0907who can be treated 0907and to the mentally retarded, who can only be educated, trained and cared for, we will employ both words interchangeably.
[15] § 6010. Congressional findings respecting rights of developmentally disabled
Congress makes the following findings respecting the rights of persons with developmental disabilities:
(1) Persons with developmental disabilities have a right to appropriate treatment, services, and habilitation for such disabilities.
(2) The treatment, services, and habilitation for a person with developmental disabilities should be designed to maximize the developmental potential of the person and should be provided in the setting that is least restrictive of the person's personal liberty.
(3) The Federal Government and the States both have an obligation to assure that public funds are not provided to any institutional or other residential program for persons with developmental disabilities that 0907
(A) does not provide treatment, services, and habilitation which is appropriate to the needs of such persons; or
(B) does not meet the following minimum standards:
(i) Provision of a nourishing, well-balanced daily diet to the persons with developmental disabilities being served by the program.
(ii) Provision to such persons of appropriate and sufficient medical and dental services.
(iii) Prohibition of the use of physical restraint on such persons unless absolutely necessary and prohibition of the use of such restraint as a punishment or as a substitute for a habilitation program.
(iv) Prohibition on the excessive use of chemical restraints on such persons and the use of such restraints as punishment or as a substitute for a habilitation program or in quantities that interfere with services, treatment, or habilitation for such persons.

(v) Permission for close relatives of such persons to visit them at reasonable hours without prior notice.
(vi) Compliance with adequate fire and safety standards as may be promulgated by the Secretary.
(4) All programs for persons with developmental disabilities should meet standards which are designed to assure the most favorable possible outcome for those served, and0907
(A) in the case of residential programs serving persons in need of comprehensive health-related, habilitative, or rehabilitative services, which are at least equivalent to those standards applicable to intermediate care facilities for the mentally retarded promulgated in regulations of the Secretary on January 17, 1974 (39 Fed.Reg. pt. II), as appropriate when taking into account the size of the institutions and the service delivery arrangements of the facilities of the programs;
(B) in the case of other residential programs for persons with developmental disabilities, which assure that care is appropriate to the needs of the persons being served by such programs, assure that the persons admitted to facilities of such programs are persons whose needs can be met through services provided by such facilities, and assure that the facilities under such programs provide for the humane care of the residents of the facilities, are sanitary, and protect their rights; and
(C) in the case of nonresidential programs, which assure the care provided by such programs is appropriate to the persons served by the programs.
[16] Cort v. Ash set forth four relevant factors to be considered in determining whether a private remedy is implicit in a statute: whether the plaintiffs are especial beneficiaries of the statute, whether there is any indication of legislative intent to create a private remedy, whether a private remedy would further the policies of the statute, and finally whether the cause of action is one traditionally relegated to the states. See Cannon v. Univ. of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979) (implying private right of action under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 (1976), a civil rights statute); Note, Implied Rights of Action to Enforce Civil Rights: The Case for a Sympathetic View, 87 Yale L.J. 1378 (1978). Cf. Touche Ross & Co. v. Redington, 442 U.S. 560, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979) (refusing to imply private action for damages under § 17(a) of the Securities and Exchange Act of 1934, clearly not a civil rights statute).
[17] That Congress intended in §§ 6001-6081 to enforce recognized constitutional rights is amply borne out by the legislative history of the Act. See 121 Cong.Rec. 16,516 (1975) (remarks of Sen. Stafford). Moreover, Senator Javits, speaking in support of the measure, cited Wyatt v. Stickney, 344 F.Supp. 387 (M.D.Ala.1972), 344 F.Supp. 373 (M.D.Ala.1972), enforcing, 325 F.Supp. 781 (M.D.Ala.1971), affirmed in relevant part, remanded in part, and decision reserved in part, Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974) (Constitution guarantees persons civilly committed to state mental institutions a right to treatment and granting relief does not invade exclusive province of state legislature), as an articulation of "constitutionally required minimum standards for the care and treatment of mentally retarded patients." Id. at 16,519.
[18] Cf. Oregon v. Mitchell, 400 U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970); Katzenbach v. Morgan, 384 U.S. 641, 658, 86 S.Ct. 1717, 16 L.Ed.2d 828 (1966) (§ 4(e) of Voting Rights Act of 1965 is proper exercise of congressional powers under § 5 of fourteenth amendment). See generally, Cox, Foreword: Constitutional Adjudication and the Promotion of Human Rights, 80 Harv.L.Rev. 91 (1966).
[19] See Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976); Usery v. Allegheny County Inst. Dist., 544 F.2d 148, 155 (3d Cir. 1976), cert. denied, 430 U.S. 946, 97 S.Ct. 1582, 51 L.Ed.2d 793 (1977); cf. National League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976).
[20] See Commw. of Pa., Governor's Executive Budget 1979-80 at 638. We need not decide whether the obligations of § 6010 apply even to those states which do not accept federal funds under the Act. As to those states, this spending clause analysis would not apply. For the reasons elaborated at p. 98, supra, and p. 99 n. 21 infra, we doubt that the concerns for state autonomy0907indicated in National League of Cities 0907would prevail over a congressional announcement of fourteenth amendment policy. But we need not address that issue here. It is

sufficient for our purposes to note that Pennsylvania has accepted federal funds and has thus consented to federally mandated standards for the treatment and habilitation of the developmentally disabled.
[21] Cf. Developments in the Law0907Zoning, 91 Harv.L.Rev. 1427, 1617 (1978) ("nothing in National League of Cities or in related principles of federalism would prevent Congress from using the spending power to require that states receiving federal funds for the development and administration of land use programs abide by federal specifications"). For these same reasons we would reject, were it made, any contention that §§ 6001-6081 are unconstitutional under National League of Cities. Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976), recognizes that National League of Cities is inapplicable to legislation promulgated pursuant to § 5 of the fourteenth amendment. 427 U.S. at 453-56, 96 S.Ct. 2666. This court reached the same conclusion with respect to the Equal Pay Act. Usery v. Allegheny County Inst. Dist., 544 F.2d 148 (3d Cir. 1976), cert. denied, 430 U.S. 946, 97 S.Ct. 1582, 51 L.Ed.2d 793 (1977). Moreover, we note that the Supreme Court itself has chosen to read the state reserved powers language in National League of Cities narrowly. In City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 98 S.Ct. 1123, 55 L.Ed.2d 364 (1978), the Court held that cities and subdivisions of a state that engage in anticompetitive practices without authorization are subject to federal antitrust liability. The Lafayette Court paid scant attention to National League of Cities, thus suggesting that even under the commerce clause federal statutes may be enforced against the states. See 435 U.S. at 423-24, 98 S.Ct. at 1142 (Burger, C. J., concurring in Part I of the opinion and in the judgment) ("[t]he National League of Cities opinion focused its delineation of the `attributes of sovereignty' ... on a determination as to whether the State's interest involved "functions essential to separate and independent existence." ... It should be evident, I would think, that the running of a business enterprise is not an integral operation in the area of traditional government functions."). (Quoting National League of Cities v. Usery, 426 U.S. at 845, 96 S.Ct. 2465, quoting Coyle v. Oklahoma, 221 U.S. 559, 580 (1911)).
The author of this opinion notes that even assuming, arguendo, that the provision of habilitation is within the sphere of the states' autonomy, that does not end the matter; "[t]o determine whether the federal action is unconstitutional requires a balancing of the federal interests, on the one hand, against the degree of federal intrusion upon state autonomy on the other." Developments in the Law0907Zoning, 91 Harv.L.Rev. 1427, 1613 n.159 (1978). See National League of Cities, 426 U.S. at 852, 853, 96 S.Ct. at 2475 (distinguishing Fry v. United States, 421 U.S. 542, 95 S.Ct. 1792, 44 L.Ed.2d 363 (1975), which upheld a temporary freeze on wages of state and municipal employees, in part on the ground that "[t]he enactment at issue there was occasioned by an extremely serious problem. ..."); id. at 856, 96 S.Ct. at 2476 (Blackmun, J., concurring). Here, Congress has found that certain rights must be recognized in order that disabled persons realize their basic constitutional liberties. The balance, in my view, plainly favors the legislation.
[22] In Southeastern Community College v. Davis, 442 U.S. 397, 404 n.5, 99 S.Ct. 2361, 2366, 60 L.Ed.2d 980 (1979), the Supreme Court expressly avoided deciding whether there exists a private right of action under section 504. The Court went on, however, to reach the merits of the plaintiff's cause of action.
[23] In Part II, p. 91 supra, we rejected the Solomon court's position that the United States was precluded from judicial enforcement of the Developmentally Disabled Assistance and Bill of Rights Act.
[24] See County of Allegheny v. Commw. Dept. of Pub. Welfare, 33 Pa.Cmwlth. 267, 269, 381 A.2d 1014, 1016 (1978) (squaring its own holding with the mandate of Joyce Z. and Hoolick which, in the court's view, required the availability of adequate mental retardation facilities). Cf. Doe v. Colautti, 592 F.2d 704, 711-12 (3d Cir. 1979) (citing the MH/MR Act of 1966, and Pennsylvania's "allocation of an extraordinarily large portion of its budget to the treatment of the mentally ill," as reasons to eschew creating new suspect classification for protection of mentally handicapped).
[25] While not expressly covering persons who are mentally retarded but not mentally ill, Pennsylvania's Mental Health Procedures Act, Pa.Stat.Ann. tit. 50, §§ 7101-7503 (Purdon) (Supp.1979), promulgated in 1976, also reflects the state's recognition of a need for treatment. Section 102 of the Act provides, in pertinent part:
§ 7102. Statement of policy

It is the policy of the Commonwealth of Pennsylvania to seek to assure the availability of adequate treatment to persons who are mentally ill, and it is the purpose of this act to establish procedures whereby this policy can be effected. . . . Treatment on a voluntary basis shall be preferred to involuntary treatment; and in every case, the least restrictions consistent with adequate treatment shall be employed.
Pa.Stat.Ann. tit. 50, § 7102.
[26] Section 301(d) of the Act provides:
Subject to the provisions of sections 508 and 509(5) it shall be the duty of local authorities in cooperation with the department to insure that the following mental health and mental retardation services are available:
(1) Short term inpatient services other than those provided by the State.
(2) Outpatient services.
(3) Partial hospitalization services.
(4) Emergency services twenty-four hours per day which shall be provided by, or available within at least one of the types of services specified heretofore in this paragraph.
(5) Consultation and education services to professional personnel and community agencies.
(6) Aftercare services for persons released from State and County facilities.
(7) Specialized rehabilitative and training services including sheltered workshops.
(8) Interim care of mentally retarded persons who have been removed from their homes and who having been accepted, are awaiting admission to a State operated facility.
(9) Unified procedures for intake for all county services and a central place providing referral services, and information.
(Footnote omitted). Pa.Stat.Ann. tit. 50, § 4301(d).
[27] See note 38, infra.
[28] As noted above, supra, the trial court did not reach the question of liability under § 6001 and while it found liability under § 504, the court did not rely expressly on that statute in developing a least restrictive alternative analysis. Since we also do not rely on § 504 or on the Constitution for our holding, we have, of necessity, departed somewhat from the trial court's approach.
[29] Section 504 provides
No otherwise qualified handicapped individual in the United States, . . . shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
U.S.C. § 794 (1976).
Section 504 is the final section of the Rehabilitation Act of 1973. Textually, section 504 parallels the language of section 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d (1976), and of section 901 of Title IX of the Educational Amendments of 1972, 20 U.S.C. § 1681 (1976). Its passage was the result of a long effort to obtain for the handicapped a civil rights act similar to section 601 and section 901.
[30] See 118 Cong.Rec. 525 (1972) (remarks of Sen. Humphrey) (anti-isolation purposes of proposed amendment to § 601, predecessor to § 504); H.R. 8395, 92d Cong., 2d Sess. (1972) (Rehabilitation Act of 1972, predecessor bill of Rehabilitation Act of 1973); 118 Cong.Rec. 32,280 (1972) (remarks of Sen. Cranston) (antidiscrimination and anti-isolation purposes of Act); id. at 32,310 (remarks of Sen. Humphrey) (same); id. at 35,163 (anti-discrimination provision accepted by House in conference); id. at 36,410 (remarks of Rep. Brademas)

(opposing isolation of handicapped due to institutionalization); id. at 36,414 (remarks of Rep. Badillo) (same); id. at 37,203-04 (Rehabilitation Act of 1972 vetoed by Pres. Nixon). The bill was reintroduced as the Rehabilitation Act of 1973, S. 7, 93d Cong., 1st Sess. (1973), and section 504 was finally enacted as part of this Act, with its proponents again emphasizing anti-isolation principles. See 119 Cong.Rec. 5880 (1973) (remarks of Sen. Cranston); id. at 5887 (remarks of Sen. Javits); id. at 18,127 (remarks of Rep. Brademas); id. at 24,566 (remarks of Sen. Stafford).
[31] See Paton v. La Prade, 524 F.2d 862, 875 (3d Cir. 1975); Wetzel v. Liberty Mut. Ins. Co., 508 F.2d 239, 245 (3d Cir.), cert. denied, 421 U.S. 1011, 95 S.Ct. 2415, 44 L.Ed.2d 679 (1975).
[32] See, e. g., Mills v. Board of Educ., 348 F.Supp. 866 (D.D.C.1972); Pennsylvania Ass'n for Retarded Children (PARC) v. Pennsylvania, 334 F.Supp. 1257 (E.D.Pa.1971), 343 F.Supp. 279 (E.D.Pa.1972).
[33] See, e. g., Chicago Hous. Auth. v. Austin, 511 F.2d 82 (7th Cir. 1975) (overseeing implementation in public housing discrimination case); Gautreux v. Chicago Hous. Auth., 384 F.Supp. 37 (N.D.Ill.1974) (same); Hart v. Community Sch. Bd., 383 F.Supp. 699 (E.D.N.Y. 1974), aff'd, 512 F.2d 37 (2d Cir. 1975) (coordinating development of desegregation plan in housing and school discrimination case); Moore v. Leflore County Bd. of Election Comm'rs, 361 F.Supp. 603 (N.D.Miss.1972) (formulating reapportionment plan); Gates v. Collier, 349 F.Supp. 881 (N.D.Miss.1972) (implementing prison reform), aff'd, 501 F.2d 1291 (5th Cir. 1974); Knight v. Board of Educ., 48 F.R.D. 115 (E.D.N.Y.1969) (conducting due process grievance hearings in schools).
[34] See generally Note, Implementation Problems in Institutional Reform Litigation, 91 Harv.L.Rev. 428 (1977); Note, Monitors: A New Equitable Remedy?, 70 Yale L.J. 103 (1960).
[35] Note, Implementation Problems in Institutional Reform Litigation, 91 Harv.L.Rev. 428, 451 (1977); Kaufman, Masters in the Federal Courts: Rule 53, 58 Colum.L.Rev. 452, 469 (1958).
[36] See, e. g., Burt, Beyond the Right to Habilitation, in The Mentally Retarded Citizen and the Law 418-36 (President's Committee on Mental Retardation, 1976).
[37] See e. g., Clements, Reaction Comment, in The Mentally Retarded Citizen and the Law 437 (President's Committee on Mental Retardation, 1976); M. Rosen, G. Clark, & M. Kivitz, Habilitation of the Handicapped 101-11 (1977).
[38] See, e. g., Parham v. J. L., 442 U.S. 584, 99 S.Ct. 2493, 2502-03, 61 L.Ed.2d 101 (1979); Secretary of Public Welfare of Pennsylvania v. Institutionalized Juveniles, 442 U.S. 640, 99 S.Ct. 2523, 61 L.Ed.2d 142 (U.S.1979); O'Connor v. Donaldson, 422 U.S. 563, 575, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975); Welsch v. Likins, 550 F.2d 1122, 1125-26 (8th Cir. 1977), affirming in relevant part, vacating and remanding in part, 373 F.Supp. 487 (D.Minn. 1974); Lake v. Cameron, 124 U.S.App.D.C. 264, 270, 364 F.2d 657, 663 (D.C.Cir.1966) (en banc); Evans v. Washington, 459 F.Supp. 483, 484 (D.D.C.1978) (by consent decree); Eubanks v. Clarke, 434 F.Supp. 1022, 1027-28 (E.D.Pa. 1977); Gary W. v. State of Louisiana, 437 F.Supp. 1209 (E.D.La.1976); Suzuki v. Quisenberry, 411 F.Supp. 1113, 1132-33 (D.Hawaii 1976); Lynch v. Baxley, 386 F.Supp. 378, 392 (M.D.Ala.1974) (three judge court); Davis v. Watkins, 384 F.Supp. 1196, 1203, 1206 (N.D.Ohio 1974) (by stipulation); Saville v. Treadway, 404 F.Supp. 430, 433 (M.D.Tenn.1974) (by stipulation); Lessard v. Schmidt, 349 F.Supp. 1078 (E.D.Wis.1972), vacated and remanded for a more specific order, 414 U.S. 473, 94 S.Ct. 713, 38 L.Ed.2d 661, order on remand, 379 F.Supp. 1376 (E.D.Wis.1974), vacated and remanded on other grounds, 421 U.S. 957, 95 S.Ct. 1943, 44 L.Ed.2d 445 (1975), order reinstated on remand, 413 F.Supp. 1318 (E.D.Wis. 1976); Wyatt v. Stickney, 344 F.Supp. 373 (M.D.Ala.1972), 344 F.Supp. 387 (M.D.Ala. 1972), enforcing 325 F.Supp. 781 (M.D.Ala. 1971), affirmed in relevant part, remanded in part, and decision reserved in part, Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974).
[39] We note, in this connection, that the development of suitable CLAs will impose little, if any, financial burden on the State and Counties. As we indicated in Part III, the trial court made a finding, unchallenged on appeal, that per patient cost in CLAs is less than at Pennhurst. See 446 F.Supp. at 1312.
[1] This specific requirement was eliminated in 1978. The new provision still requires, however, that the plan deal with non-institutional treatment, albeit in a more general way. See, e. g., 42 U.S.C.A. § 6063(b)(5)(B)-(C) (1979

Cum.Supp.). Cf. id. § 6063(b)(7)(B) (state plan must deal with right of employees displaced because of relocation of patients in community living arrangements).
[2] The arguments treated in this section are those of the plaintiffs, not the district court. That court concluded that "[i]n enacting Section 504 . . . Congress has in effect codified the constitutional right to equal protection." 446 F.Supp. at 1323. Because of its earlier conclusion that confinement at Pennhurst violated equal protection, see id. at 1321-22, the district court felt that section 504 also had been violated. The district court's analysis of the section 504 claim accordingly is subsumed in my consideration of plaintiffs' equal protection claim. See Part II.B. infra.
[3] The Supreme Court in Donaldson stopped short of endorsing the quid-pro-quo approach. See O'Connor v. Donaldson, 422 U.S. 563, 576, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975). Our court has specifically reserved ruling on the theory. See Scott v. Plante, 532 F.2d 939, 947 (3d Cir. 1976).
[4] Since 1972, a number of courts have followed Stickney II and have held that mentally retarded persons confined in state-run institutions have a constitutional right to habilitation. See, e. g., Welsch v. Likins, 373 F.Supp. 487 (D.Minn.1974), aff'd in part and vacated and remanded in part, 550 F.2d 1122 (8th Cir. 1977). In each of these cases, however, the court concluded or assumed that the state could provide the necessary habilitation in an institutional setting. See, e. g., Gary W. v. Louisiana, 437 F.Supp. 1209, 1217-19 (E.D.La.1976).
[5] Indeed, the record indicates that community living arrangements tend to be all things to all people. They apparently range from simple provision of support services so that a retarded person can remain with his or her family to subsidized foster care to mini-institutions of over 20 residents. The "community" is variously defined as urban, suburban, or rural. Stewart Brown, one of the plaintiffs' witnesses, illustrated the malleability of this concept when he was pressed on his contention that all of Pennhurst's residents could be dispersed to community living arrangements within one month:
A: . . . There are seventy-one Holiday Inns in Pennsylvania with 11,208 rooms, and we could, with a per diem rate move those clients and provide an immediate place for them to live where they would be happy 0907
Q: All right. Let's talk about community-living arrangements.
A: That's one type of community-living arrangement.
[6] Plaintiffs have not challenged in this appeal the adequacy of the procedures under which they were committed or placed at Pennhurst. See generally Secretary of Public Welfare of Pennsylvania v. Institutionalized Juveniles, ___ U.S. ____, 99 S.Ct. 2523, 61 L.Ed.2d 142 (1979).
[7] Supporting my conclusion that institutionalization is not unconstitutionally unreasonable are those cases that, although finding a constitutional right to habilitation, have permitted the state to continue to provide that habilitation in an institutional setting. See, e. g., Gary W. v. Louisiana, supra, 437 F.Supp. at 1217-19; Wyatt v. Stickney (Stickney II), supra, 344 F.Supp. at 395-407. See also Wyatt v. Aderholt, supra, 503 F.2d at 1313 (institutionalization is, "strictly speaking," rationally related to need for custodial care).
Save trees - read court opinions online on Google Scholar.

 
 673 F.2d 647 (1982)
Terri Lee HALDERMAN, a retarded citizen, by her mother and guardian, Winifred Halderman; et al., Plaintiff-Intervenors, v.
PENNHURST STATE SCHOOL & HOSPITAL, et al., Pennhurst Parent-Staff Association, Intervenor.
Appeal of COMMONWEALTH OF PENNSYLVANIA, Defendants, Pennhurst State School & Hospital, et al., in No. 78-1490.
Appeal of George METZGER, et al. in No 78-1564. Appeal of Mayor Frank L. RIZZO, the City Council of Philadelphia, and Leon Soffer in No.
78-1602.
Nos. 78-1490, 78-1564 and 78-1602.
United States Court of Appeals, Third Circuit.
Argued November 23, 1981. Decided February 26, 1982. Certiorari Granted June 21, 1982.
6489 *648 *649 LeRoy S. Zimmerman, Atty. Gen., Allen C. Warshaw, Deputy Atty. Gen., Chief, Special Litigation, Robert B. Hoffman, Deputy Atty. Gen. (argued), Harrisburg, Pa., for Commonwealth appellants.
Thomas M. Kittredge (argued), Jami Wintz McKeon, Morgan, Lewis & Bockius, Alan J. Davis, Mark A. Aronchick, Pauline Cohen, Philadelphia, Pa., for City and County appellants.
Joel I. Klein (argued), H. Bartow Farr, III, Peter Scheer, Onek, Klein & Farr, Washington, D. C., for Pennhurst Parent-Staff Association, intervenor.
David Ferleger (argued), Penelope A. Boyd, Philadelphia, Pa., for appellees Terri Lee Halderman, et al.
Thomas K. Gilhool (argued), Frank J. Laski, Public Interest Law Center of Pennsylvania, Philadelphia, Pa., for appellees, Pennsylvania Ass'n for Retarded Citizens, et al.
Peter F. Vaira, Jr., U. S. Atty., Philadelphia, Pa., Wm. Bradford Reynolds, Brian K. Landsberg (argued), Dept. of Justice, Washington, D. C., for the United States of America.
Before SEITZ, Chief Judge, and ALDISERT, GIBBONS, HUNTER, WEIS, GARTH, HIGGINBOTHAM and SLOVITER, Circuit Judges.
Hearing En Banc on Remand from the Supreme Court of the United States.
Certiorari Granted June 21, 1982. See 102 S.Ct. 2956.
OPINION OF THE COURT
GIBBONS, Circuit Judge, with whom ALDISERT, WEIS, A. LEON HIGGINBOTHAM, Jr. and SLOVITER, Circuit Judges, join:
This appeal is before us on a remand from the Supreme Court, which on April 20, 1981, reversed our judgment upholding in part and modifying the permanent injunction ordered by the district court.[1]

I

The Supreme Court's judgment remanded to this court "for further proceedings in conformity with the opinion of the Court." Accordingly it is necessary to examine that opinion, in the light of our prior opinion, to determine what issues must now be addressed. Our judgment, now reversed, rested upon a federal statute and a Pennsylvania statute.

The federal statute we relied upon is the "bill of rights" provision of the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. § 6010 (1976). Proceeding on the assumption that Congress had constitutional authority under Section 5 of the Fourteenth Amendment to enact that section of the Act, we held that a private cause of action for the enforcement of the rights it defined should be implied.[2] That holding was predicated upon our belief that it was inappropriate for courts faced with a statute which fell within any of several constitutional grants of Congressional lawmaking authority to reject any source of such authority.[3] The Supreme Court, however, adopted a different standard, stating:

Although this Court has previously addressed issues going to Congress' power to secure the

guarantees of the Fourteenth Amendment, ... we have had little occasion to consider the

appropriate test for determining when Congress intends to enforce those guarantees. Because

such legislation imposes congressional policy on a State involuntarily, and because it often

intrudes on traditional state authority, we should not quickly attribute to Congress an unstated

intent to act under its authority to enforce the Fourteenth Amendment.... The case for inferring

650

intent is at its weakest where, as here, the rights asserted imposed affirmative obligations on the

*650 States to fund certain services, since we may assume that Congress will not implicitly

attempt to impose massive financial obligations on the States.

451 U.S. at 15-16, 101 S.Ct. at 1539. Applying this newly announced rule of statutory interpretation[4] to Section 6010, the Court held that it was not passed pursuant to Section 5 of the Fourteenth Amendment, but was merely a funding clause enactment. As such, the statute was subject to another rule of statutory interpretation: "if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously," for "[b]y insisting that Congress speak with a clear voice, we enable the States to exercise their choice [of participating in a federally funded program] knowingly, cognizant of the consequences of their participation." 451 U.S. at 17, 101 S.Ct. at 1540. Applying this clear statement requirement, the Court held:

We would be attributing far too much to Congress if we held that it required the States, at their own expense, to provide certain kinds of treatment. Accordingly, we reverse the principal holding of the Court of Appeals and remand for further proceedings consistent with this opinion.

451 U.S. at 31-32, 101 S.Ct. at 1547. The "principal holding" referred to is our holding that Section 6010 conferred substantive rights.[5] The precise holding in the Supreme Court's opinion is that we erred in that single
respect.

Turning to our alternative state law grounds for affirming, to the extent we did, the relief ordered by the district court, the Supreme Court observed:

Respondents contend that, even if we conclude that relief is unavailable under federal law, state law adequately supports the relief ordered by the Court of Appeals. There are, however, two difficulties with that argument. First, the lower court's finding that state law provides a right to treatment may well have been colored by its holding with respect to § 6010. Second, the court held only that there is a right to "treatment," not that there is a state right to treatment in the "least restrictive" environment. As such, it is unclear whether state law provides an independent and adequate ground which can support the court's remedial order. Accordingly, we remand the state law issue for reconsideration in light of our decision here.24

24 .... On remand following our reversal, the Court of Appeals will be in a position to consider the state law issues in light of the Pennsylvania's Supreme Court's recent decision [In re Joseph Schmidt, 494 Pa. 86, 429 A.2d 631 (1981)].

451 U.S. at 31, 101 S.Ct. at 1547. Thus the Supreme Court has expressed no view on the question whether state law provides an independent and adequate ground which can support the district court order. We are directed to consider that question in light of the decision in In re Joseph Schmidt, announced by the Pennsylvania Supreme Court after our decision but prior to that of the Supreme Court. Implicit in that direction is a holding that the plaintiffs' federal law claims are of sufficient substance to support the exercise of pendent jurisdiction over that Pennsylvania law claim.

Finally, the Court addressed legal contentions advanced by the plaintiffs in support of the district court order which this court found it unnecessary to decide. Respecting the contention that Section 6063 of the Developmentally Disabled Assistance and Bill of Rights Act, which requires that state plans comply with several specific federal conditions, may be enforceable in a private action, the Court noted that the contention raised a number of issues, but concluded:

651

*651 These are all difficult questions. Because the Court of Appeals has not addressed these

issues, however, we remand the issues for consideration in light of our decision here.

451 U.S. at 30, 101 S.Ct. at 1546. The Court also said:

For similar reasons, we also remand to the Court of Appeals those issues it did not address, namely, respondents' federal constitutional claims and their claims under § 504 of the Rehabilitation Act [of 1973, as amended in 1974, 1976, and 1978, 29 U.S.C. § 701 et seq.].

451 U.S. at 31, 101 S.Ct. at 1547. We do not understand the remand on these issues as directions that this court must consider and decide either constitutional or statutory supremacy issues which, in light of state grounds independent and adequate to support the district court order, may not have to be reached. Rather, we construe the Court's remand as leaving open for our reconsideration, to the extent we find it necessary for such a purpose, any grounds of decision which might support the order appealed from, except our previous holding that Section 6010 was enacted pursuant to Section 5 of the Fourteenth Amendment and thus conferred substantive rights.

The Supreme Court found no fault with the district court's findings of fact, or with the standing of the United
States as an intervening plaintiff. Thus there is no need for a repetition of the discussion in Parts II and III of our prior opinion.[6] Moreover the Court did not address those issues respecting scope of relief which are discussed in Part VII of our prior opinion.[7] Thus, assuming the propriety of some legal standard upon which relief could be
predicated, there is no occasion, for purposes of this appeal, for a reconsideration of our discussion of the Commonwealth's Eleventh Amendment contention,[8] of objections to the definition of the class,[9] of objections to the use of a master,[10] or of other specific objections to provisions of the injunction which we rejected.

II

When our prior decision was announced, the highest court of Pennsylvania had not yet definitively construed the effect on the habilitation of mentally retarded persons of that state's Mental Health and Mental Retardation Act of 1966 (hereinafter MH/MR Act of 1966), Pa.Stat.Ann. tit. 50, §§ 4101-4704 (Purdon 1969). We held that the MH/ MR Act of 1966 provides a state statutory right to habilitation for such persons, that the plaintiffs could sue to enforce that right and that a federal court has pendent jurisdiction over such a claim, which was properly exercised in this instance.[11] Because the Supreme Court of Pennsylvania had not yet considered whether habilitation under the MH/MR Act of 1966 required the choice by the state of the least restrictive environment, while in our (mistaken) view Section 6010 did, we found it unnecessary to speculate about how that Court would construe the state statute in this respect.[12] Since our decision, however, In re Joseph Schmidt, 494 Pa. 86, 429 A.2d 631 (1981), has been decided, and the state court has spoken definitively.

Joseph Schmidt, a mentally retarded adult, resided and received treatment, from the age of eight at the expense 652 of Allegheny *652 County, in a privately operated residential school for mentally retarded children. After 14 years
of support for Schmidt in that school, the county petitioned the Court of Common Pleas of Allegheny County for his involuntary commitment to Western Center, a state-operated residential facility. The Commonwealth of Pennsylvania intervened as a respondent, contending that Schmidt's commitment to the Western Center facility would not be appropriate under the MH/MR Act of 1966. The parties did not dispute that neither Allegheny County nor the Commonwealth's Western Center provided a program which would enable Schmidt to receive adequate habilitation. The dispute was over which governmental unit, under the Pennsylvania statutory scheme, was primarily responsible in cases such as his for developing a plan for his habilitation. As in this case, the County contended that it had no obligation under the MH/MR Act of 1966 to provide supportive services which would eliminate the necessity for institutionalization. The Court of Common Pleas rejected the County's contention and ordered it to develop for Schmidt an individual practical life-management plan suitable to his needs. The Pennsylvania Supreme Court reversed, holding that under the MH/MR Act of 1966 the state rather than the county was responsible for developing a suitable placement for a mental patient so severely retarded that there is no alternative for his habilitation less restrictive than long term institutional residential placement. In deciding the allocation of responsibilities between the County and the Commonwealth, however, the Court made it clear that under Pennsylvania law both were bound by the same requirement of normalization. The opinion of the Court states:

We fully agree with the court below that the legislative scheme was designed to require the county to provide those supportive services where they would eliminate the necessity of institutionalization, even where those services would be required on a long term basis.

With the acceptance of the principle of "normalization" and the resultant legislation, it is clear that the restrictive view urged by the county as to its obligations in the area is out of step. The concept of normalization envisions that the mentally retarded person and his or her family shall have the right to live a life as close as possible to that which is typical for the general population. Consistent with this concept is the requirement that the least restriction consistent with adequate treatment and required care shall be employed.

429 A.2d at 635-36. Addressing the regulations of that Pennsylvania Department charged with the responsibility for administering the MH/MR Act of 1966, the Court observed:

This [least restrictive alternative] approach to the problem of mental retardation was reflected in the regulations promulgated by the secretary pursuant to § 301 of the Act, 50 P.S. § 4301, on February 10, 1973. Regulations 5200 Appendix IV County Mental Health and Mental Retardation Program 0907 Service Content of the Program. The following pertinent excerpts from these regulations are most instructive in the instant inquiry.

The County Program is the means by which minimum services as described in the act shall be readily available to promote the social, personal, physical and economical habilitation or rehabilitation of mentally retarded person with all due respect for the full human, social and legal rights of each person. This means that the health, social, educational, vocational, environmental and legal resources that serve the general population shall be marshalled and coordinated by the County Program to meet the personal development goals of mentally retarded persons, in accordance with the principle of normalization....

In keeping with this principle of normalization, the County is responsible to utilize county program funds for the mentally retarded to accomplish the following objectives:

. . . .

653

*653 4. shaping and maintaining an environment most productive of basic human personality

qualities involving parent-child and sibling relationships, environmental adaptation, self-awareness

and learning motivation and ability;

5. specific training and learning situations designed and implemented to develop all potential;
6. community development and restructuring to achieve the maximum normalization for the mentally retarded person wherever he is.
I. Responsibility for Planning, Direction and Coordinated Delivery of Services 0907 The Base Service Unit:
The County Administrator shall be responsible to provide for the establishment of an organizational unit consisting of multidisciplinary professional and non-professional services for persons who are mentally retarded and in need of service from the County Program .... The Base Service Unit shall be responsible to perform the following functions in such a way as to carry out the objectives of the County Program as stated above.
. . . .
D. Provide for comprehensive diagnosis and evaluation services to:
. . . .
3. Develop a practical life-management plan for the individual and his family and provide the necessary counseling and following-along services;
....
These regulations make it clear that the legislative grant of power to the counties under § 301(e) (3) of the Act, 50 P.S. § 4301(e)(3), empowering them to establish additional services and programs "designed to prevent ... the necessity of admitting or committing the mentally disabled to a facility" was intended to be utilized by the counties to minimize the necessity of institutionalization. It was more than a mere grant of power to be used at the county's option. The power of the department to issue the regulations in question and to require the counties to assume the responsibilities set forth therein was clearly within the purview of section 201 of the Act, 50 P.S. § 4201, which charges the department to create a comprehensive and coordinate program in conjunction with the county governments. Moreover, any question as to the legislative recognition of the concept of normalization and the adoption of the doctrine of least restrictive alternatives in matters relating to the mentally retarded has been removed by the enactment of the Mental Health Procedures Act, Act of 1976, July 9, P.L. 817, No. 143, § 101; 50 P.S. § 7101.
429 A.2d at 636-37.
In the course of announcing that the MH/MR Act of 1966 embodied the least restrictive alternative means standard for achieving habilitation of the mentally retarded, the opinion of the Pennsylvania Supreme Court makes passing reference to the fact that the least restrictive alternative doctrine was first articulated by Chief Judge Bazelon in Lake v. Cameron, 364 F.2d 657 (D.C.Cir.1966), and subsequently adopted in a series of commitment and treatment related cases.[13] From the context, it is clear that the Court did not suggest that it was giving to the MH/MR Act of 1966 an interpretation not, perhaps, intended by the Pennsylvania legislature, but instead compelled by the federal constitution. Indeed the Attorney General does not suggest that the statutory interpretation of the MH/MR Act of 1966 announced in Schmidt is other than independent of federal law.[14]
654 *654 The Pennsylvania law ground of decision being entirely independent of federal law, the sole remaining state law question is whether that ground of decision is adequate to support the order appealed from. Except to the extent that we previously required modification of the order, we hold that it is.
This case, unlike Schmidt, is a class action. In our prior decision we held that because for some members of the plaintiff class institutionalization might well be the least restrictive available means of habilitation, it was error to order the complete closing of Pennhurst without individualized determinations of need. Addressing the Pennsylvania legislation we observed that

we do not think that the Pennsylvania legislature, in providing a right to treatment in the Mental Health and Mental Retardation Act of 1966, intended to foreclose all institutionalization. In section 102 of that Act, for example, the legislature expressly included "institution[s]" within the category of "facilities" for which the Department of Welfare was responsible. Pa.Stat.Ann. tit. 50, § 4102. Thus, we see in the MH/MR Act of 1966 exactly the intent ascribed to it by Senator Pechan when he spoke in support of the measure:
The object of the legislation is to make it possible for every mentally disabled person to receive the kind of treatment he needs, when and where he needs it.
1966 Pa.Legis.J. 3d Spec.Secc., No. 33, 76 (Sept. 27, 1966). The state statute ... was focused on individual needs.
612 F.2d at 114-15. This interpretation of the MH/MR Act of 1966 was fully confirmed by the Schmidt decision. That case involved a dispute between two governmental units over allocation of burdens among them, which in the particular instance of a single individual was resolved in favor of the County. The resolution in Schmidt resulted from the Pennsylvania Supreme Court's conclusion that where long term institutional care is in fact the least restrictive means of habilitation, institutionalization is permissible and the state is obliged to provide it. Our prior holding that individual determinations must be made for each member of the class is entirely consistent with the holding that Joseph Schmidt must be provided a place in a state facility.
But unlike Schmidt, we have before us numerous class members who the court found should not be in Pennhurst. For these the court ordered that suitable community living arrangements be provided, and enjoined the county defendants from recommending future commitments to Pennhurst without an individual determination that a community living arrangement or other less restrictive environment would be suitable.[15] These holdings are also consistent with the Schmidt opinion, for while the opinion recognizes that under the MH/MR Act of 1966 the state was given responsibility for overall supervision and control of the statutory program, it expressly rejected Allegheny County's contention that the County had no obligation to provide merely ameliorative services until a state placement could be arranged. 429 A.2d at 635. The allocation, in the order appealed from, of responsibility among the county and state defendants based upon individualized determinations as to what is the least restrictive environment in which habilitation can take place, is completely congruent with the Schmidt court's interpretation of the MH/MR Act of 1966.
The defendants urge that because the Schmidt case did not present any issue of funding of proper care, it should not be regarded as controlling. (Appellants' Joint Brief on Remand, 54, citing 429 A.2d at 633.) Except that this is a class action, however, we are not persuaded that there is any essential difference in the posture of the Schmidt case and this. As in this case, the County attempted to limit its responsibility to petitioning for the commission of mentally retarded persons to a state residential facility. The Schmidt court made clear that the Pennsylvania law 655 imposed the obligation on both levels of government to provide habilitation in that environment *655 providing the least restriction on personal liberty consistent with habilitation. Insofar as financial burdens are concerned, it merely referred to Sections 508 and 509 of the MH/MR Act of 1966, which impose funding duties on both levels of government, and which provide mechanisms for the allocation of appropriated funds among the counties.[16] 656 429 A.2d at 633. The Commonwealth was ordered to find a placement for *656 Schmidt in an institution with a staff-patient ratio suitable to his needs. There is no suggestion in the Schmidt opinion that this order would be qualified by the necessity for appropriations. Obviously the Schmidt Court anticipated that the adjustment mechanisms of Sections 508 and 509 would be operated in good faith. Nothing in the record which is before us on this appeal suggests that those mechanisms will be dismantled, will be operated other than in good faith, or are inhibited by the provisions of the judgment. On this record we, like the Supreme Court of Pennsylvania, must assume that the Pennsylvania legislature intends compliance with its statutes. Moreover, a Rule 60(b) motion would be the proper vehicle to present a showing that changed circumstances no longer require the use of a federal court master to administer a state program under state laws.
We conclude, therefore, that except as the order appealed from must be modified in accordance with our prior decision, the Pennsylvania MH/MR Act provides adequate support for it independent of federal law.

III
Recognizing, as they must, that this court is bound by the Pennsylvania Supreme Court's interpretation of the MH/MR Act of 1966, the defendants urge that we may not rely on that Act as support for the order appealed from because the Eleventh Amendment is a bar to federal court consideration of that claim. The contention that neither the district court, this court, nor the Supreme Court has jurisdiction to consider plaintiffs' state law claims has not previously been advanced in this action, and from the dearth of authorities cited in its support, not previously advanced anywhere.[17] To put the Commonwealth's unique contention in context, a brief description of the parties and the nature of the action is appropriate.
First, the class action plaintiffs at this point in the proceedings seek only prospective injunctive relief. Second, although Pennhurst State School and Hospital, which apparently is a division of the Department of Welfare, is named as a defendant, there are numerous individual state officers who have been joined as defendants in their official capacities. Thus, insofar as prospective injunctive relief is sought against those defendants, the case is a classic example of an action falling within Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). Third, the United States is an intervening plaintiff, see 42 U.S.C. § 1997(c) (1976), against which even the state itself cannot successfully plead the Eleventh Amendment as a bar to jurisdiction. See, e.g., United States v. North Carolina, 136 U.S. 211, 10 S.Ct. 920, 34 L.Ed. 336 (1890); United States v. Minnesota, 270 U.S. 181, 46 S.Ct. 298, 70 L.Ed. 539 (1926). Fourth, the counties, even as juridical entities, do not fall within the coverage of the Eleventh Amendment. Lincoln County v. Luning, 133 U.S. 529, 10 S.Ct. 363, 33 L.Ed. 766 (1890). Against those defendants even money damages may be awarded. Finally, as we held in our prior opinion, in a suit against state officials for injunctive relief the Eleventh Amendment is no bar to prospective injunctive relief even though such relief realistically will impose financial burdens which will be met by the state treasury.[18] Thus it is quite plain that the Eleventh Amendment is no bar to the prospective injunctive relief which was ordered by the district court insofar as that relief is predicated on constitutional or federal statutory claims. Indeed, at oral argument the deputy attorney general representing the Commonwealth defendants conceded that if we did not consider claims under MH/MR Act of 1966, we would have jurisdiction to decide, and indeed must decide, those federal claims.
657 *657 The Commonwealth defendants urge, nevertheless, that the Eleventh Amendment applies in a particular and different way to causes of action based upon state law, over which a federal court is asked to exercise pendent jurisdiction. The contention is made that while peculiarly federal interests may justify the holdings of Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), and of Edelman v. Jordan, 415 U.S. 651, 667-68, 94 S.Ct. 1347, 1357-58, 39 L.Ed.2d 662 (1974), no such interests justify entertaining causes of action based upon state law. This argument is predicated upon misunderstandings both of the meaning of the Eleventh Amendment and of the doctrine of pendent jurisdiction.
That amendment reads:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. (Emphasis supplied.)
It was adopted in reaction to the exercise by the Supreme Court of original jurisdiction in Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 1 L.Ed. 440 (1793), solely on the ground that the plaintiff was a citizen of another state. The italicized language, which would otherwise be surplusage, shows, when compared with Article III Section 2 of the Constitution, that only a narrow and technical amendment to the latter was intended. So the amendment was long understood.[19] In the post-Reconstruction era, however, the original interpretation of the amendment came under pressure for political and economic reasons which are not of immediate relevance.[20] Eventually in Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890), the Court effectively rewrote the amendment as if it did not contain the last fourteen italicized words, by holding that it was intended, at least to some extent, to constitutionalize a doctrine of state sovereign immunity.

If the Hans v. Louisiana interpretation of the amendment were to be taken literally, no federal court could entertain an action against officials acting under color of state law. The consequences of such a rule were intolerable, and eighteen years after Hans v. Louisiana rewrote the amendment, the Court reconsidered. In Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), it substantially restored the earlier understanding, holding that a federal court could entertain an action for injunctive relief against state officials sued in their official capacities. Although federal question jurisdiction was relied upon, the Court's Eleventh Amendment discussion is separate from and independent of its conclusion that the complaint stated a claim arising under the Constitution and laws of the United States. 209 U.S. at 145, 28 S.Ct. at 448.
The decision in Ex Parte Young, which permitted district courts to enjoin the enforcement of state regulatory statutes, aroused considerable opposition in Congress 0907 opposition which, in a compromise with proponents of more drastic curtailments of federal jurisdiction, produced the Three Judge District Court Act of 1910.[21] While the controversy aroused by Ex Parte Young was at its height, Siler v. Louisville & Nashville R.R. Co., 213 U.S. 175, 29 S.Ct. 451, 53 L.Ed. 753 (1909), came before the Court. Like Ex Parte Young it involved a challenge to state utility regulation on federal constitutional grounds. Federal jurisdiction depended on the existence of that 658 federal question, but the plaintiffs also contended that the Kentucky Railroad Commission *658 had exceeded its powers under the Kentucky enabling act. Justice Peckham, the author of Ex Parte Young, wrote for a unanimous court:
The Federal questions, as to the invalidity of the state statute because, as alleged, it was in violation of the Federal Constitution, gave the Circuit Court jurisdiction, and, having properly obtained it, that court had the right to decide all the questions in the case, even though it decided the Federal questions adversely to the party raising them, or even if it omitted to decide them at all, but decided the case on local or state questions only.
... Of course, the Federal question must not be merely colorable or fraudulently set up for the mere purpose of endeavoring to give the court jurisdiction....
213 U.S. at 191-92, 29 S.Ct. at 454-55. Explaining the reason for entertaining pendent state law claims even in cases where a colorable federal claim is not decided, Justice Peckham continued:
Where a case in this court can be decided without reference to questions arising under the Federal Constitution, that course is usually pursued and is not departed from without important reasons. In this case we think it much better to decide it with regard to the question of a local nature, involving the construction of the state statute and the authority therein given to the commission to make the order in question, rather than to unnecessarily decide the various constitutional questions appearing in the record.
213 U.S. at 193, 29 S.Ct. at 455. The rule that a federal court should rely upon a state law interpretation rather than decide a federal constitutional question was an old one even in 1909. Charles River Bridge v. Warren Bridge, 36 U.S. (11 Pet.) 420, 9 L.Ed. 773 (1837). What Siler added was the express recognition that the lower federal courts could entertain pendent state law claims not otherwise within their subject matter jurisdiction so as to implement that longstanding and important federal policy rule. The rule of preference for non-constitutional grounds of decision is a vital corollary to the power of judicial review, which recognizes that the exercise of that great function should be reserved for cases in which its exercise cannot otherwise be avoided. A decision on state statutory grounds leaves both the state legislature and Congress free to reconsider, and perhaps to avoid permanently, the need for exercise of the power of judicial review. See Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) (Brandeis, J., concurring).
Siler is generally regarded as the seminal case on pendent jurisdiction. For our purposes its greatest significance is that it presented the identical problem before us: a case against state officers over which the federal court had federal question jurisdiction, despite the Eleventh Amendment, because of the holding in Ex Parte Young. Since the pendent jurisdiction rule originated in a case involving state officers, there cannot be, as the Commonwealth suggests, an Eleventh Amendment exception to that rule. Later developments of the pendent jurisdiction rule enlarged its scope to include cases where entertaining a state law claim advanced not the policy of avoiding

constitutional adjudications, but only that of avoiding duplicative litigation. United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966); Hurn v. Oursler, 289 U.S. 238, 53 S.Ct. 586, 77 L.Ed. 1148 (1933). Some commentators have criticized the enlargement. See Shakman, The New Pendent Jurisdiction of the Federal Courts, 20 Stan.L.Rev. 262 (1968). So far as we know, however, no commentator or court has ever suggested that the Siler rule itself should be reconsidered, so as to force the federal courts to make pronouncements of constitutional law which, if a state law ground would support the relief requested, might come dangerously close to an advisory opinion about the constitution.
The Supreme Court's remand for further consideration of the federal constitutional questions establishes as law 659 of the case for this court the substantiality of the federal *659 questions supporting jurisdiction. Moreover, even if
the Commonwealth's unique interpretation of the pendent jurisdiction rule as inapplicable to suits against state officers had any substance, the Court's express mandate that we reconsider the state law issue appears to preclude its adoption in this case by this court. And in any event, the Eleventh Amendment can offer no solace to the County defendants. Thus the pendent state law claim would have to be faced with respect to those defendants.
We hold, therefore, that the Eleventh Amendment is no bar to the exercise of pendent jurisdiction over a state law claim under the MH/MR Act of 1966, independent and adequate to support the order appealed from. See Frederick L. v. Thomas, 557 F.2d 373 (3d Cir. 1977).
IV
The defendants also urge that the district court should have abstained from adjudicating the claim under the MH/ MR Act of 1966. There was no pending state proceeding, criminal or civil, to which the rule of Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and its progeny could apply. Thus a dismissal of the complaint would clearly have been inappropriate.
As to abstention under Railroad Comm'n of Texas v. Pullman Company, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), it is difficult to see how a case for the application of that rule was made out in the district court. The plaintiffs were contending for injunctive relief against intolerably inhumane conditions on both federal and state law grounds. Pullman suggests the retention of jurisdiction in cases where state law is challenged on constitutional grounds, and an interpretation of state law suggested by the defendants might make unnecessary the decision of a constitutional law issue. See, e.g., Spector Motor Serv., Inc. v. McLaughlin, 323 U.S. 101, 65 S.Ct. 152, 89 L.Ed. 101 (1944). In this case the plaintiffs' position all along has been that the MH/MR Act of 1966 is consistent with the requirements of the Fourteenth Amendment, while the defendants have urged a construction of that Act which would force the court to consider the Fourteenth Amendment grounds of decision. At the time the district court acted, abstention with a retention of jurisdiction would have left the class members in the intolerably inhumane conditions in which the district court found them, while the Commonwealth attempted to persuade the Pennsylvania Supreme Court that the MH/MR Act of 1966 afforded less relief than the plaintiffs sought. We now know from the decision in In re Schmidt that it would not have been successful. But even if it might have been, the result would be just the opposite of what the Pullman rule was intended to achieve: requiring a constitutional law decision rather than avoiding it.
We note also that the district court had before it several federal statutory claims. These would remain in the case regardless of any Pennsylvania Court interpretation of the MH/MR Act of 1966. Whether Pullman abstention is ever proper in a case presenting federal statutory interpretation issues distinct from claims predicated directly on the constitution is a question we need not decide. The Pullman rule involves the exercise of discretion, and it cannot be held that the district court abused its discretion in granting relief from the conditions in Pennhurst in a case presenting such federal statutory claims. Finally, if the defendants mean to suggest that at this late stage, after the Supreme Court of Pennsylvania has given us a definitive construction of the MH/MR Act of 1966, we should completely unglue this several year-old case and start all over so that the Pennsylvania Supreme Court can tell us again, we reject that suggestion. At best, if we thought Pullman abstention on the state law claim might be appropriate, we would have to proceed to the consideration of federal claims which might otherwise support

660 the order.[22] To do so, when we now have a *660 definitive construction of a state statute, which supports most of the relief requested, would do violence to the letter of Siler and to the animating purpose of the Pullman rule.
V
In one respect the MH/MR Act of 1966 does not lend support to the judgment appealed from. As noted in Part II above, and as we held in our prior decision,[23] that Act does not foreclose all institutionalization, and thus does not support that part of the judgment requiring the closing of Pennhurst. Since this is so, even under the Siler rule we must consider whether federal law, constitutional or statutory, requires that result. In this one respect federal law issues must be faced, and we reiterate our prior holding that the order directing the eventual closing of and barring all future admissions to Pennhurst went beyond what any federal statute or the Fourteenth Amendment requires.[24]
Since the MH/MR Act of 1966 is sufficient to support the judgment in other respects, the Siler rule prevents our consideration of plaintiffs' claims under the Fourteenth Amendment except to the limited extent discussed in the preceding paragraph.
Federal statutory supremacy claims do not implicate the rule against unnecessary constitutional law decisions to the same degree, since a decision on such grounds, while it binds the state legislature, leaves Congress free to act. In our prior opinion we recognized that distinction,[25] and decided one federal statutory supremacy issue, now reversed. Two such issues remain: whether Section 6063 of the Developmentally Disabled Assistance and Bill of Rights Act, which requires that state plans comply with several specific federal conditions, would support the judgment; and whether Section 504 of the Rehabilitation Act of 1973 would support it.
With respect to Section 6063, the Supreme Court noted several issues: whether any plaintiffs have a cause of action to enforce it; whether 42 U.S.C. § 1983 provides such a cause of action; whether Pennhurst's programs fall within Section 6063(b)(5)(C); and whether relief would be limited to an injunction against the federal government.[26] On none of those issues do we have findings of fact by the district judge. Moreover our examination of the record, with which we are obviously less familiar than he is, does not suggest that the facts necessary for decision of the issues presented by Section 6063 have been sufficiently developed.
Although in this court it is settled that Section 504 affords relief for private plaintiffs,[27] and although on this claim the district court did make findings of fact and conclusions of law, in our previous decision we declined to reach the Section 504 issues.[28] Except for the settled question of a private cause of action, the issues presented by Section 504 are at least as complex as are those posed by Section 6063. Moreover the district court's findings of fact were in this case made without the benefit of our recent en banc decision discussing allocation of burdens of production and of proof in cases based on antidiscrimination statutes such as Section 504.[29] If we undertook the arduous task of reviewing the district court's findings of fact bearing particularly on the applicability of Section 504 to the several programs for the mentally retarded involved in this case, it is possible that the only outcome would be a remand for reconsideration in light of the appropriate burden of production and proof.
661 *661 Implicit in our prior decision was a holding that assuming Section 504 applies, as a matter of law it does not require the eventual closing of Pennhurst or the prohibition of all future referrals to that institution. But the remaining relief afforded to the class is supported by the MH/MR Act of 1966. In that circumstance it is clearly unnecessary, and probably inappropriate as well, to reach any more of the merits of the Section 504 claim.
It is possible that at some future time the Pennsylvania Legislature may take action which on state law grounds would suggest Rule 60(b) relief from some provisions of the injunction. In that event it will be necessary for the District Court to consider the Section 6063 issues, and perhaps to reconsider its prior Section 504 decision. If the court is presented with that situation these federal statutory supremacy issues which we have left open should be addressed, for they might well afford a basis for avoiding the decision of the plaintiffs' Fourteenth Amendment claims. Hagans v. Lavine, 415 U.S. 528, 543, 94 S.Ct. 1372, 1382, 39 L.Ed.2d 577 (1974).

VI
We have reconsidered our prior judgment as directed by the Supreme Court's mandate. Since, to the extent that we affirmed it, the district court's order is supported by the MH/MR Act of 1966, an independent state law adequate to that end, our judgment shall reissue in its original form.
ALDISERT, Circuit Judge, concurring.
Although I join in the majority opinion in all respects, I write separately to explain that I still adhere to the view that a "least drastic means" or "least restrictive alternative" obligation should not be imposed on the hospital authorities. I have previously expressed dissatisfaction with the use of such a test in a similar context:
[That] formulation is cast in terms of grandi astrazioni, predicating liability on notions of "substantial necessity," "compelling necessity," and "least intrusive means." These abstractions, dubbed in classroom jargon as constitutional law "buzz words," have the unfortunate capacity to mean all things to all people.
Romeo v. Youngberg, 644 F.2d 147, 182 (3d Cir. 1980) (in banc) (Aldisert, J., concurring), cert. granted, 451 U.S. 982, 101 S.Ct. 2313, 68 L.Ed.2d 38 (1981). I also have joined separate opinions of my colleagues voicing discontent with the "least restrictive" standard.[1]
As the majority opinion makes clear, however, our decision is controlled by state law; and although we are required as federal judges to express views on federal questions, we are bound by the Pennsylvania courts' interpretation of state law issues, even if those courts have adopted the "least restrictive" test. See In re Joseph Schmidt, 494 Pa. 86, 96-97, 429 A.2d 631, 636 (1981). I had hoped that somewhere a line would be drawn limiting the extension of this precept, but Pennsylvania has opted otherwise. Hobbes warned that the courts' "long study may increase and confirm erroneous Sentences: and where men build on false grounds, the more they build, the greater is the ruine."[2]
Like Chief Judge Seitz, I seriously question the propriety of the district court's appointment of a special master to supervise compliance with the original remedy. But because of the inordinate amount of time that has already passed and the extensive amount of funds expended, a retroactive reversal of the original order would be meaningless. There is simply no way of unscrambling this jurisprudential egg, no method of returning the funds to 662 the Commonwealth. The best that can be hoped for *662 is that these proceedings will be remanded without any further delay to the district court, which, upon proper motion, may take immediate steps to disassemble the judicially-created administrative hierarchy of special and hearing masters so that the federal court's order may be properly implemented by state officials under state law.
SEITZ, Chief Judge, with whom JAMES HUNTER III, Circuit Judge, joins, dissenting in part.
I agree with the majority that the eleventh amendment and abstention doctrines do not foreclose the exercise of pendent jurisdiction over the state law claims against the state and county officials. Although the eleventh amendment issue is not without doubt, I do not feel free to reach a contrary result in view of the United States Supreme Court authority that we have on the matter. See Louisville & Nashville Railroad v. Greene, 244 U.S. 522, 528-29, 37 S.Ct. 683, 686-87, 61 L.Ed. 1291 (1917) (pendent jurisdiction extended to state law claims against state officials even though an eleventh amendment objection to the district court's jurisdiction over the case was raised); Greene v. Louisville & Interurban Railroad, 244 U.S. 499, 508, 37 S.Ct. 673, 677, 61 L.Ed. 1280 (1917) (same). I also agree that Pennsylvania law provides for a right to habilitation in the least restrictive environment. Furthermore, I agree that federal statutory and constitutional law do not provide a greater remedy than state law provides in this case. See Halderman v. Pennhurst State School & Hospital, 612 F.2d 84, 116 (3d Cir. 1979) (Seitz, C. J., dissenting), rev'd, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981).
The district court appointed a special master "with the power and duty to plan, organize, direct, supervise and monitor the implementation of this and any further Orders of this Court." 446 F.Supp. at 1326. Because the Supreme Court rejected this court's reliance on section 6010 of the Developmentally Disabled Assistance and Bill

of Rights Act, 42 U.S.C. § 6010 (1976), as a basis for the right to habilitation in the least restrictive environment, I believe the issue of the propriety of the remedy, including the appointment of a special master, is once again before us.
Although I believe the district court did not abuse its discretion in appointing the master to assist the court in formulating a remedy, I would reverse that portion of the order authorizing the master to supervise the defendants' compliance efforts. I believe that a federal court must assume that a state will comply with a federal court order. Principles of federal-state comity require that the state be given an initial opportunity to comply with a remedial decree. See Wyatt v. Stickney, 344 F.Supp. 387, 393 (M.D.Ala.1972), aff'd in part and rev'd in part sub nom. Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir. 1974). Consequently, I believe the appointment of a special master at the outset to supervise compliance is an abuse of discretion, at least absent a properly supported finding that the state would defy such a decree. Because no such finding was made, I believe that to the extent the order gave the master oversight responsibilities, the appointment was an abuse of discretion.
GARTH, Circuit Judge, concurring in part and dissenting as to relief:
I disagree with the majority in its disposition of the only real issue 0907 the key issue 0907 which is the relief to be accorded the plaintiffs. In my view, the majority opinion in these merits appeals is seriously mistaken when it asserts that the Supreme Court "did not address those issues respecting scope of relief," and that therefore "there is no occasion, for purposes of this appeal, for a reconsideration ... of objections to the use of a master." Maj. Op. at 651. This assertion misconstrues the Supreme Court's specific holding in Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981), which indicated strong disapproval of the district court's appointment of a Master. Moreover, it contradicts one of the basic tenets of the remedial power 663 of the federal courts: "the nature of the violation determines the *663 scope of the remedy," Swann v. CharlotteMecklenburg Board of Education, 402 U.S. 1, 16, 91 S.Ct. 1267, 1276, 28 L.Ed.2d 554 (1971). In holding, correctly in my view, that the proper basis for relief in this case is neither federal constitutional law (as the district court had concluded) nor federal statutory law (as this court had concluded in its earlier en banc decision), but rather state law, the majority announces a dramatic transformation in the nature of the violation found in this case. In my opinion, however, the ultimate conclusion that the majority reaches is illogical and inconsistent with principles announced by the Supreme Court. I therefore strongly dissent from the majority opinion respecting the relief to be accorded plaintiffs.
It appears to me that Pennsylvania's own statutes, regulations, and decisional law are fully adequate to protect the right to habilitation in the least restrictive environment which Pennsylvania law guarantees. Under these circumstances, essential principles of federalism and comity dictate that this court should not approve use of the intrusive device of appointing a master in the absence of evidence that an order enjoining compliance with Pennsylvania's own procedures, similar to that ordered by this court in Rennie v. Klein, 653 F.2d 836 (3d Cir. 1981) (en banc), would be inadequate to protect the plaintiffs' state law right to habilitation in the least restrictive environment. Accordingly, I would vacate the district court's orders of March 17, 1978, and April 24, 1980, appointing a Special Master and a Hearing Master, and remand the case to the district court with instructions to enter an order enjoining the defendants to comply with Pennsylvania's own statutes, regulations, and decisional law.
I.
I concur in Parts III and IV of the majority opinion in the merits appeals, which reject the defendants' eleventh amendment and abstention objections to the exercise of pendent jurisdiction over the state law claims. I also agree with Part V of the majority opinion, which holds that the order of the district court directing the closing of Pennhurst is not supported by federal statutory or constitutional law. Finally, I agree with Part II of the majority opinion insofar as it concludes that Pennsylvania law provides for a right to habilitation in the least restrictive environment.

II.

I joined the earlier opinion of this court modifying the district court's order of March 17, 1978, see Halderman v. Pennhurst State School & Hospital, 612 F.2d 84 (3d Cir. 1979) (en banc), because I believed at the time that the Developmental Disabilities Assistance Act, 42 U.S.C. § 6001 et seq. ("the Act"), provided for a federal right to habilitation in the least restrictive environment. Specifically, I agreed that the "Bill of Rights" section of the Act, 42 U.S.C. § 6010, had adopted the "least restrictive" concept and that, being passed pursuant to Congress's fourteenth amendment enforcement powers, § 6010 could support the district court's order mandating that longterm habilitation take place in community living arrangements rather than in institutions.

While I had grave doubts about the extension of the "least restrictive" concept beyond the first amendment context in which it originated, see, e.g., Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960), and for which it is most appropriate, two factors persuaded me to join this court's earlier en banc decision. First, a federal statute 0907 the Developmental Disabilities Act 0907 had incorporated this principle, allaying concerns over the propriety of a decision by the courts to assume on their own initiative the intrusive level of review entailed by the "least restrictive" doctrine. Second, the "least restrictive" concept seemed to be relatively manageable and appropriate in the context of decisions involving long-term institutionalization as opposed to habilitation in the community. In comparison, adoption of the "least restrictive" doctrine in the context of treatment decisions made 664 within institutions would entail extraordinarily detailed judicial supervision *664 over the numerous medical decisions that must be made in the course of treatment. See Rennie v. Klein, 653 F.2d 836, 855-65 (3d Cir. 1981) (en banc) (Garth, J., concurring); Romeo v. Youngberg, 644 F.2d 147, 182-85 (3d Cir. 1980) (en banc) (Aldisert, J., concurring), cert. granted, 451 U.S. 982, 101 S.Ct. 2313, 68 L.Ed.2d 838 (1981); Halderman v. Pennhurst State School and Hospital, supra, 612 F.2d at 126-30 (Seitz, C. J., dissenting). In short, the doctrine of least restrictive environment 0907 as opposed to least restrictive treatment 0907 at that time appeared acceptable to me, so long as it appeared to have been incorporated by federal statute.

On appeal, however, the Supreme Court rejected the basis on which this court had predicated its en banc decision. The Court held that the Act was not passed pursuant to Congress's power to enforce the fourteenth amendment, but was instead simply a funding statute. The Court also found that § 6010 created no substantive rights or enforceable obligations, and that that section had been "intended to encourage, rather than mandate, the provision of better services to the developmentally disabled." Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 20, 101 S.Ct. 1531, 1541, 67 L.Ed.2d 694 (1981). Finally, the Court was nearly unanimous in holding that the proper remedy for a violation of the Act would not be an order appointing a master to oversee the district court's far-reaching and costly injunction, but rather an order stating what was necessary to satisfy the terms of the Act, and enjoining Pennsylvania either to comply with those terms or to forego federal funds. See Pennhurst, supra, 451 U.S. at 53-55, 101 S.Ct. at 1558-59 (White, J., dissenting in part, joined by Brennan and Marshall, JJ.); 451 U.S. at 30 n.23, 101 S.Ct. at 1546 n.23 (majority opinion) (specifically approving of Justice White's views on this point). The Court then remanded the case to this court for decision on a variety of issues not resolved in our earlier en banc opinion,[1] including the impact of In re Joseph Schmidt, 494 Pa. 86, 429 A.2d 631 (1981).

Interpreting the Supreme Court's mandate in an extraordinarily narrow way, the majority states that the Supreme Court "did not address" the propriety of the appointment of the Master,[2] and that therefore this issue need not even be discussed, let alone decided, on remand.[3] The majority's conclusion, however, does not even follow from its own narrow premise that only those issues explicitly "addressed" by the Supreme Court need be considered on remand, for the Supreme Court did in fact discuss the propriety of the relief ordered by the district court and approved by this court in its en banc opinion.

As noted, Justice White's dissenting opinion extensively discussed 0907 and criticized 0907 the relief ordered in this case:

665

*665 It is my view that the Court of Appeals should have adopted the Rosado v. [Wyman, 397 U.S.

397, 90 S.Ct. 1207, 25 L.Ed.2d 442] approach in these cases. It found the State to be in

noncompliance with the federal statute in major respects and proceeded to impose a far-reaching remedy, approving the appointment of a Special Master to decide which of the Pennhurst inmates should remain and which should be moved to community-based facilities. More properly, the court should have announced what it thought was necessary to comply with the Act and then permitted an appropriate period for the State to decide whether it preferred to give up federal funds and go its own route. If it did not, it should propose a plan for achieving compliance, in which event, if it satisfied the court, a decree incorporating the plan could be entered and if the plan was unsatisfactory, the further use of federal funds could be enjoined. In any event, however, the court should not have assumed the task of managing Pennhurst or to decide in the first instance which patients should remain and which should be removed. As we recently recognized in Parham v. J.R., 442 U.S. 584 [99 S.Ct. 2493, 61 L.Ed.2d 101] (1979): "The mode and procedure of medical diagnostic procedures is not the business of judges. What is best for a child is an individual medical decision that must be left to the judgment of physicians in each case. We do no more than emphasize that the decision should represent an independent judgment of what the child requires and that all sources of information that are traditionally relied on by physicians and behavioral specialists should be consulted." Id., at 607-608 [99 S.Ct. at 2507]. Cf. Addington v. Texas, 441 U.S. 418, 429 [99 S.Ct. 1804, 1811, 60 L.Ed.2d 323] (1979) (commitment depends "on the meaning of the facts which must be interpreted by expert psychiatrists and psychologists"). In enacting § 6010, Congress eschewed creating any specific guidelines on the proper level of institutionalization, leaving the question to the States to determine in the first instance. A courtappointed Special Master is inconsistent with this approach.
451 U.S. at 54-55, 101 S.Ct. at 1558-59 (White, J., dissenting in part).
Moreover, Justice Rehnquist, writing for the majority, explicitly adopted the dissent's reasoning and conclusions concerning the propriety of the relief ordered in this case:
We do not significantly differ with our Brother WHITE on the remedy for failure to comply with federally imposed conditions. Relying on Rosado v. Wyman, he argues that Pennsylvania should be given the option of rejecting federal funds under the Act or complying with § 6010. If we agreed that § 6010 was a condition on the grant of federal funds, we would have little difficulty subscribing to that view. We differ only in that he believes that § 6010 imposes conditions on participating States while we believe that the relevant conditions to this case are §§ 6011 and 6063(b)(5)(C). If the court on remand determines that there has been a violation of those conditions, it may well be appropriate to apply the principles announced in Rosado, as JUSTICE WHITE suggests.
451 U.S. at 30 n.23, 101 S.Ct. at 1546 n.23.
To be sure, the Supreme Court's virtually unanimous expressions of criticisms of the appointment of a Master[4] under the Developmental Disabilities Act are not directly controlling here, where the issue is the propriety of a federal district court's appointment of a Master to enforce a state law right.[5] The point is, however, that even if 666 one were to accept the majority's cramped *666 interpretation of the Supreme Court's mandate, this court would still have a duty to consider the propriety of the appointment of a Master, for, the majority's assertion notwithstanding, the Supreme Court did in fact "address" the "objections to the use of a Master."
More fundamentally, I cannot accept the majority's assumption that it is proper for this court to answer the defendants' objections to the appointment of a Master simply by citing to our earlier en banc opinion. That decision did not decide the key issue before this court now: whether a federal district court order appointing a Master can be upheld once it is determined that the basis for relief is not federal law but state law. That issue was not before either the Supreme Court or this court in its earlier decision, and indeed could not have been, since both of those decisions were concerned solely with federal law grounds for the relief that the Master was appointed to carry out.[6] Thus, the specific issue 0907 whether a federally appointed Master may supervise implementation of a state law right when the state's own procedures are adequate to do so 0907 is before this court for the first time, and must be squarely faced and decided.

The conclusion that the propriety of the Master is before this court is compelled by the Supreme Court's many pronouncements on the scope and extent of federal judicial remedial power. In contrast to the majority, which assumes that a remedy functions properly so long as "some standard upon which relief could be predicated" can be plugged into it, see Maj.Op. at 651, the Supreme Court has made it clear that right and remedy are inextricably intertwined. See Swann v. Charlotte-Mecklenburg Board of Education, supra (nature of the violation defines the scope of the remedy); Milliken v. Bradley, 418 U.S. 717, 738, 744, 94 S.Ct. 3112, 3127, 41 L.Ed.2d 1069 (1974) (same). Indeed, Justice White's dissenting opinion in Pennhurst took note of this principle, observing that
[w]hat an appropriate remedy might be where state officials fail to observe the limits of their power under the United States Constitution or fail to perform an ongoing statutory duty imposed by a federal statute enacted under the commerce power or the Fourteenth Amendment is not necessarily the measure of a federal court's authority where it is found that a State has failed to perform its obligations undertaken pursuant to a statute enacted under the spending power.
451 U.S. at 53, 101 S.Ct. at 1558 (White, J., dissenting in part).
Similarly, what an appropriate remedy might be where state officials fail to observe the limits of their power under the federal Constitution (as the district court found) or fail to perform an ongoing statutory duty imposed by a federal statute enacted under the fourteenth amendment (as this court found in its previous en banc decision) is not necessarily the measure of a federal court's authority where it is found that a state has failed to perform its obligations under state law. Having predicated the violation on state law rather than federal law, the only proper course, in my view, is to face the question of the propriety of the relief ordered to correct that violation. I turn now to that question.
III.
The Supreme Court's decision that the Developmental Disabilities Act does not require adoption of the "least restrictive" doctrine might very well bring to the fore once again my concerns as to the appropriateness of that 667 doctrine. I am convinced, however, *667 that Pennsylvania law incorporates a right to habilitation in the least restrictive environment, and 0907 whatever may be my own views as to the advisability of recognizing such a right 0907 I agree with the majority that this court must apply Pennsylvania law as interpreted by the Pennsylvania Supreme Court.
Specifically, the majority correctly reads the holding of the Pennsylvania Supreme Court in In re Schmidt, 494 Pa. 86, 429 A.2d 631 (1981), as a definitive statement that Pennsylvania law 0907 in particular, the Mental Health and Mental Retardation Act of 1966 ("The MH/MR Act"), 50 Penn.Stat. §§ 4101-4704 0907 provides for a right to habilitation in the least restrictive environment.[7]See Maj.Op. at 651-653. The MH/MR Act establishes an affirmative duty on the part of the state and the counties to implement the right of each developmentally disabled person to habilitation in the environment least restrictive, consistent with adequate care, of his ability "to live a life as close as possible to that which is typical for the general population." 429 A.2d at 636. This is to be done by mandating that no person be placed in an institution, rather than in a community living arrangement, except upon a showing that, for that particular individual (as was the case with Joseph Schmidt), long-term institutionalization is the only way that adequate mental retardation services can be provided. It was to ensure the enforcement of this right that the district court appointed a Master.
In approving the district court's order, as modified by our earlier en banc decision, the majority overlooks the fact that Pennsylvania law itself provides for mechanisms by which it would appear that enforcement of this right can be fully ensured. Under §§ 201(1), 201(4), and 202(b) of the MH/MR Act, 50 Penn.Stat. §§ 4201(1), 4201(4), and 4202(b), the state has the ultimate responsibility for the provision of adequate mental retardation services to all persons in need of them. As delineated by the Pennsylvania Supreme Court in Schmidt, however, the MH/MR Act establishes a bifurcated scheme for the actual delivery of those services. Where the individual requires institutionalization because the degree to which he is retarded makes it impossible for him to be adequately cared for in any other way, it is the state's responsibility to provide that care. On the other hand, where the individual

may be able, with the proper support services, to live in the community, it is the county's responsibility to provide those services:
[T]he legislative scheme was designed to require the county to provide those supportive services where they would eliminate the necessity of institutionalization, even where those services would be required on a long term basis.
With the acceptance of the principle of "normalization" and the resultant legislation, it is clear that the restrictive view urged by the county as to its obligations in the area is out of step. The concept of normalization envisions that the mentally retarded person and his or her family shall have the right to live a life as close as possible to that which is typical for the general population. Consistent with this concept is the requirement that the least restriction consistent with adequate treatment and required care shall be employed.
In re Schmidt, supra, 429 A.2d at 635-36.[8]See §§ 301(d), 301(e) of the MH/MR Act, 50 Penn.Stat. §§ 4301(d), 4301(e).
668 Moreover, as the Pennsylvania Supreme Court pointed out in Schmidt, this "least *668 restrictive environment" approach has been adopted by regulations issued by the Secretary of the Department of Public Welfare pursuant to § 301 of the MH/MR Act, 50 Penn.Stat. § 4301. These regulations, entitled "County Mental Health and Mental Retardation Program 0907 Service Content of the Program," provide in part:
The County Program is the means by which minimum services as described in the act shall be readily available to promote the social, personal, physical and economical habilitation or rehabilitation of mentally retarded person[s] with all due respect for the full human, social and legal rights of each person. This means that the health, social, educational, vocational, environmental and legal resources that serve the general population shall be marshalled and coordinated by the County Program to meet the personal development goals of mentally retarded persons, in accordance with the principle of normalization....
In keeping with this principle of normalization, the County is responsible to utilize county program funds for the mentally retarded to accomplish the following objectives:
* * * * * *
4. shaping and maintaining an environment most productive of basic human personality qualities involving parent-child and sibling relationships, environmental adaptation, self-awareness and learning motivation and ability;
5. specific training and learning situations designed and implemented to develop all potential;
6. community development and restructuring to achieve the maximum normalization for the mentally retarded person wherever he is.
I. Responsibility for Planning, Direction and Coordinated Delivery of Services 0907 The Base Service Unit:
The County Administrator shall be responsible to provide for the establishment of an organizational unit consisting of multidisciplinary professional and non-professional services for persons who are mentally retarded and in need of service from the County Program.... The Base Service Unit shall be responsible to perform the following functions in such a way as to carry out the objectives of the County Program as stated above.
* * * * * *
D. Provide for comprehensive diagnosis and evaluation services to:
* * * * * *

3. Develop a practical life-management plan for the individual and his family and provide the necessary counseling and following-along services; ....

Quoted in In re Schmidt, supra, 429 A.2d at 636.

The Pennsylvania Supreme Court made it clear in Schmidt that the Commonwealth and the counties have a duty to develop these services if they do not currently exist. In the case of Joseph Schmidt himself, the Court noted:

It is the state's responsibility to find a placement for Joseph with a staff-patient ratio suitable to his needs. The state will not be allowed to ignore that responsibility and that obligation by stating that an appropriate facility is not immediately available. Section 201(1) of the Act, 50 P.S. § 4201(1), requires the state to provide adequate mental retardation services for persons in need of them. Joseph Schmidt has clearly demonstrated his need and the State must respond to it.

429 A.2d at 637 (emphasis in original). Just as the state is under a duty to respond to the needs of those developmentally disabled persons who require long-term institutionalization, so must the counties respond to the needs of those who are able to live in the community:

[T]he legislative grant of power to the counties under § 301(e)(3) of the Act, 50 P.S. § 4301(e)(3),

empowering them to establish additional services and programs "designed to prevent ... the

necessity of admitting or committing the mentally disabled to a facility" was intended to be utilized

669

by the counties to minimize the necessity of institutionalization. It was *669 more than a mere

grant of power to be used at the county's option.

Id. Neither the state nor the counties, then, can point to a lack of currently available facilities as an excuse for failing to live up to their responsibilities to provide adequate care for the mentally retarded.

Not only do Pennsylvania statutes and regulations provide for a systematic and comprehensive system of care of the mentally retarded; they also provide that an individualized determination must be made for each and every person as to whether a community living arrangement or institutionalization is most appropriate. Regulations adopted by the Department of Public Welfare, pursuant to a court order of October 26, 1976,[9] specifically provide that the Secretary of Public Welfare shall not

receive any [mentally retarded] person [for commitment] except upon judicial determination that the following standard is met:

A person shall be determined to be a mentally retarded person in need of residential placement only upon the following findings:

(1) The person is impaired in adaptive behavior to a significant degree and is functioning at an intellectual level two standard deviation measurements below the norm as determined by acceptable psychological testing techniques;

(2) The impairment and the resultant disability were manifested before the person's 18th birthday and are likely to continue for an indefinite period; and

(3) The person, because of his retardation presents a substantial risk of physical injury to himself or physical debilitation as demonstrated by behavior within 30 days of the petition which shows that he is unable to provide for, and is not providing for his most basic need for nourishment, personal and medical care, shelter, self-protection and safety and that provision for such needs is not available and cannot be developed or provided in his own home or in his own community without residential placement.

Pennsylvania Bulletin, Vol. 6, No. 48, at 2883-84 (November 13, 1976). Thus no person may be committed as mentally retarded without a judicial determination that provision for his needs cannot be developed absent placement in a community living arrangement or an institution. And surely it cannot be assumed by this court that in making the determination as to which of the two is more appropriate for the person who is to be committed, the

Pennsylvania courts would ignore the clear requirement of the MH/MR Act and the Schmidt decision that every mentally retarded person in the care of Pennsylvania be placed in a community living arrangement if at all possible, and that such arrangements must be developed if not currently available. Nor is it defensible for this court to assume, as the majority apparently does, that the defendants in this case 0907 the counties and the officials of the Department of Public Welfare 0907 will flout their duties under the MH/MR Act as clearly and unambiguously specified by the Pennsylvania Supreme Court in Schmidt.
Under these circumstances, the appointment of a Master is a gratuitous intrusion by the federal courts into an area of "traditional state authority," Pennhurst, 451 U.S. at 16, 101 S.Ct. at 1539 0907 the health and well-being of the citizenry. Surely such an intrusion cannot be justified after the Supreme Court's decision in Pennhurst. Although, as I noted earlier, the Supreme Court's comments on the appointment of a Master are not directly controlling here, I find them to be extremely pertinent. The Supreme Court stated with virtual unanimity that while the appointment of a Master to enforce rights guaranteed by a federal statute passed pursuant to Congress's fourteenth amendment enforcement powers might be within a federal court's power, there was no justification for 670 appointing a Master to oversee compliance with a federal-state *670 funding statute. Yet if appointment of a Master to oversee compliance with a federal funding statute was too intrusive, how can appointment of a Master to oversee a state's compliance with its own state statutes, regulations, and decisional laws possibly be approved by this court?
Indeed, it is apparent that even those members of this court who have affirmed the appointment of a Master are uneasy with that result. The majority opinion itself encourages the defendants to move for relief from the judgment and expresses the hope that a "less elaborate monitoring system" will be considered by the district court. Maj.Op. in No. 81-2381, 673 F.2d at 639. In his separate opinion, Judge Aldisert expresses disenchantment with "the establishment of the master's apparatus." He calls for immediate steps to be taken by the district court to "disassemble the judicially-created administrative hierarchy" of Masters so that state officials can take over their proper state function of supervising the habilitation of the residents of Pennhurst. The approach which I have advocated, in contrast, is more straightforward. I think we ought not to beat around the bush: if the Master's appointment was improvident, in error, or an abuse of discretion 0907 as I have argued it is, and as the majority apparently feels as well, but cannot quite bring itself to say 0907 then this court should so hold.
In addition to contravening the clear import of the Supreme Court's Pennhurst decision, the majority's approach is inconsistent with this court's decision in Rennie v. Klein, 653 F.2d 836 (3d Cir. 1981) (en banc). In that case, the district court held that mental patients who were involuntarily committed by New Jersey had a due process liberty right to refuse certain antipsychotic drugs. Although New Jersey had recently enacted legislation guaranteeing mental patients the right to participate in decisions regarding their own treatment, and although regulations had been adopted to implement that right, the district court imposed its own detailed set of procedures for the state to follow. This court affirmed the district court's determination that there was a right to refuse antipsychotic drugs, but held that the district court had erred in imposing its own procedures on the state when the state's own regulations were adequate to protect that right.
In my view, Rennie provides a model for the manner in which this court should handle the present case.[10] The proper approach would be to vacate the district court's orders of March 17, 1978 (insofar as it appointed a Special Master) and of April 24, 1980 (appointing a Hearing Master), and direct the district court to enter an order 671 enjoining the defendants to comply with *671 Pennsylvania state law as clearly set out in Schmidt. To be sure, it may be that such an order will ultimately prove inadequate, and that the defendants will not in fact carry out their responsibilities under state law. If so, plaintiffs may return to district court and seek compliance with the injunction. Before this court goes to the extreme lengths of approving a federal Master to supervise and oversee state and county officials' compliance with a decision by their own state supreme court, however, defendants should, as a matter of federal-state comity, be given the opportunity to undertake that compliance themselves. Any other approach constitutes a massive displacement of state authority incompatible with Pennhurst, Rennie, and indeed, with the basic notion of a federal system.

IV.
My disagreement with the majority opinion, then, focuses almost exclusively on the relief ordered by the district court, as modified by our previous en banc decision: the appointment of a federal Special Master and a federal Hearing Master to discharge functions that are properly the responsibility of the Commonwealth under the Commonwealth's own laws. The majority has not directly faced up to what, in my view, is mandated by considerations of federal-state comity and by Supreme Court principles governing the remedial powers of federal courts, and has persisted in leaving the Master in place despite its evident discomfort in doing so.
I respectfully dissent.
[1] Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981), reversing 612 F.2d 84 (3d Cir. 1979), which affirmed in part 446 F.Supp. 1295 (E.D. Pa.1977).
[2] 612 F.2d at 98.
[3] See Usery v. Allegheny County Inst. Dist., 544 F.2d 148, 155 (3d Cir. 1976), cert. denied, 430 U.S. 946, 97 S.Ct. 1582, 51 L.Ed.2d 793 (1977).
[4] But cf. Civil Rights Cases, 109 U.S. 3, 19 (1883) (Public Accommodations provisions of Civil Rights Act of 1875 unconstitutional under Fourteenth Amendment; "And whether Congress, in the exercise of its power to regulate commerce amongst the several States, might or might not pass a law regulating rights in public conveyances passing from one State to another, is also a question which is not now before us, as the sections in question are not conceived in any such view.")
[5] 612 F.2d at 98.
[6] Id. at 90-94.
[7] Id. at 108-16.
[8] Id. at 109.
[9] Id. at 109-11.
[10] Id. at 111-12. Under Pennsylvania law a court of equity may, in a class action concerning conditions in a state institution, appoint masters to assist in the implementation of a decree. Jackson v. Hendrick, 457 Pa. 405, 321 A.2d 603 (1974). The scope of available equitable relief in an action in a federal court based upon a state law cause of action is not different. E.g., Stern v. South Chester Tube Co., 390 U.S. 606, 88 S.Ct. 1332, 20 L.Ed.2d 177 (1968); Bernhardt v. Polygraphic Co., 350 U.S. 198, 76 S.Ct. 273, 100 L.Ed. 199 (1956); Guaranty Trust Co. v. York, 326 U.S. 99, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945).
[11] Id. at 100-03.
[12] But see id. at 122-23 (Seitz, J., dissenting).
[13] 429 A.2d at 636.
[14] Cf. California v. Byers, 402 U.S. 424, 91 S.Ct. 1535, 29 L.Ed.2d 9 (1971); State Tax Commission v. Van Cott, 306 U.S. 511, 59 S.Ct. 605, 83 L.Ed. 950 (1939). In those cases a state or a state agency successfully petitioned for certiorari because a state court's interpretation of a state statute may have been compelled by an erroneous interpretation of the federal constitution. No petition for certiorari was filed in the Schmidt case, and the Commonwealth does not here urge that Schmidt was the result of a misinterpretation of the MH/MR Act of 1966 compelled by an erroneous view of federal law.
[15] 612 F.2d at 115.

[16] Under Section 201(1) of the MH/MR Act of 1966 the Pennsylvania Department of Public Welfare "shall have power, and its duty shall be: (1) To assure within the State the availability and equitable provision of adequate mental health and mental retardation services for all persons who need them, regardless of religion, race, color, national origin, settlement, residence, or economic or social status." Pa.Stat. Ann. tit. 50, § 4201(1) (Purdon 1969). Pennsylvania Counties are obliged.
Subject to the provisions of sections 508 and 509(5) it shall be the duty of local authorities in cooperation with the department [of Public Welfare] to insure that the following mental health and mental retardation services are available:
(1) Short term inpatient services other than those provided by the State.
(2) Outpatient services.
(3) Partial hospitalization services.
(4) Emergency services twenty-four hours per day which shall be provided by, or available within at least one of the types of services specified heretofore in this paragraph.
(5) Consultation and education services to professional personnel and community agencies.
(6) Aftercare services for persons released from State and County facilities.
(7) Specialized rehabilitative and training services including sheltered workshops.
(8) Interim care of mentally retarded persons who have been removed from their homes and who having been accepted, are awaiting admission to a State operated facility.
(9) Unified procedures for intake for all county services and a central place providing referral services and information.
Pa.Stat.Ann. tit. 50, § 4301(d) (Purdon 1969). Section 508 provides:
(a) If local authorities cannot insure the availability of any of the services required by section 301, or if they assert that it would be economically unsound to do so, such authorities may make application to the department to be relieved for the period of one year from the duty to insure their availability.
Such application shall specify: (i) the service or services involved and (ii) facts upon which it seeks relief.
(b) If the department after consideration of the application and such independent investigation as it shall deem appropriate determines that the application is justified, it may approve the same, in which event, the department may insure the availability of the service or services specified in the application, for the year specified in the application.
(c) When the department provides said service or services under this section, the liability shall be apportioned in accordance with the appropriate formula determined in accordance with section 509(1).
(d) Local authorities may make successive application hereunder.
Pa.Stat.Ann. tit. 50, § 4508 (Purdon 1969). Section 509 provides, inter alia:
The department [of Public Welfare], subject to the provisions of section 503, shall have the power, and its duty shall be:
(1) From State and Federal funds, to make annual grants to counties to defray part of the cost of county programs authorized by this act and approved by the department, in the amount of ninety per cent of the excess of all such approved expenditures for such programs over the amount paid for the same purpose from any public or private source directly to participating counties, facilities or individuals.

(2) To prescribe the time at which the counties shall submit to the department annual plans and annual estimates of expenditures, and revisions thereof, to carry out mental health and mental retardation programs. Such plans and estimates shall contain such information as the secretary by regulation shall prescribe.
(3) Upon approval of an annual plan and the estimated expenditures for a mental health and mental retardation program, to compute an annual grant in accordance with the formula established in clause (1) of this section.
....
(5) In the event that sufficient funds to pay the full amount of the grants to which the counties may be entitled under the provisions of this section have not been appropriated, to distribute State funds among the counties by a formula reasonably designed to achieve the objectives of this act, provided however, that in such event the counties' financial obligations under this act shall be reduced in accordance with the same formula and the counties shall be required to provide only those services for which sufficient funds are available.
....
Pa.Stat.Ann. tit. 50, § 4509 (Purdon 1969). The district court was quite aware of these provisions, and the allocation of responsibilities among the respective defendants set forth in the order is consistent with them.
[17] A general objection to prospective relief on Eleventh Amendment grounds was made when the case was first before us. It was rejected on the authority of Edelman v. Jordan, 415 U.S. 651, 667-68, 94 S.Ct. 1347, 1357-58, 39 L.Ed.2d 662 (1974). 612 F.2d at 109. As noted in Part I above, that holding is not affected by the Supreme Court's remand.
[18] Id.
[19] E.g., Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 5 L.Ed. 257 (1821); Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 6 L.Ed. 204 (1824); Board of Liquidation v. McComb, 92 U.S. 531, 23 L.Ed. 623 (1875).
[20] Those reasons and their results are illuminated in Orth, The Eleventh Amendment and the North Carolina State Debt, 59 N.C. L.Rev. 747 (1981).
[21] Pub.L.No.218, § 17, 36 Stat. 557 (1910). See Hutcheson, A Case for Three Judges, 47 Harv.L.Rev. 795, 798-810 (1934); Frankfurter, Distribution of Judicial Power Between United States and State Courts, 13 Cornell L.Q. 499, 519-20 (1928); 45 Cong.Rec. 7256 (1910).
[22] The defendants concede that "[their] abstention claim is premised on the fact that this Court has already rejected all of plaintiffs' federal claims." (Appellants' Joint Brief on Remand, 52-3). Obviously we have not.
[23] 612 F.2d at 114.
[24] Id. at 115.
[25] Id. at 94.
[26] 451 U.S. at 29-30, 101 S.Ct. at 1546-47.
[27] NAACP v. The Medical Center, Inc., 599 F.2d 1247, 1257-58 (3d Cir. 1979).
[28] 612 F.2d at 108.
[29] NAACP v. The Medical Center, Inc., 657 F.2d 1322 (3d Cir. 1981).
[1] See Rennie v. Klein, 653 F.2d 836, 854-55 (3d Cir. 1981) (in banc) (Seitz, C. J., concurring), cert. granted, ___ U.S. ___, 102 S.Ct. 3506. (Garth, J., concurring); Romeo v. Youngberg, 644 F.2d at 173-81 (Seitz, C. J., concurring); Halderman v. Pennhurst State School & Hospital, 612 F.2d 84, 116-31 (3d Cir. 1979) (in banc) (Seitz, C. J., dissenting), rev'd, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981).
[2] T. Hobbes, Leviathan 317 (C. B. MacPherson ed. 1968).

[1] I fully agree with the majority that on remand, to the extent that our decision can be predicated on state law, this court is not compelled by the Supreme Court's mandate to decide the federal statutory and constitutional issues listed in the Pennhurst opinion.
[2] By "Master," I refer, unless otherwise specifically noted, both to the Special Master appointed by the district court in its original order of March 17, 1978, and to the Hearing Master appointed by the district court in its order of April 24, 1980, pursuant to this court's en banc decision.
[3] I am not alone in my view that the majority opinion has incorrectly construed the Supreme Court's reversal of our earlier en banc decision. Indeed, as I understand it, in the complex of opinions on this point, while there are five votes in favor of upholding the appointment of a Master, only four members of the court do so on the basis of the continuing vitality of our previous en banc decision. In his separate concurring opinion, Judge Aldisert agrees with the position that I have taken, and refuses to "accord any precedential vitality" to our previous decision. Judge Aldisert has joined in the "majority's" affirmance of the Master for purely pragmatic reasons, and without specifying any jurisprudential basis for doing so. See Concurring Opinion of Judge Aldisert in No. 81-2381, 673 F.2d at 640. Thus, I note that the untenable view that our previous en banc decision has any continuing vitality does not in fact command a majority in this court. Even though I recognize this fact, I continue to identify Judge Gibbons' opinion as the "majority" opinion for ease of reference.
[4] Justice Blackmun, writing separately, see 451 U.S. at 32-33, 101 S.Ct. at 1547-48 (Blackmun, J., concurring in part and concurring in the judgment), said nothing about the appointment of a Master.
[5] While not directly controlling, the Supreme Court's comments about the appointment of a Master are nevertheless extremely significant for this court's resolution of that issue. See Part III infra.
[6] To be sure, this court did find in its en banc decision that state law supported a state law right to habilitation. We did not decide in that opinion, though, that state law provides for a right to habilitation in the least restrictive environment. Indeed, the entire thrust of that opinion was that a violation of federal law having been found, the district court judge could properly appoint a Master to oversee compliance with his order, rather than personally supervise all details of implementation himself. That holding simply has no relevance to the central issue in this case: the propriety of appointing a federal Master to supervise Pennsylvania's compliance with Pennsylvania law.
[7] Because Joseph Schmidt himself could be adequately cared for only in an institution, the Pennsylvania Supreme Court's discussion of the right to the least restrictive environment and the counties' responsibilities technically might be characterized as dictum. See In re Schmidt, supra, 429 A.2d at 638-39 (Larsen, J., concurring). Nevertheless, the Pennsylvania Supreme Court's opinion is so unequivocal in its nature that I agree with the majority that it cannot be read as other than an official interpretation of the Commonwealth's statutory scheme.
[8] The state nevertheless has the duty of overall supervision and control of the counties' discharge of their responsibilities.
[9] See Goldy v. Beal, 91 F.R.D. 451, 453 (M.D.Pa.1981); Goldy v. Beal, 429 F.Supp. 640 (M.D.Pa.1976).
[10] The majority attempts to distinguish Rennie by stating that "in sharp contrast" to the present case, the New Jersey officials in Rennie were in good faith implementing state procedures that were facially adequate to protect the plaintiffs' constitutional rights. See Maj.Op. in No. 81-2381, 673 F.2d at 639 n.21. This distinction is unconvincing. Clearly, the procedures that Pennsylvania has established are, on their face, fully adequate to protect the state law right to habilitation in the least restrictive environment. Nor is there the slightest basis whatsoever for the majority's suggestion that Pennsylvania might perform its state law obligations in less than good faith. (Indeed, such a suggestion, if taken seriously, would be inconsistent with the majority's clear indication that the district court should, on a Rule 60(b) motion, at the very least sharply cut back on the Master's office, see Maj.Op. in No. 81-2381, 673 F.2d at 639, or eliminate the office entirely, Concurring Opinion of Judge Aldisert, 673 F.2d at 661-62.) The majority predicates its assumption that Pennsylvania will not implement its duties in good faith on the fact that in 1978, Pennsylvania was contesting the relief sought by the plaintiffs. If that fact alone were sufficient to uphold a finding of bad faith on the part of state officials, however, it would be tantamount

to holding that a district court never need allow state officials an opportunity to effect compliance with a decision. More important, the district court never made a finding that the Commonwealth would not implement the district court's relief in good faith. In its 1978 order, the district court merely stated that it could not implement the relief without the aid of a Master. See 446 F.Supp. at 1326. The district court's statement, however, was concerned with the trial judge's own inability personally to supervise the relief. It had nothing to do with the entirely separate question of whether it was necessary in the first instance to have the federal courts 0907 in the form of a Master or the trial judge 0907 take the place of the state in the implementation of the relief.
Save trees - read court opinions online on Google Scholar.

 
 533 F.Supp. 661 (1982)
Terri Lee HALDERMAN et al., Plaintiffs, v.
PENNHURST STATE SCHOOL AND HOSPITAL et al., Defendants, United States of America, Plaintiff-Intervenor, Pennsylvania Association for Retarded Citizens et al.,
Plaintiffs-Intervenors.
Civ. A. No. 74-1345.
United States District Court, E. D. Pennsylvania.
February 26, 1982.
David Ferleger, Philadelphia, Pa., for P. M.
Steven M. Coren, Philadelphia, Pa., for P. M.'s parents.
MEMORANDUM
RAYMOND J. BRODERICK, District Judge.
Pursuant to this Court's Order of January 5, 1982, a hearing was held on February 12, 1982 to consider exceptions filed by W. M. and B. M., the parents of P. M., a minor, and Chester County to the Report of the Hearing Master concerning the community placement of P. M.
P. M., a 12-year-old boy classified as profoundly mentally retarded, is four feet tall, 65 pounds. He was committed to Pennhurst in 1972. In accordance with this Court's Order of April 24, 1980, the Planning and Assessment Team including but not limited to the Pennhurst resident, his case manager, Pennhurst staff, and the parent/ 662 guardian/certified *662 advocate prepared an Individual Habilitation Plan for P. M. which provided for his transfer from Pennhurst to a community living arrangement in Chester County (the "County"). On October 13, 1981, the County Mental Health and Mental Retardation Officer issued notice of this proposed community placement. On October 19, 1981, W. M., P. M.'s father, requested a hearing on his objections to the transfer. Pursuant to this Court's Orders of April 24, 1980 and July 14, 1980, the Hearing Master, on October 28, 1981, scheduled a hearing for the purpose of determining both the voluntariness of the transfer and whether the community living arrangement would be more beneficial to P. M.'s habilitation than remaining at Pennhurst. The Hearing was held on November 24, 1981. In attendance at the Hearing were P. M., his parents W. M. and B. M. and their expert witnesses, the County through its representatives, including staff members of P. M.'s proposed community living arrangement, staff members of Pennhurst, and the Special Master.
The Hearing Master's Report of December 3, 1981 concluded that the proposed transfer would be more beneficial to P. M. than would continued residence at Pennhurst and that the transfer was voluntary. He therefore authorized and directed the County to proceed with the proposed transfer, and described in his Report the procedures, established by this Court, by which any participant in the hearing may take exception to the Hearing Master's report. On December 14, 1981, W. M. and B. M. and the County filed timely exceptions to the Report. They contended, among other things, that, since the parents of P. M. opposed the transfer, the community placement should not proceed.
P. M. was scheduled to be transferred as soon as practicable from Pennhurst to the home provided for him in the community. On December 22, 1981, counsel for W. M. and B. M. applied to this Court for a stay of the Hearing Master's Order. The Court scheduled a hearing on the stay and the exceptions to the Hearing Master's Report, which hearing was held on February 12, 1982. At the hearing, the Court was informed by counsel for the County that P. M.'s movement to the community was scheduled for February 16, 1982. The Court instructed the County, through its counsel, that P. M. should not be transferred until the Court ruled on the exceptions to the Master's

Report. For the reasons hereinafter set forth, the Court will adopt the Report of the Hearing Master and dismiss the exceptions which have been filed to his Report.
As is well-known to the litigants in the matter, the Court, in its Memorandum of December 23, 1977, 446 F.Supp. 1295, determined that the constitutional and statutory rights of the residents of Pennhurst had been violated by the defendants. The Court further found that the residents of Pennhurst were entitled to receive adequate habilitation in the least restrictive setting so that they might reach their potential as members of our society. "Habilitation" is a term of art used to refer to that education, training and care required by retarded individuals to reach their potential. The Court further found, based on the evidence presented at trial, that Pennhurst as an institution was unable to provide adequate habilitation to its residents and that arrangements should be made to establish community living arrangements which would provide adequate habilitation for the retarded residents of Pennhurst. The Court's Order of March 17, 1978 set forth in detail the procedures for accomplishing this objective.
On December 13, 1979, the United States Court of Appeals for the Third Circuit affirmed the bulk of the Court's findings of fact and conclusions of law, 612 F.2d 84 (3d Cir. 1979). In remanding the case to this Court, the Third Circuit stated however: "[T]here may be some individual patients who, because of advanced age, profound degree of retardation, special needs, or for some other reasons, will not be able to adjust to life outside an institution and thus will be harmed by such a change," and held that there should be a hearing to determine the relative habilitative benefit for each resident prior to his or her transfer to the community. 612 F.2d at 114-16.
663 *663 In its Order of April 24, 1980, this Court appointed a Hearing Master and directed that he make findings and set forth reasons as to whether the living arrangements and services being provided the resident at Pennhurst are more beneficial to the resident's habilitation than the living arrangements and services which have been made ready in the community. The April 24, 1980 Order also provides that, in making such findings, the Hearing Master shall be guided by the presumption in favor of placing individuals in community living arrangements as mandated by the Third Circuit.
The Supreme Court of the United States on June 30, 1980 entered a Stay Order in connection with its grant of certiorari in Halderman v. Pennhurst. This Stay Order provided that only voluntary transfers from Pennhurst to the community could be made pending its final disposition of the case. On July 14, 1980, this Court held that the Stay Order did not prevent this Court from ordering "voluntary" transfers from Pennhurst to the community. The November 24, 1981 hearing regarding P. M. was held for the purpose of determining (2) whether the transfer was "voluntary", and (b) whether the program of habilitation provided for P. M. in the community living arrangement would be more beneficial to P. M.'s habilitation than the habilitation being provided to him at Pennhurst.
As heretofore pointed out, the Hearing Master found both that P. M.'s transfer to the community home was voluntary and that this move would be more beneficial to P. M. than would continued confinement at Pennhurst.
Before discussing the exceptions filed to the Hearing Master's Report, the Court will address the question as to whether the Hearing Master should continue to hold "voluntariness" hearings for the purpose of determining the voluntariness of a transfer from Pennhurst to the community. On August 13, 1980, the Commonwealth defendants filed a notice of appeal concerning this Court's Order of July 14, 1980 in which this Court directed the Hearing Master to hold "voluntariness" hearings in every instance where a resident of Pennhurst was being transferred to a community living arrangement. The Commonwealth defendants later petitioned to withdraw this appeal and the Court of Appeals granted this request and dismissed the appeal in an Order dated February 9, 1981. On October 13, 1981, the Commonwealth defendants filed with this Court a motion to discontinue the "voluntariness" hearings in light of the Supreme Court's decision in Halderman v. Pennhurst, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981), reversing the Third Circuit and remanding the case to the Court of Appeals for further proceedings.
This Court has recently concluded that the "voluntariness" hearings, mandated by the Supreme Court's Stay Order of June 30, 1980 are no longer required. The Supreme Court's remand to the Third Circuit on April 20, 1981 terminated its Stay Order of June 30, 1980 upon which this Court had based its Order of July 14, 1980 which directed the Hearing Master to conduct "voluntariness" hearings. A review of applicable decisions indicates that a stay order issued by an appellate court terminates upon that court's disposition of the appeal in the

absence of an order to the contrary. See American Manufacturers Mutual Insurance Co. v. American Broadcasting Paramount Theaters, Inc., 87 S.Ct. 1, 17 L.Ed.2d 37 (1966); 2 Federal Procedures 3:155 at 357 (1981). The Supreme Court's Stay granted on June 30, 1980 reads as follows:
Petitioners' motion for a stay of the judgment of the Court of Appeals, pending final disposition of the cases in this Court, is granted to the extent that the judgment mandates the movement of residents of the Pennhurst facility to "appropriate community living arrangements." In all other respects, the motion is denied.
From a reading of the above-quoted Order, it was apparent that the Supreme Court Stay was granted "pending a final disposition of the cases in this Court." There is nothing in the Stay Order or the Court's decision indicating that the Stay Order was intended to continue after the case was remanded. It was on this basis that this Court 664 granted the motion of the *664 Commonwealth defendants to discontinue "voluntariness" hearings vacating this Court's Order of July 14, 1980. Therefore, the exceptions of W. M. and B. M. concerning voluntariness are moot and will not be discussed by this Court.
P. M.'s individual habilitation plan provides that adequate habilitation requires that P. M. be transferred from Pennhurst to a community residence which he would share with two other retarded males. The community residence is supervised by a live-in couple. It is a ranch-style dwelling operated by Community Homes, Inc. in Malvern, Pennsylvania. Because of P. M.'s ambulation difficulties and his inability to recognize dangerous situations, one staff person in addition to the live-in couple will be assigned to watch over P. M. during waking hours. One staff person will be required to be awake and on duty during the night, in addition to the presence of the live-in couple. The residence has been extensively adapted (e.g., safety gates to the kitchen and hallway, grab bars in the bathroom) to protect P. M. from all known risks.
P. M.'s individual habilitation plan provides for an extensive and detailed program for him in the residence, including self-help skill training (e.g., feeding, bathing, toileting, dressing), socialization, pre-language communications, occupational and physical therapy, and recreational activity such as swimming and field trips.
The proposed community program for P. M. results from and is reflected in his individual habilitation plan (Cty. Ex. at Hearing 1, 1A), which was developed at a meeting at Pennhurst on May 11, 1981, attended by P. M.'s parents, representatives and staff members of the proposed community residence, his school teacher, Pennhurst staff, and his County case manager. The plan was approved by the Office of the Special Master as offering living arrangements and services which will be more beneficial to P. M.'s habilitation than would be his continued residence at Pennhurst. The parents' objections to the plan were submitted to mediation under the auspices of Pennhurst Superintendent George Kopchick; the mediation process allayed some of the parents' concerns (e.g., physical and occupational therapy). The parents, however, requested the November 24 hearing on relative benefit and voluntariness.
Since December 1980, P. M. has made some 20 daytime and overnight visits to the residence without any particular trauma. According to testimony presented at the hearing, he was initially somewhat overactive and anxious on his visits to the residence, but these reactions have lessened and he is now comfortable with the staff and other residents at the proposed community home.
After P. M. is transferred to the community residence, he will continue to attend his public school classes in the Liberty Forge program of the Chester County Intermediate Unit, where he has had the same teacher for six years and where he works on such things as self-awareness, self-concept, socialization, and fine motor skills. Thus, the Hearing Master found that there is no issue as to the adequacy or appropriateness of P. M.'s day programs. P. M.'s parents engaged in extensive negotiations with the case manager and as a result of these negotiations certain changes were made in the living arrangements for P. M. at the community residence. (Cty. Ex. at Hearing 2, 3). As a result, P. M.'s parents no longer have any objections to the education and treatment programs which have been planned for P. M.
In his Report of December 3, 1980, the Hearing Master thoroughly examined the parent's remaining objections to the proposed community placement of P. M. Their remaining objections appear to be that the proposed

community home will not be as safe for P. M. as is Pennhurst and that as parents they have an absolute right to prevent his transfer to the community. The County has adopted the exceptions filed by the parents.
Rule 53(e)(2) of the Federal Rules of Civil Procedure declares that "[i]n an action to be tried without a jury, the court shall accept the master's findings of fact unless clearly erroneous." The Rule embodies the policy of the 665 Federal Rules that, although use of a master should not lightly be resorted to, when a master is properly *665 used to achieve compliance with a Court's injunctive orders, the master's findings carry a presumption of correctness. See Camden v. Stuart, 144 U.S. 104, 118, 12 S.Ct. 585, 590, 36 L.Ed. 363 (1892); Tilghman v. Proctor, 125 U.S. 136, 149-50, 8 S.Ct. 894, 901-02, 31 L.Ed. 664 (1888). A party attacking a master's finding bears the burden of persuasion to show that the finding is clearly erroneous. Esdale v. Edwards, 28 F.R.D. 390 (D.N.C.1961); Oil Chemical & Atomic Workers International Union v. NLRB, 547 F.2d 575 (D.C.Cir.1976), cert. den., 431 U.S. 966, 97 S.Ct. 2923, 53 L.Ed.2d 1062 (1977). Rule 53(e)(2) also provides: "The Court, after hearing, may adopt the report or may modify it or may reject it in whole or in part or may receive further evidence or may recommit it with instructions."
The Hearing Master's Report is thorough, detailed, specific, and is supported by evidence in the record as to all findings of fact. The factual findings of the Master are not clearly erroneous, nor are his legal conclusions contrary to law. A matter under review may be considered clearly erroneous when the court is left with the definite and firm impression that a mistake has been made. United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948). The Court has no such reservations about the Master's Report.
Many of the exceptions to the Report challenge certain language in the document or question the Master's authority. These arguments criticizing the words chosen by the Master are not subject to review by this Court pursuant to Rule 53. Parties objecting to a Master's Report must complain of an error in a finding of fact or a conclusion of law. Second-guessing of the Master's characterization of events and parties or criticism of his writing style is not a proper subject for review by the Court. Similarly, the authority of the Hearing Master to conduct hearings such as that concerning P. M. is well-established. See Memoranda of February 20, 1981 concerning N.T., G.W., L.B., D.M., and P.T.
Furthermore, on December 13, 1979, the Court of Appeals, in remanding the case to this Court, stated: "[T]here may be some individual patients who, because of advanced age, profound degree of retardation, special needs, or for some other reasons, will not be able to adjust to life outside of an institution and thus will be harmed by such a change," and held that there should be hearings to determine the relative habilitative benefit for each resident prior to his or her transfer to the community. 612 F.2d at 114-16.
In Orders issued by this Court on April 24, 1980, the Court appointed a Hearing Master and directed that he "make findings and set forth reasons as to whether the living arrangements and services being provided the residents at Pennhurst are more beneficial to the resident's habilitation than the living arrangements and services which have been made ready in the community." The April 24, 1980 Order also provided that in making such finding, the Hearing Master shall be guided by the presumption in favor of placing individuals in community living arrangements as mandated by the Court of Appeals for the Third Circuit. The Court finds that the Hearing Master was well within the scope of his authority in all proceedings regarding P. M.'s community placement.
A brief illustration supports the factfinding conducted by the Hearing Master. At the Hearing, W. M. and B. M., the parents of P. M., raised questions as to the safety of the proposed community residence as compared to Pennhurst. As the Report notes, P. M. has burned his hand and twice broken his leg while at Pennhurst. (Report at 17). By comparison, the community residence was specially planned to eliminate all known potential hazards to P. M.'s safety. A fence was erected to shield P. M. from the danger of a nearby highway, and safety gates were installed in the residence to shield him from areas in the residence which might prove to be sources of danger to P. M. As heretofore pointed out, the community residence will be staffed at all times.
666 *666 Similarly, P. M.'s parents raised questions as to the adequacy of his medical care in the community, especially during emergencies. It was found by the Hearing Master that the Paoli Hospital is no farther from the community residence than the Phoenixville Hospital, which services Pennhurst, is from Pennhurst and that a competent medical staff will be available to P. M. at his community residence. The Hearing Master found that the

primary physician in the community who will be responsible for his medical care at the community residence is accomplished in the treatment of retarded patients.
Throughout his Report, the Hearing Master addresses the factual concerns of P. M.'s parents and finds that the community living arrangement provided for P. M. is more beneficial to P. M.'s habilitation than continued residence at Pennhurst. The Court adopts the factual findings of the Hearing Master. The Court has reviewed the record in this case and has determined that the evidence presented at the hearing supports all of the findings made by the Master.
At the hearing of February 12, 1982, counsel for the parents contended that the parents should have a veto over the determination made by the Hearing Master that programs which have been designed for P. M. in his community living arrangement will be more beneficial to his habilitation than the habilitation P. M. would receive if he remained at Pennhurst.
The law has long recognized that parents have rights concerning decisions which may affect their children. More than six years ago, this Judge observed:
The Supreme Court has repeatedly recognized and afforded great weight to the rights of parental control and custody of their children and has given due respect to the powerful role of the familial relationship in our democratic society. It is plain that the interest of family integrity and the interests of parents in the care, custody and nurture of their children come to the court with a momentum of respect.
* * * * * *
[P]arents' interest in directing the upbringing of their children is cognizable and substantial. Those who nurture the child and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations. The parents' claim to authority in their own household to direct the rearing of their children has been termed "basic in the structure of our society."
Bartley v. Kremens, 402 F.Supp. 1039, 1056, 1057 (E.D.Pa.1975) (citations omitted), vacated and remanded on other grounds, 431 U.S. 119, 97 S.Ct. 1709, 52 L.Ed.2d 184 (1977), on remand sub. nom. Institutionalized Juveniles v. Secretary of Public Welfare, 459 F.Supp. 30 (E.D.Pa.1978), reversed and remanded, 442 U.S. 640, 99 S.Ct. 2523, 61 L.Ed.2d 142 (1979).
Mindful of this venerable legal tradition, this Court's Orders in this case have sought to provide for and encourage parental involvement in the process of developing an individual habilitation plan. Parents and guardians are urged to become intimately involved as members of the team which determines the individual habilitation plans for each member of the plaintiff class. Pursuant to this Court's Orders, parents are given the right to demand a hearing in the event they object to a habilitation plan transferring their son or daughter to a community living arrangement. At the hearing, they have a right to be represented by counsel, present evidence, and present argument as to why a community living arrangement will be less beneficial to their child's habilitation than his or her continued residence at Pennhurst. In addition, if the parents are dissatisfied with the Master's Report, they may file exceptions with the Court, as have the parents of P. M. in this case.
It was through the actions of his parents that P. M. was committed to Pennhurst. This Court's decision of December 23, 1977 mandates that P. M. receive adequate habilitation in the least restrictive environment. To 667 implement this mandate, the planning assessment team, consisting of the parents *667 and persons with expertise in the habilitation of the retarded, including staff at Pennhurst, constructed an individual habilitation plan for P. M. The team found P. M. would benefit from the transfer to a community residence.
The parents participated in this planning and their preferences for treatment were accommodated insofar as consistent with the judgment of the professionals. The parents voiced their remaining objections to the plan, and pursuant to the procedures set forth in this Court's Orders received a hearing before the Master, and took exceptions to the Master's findings of fact. As this Court has heretofore determined, pp. 665-666, supra, the Master's findings are not clearly erroneous and must be adopted by this Court.

Despite the concessions they received regarding the formulation of P. M.'s individual habilitation plan, the parents now claim they have an absolute right to have their son remain at Pennhurst. Their contention appears to be based solely on the fact that they are the parents of this retarded minor child. Although both Chester County Administrator William A. McKendry and Pennhurst Superintendent George Kopchick testified at the hearing on November 24, 1981 that although they agreed that the proposed community placement would be of greater habilitative benefit to P. M., it was their personal opinion that the parents should have the right to nullify the transfer decision. Report at 6.
The parents make no claim that any Constitutional or statutory right is being violated by the transfer. On the contrary, the record before the Hearing Master clearly supports his finding that the individual habilitation plan providing for P. M.'s habilitation in the community will be more beneficial to P. M.'s habilitation than remaining at Pennhurst. The parents have not shown that P. M. would be harmed in any way by the transfer to the community residence. It appears from the record that one of their main concerns is the possibility that the state or county may require them as parents to make a financial contribution to the cost of P. M.'s habilitation in the community residence whereas at the present time they are not being required to contribute to the cost of P. M.'s care at Pennhurst. As found by the Master, this potential financial obligation of the parents cannot be determined at this time since the amount, if any, they may be required to contribute depends upon factors such as their own financial resources and actions that may be taken in the future by the Commonwealth or Chester County. In any event, as found by the Master, the financial concern of the parents, while understandable, has no direct bearing on the issue of the adequacy of the habilitation which P. M. will receive in the community residence.
Parents who place their children in private facilities are in a position to veto some aspects of their child's habilitation programs in such facilities, and if the parents' views are not accepted by the staff of the facility they may remove the child from the facility. In this case, the parents have been given more than merely the opportunity to express their views, they have been accorded procedural protections at several levels of the review. P. M. was committed by his parents to a publicly-funded facility and as parents they do not have the right to direct all aspects of their child's habilitation.
Were the Court to accept the parent's position, parents of all Pennhurst residents would be accorded the right to overrule the treatment decisions of the Pennhurst staff, including the location of their child within Pennhurst. Clearly, even the deference to parental wishes (as recognized by this Court in its Orders) does not give parents the right to veto the decisions of the retardation professionals unless and until the parents can show that the recommended programs for their child will not provide adequate habilitation and/or that some statutory or constitutional right is being violated by the decision.
The United States Supreme Court has recognized that a child has a substantial liberty interest in not being unnecessarily confined. Parham v. J. R., 442 U.S. 584, 600, 99 S.Ct. 2493, 2503, 61 L.Ed.2d 101 (1979). The transfer of P. M. to a community residence is an acknowledgment of the fact that he has a right to habilitation in 668 an *668 environment that is less restrictive than Pennhurst.
Both the majority opinion and the dissenting opinion in Parham acknowledged that the law does not give parents the unbridled right to determine the destiny of their minor children by pointing out that a state may override a parental decision when the physical or mental health of a child is jeopardized. Chief Justice Burger, writing for the majority, stated:
Nonetheless, we have recognized that a state is not without constitutional control over parental discretion in dealing with children when their physical or mental health is jeopardized. See Wisconsin v. Yoder, supra, 406 U.S., at 230, 92 S.Ct., at 1540; Prince v. Massachusetts, supra, 321 U.S., at 166, 64 S.Ct., at 442. Moreover, the Court recently declared unconstitutional a state statute that granted parents an absolute veto over a minor child's decision to have an abortion. Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976).
And as stated by Justice Brennan in dissent in Parham:

In our society, parental rights are limited by the legitimate rights and interests of their children. `Parents may be free to become martyrs themselves. But it does not follow they are free, in identical circumstances, to make martyrs of their children before they have reached the age of full and legal discretion when they can make that choice for themselves.' Prince v. Massachusetts, 321 U.S. 158, 170, 64 S.Ct. 438, 444, 88 L.Ed. 645 (1945). This principle is reflected in the variety of statutes and cases that authorize state intervention on behalf of neglected or abused children and that, inter alia, curtail parental authority to alienate their children's property, to withhold necessary medical treatment, and to deny children exposure to ideas and experiences they may later need as independent and autonomous adults.
This principle is also reflected in constitutional jurisprudence. Notions of parental authority and family autonomy cannot stand as absolute and invariable barriers to the assertion of constitutional rights by children. States, for example, may not condition a minor's right to secure an abortion on attaining her parents' consent since the right to an abortion is an important personal right and since disputes between parents and children on this question would fracture family autonomy. See Planned Parenthood of Central Missouri v. Danforth, 428 U.S., at 75, 96 S.Ct., at 2844.
The Hearing Master correctly concluded that it is simply not true that the law gives parents unbridled discretion in every area of decision-making. This is especially true in this case where P. M., a retarded child, has been committed to the custody and control of the Commonwealth and Chester County for the purpose of providing him with adequate habilitation in the least restrictive setting in order to enable P. M. to achieve his potential.
For the reasons heretofore determined, this Court will adopt the Report of the Hearing Master and dismiss the exceptions to the Master's Report. An appropriate order will be accordingly entered.
Save trees - read court opinions online on Google Scholar.

 
 533 F.Supp. 668 (1982)
Terri Lee HALDERMAN et al., Plaintiffs, v.
PENNHURST STATE SCHOOL AND HOSPITAL et al., Defendants, United States of America, Plaintiff-Intervenor,
Pennsylvania Association For Retarded Citizens et al., Plaintiffs-Intervenors.
Civ. A. No. 74-1345.
United States District Court, E. D. Pennsylvania.
March 9, 1982.
669 *669 Steven M. Coren, Philadelphia, Pa., for P.M.'s parents.
David Ferleger, Philadelphia, Pa., for P.M.
MEMORANDUM
RAYMOND J. BRODERICK, District Judge.
W. M. and B. M., the parents of P. M., a minor and Pennhurst resident scheduled to be transferred from Pennhurst to a community living arrangement on March 10, 1982, seek a stay pending appeal of this Court's Order of February 26, 1982 which dismissed the parents' exceptions to the Report of the Hearing Master. The Hearing Master found that the transfer to the community would provide greater habilitative benefit to P. M. than would continued residence at Pennhurst.
In accordance with this Court's Order of April 24, 1980, a Planning and Assessment Team including but not limited to P. M., his parents, his case manager (an employee of Chester County), and Pennhurst staff prepared an Individual Habilitation Plan for P. M. which provided for his transfer from Pennhurst to the community. Upon completion of the Individual Habilitation Plan, P. M.'s parents objected to the proposed community placement of P. M. and a hearing was held on these objections before the Hearing Master (see Order of April 24, 1980) on November 24, 1981. On December 3, 1981, the Hearing Master issued his Report which concluded that the proposed community placement would be more beneficial to P. M.'s habilitation than would continued residence at Pennhurst and that the parents' objections were not a bar to P. M.'s move to the community. The parents took exception to the Hearing Master's Report. The Court held a hearing on these exceptions on February 12, 1982, and instructed the County not to transfer P. M. from Pennhurst until the Court ruled on the parents' exceptions. On February 26, 1982, the Court affirmed the findings of fact and conclusions of law of the Hearing Master's Report and dismissed the exceptions of the parents. On March 5, 1982, the parents filed an application for a stay 670 pending appeal of this Court's Order of February 26, 1982. For the reasons hereinafter *670 set forth, the Court will deny the motion for a stay.
In 1977 this Court, after 32 trial days, determined that not only were the constitutional rights of the retarded residents of Pennhurst being violated, but that their rights under both state and federal statutes were also violated; 446 F.Supp. 1295 (E.D. Pa.1977). As the trial record in this case reveals, all parties to this litigation admitted that the residents of Pennhurst were not receiving minimally adequate habilitation. By "adequate habilitation" we mean such education, training and care as will enable a retarded person to cope with life as effectively as his or her capacities will permit. The average stay of a resident at Pennhurst was 21 years, and the testimony showed that a majority of them had regressed in that their level of functioning had declined when compared to the skills which they possessed at the time of admittance to Pennhurst. On many occasions since the trial all parties have been in agreement with the many experts who testified at the trial that normalization is now universally accepted as the most beneficial method of habilitating a retarded person. Normalization is the antithesis of institutionalization and is based upon the fact that the education, training and care of a retarded

person can best be accomplished in a community living arrangement. As this Court found, Pennhurst as an institution is inappropriate and inadequate as a place to habilitate the retarded. At the trial the Commonwealth represented that it intended to close Pennhurst in the early 1980's.

This Court's Order of March 17, 1978, as modified in its Order of April 24, 1980, sets forth the injunctive relief to which the plaintiffs were entitled. The Court's findings of fact, conclusions as to the legal rights of the plaintiffs, and injunctive orders have twice been affirmed by the Third Circuit. Halderman v. Pennhurst, 612 F.2d 84 (3d Cir. 1979), reversed and remanded, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981), Nos. 78-1490, 78-1564, and 78-1602 673 F.2d 628 (3d Cir. 1982). Thus, the basic mode of relief in this case 0907 providing retarded citizens with professionally planned and approved habilitation in the least restrictive environment 0907 is not likely to be overturned on appeal. However, P. M.'s parents contend that, notwithstanding Circuit Court approval of the basic scheme of relief in this case (the provision of adequate habilitation to retarded citizens in the least restrictive environment), they may, as P. M.'s parents, veto an Individual Habilitation Plan that calls for a community placement with which they disagree. This Court rejected the parents' contention in its Memorandum of February 26, 1982.

Federal Rule of Civil Procedure 62(c) provides in pertinent part:

When an appeal is taken from an interlocutory or final judgment granting, dissolving, or denying an injunction, the court in its discretion may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party.

It is well settled by the case law that a party seeking the stay of a judgment order must show (1) that it will likely prevail on the merits of the appeal, (2) that it will suffer irreparable injury if the stay is denied, (3) that other parties will not be substantially harmed by the stay, and (4) that the public interest will be served by granting the stay. Long v. Robinson, 432 F.2d 977, 979 (4th Cir. 1970); Philadelphia Council of Neighborhood Organizations v. Adams, 451 F.Supp. 114, 116 (E.D.Pa.1978); Resident Advisory Board v. Rizzo, 429 F.Supp. 222, 224 (E.D.Pa.1977). A motion requesting a stay of a judgment order is addressed to the discretion of the Court. The Third Circuit has stated that in considering the four-prong test enumerated above, the district court should be aware that

these [four] factors structure the inquiry, however, no one aspect will necessarily determine its

671

outcome. Rather, proper judgment entails a `delicate balancing' of all elements. *671 Constructors

Association of Western Pennsylvania v. Kreps, 573 F.2d 811, 815 (3d Cir. 1978). See, Evans v.

Buchanan, 424 F.Supp. 875, 879 (D.Del.1976).

1. Likelihood of Success on Appeal

In its Memorandum of February 26, 1982, this Court carefully considered the parents' exceptions to the Hearing Master's Report and their objections to the community placement of P. M. The Court concluded that the law does not grant to parents an absolute right to veto the decisions of retardation professionals unless and until the parents can show that the recommended programs for their child will not provide adequate habilitation and/or that some statutory or constitutional right is being violated by the child's transfer to the community. Memorandum of February 26, 1982 at 16. P. M.'s parents have made no such showing. On the contrary, the Hearing Master and the Court found that the proposed community transfer would benefit P. M. Therefore, the Court finds that the parents are not likely to prevail on the merits in their appeal.
2. Irreparable Injury

The parents who are seeking the stay do not claim any irreparable injury to P. M. but contend that they will suffer irreparable harm in that they are being deprived of their constitutional right to prohibit P. M.'s movement to the community. Because this Court has found that the parents have no constitutional right to prohibit P. M.'s transfer to the community on the basis of the factual findings in this record, they suffer no injury at all if P. M. is moved to

the community. Furthermore, as the Hearing Master found, P. M.'s transfer to the community will be of greater habilitative benefit to P. M. than will continued residence at Pennhurst.
3. Injury to Other Parties from the Stay
As heretofore pointed out, P. M. will benefit from transfer to the community. A stay would deprive him of this benefit and therefore be injurious to his habilitation.
4. Public Interest
The public interest will not be served by a stay of P. M.'s transfer to the community. The public interest can never benefit from a failure to provide minimally adequate habilitation to one of its retarded citizens. Having carefully considered all the contentions of the parents of P. M., this Court finds that their application for a stay fails to satisfy the four-part test for granting such stay requests and consequently fails to meet the requirements of Federal Rule of Civil Procedure 62(c). The Court will therefore enter an Order denying the motion for a stay.
Save trees - read court opinions online on Google Scholar.

 
 707 F.2d 702 (1983)
Terri Lee HALDERMAN, a retarded citizen, by her mother and guardian, Winifred HALDERMAN, et al., Pennsylvania Association for Retarded Citizens, et al., Plaintiffs-
Intervenors, United States of America, Plaintiff-Intervenor,
v. PENNHURST STATE SCHOOL & HOSPITAL, et al. Appeal of W.M. and B.M. the Parents of P.M., a minor, in No. 82-1147. Terri Lee HALDERMAN, a retarded citizen, by her mother and guardian, Winifred HALDERMAN, et al., Pennsylvania Association for Retarded Citizens, et al., Plaintiffs-
Intervenors, United States of America, Plaintiff-Intervenor,
v. PENNHURST STATE SCHOOL & HOSPITAL, et al. Appeal of The Commissioners and Mental Health/Mental Retardation Administrator of CHESTER COUNTY, PENNSYLVANIA, in No. 82-1197.
Nos. 82-1147, 82-1197.
United States Court of Appeals, Third Circuit.
Argued November 18, 1982. Decided May 10, 1983.
Rehearing and Rehearing Denied May 24, 1983.
703 *703 Steven M. Coren (argued), Kittredge, Kaufman & Donley, Philadelphia, Pa., for appellants W.M. and B.M., the parents of P.M., a minor.
Thomas M. Kittredge (argued), Morgan, Lewis & Bockius, Philadelphia, Pa., for appellant Chester County.
David Ferleger (argued), Alexander Ewing, Jr., Asst. U.S. Atty., Penelope A. Boyd, Philadelphia, Pa., for appellees.
Thomas K. Gilhool (argued), Frank J. Laski, Michael Churchill, Public Interest Law Center of Philadelphia, Philadelphia, Pa., for appellees, Pa. Ass'n for Retarded Citizens, et al.
LeRoy S. Zimmerman, Atty. Gen., Debra K. Wallet, Allen C. Warshaw, Deputy Atty. Gen., Harrisburg, Pa., for amicus curiae the Com. of Pa.
Before ALDISERT, SLOVITER, and ROSENN, Circuit Judges.
Rehearing and Rehearing In Banc Denied May 24, 1983.
OPINION ANNOUNCING THE JUDGMENT OF THE COURT
ALDISERT, Circuit Judge.
This appeal follows a district court order directing the transfer of P.M., a voluntarily committed, profoundly retarded minor child, from the Pennhurst State School and Hospital, a facility for the mentally retarded, to a community living arrangement (CLA) in Chester County. The district court issued its order after adopting a master's report recommending the transfer. P.M.'s parents and the County of Chester, appellants herein, argue that: the master's factual findings, as adopted by the district court, were clearly erroneous; and the transfer order

violated the parents' constitutional rights. Because Judge Rosenn and I conclude that the hearing master and the district court erred, the judgment of the district court will be reversed.
I.
A complicated procedural history forms the backdrop for this case. In its initial decision, the district court, relying on the eighth and fourteenth amendments to the Constitution, held that Pennhurst was an unconstitutional mode of providing residential services to the mentally retarded. Halderman v. Pennhurst State School and Hospital, 446 F.Supp. 1295 (E.D.Pa.1978). It ordered that Pennhurst be phased out and that its residents be placed in CLAs. Pursuant to Rule 53, F.R.Civ.P., the court appointed a special master who was empowered to "plan, organize, direct, supervise and monitor" the transition to the CLAs. Id. at 1326-28.
On appeal, we essentially affirmed the district court's order, but relied on federal statutory grounds rather than the United States Constitution. Halderman v. Pennhurst State School and Hospital, 612 F.2d 84 (3d Cir.1979). We vacated that portion of the trial court's order mandating that Pennhurst be closed and remanded the case for "individual determinations by the court, or by the Special Master, as to the appropriateness of an improved Pennhurst for each such patient." Id. at 114. Although we established a presumption in favor of placing individuals in CLAs, we emphasized that the "special needs and desires of individual patients must not be neglected in the process." Id. at 115. We made no mention of parental rights with respect to the transfer of minor children and did not indicate whether any such transfer had to be voluntary.
The United States Supreme Court granted certiorari on June 9, 1980, Pennhurst State School and Hospital v. 704 Halderman, *704 447 U.S. 904, 100 S.Ct. 2984, 64 L.Ed.2d 853 (1980), and on June 30, 1980, pending its final
disposition of the appeal, stayed our judgment to the extent that we mandated the movement of Pennhurst residents to CLAs, Pennhurst State School and Hospital v. Halderman, 448 U.S. 905, 100 S.Ct. 3046, 65 L.Ed.2d 1135 (1980) (interim order granting stay). The Court then reversed our decision, concluding that plaintiffs lacked standing under the applicable federal statute, and remanded the case for further consideration. Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981). On remand we again affirmed the original relief ordered by the district court, this time on state law grounds, Halderman v. Pennhurst State School and Hospital, 673 F.2d 647 (3d Cir. 1982). The Supreme Court again granted certiorari, Pennhurst State School and Hospital, 457 U.S. 1131, 102 S.Ct. 2956, 73 L.Ed.2d 1348 (1982), but has yet to dispose of the appeal.
On the basis of our first appellate decision, the district court mandated that individual habilitation plans (IHPs) be developed supporting the transfer of Pennhurst's school age residents to CLAs. Although parents were permitted to participate as members of their child's IHP "team," parental consent to any transfer was not required. The IHP was first to be submitted to a court-appointed master. If the parents objected to the recommendations of the IHP, they could demand a hearing before the master for the purpose of determining "whether the living arrangements and services being provided the residents at Pennhurst [were] more beneficial to the resident's habilitation than the living arrangements and services which [had] been made ready in the community in accordance with the IHP." Halderman v. Pennhurst State School and Hospital, No. 74-1345, at 65 (E.D.Pa. Apr. 24, 1980) (order establishing transfer procedures), reprinted in app. at 25a. After such hearing, the master was to prepare a report for district court consideration. Parents could then file exceptions to the master's report with the district court under Rule 53, F.R.Civ.P. In light of the Supreme Court stay of June 30, 1980, the district court further ordered that no resident of Pennhurst could be transferred to a CLA unless such transfer was voluntary.
The question of P.M.'s transfer arose on October 13, 1981, when his IHP was prepared proposing that he be transferred from Pennhurst, where he had resided for over nine years, to a CLA in Chester County. The parents objected, calling into play a master's hearing. At the hearing, the parents refused to consent to the transfer. Two mental retardation professionals and representatives of Pennsylvania and Chester County, testified in support of the parents' position.
Notwithstanding these objections, the hearing master filed a report finding that the proposed transfer of P.M. was both "voluntary" and "more beneficial" and ordered "that the County ... is authorized and directed to proceed with the proposed placement of ... P.M. ...." Report of Hearing Master at 23-24, reprinted in app. at 298a-99a.

Pursuant to Rule 53, F.R. Civ.P., the parents filed exceptions in the district court to the hearing master's report, asserting, inter alia, that the hearing master's finding and order violated the parents' constitutional right to direct the care and upbringing of their minor child. On February 26, 1982, after holding a hearing on the parents' exceptions, and sitting without a jury, the district court adopted the hearing master's report and dismissed all of the exceptions. On March 10, 1982, P.M. was transferred to the CLA where he remains today.
The parents and Chester County now appeal, asserting that the district court's transfer order should be reversed because: (1) the findings of the court and the hearing master are clearly erroneous, and (2) in reaching its 705 decision the court violated the parents' constitutional rights.[1] The Commonwealth *705 of Pennsylvania has filed an amicus curiae brief in which it endorses the appellants' position.
II.
Appellants' arguments before this court raise both constitutional and non-constitutional claims. Because a court "will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of," Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1941) (Brandeis, J., concurring), I will address the nonconstitutional contention first.
Appellants contend that the master erred in "[f]inding that the proposed community placement of P.M. [would be] `more beneficial' than his remaining at Pennhurst ...."[2] Exceptions to Hearing Master's Report at 4, reprinted in app. at 303a. Under Rule 53(e)(2), F.R.Civ.P., the district judge in a non-jury action shall accept the master's factual findings unless they are clearly erroneous, and our review of a trial court's adoption of a master's findings is governed by that same standard. Ray v. Safeway Stores, Inc., 614 F.2d 729, 730 (10th Cir.1980); International Industries, Inc. v. Warren Petroleum Corp., 248 F.2d 696, 699 (3d Cir.1957), cert. dismissed, 355 U.S. 943, 78 S.Ct. 529, 2 L.Ed.2d 523 (1958). Further, we will reverse a district court's findings under the clearly erroneous standard only if they are "completely devoid of minimum evidentiary support," or bear "no rational relationship to the supporting evidentiary data." Krasnov v. Dinan, 465 F.2d 1298, 1302 (3d Cir.1972).
In support of his finding, the hearing master relied on four factors: (1) the presumption in favor of community placement established by this court,[3]Halderman v. Pennhurst State School and Hospital, 612 F.2d 84 (3d Cir.1979); (2) evidence that the CLA staff had resolved many, but not all, of the safety and programmatic concerns previously noted by the parents;[4] (3) expert testimony in favor of the transfer which he considered more persuasive than the opposing testimony of the parents' experts; and (4) the evidence establishing that the CLA would have a 1:1 staff-to-patient ratio. Appellants offered no evidence, either to the master, the district court, 706 or *706 this court, to contradict any of these factors other than the relative persuasiveness of the experts' testimony. Therefore, on the basis of the uncontradicted evidentiary support, I conclude that the finding that the CLA would be "more beneficial" was not clearly erroneous. I now turn to appellants' constitutional contention.
III.
Appellants argue that the district court, in adopting the master's report and ordering the transfer of P.M. over his parents' objections, failed to give sufficient weight to the parents' concerns and violated their constitutional rights. Because this question concerns the recognition, selection, and application of legal precepts, our review is plenary. Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98, 103 (3d Cir. 1981).
A.
The existence, source, and scope of the substantive parental constitutional right to make decisions relating to general family matters, without governmental interference, has been the subject of continuing concern in constitutional adjudication. These cases have arisen in a variety of factual contexts. Regardless of the factual differences, however, the Supreme Court has consistently maintained that "freedom of personal choice in matters

of ... family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment."[5] Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-40, 94 S.Ct. 791, 796, 39 L.Ed.2d 52 (1974) (public school regulation requiring teachers to take maternity leave for the five months prior to expected child birth held an unconstitutional interference with a woman's right to bear children). The Court has also noted that "the Constitution protects the sanctity of the family precisely because the institution of family is deeply rooted in this Nation's history and tradition." Moore v. City of East Cleveland, 431 U.S. 494, 503, 97 S.Ct. 1932, 1936, 52 L.Ed.2d 531 (1977) (city zoning ordinance incorporating a restrictive definition of "family" held violative of fourteenth amendment). Further, the Court has recognized that "the importance of the familial relationship, to the individuals involved and to the society, stems from the emotional attachments that derive from the intimacy of daily association, and from the role it plays" in promoting a way of life. Smith v. Organization of Foster Families for Equality & Reform, 431 U.S. 816, 844, 97 S.Ct. 2094, 2109, 53 L.Ed.2d 14 (1977) (a child custody case upholding a state law that gives fathers of legitimate children an absolute veto over adoption decisions but denies that right to certain fathers of illegitimate children). See also Lehman v. Lycoming County Children's Services Agency, 648 F.2d 135, 163-66 (3d Cir.1981) (Rosenn, J., dissenting) (collecting and analyzing relevant Supreme Court child custody case law), aff'd, ___ U.S. ___, 102 S.Ct. 3231, 73 L.Ed.2d 928 (1982).[6]
These cases lead to the conclusion that the Constitution mandates a judicial obligation to respect, if not protect, parental authority in decisions relating to general family matters because of the importance of the parental role in family life. This parental role is "established beyond debate as an enduring American tradition," Wisconsin v. Yoder, 406 U.S. 205, 232, 92 S.Ct. 1526, 1541, 32 L.Ed.2d 15 (1972), and recognized as "basic in the structure 707 of our society," Ginsberg *707 v. New York, 390 U.S. 629, 639, 88 S.Ct. 1274, 1280, 20 L.Ed.2d 195 (1968). The Court, however, has made it equally clear that, while parental decisionmaking is to be preferred in most circumstances, "the family itself is not beyond regulation in the public interest" and that in "[a]cting to guard the general interest in youth's well being, the state as parens patriae may restrict the parent's control by requiring school attendance, regulating or prohibiting the child's labor and in many other ways." Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944) (footnotes omitted).
Thus, the basic issue for the courts in parental right cases is to decide whether the state has demonstrated a sufficiently important interest to justify governmental interference with parental decisionmaking authority. This clearly requires a balancing of interests which the Court has carried out in a variety of circumstances. In so doing it has consistently applied a heavy presumption in favor of parental decisions.
The specific, independent parental interest asserted by appellants in the instant case is not the right to make general, family-related decisions, but rather the right of the parents to decide, free from governmental interference, matters concerning the growth, development, and upbringing of their children. The Supreme Court has addressed this right in cases involving parent-state conflicts in the areas of medical treatment and educational decisionmaking. The institutional treatment of mentally retarded children has elements of both. Medical issues arise in reviewing the parents' decision to voluntarily commit their child and educational issues arise in connection with habilitation decisionmaking.
In what it later described as perhaps the most significant statement in this area of the law, the Supreme Court recognized that parents, as head of the family unit, have the right, protected by the due process clause, "to direct the upbringing and education of [their] children ... [and that this right could] not be abridged by legislation which has no reasonable relation to some purpose within the competency of the State." Pierce v. Society of Sisters, 268 U.S. 510, 534-35, 45 S.Ct. 571, 573, 69 L.Ed. 1070 (1925). There, a state law requiring that all children between the ages of eight and sixteen years attend public rather than private schools was declared invalid as an unreasonable interference with the parental right.
In Wisconsin v. Yoder, the Court was presented with a somewhat more complex conflict involving the parental right to direct the upbringing of their children coupled with the free exercise clause of the first amendment set against a state's compulsory school attendance law. The Court found the law unconstitutional. In doing so it stated, relying on Pierce, that "the values of parental direction of the ... upbringing and education of their children ... have a high place in our society," id. 406 U.S. at 213-14, 92 S.Ct. at 1532, and that the "primary role of parents in the upbringing of their children is now established beyond debate ...," id. at 232, 92 S.Ct. at 1541. But, the

Court defined its analytical calculus in terms of the first amendment and not the acknowledged parental right to direct their child's upbringing. It stated that
a State's interest in universal education, however highly we rank it, is not totally free from a balancing process when it impinges on fundamental rights and interests, such as those specifically protected by the Free Exercise Clause of the First Amendment, and the traditional interest of parents with respect to the religious upbringing of their children .... Id. at 214, 92 S.Ct. at 1532 (emphasis added).
One shortcoming of the Pierce decision, not rectified by Yoder, was that it did not define the full extent or quality of the parental right and did not determine what level of state interest might be necessary to authorize governmental interference with the right. In more recent decisions, however, the Court has begun to articulate an answer to these questions. In Planned Parenthood of Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 708 L.Ed.2d 788 (1976), the *708 Court invalidated a state law to the extent that it gave parents an absolute veto over the abortion decision of their minor child, made during the first trimester of pregnancy. The statute had been upheld below on the basis that it "safeguard[ed] the authority of [parents in the] family relationship." Id. at 73, 96 S.Ct. at 2843. While the Supreme Court recognized the existence of this "independent interest of the parent" it concluded that it would not support the right to an absolute veto because it was "no more weighty than the right of privacy of the competent minor mature enough to become pregnant." Id. at 75, 96 S.Ct. at 2844.
Under Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), the Court held that the right of privacy, which included "a woman's decision whether or not to terminate her pregnancy," was a fundamental right requiring a compelling state interest to support any governmental interference, id. at 152-53, 93 S.Ct. at 726. Thus, by stating, in Planned Parenthood, that the parents' right to direct their child's upbringing was "no more weighty than the [child's] right of privacy," it could be argued that the parental interest herein at issue also rose to the level of a "fundamental" right and that it could be qualified only by a "compelling" governmental interest.
The "fundamental" rights argument seems refuted, however, in a more recent decision. Parham v. J.R., 442 U.S. 584, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979). There, the conflict matched the parents' desire to have their child voluntarily committed to a mental institution against both the child's liberty interest to be protected against unnecessary confinement and the state's interest in reserving its limited mental health facilities for the truly needy. In describing the nature of the parental right at issue, the Court stated that "[o]ur jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children." Id. at 602, 99 S.Ct. at 2504. It went on to caution, however, that "a state is not without constitutional control over parental discretion in dealing with children when their physical and mental health is jeopardized." Id. at 603, 99 S.Ct. at 2504. The Court concluded that "our precedents permit the parents to retain a substantial, if not the dominant, role in the [voluntary commitment] decision, absent a finding of neglect or abuse, and that the traditional presumption that the parents act in the best interests of their child should apply." Id. at 604, 99 S.Ct. at 2505.
The Court further reasoned that this parental right to have a "substantial, if not dominant role in the [voluntary commitment] decision" must be balanced against the child's "substantial liberty interest in not being confined unnecessarily for medical treatment ...," id. at 600, 99 S.Ct. at 2503, and the state's "significant interest in confining the use of its costly mental health facilities to cases of genuine need," id. at 604-05, 99 S.Ct. at 2505 (emphasis added). The interests of the child would be sufficiently protected by requiring "a `neutral factfinder' to determine whether the statutory requirements for admission are satisfied." Id. at 606, 99 S.Ct. at 2506. The state's interests would be protected by the hospital superintendent who was authorized both to deny commitment of a prospective patient on a determination that the person was not mentally ill or would not benefit from hospital care and to deny continued confinement for a current patient on a determination that the patient's recovery had progressed to the point where hospitalization was no longer needed. Id. at 605, 99 S.Ct. at 2505.
Therefore, Parham indicates that the parents' right to have their child voluntarily committed could be subordinated to either the child's basic liberty interest in not being unnecessarily confined or the state's significant interest in maintaining control over the utilization of its facilities. Because a compelling state interest is required to overcome a fundamental constitutional right, see Roe v. Wade, 410 U.S. at 152-53, 93 S.Ct. at 726, Parham clearly argues against the characterization of the parental right therein at issue, as fundamental. The view that

709 this parental right is not fundamental also finds support in Yoder. There, *709 it will be recalled, the Court recognized that violations of both this right and the free exercise clause were implicated by the state's compulsory school attendance law. In holding the law unconstitutional, however, the Court clearly relied primarily, if not solely, on the free exercise clause.
I read these cases, therefore, to establish that parents have a substantial constitutional right, as head of the family unit, to direct and control the upbringing and development of their minor children. If the parental decisions amount to abuse or neglect of the minor child then the parental right is no longer constitutionally protected, and the state, as parens patriae, may intervene to protect the child. Absent a showing of abuse or neglect, however, the parental right remains substantial and may be subject to governmental interference only when such interference is supported by a significant governmental interest.[7]
B.
I now turn to the critical question presented by this appeal, whether this parental right was afforded sufficient consideration in the proceedings below. I will first analyze the master's report and then the district court's decision.
1.
As stated in Part II, supra, the hearing master cited four factors in support of his finding that, for P.M., the CLA would be more beneficial than Pennhurst. These were the presumption in favor of transfer, the programmatic adjustments made by the CLA staff in response to the parents' concerns, the CLA's 1:1 staffing ratio, and the master's reliance on the pro-transfer experts. Nowhere does the master even recognize the existence of any constitutional right of the parents much less discuss the scope of that right and what level of governmental interest is necessary to overcome it. It is not clear from the record, however, whether the parents couched their objections to the master in constitutional terms. I must assume that they did not, and I therefore conclude that although the master's failure to address these constitutional concerns was error, it is not reversible error.[8] In their exceptions to the master's report the parents did invoke the Constitution.[9] I now turn to the question of whether the district court's adoption of the master's report violated the parents' rights.
2.
The district court "adopt[ed] the Report of the Hearing Master and dismiss[ed] the [parents'] exceptions ...." App. 710 at 367a. It did so after recognizing that the "parents' interests in directing the upbringing *710 of their children is
cognizable and substantial." App. at 362a, quoting Bartley v. Kremens, 402 F.Supp. 1039, 1057 (E.D.Pa.1975), vacated and remanded on other grounds, 431 U.S. 119, 97 S.Ct. 1709, 52 L.Ed.2d 184 (1977), on remand sub nom., Institutionalized Juveniles v. Secretary of Public Welfare, 459 F.Supp. 30 (E.D.Pa.1978), rev'd and remanded, 442 U.S. 640, 99 S.Ct. 2523, 61 L.Ed.2d 142 (1979). But, after recognizing the existence of this parental right, the court went on to explain that procedural protections only had been extended to appellants.[10] The district court failed to consider the parents' wishes as substantive evidence. The court then asserted that the parents claimed, over and above any procedural rights, "an absolute right to have their son remain at Pennhurst." App. at 364a. Adopting an in terrorem argument, the court stated that if it were "to accept the parents' position, parents of all Pennhurst residents would be accorded the right to overrule the treatment decisions of the Pennhurst staff, including the location of their child ...," id. at 365a, and held that the parents would not be allowed "to veto the decisions of the retardation professionals unless and until the parents can show that the recommended programs for their child will not provide adequate habilitation ...." Id. Thus, the district court mischaracterized the parents' constitutional right to direct the upbringing of their child as "absolute" and erroneously placed on them the burden of proving that the proposed transfer would be harmful. This is reversible error.

As I demonstrated earlier, parents have a substantial right to direct the upbringing of their minor children which can only be overcome either by a showing of abuse or neglect, or by proof of a significant governmental interest running counter to the express parental desires. Here there is no indication of abuse or neglect. The hearing master declared, "I do not mean to accuse [P.M.'s parents] of any kind of neglect of their son or insensitivity to his needs; that is clearly not the case." Id. at 289a. Neither the parties nor the district court challenged this statement. Moreover, it was not argued, either to the master or before the district court, and we cannot conclude, that the present treatment at Pennhurst amounts to abuse or neglect. Therefore, we may affirm the district court order only if we conclude that the evidence presented clearly established the existence of a significant countervailing governmental interest. Because the critical determination is the appropriateness of the transfer and its relative benefits for P.M., the governmental interest at issue here is the safety and well-being of P.M. The only evidence to support the existence of such an interest are the factors relied on by the hearing master in concluding that the CLA would be more beneficial to P.M. than Pennhurst. These factors were the judiciallycreated presumption in favor of transfer, the fact that the CLA program had been adjusted in response to parental criticism, the 1:1 staffing at the CLA, and the testimony of the pro-transfer experts. In my opinion, the totality of this evidence falls short of the quantum of support required to prove the existence of a significant governmental interest sufficient to negate the parents' substantial constitutional right.
711 *711 Clearly, there was expert testimony offered both for and against the transfer decision. The four pro-transfer experts, while not present at the hearing, had their reports read into the record. None of them saw P.M. more than once prior to making his or her report and several of them supported the CLA placement only with some reservations.[11]
The parents' two expert witnesses testified that P.M. might regress at the CLA, that it was a more dangerous environment than Pennhurst, and that with the increased staff supervision at the CLA it might actually be more restrictive than Pennhurst. The master cautioned Dr. Rubin, one of the parents' experts, that it was unfair to conclude that the CLA was in fact a detrimental environment for P.M. because it "truly is an unknown." Id. at 174a. Dr. Rubin replied that "[w]e're not running an experiment on [P.M.]." Id. at 175a. Thus, while the hearing master "agree[d]" with the pro-transfer experts, he did so not because their testimony clearly overwhelmed the parents' experts but rather on a subjective determination that the CLA was "designed around [P.M.'s] potential rather than his limitations ...." Id. at 298a.
Also, the increased staffing ratio of the CLA, as indicated by some of the expert testimony, cannot be viewed as an entirely positive feature. It may have been required in large measure because of the increased freedom, and increased danger, that would be present in the community environment.[12] Finally, the programmatic changes effected in the CLA merely addressed some of the specific safety concerns of the parents, and not their more generalized concern, that, as parents, they did not believe that the CLA was the best place for their son. This leaves the judicially-created presumption as the principal factor supporting the transfer decision. In my view relevant commandments of the Constitution take precedence over such a presumption. Simply put, although this presumption would be important in deciding a cause where only substantive law is concerned it is not of sufficient weight to overcome the substantial constitutional right at issue here and cannot by itself tip the scales in favor of transfer.
IV.
I conclude, therefore, that the district court did not afford to the parents' views the consideration that the Constitution demands. Where, as here, the evidence as to the preferable setting was conflicting, and even assuming that the hearing evidence preponderated on the proposition that better care was available at the CLA, in the absence of either a discrete finding by the master that the treatment P.M. had at Pennhurst was tantamount to "abuse and neglect," or the existence of evidence sufficient to support a significant countervailing governmental interest, the wishes of the parents should have been given the "substantial, if not dominant, role in [that transfer] decision." Because the evidence did not establish either abuse and neglect or the existence of a significant governmental interest, it was reversible error to transfer the child and to ignore the parents' wishes.

A majority have agreed that the judgment of the district court will be reversed. I would reverse outright with a direction that the district court enter an order returning P.M. from the CLA to Pennhurst. Judge Rosenn would 712 remand. Accordingly, the judgment of the district court will be *712 reversed and the cause remanded to the district court with directions to reconsider the record and give the views of the parents appropriate weight.

ROSENN, Circuit Judge, concurring.

I believe that the district court erred in ordering the transfer of P.M. to the community living arrangement (CLA), but I reach this conclusion on grounds differing from those relied upon by Judge Aldisert. Although I agree with Judge Aldisert that in certain situations "the relationship between parent and child is constitutionally protected," Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 554, 54 L.Ed.2d 511 (1978), and that the Constitution recognizes a "private realm of family life which the state cannot enter," Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944);[1]see Lehman v. Lycoming County Children's Service Agency, 648 F.2d 135, 163-65 (Rosenn, J., dissenting), aff'd, ___ U.S. ___, 102 S.Ct. 3231, 73 L.Ed.2d 928 (1982), I share Judge Sloviter's doubts concerning the applicability of this constitutional right to situations such as the instant case in which the family relationship has been disrupted because the parents have surrendered custody of their minor child. But I do not think it necessary to decide this constitutional issue in the narrow fact situation before us. When we originally remanded this matter to the district court in Halderman v. Pennhurst State School and Hospital, 612 F.2d 84 (3d Cir.1979) (in banc) (Halderman I), reversed, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981), we instructed the court to make "individual determinations" as to "the appropriateness of an improved Pennhurst" for each patient. Id. at 114. In the case of P.M., I believe the Hearing Master and the district court erred in resolving this question contrary to the views of the parents.

Undoubtedly, the law does impose outer limits on parental authority. When parents attempt to exercise controls over their children in ways that intrude adversely upon the constitutional rights of the children, the parental rights must give way. Thus, in Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976), the Supreme Court held that the child's liberty interest prevails over the parents' desire to prevent the child from obtaining a lawful abortion during the first trimester of pregnancy. Likewise, in Parham v. J.R., 442 U.S. 584, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979), parents were not permitted the final determination as to whether their minor child should be institutionalized because the child had an independent constitutional interest in avoiding unnecessary confinement. See 442 U.S. at 604, 99 S.Ct. at 2505. These cases stand for the proposition that when the parents' interests clearly collide with the interests of their minor child, whatever authority parents may ordinarily possess is necessarily subordinated to the child's best interest, notwithstanding the recognized right of parents in the well-being of their children.

Nevertheless, both Danforth and Parham v. J.R. reaffirm the time-honored common law notion that in most circumstances the parents are the individuals best capable of making informed decisions on behalf of their offspring. Our legal system surrounds the family with a protected status because it acknowledges the importance of the parent-child relationship and the significant deference this relationship deserves. Throughout the history of mankind, parents have been permitted and expected to make numerous decisions in behalf of their children's development and best interest, not because society has considered it a parental prerogative to exercise absolute authority over family members, but rather because society believes that parental authority usually will be exercised to advance the children's welfare. As Chief Justice Burger explained in Parham v. J.R., supra,

713

*713 The law's concept of the family rests on a presumption that parents possess what a child

lacks in maturity, experience, and capacity for judgment required for making life's difficult

decisions. More important, historically it has recognized that natural bonds of affection lead

parents to act in the best interests of their children.

442 U.S. at 602, 99 S.Ct. at 2504. See also id. at 621, 99 S.Ct. at 2513 (Stewart, J., concurring).

Despite this fundamental presumption that parents act in the best interests of their children, in the instant case the Hearing Master and the district court concluded that the community living arrangement proposed for P.M. would be "more beneficial for his habilitation than remaining at Pennhurst would be." Although the medical and psychological experts were in some disagreement, the record does appear to contain support for this conclusion.

But it seems to me that the Hearing Master and the district court committed legal error in attaching insufficient weight to the personal objections of Dr. and Mrs. M., P.M.'s parents, to the transfer. The Hearing Master should have started from the premise that the parents' special relationship with their son gave them particular insight into what would be in P.M.'s best interest. A transfer against the parents' wishes should have been ordered only if there was a compelling justification for the transfer. And there is no such compelling justification here.
The Hearing Master did not adequately appreciate that these were parents who had a deep emotional interest in their child from the moment of his birth. Their objection to the transfer was nothing impulsive but was obviously a matter to which they had given serious consideration. They had studied the advantages and disadvantages of the CLA and Pennhurst, consulted with experts, and were deeply concerned. Beginning with P.M.'s commitment to Pennhurst, the parents had visited him frequently and had also inspected the proposed CLA. They demonstrated concern and love for their son.
When discussing a child as profoundly mentally retarded as P.M., experts necessarily engage in a considerable degree of speculation as to the child's abilities, needs, and potential. In P.M.'s case most of the experts favored the transfer because they thought the community living arrangement would offer the best opportunity for P.M. to maximize his potential. Nevertheless, there was significant testimony from the parents' own experts, Dr. Harold Rubin and Ms. Deborah Nickles,[2] opposing the transfer on the ground that Pennhurst was a preferable environment for P.M. because it was specially designed to protect him from the perils he constantly faced due to his handicaps. In addition, P.M.'s parents offered substantial testimony at 0907 times eloquent 0907 in support of their 714 position that Pennhurst would be more beneficial to their son than the proposed CLA would be.[3] The parents *714 of P.M. strongly preferred to keep their son in the familiar and relatively secure surroundings of Pennhurst rather than place him in what they must have perceived as the experimental and risky community living arrangement, absent some positive assurance that P.M. would benefit from the CLA. None of the experts could provide the positive assurance the parents were seeking. Under these circumstances, I think the parents' opposition to the transfer was not only a reasonable and sound view, but more important, it was arguably the view most in accord with the interests of their son.
The record in this case presents substantial evidence of thoughtfulness, concern, and careful judgment by loving and emotionally attached parents. Precisely because the parents' interest in P.M. sprang from their subjective feelings of love for their child, their opinions were entitled to substantial weight. The concern and reflective consideration demonstrated by P.M.'s parents gave their views an inherent force to which the Hearing Master and the district court paid insufficient deference. Thus, I believe the district court erred in ordering P.M.'s transfer merely on the ground that the objective evidence as 0907 related and interpreted by coldly detached professionals0907indicated that the CLA would be "more beneficial to P.M.'s habilitation" than Pennhurst.
In our prior decision in Halderman I, we endorsed a presumption favoring transfer of Pennhurst residents to community living arrangements. Yet we also acknowledged that some residents, "because of advanced age, profound degree of retardation, special needs or for some other reason," would actually be harmed by such a transfer. See 612 F.2d at 114. In the instant case, the opposition of the parents to the transfer was more than sufficient to suggest that P.M. is in this class of individuals who would be better off at Pennhurst, thereby rebutting the presumption favoring transfer.
The district court assumed that by expressing their concerns for the habilitation plan, some of which were accommodated, and by vigorously objecting to the transfer out of Pennhurst, the parents were asserting the "right to direct all aspects of their child's habilitation [in a publicly funded facility] .... Were the Court to accept the parents' position, parents of all Pennhurst residents would be accorded the right to overrule treatment decisions of the Pennhurst staff, including the location of their child within Pennhurst."[4] The parents, however, were not complaining about staff treatment. They were not asserting a right to direct all aspects of their child's habilitation. Nor were they attempting to override a state decision or even any decision of Pennhurst. They were simply objecting to the transfer.[5]
715 *715 Both Judge Aldisert and Judge Sloviter believe that the master's finding that the CLA would be "more beneficial" to P.M. was not clearly erroneous on this record. Although I am inclined to agree, I feel strongly that this should not be the primary focus of our inquiry in this case. Instead, we must inquire whether the Hearing

Master had a compelling justification for rejecting the views expressed by P.M.'s father and mother 0907the two individuals ordinarily presumed to know best what is in their child's interest. Neither the Hearing Master nor the district court made this inquiry.
I therefore believe that the judgment must be reversed and the case remanded to the district court with directions to reconsider the record and give the views of the parents appropriate weight.[6]
SLOVITER, Circuit Judge, dissenting.
I share with my colleagues the sympathy and concern for the circumstances of the parents of P.M. which may underlie their decision in this case. But our sympathy and concern for the parents cannot obscure the facts that Judge Aldisert in his separate opinion has attempted to expand for the first time the parents' constitutional right to direct their children's upbringing to parents of children in state custody and that both Judge Aldisert and Judge Rosenn base their decision on assumptions about the proceedings before the Hearing Master and the district court which are unsupported in the record. The order of this court now may require that the district court return a child to Pennhurst over the finding that his transfer to a community living arrangement was more beneficial to his interests than residence at Pennhurst. This decision may eviscerate the holdings of our two in banc decisions affirming the transfer of Pennhurst residents, including children, to community living arrangements where their rights to habilitation can be maximized.
This ongoing litigation began with challenges to the conditions existing in Pennhurst State School and Hospital, a Pennsylvania state institution for the mentally retarded. As the Supreme Court noted, the findings of fact of the district court are undisputed: "Conditions at Pennhurst are not only dangerous, with the residents often physically abused or drugged by staff members, but also inadequate for the `habilitation' of the retarded. Indeed, the [district] court found that the physical, intellectual, and emotional skills of some residents have deteriorated at Pennhurst." Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 7, 101 S.Ct. 1531, 1534, 67 L.Ed.2d 694 (1981) (footnote omitted). The history of the litigation has been briefly sketched in Judge Aldisert's opinion. The district court originally ordered that Pennhurst residents be transferred to community living arrangements. On appeal, we affirmed except for those residents who "because of advanced age, profound degree of retardation, special needs or for some other reason, will not be able to adjust to life outside of an institution and thus will be harmed by such a change." Halderman v. Pennhurst State School & Hospital, 612 F.2d 84, 114 (3d Cir.1979) (in banc). On remand from the Supreme Court we again affirmed the district court order except as modified in accordance with our earlier opinion. 673 F.2d 647, 656, 661 (3d Cir.1982) (in banc). To effectuate the individual consideration required by our orders, we directed that an individual determination be made for each Pennhurst patient. The procedure established by the district court for individual determinations has been before this court on a number of occasions during different phases of this litigation. It entails a number of steps.
A Planning and Assessment Team, established by the county case manager to develop the individual habilitation plan (IHP), typically includes state and county professionals, the case manager for the individual patient, others 716 directly involved with the *716 patient, and, as in this case, the parents or, in other instances, the guardian or a certified advocate. The Deputy Secretary for Mental Retardation (or designee) attempts to resolve team disagreement through working with the team. The Special Master under the court's order must review each IHP "to ensure that it provides, in the least restrictive setting, such minimally adequate habilitation as will afford a reasonable opportunity for each individual to acquire and maintain such life skills as are necessary to enable him or her to cope as effectively as his or her capacities permit." App. at 24a. Under the general procedure, if the IHP is approved by the Special Master, the transfer proceeds. If there is objection by interested persons, including the parents, a separately appointed Hearing Master conducts a hearing "to determine whether the living arrangements and services being provided the resident at Pennhurst are more beneficial to the resident's habilitation than the living arrangements and services which have been made ready in the community in accordance with the IHP." App. at 25a.
All of these procedures were followed in P.M.'s case. As set forth more fully in Part II of this dissent, P.M.'s parents participated throughout in the process. The Special Master approved the individual habilitation plan for P.M. which provided for transfer to a community living arrangement; the parents objected; and the Hearing Master, after conducting the requisite hearing, concluded that transfer to the CLA would be more beneficial for

P.M.'s habilitation. Exceptions to the Master's report were filed and the district court, after a hearing at which P.M.'s parents introduced no new evidence, adopted the Master's finding that the CLA would be "more beneficial" to P.M.
I agree with Judge Aldisert that this finding was not clearly erroneous. Judge Aldisert's typescript op. at 12. It is unclear to me whether Judge Rosenn is also in accord on this issue. In any event, Judge Aldisert and I begin at the same starting point, the finding that transfer to the CLA would be "more beneficial" to P.M. than continued institutionalization, and it is on this basis that our legal analysis and review must proceed.
I.
The Parents' Asserted Constitutional Right
I agree with Judge Aldisert that the cases have established a parental right, grounded in constitutional notions of privacy, to direct the upbringing and care of their children. That right provides the basis on which parents can resist the state's efforts to intrude upon parental decisions made with regard to children under their care. Thus, for example, the state cannot compel education of a child in a public, rather than a private, school, Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925); cannot preclude children from being taught in a foreign language, Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923); and cannot require children to attend high school when that conflicts with the parents' sincere religious belief, Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972). However, the parental right upon which these holdings were based was recognized only in the context of the integrity and autonomy of the family unit.
This case is distinguishable because the parents of P.M. have voluntarily relinquished his custody to the state. The government has not interfered in a decision about the rearing of a child in the family unit nor has it removed the child from parental custody. Compare Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982); Lassiter v. Department of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). P.M.'s parents are free to regain custody over him. There may be practical limitations which discourage such a course, but there is no legal impediment.
No case has extended what Judge Aldisert refers to as the parents' "substantial constitutional right ... to direct 717 and control the upbringing and development of *717 their minor children" to parents of a child in state custody.
Since Judge Aldisert speaks only for himself on this issue, it is not necessary to discuss the analytic and practical problems entailed in such an extension, such as whether and how it would be applied to children in involuntary custody.
On the other hand, I agree with my colleagues that the parents' interest in their child does not stop at the gates of a state institution. In many, if not most, instances the parental interest will be identical with that of the interest of their institutionalized child and the right which they seek to protect will be that of their child, such as the right of personal security. See, e.g., Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982). In those cases the traditional constitutional balancing referred to by Judge Aldisert between the individual's right and the government's interest must be undertaken. However, as the Supreme Court has recognized, there are instances when the parents' interests and the child's interests may not coincide. See Parham v. J.R., 442 U.S. 584, 602-04, 99 S.Ct. 2493, 2504-05, 61 L.Ed.2d 101 (1979); Wisconsin v. Yoder, 406 U.S. at 230-32, 92 S.Ct. at 1540-41. Indeed, there are instances in which those interests collide. In those circumstances, the parents cannot rely on cases grounding a parental right on the family structure, because, as noted in Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 75, 96 S.Ct. 2831, 2844, 49 L.Ed.2d 788 (1976), that structure will have already been fractured. Therefore, it is inappropriate to balance only the parents' interest against the significance of the governmental interest, as Judge Aldisert suggests. The parents' interest cannot override the child's separate constitutional right.
In Danforth, the Court held that a child's abortion decision could not be overridden by her parents on the precedent of cases affirming parental authority or control. Instead the Court held the parents could not exercise an absolute veto over the child's abortion decision because the child's liberty interest was paramount. Similarly, in

Parham v. J.R., supra, the Court recognized that "parents cannot always have absolute and unreviewable discretion to decide whether to have a child institutionalized." 442 U.S. at 604, 99 S.Ct. at 2505. The Court held "that the risk of error inherent in the parental decision to have a child institutionalized for mental health care is sufficiently great that some kind of inquiry should be made by a `neutral factfinder' to determine whether the statutory requirements for admission are satisfied." Id. at 606, 99 S.Ct. at 2506. The parents could be heard but did not have the final decisionmaking authority when the child's liberty interest was at stake. The analysis in Parham, which involved mentally ill children, was made applicable to mentally retarded children in Secretary of Public Welfare v. Institutionalized Juveniles, 442 U.S. 640, 646, 99 S.Ct. 2523, 2526, 61 L.Ed.2d 142 (1979).
Because we start with the premise that the transfer to the CLA will be "more beneficial" to P.M. than his continued residence at Pennhurst, and the parents nonetheless challenge that transfer, this case involves a collision between the parents' interest and the child's right, here the child's acknowledged "substantial liberty interest in not being confined unnecessarily for medical treatment." Parham, 442 U.S. at 600, 99 S.Ct. at 2503. Thus this case must be governed by the precedent of the most closely analogous cases, Danforth, where the Court rejected an absolute parental veto, and Parham, where the Court did not rely on the asserted prerogative of the parents but reposed its confidence in the neutral professional medical decisionmakers.
In summary, I believe the parental constitutional right on which Judge Aldisert relies cannot govern our decision in this case for two reasons. First, that parental constitutional right was enunciated in cases which involved a routine child-rearing decision made within the context of an ongoing family relationship. Here, as Justice Brennan noted in Parham, "a break in family autonomy has actually resulted in the parents' decision to surrender custody of their 718 child to a state mental institution." 442 *718 U.S. at 631, 99 S.Ct. at 2518 (concurring in part and dissenting in part). Second, as in Danforth and Parham, we are concerned with the child's separate constitutional right, and we cannot necessarily rely on the parental authority to vindicate the child's independent interests. Thus when a child is in state custody the parents must be given a full and fair opportunity to show that their interest in the decision at issue is congruent with the child's interest and right. If so, then the parents are in fact advancing the child's right in challenging the decision. If, however, the child's right is shown to be incongruent with the parents' position, then it is the child's right, not the parents', which must be considered. The parents may again be given an opportunity to be heard regarding the effect of the proposed action on the child's right, but it would be anomalous to engage in an analysis in terms of the parents' interest, when it is the child's interest that will be adversely affected.
II.
P.M.'s Parents' Involvement in the Transfer Decision
Throughout the proceedings directed by the district court relating to transfer of Pennhurst patients to community living arrangements, particular care has been exercised to ensure participation by parents of children resident at Pennhurst in the transfer decision. Although Judge Aldisert characterizes the protection afforded to P.M.'s parents as only "procedural", Judge Aldisert's at 710-711, and Judge Rosenn also suggests that the parents' wishes were given inadequate weight, Judge Rosenn's at 715, in fact the record show that P.M.'s parents were accorded not only the procedural rights of notice and the opportunity to be heard, but their concerns were addressed and their suggestions were accommodated and revisions were made.
The district court's order of April 24, 1980, expressly provides for parental participation:
No school-age resident of Pennhurst shall be returned to the community unless and until an appropriate community living arrangement has been established in accordance with that resident's individual habilitation plan which has been developed with the opportunity for full participation by the resident's parents or guardians and other advocates for the resident, and unless and until appropriate educational facilities are available in accordance with that resident's individual educational plan, which has been developed with the opportunity for full participation by the resident's parents or guardians and other advocates for the resident.

App. at 21a-22a. In accordance with this order, a Planning and Assessment Team was convened and developed a plan proposing P.M.'s transfer to a community living arrangement. Thereafter, P.M. was taken to the suggested CLA for more than 20 daytime and overnight visits. App. at 44a, 237a. On May 11, 1981, there was a meeting regarding P.M.'s habilitation plan attended by P.M.'s parents and most, if not all, of the professionals with responsibility for his case. In addition to the parents, the following were present: Pam Scoggins, his case manager from the Chester County MR Case Management Unit; Sue Crossman, his teacher for the preceding six years from the Liberty Forge School, and Camen Bowden and Ruth Copenhafer, teacher aids from the Liberty Forge School; Melissa Perot, occupational therapist from Chester County; Bill Park, Project Director from Community Homes and Debbie Maggio from the same agency; and Elyse Defoor, speech therapist, Nancy Kulp, licensed practical nurse, Debbie Brodbeck, first shift aid, Bob Doud, Program Manager, Lenko Kovach, psychologist, Janice Allen, case worker, Jean Bauman, physical therapy aid, and Kathy Trotta, occupational therapist, all from Pennhurst. App. at 234a-36a.
The CLA proposed in the plan is a four bedroom ranch-style home in Malvern occupied by a live-in couple and two other retarded boys aged 21 and 22. The house is in a quiet residential area located on a cul de sac. The 719 plan provided for 1:1 staff supervision for P.M. and awake night staff, *719 at least initially. Safety adaptations such as a fence, safety gates, and a grab bar in the bathroom were made. The plan contained a program of selfhelp skill training, socialization, pre-language communication, occupational and physical therapy and recreational activity. P.M. was to continue at the school which he had attended for six years. Without reviewing all of the details, it is important to note that the plan and portions thereof were submitted to independent professional judgment and evaluation throughout. Thus, for example, a physical therapy consultant of the Bureau of Professional Services of the Commonwealth of Pennsylvania made a consultation visit to Pennhurst for the purpose of evaluating the physical therapy program developed by the staff for P.M. In his report to the Superintendent of Pennhurst, he agreed that under the arrangements made, P.M. "could function in a community living facility and be given the opportunity to develop to a higher level." He continued, "The decision of whether or not institutional care is more effective than a community living arrangement is difficult to answer; however, the progress that has been made thus far and the continuation of a closely supervised program leads me to believe that he will benefit in a home-like atmosphere." App. at 274a.
The parents' objections to the proposed plan were mediated by Pennhurst Superintendent Kopchick. This process allayed some of their concerns; for example, controversy with respect to the proposed occupational and physical therapy programs was satisfactorily settled. App. at 118a. P.M.'s parents do not argue here that the CLA is unsafe.
The plan was reviewed by the Office of the Special Master established by the district court for that purpose, which found "that the community services prescribed in the Plan will be more beneficial for the habilitation of [P.M.] than the services provided at Pennhurst." App. at 214a. P.M.'s parents were notified of their right to demand a hearing for the purpose of determining whether the living arrangements and services were more beneficial to P.M.'s habilitation than the living arrangements and services being provided at Pennhurst. App. at 214a. P.M.'s parents requested a hearing, which was held before the Hearing Master. Again the parents had the opportunity to present evidence and arguments, to require the attendance of witnesses, if necessary, and to ask questions of other witnesses. The Master in his Report specifically addressed each of the comments of P.M.'s parents and their two witnesses, and concluded,
I am convinced beyond any doubt that the program the County is proposing for P.M. will be more beneficial for his habilitation than remaining at Pennhurst would be 0907because it is designed around his potential rather than his limitations, and because it has been so carefully and thoughtfully structured to let him grow and explore as far as his abilities will take him.
App. at 298a.
The parents excepted to the Master's Report. Although they made some general challenges, they clearly, through their counsel, stated as the essence of their position "that the Court should not consider the basis of the parents' nonconsent." App. at 326a. Counsel stated he was not arguing that the CLA was dangerous or that the state or county have not provided the best possible living arrangements under the circumstances. App. at 328a. Instead,

he articulated the parents' position as their right to make the decision regarding transfer "regardless of whether or not the parents' decision is right or wrong." App. at 330a.
It is evident that the parents were provided with every incident of the parental right or interest to which they were entitled. But once there is a determination made that the child's interest was best served by his transfer to the community living arrangement, it is his right that takes precedence. The determination that transfer was beneficial to P.M. was made by a neutral factfinder as required in Parham. The professional judgment in favor of transfer 720 was made by the numerous professionals, *720 state and county, who participated in the preparation and approval of the individual habilitation plan.[1] The statements of the state and county witnesses that they would defer to the parents' wishes represented a policy position. It must be distinguished from the professional judgment by the state and county's social and medical personnel, all of whom supported the transfer as beneficial to P.M. The Chester County professional with the most direct involvement with P.M., Ms. Scoggins, his case manager, testified "that the extra stimulation, attention and exposure to different experiences provided in this community placement, will be enriching and beneficial to [P.M.'s] growth and development." App. at 51a-52a.
In addition to the neutral factfinder's decision as required by Parham, the parents were provided with a second and third tier review by the Hearing Master and the district court, which afforded them the opportunity to show that the neutral factfinder was erroneous in finding that transfer was to P.M.'s interest. The Hearing Master correctly characterized the testimony of the two experts for the parents as "highly abstract and theoretical", which "sought to reargue global issues, such as the need for institutional programs and the validity of various `normalization' theories." App. at 296a. Since neither expert had observed P.M. in Pennhurst nor viewed the Malvern community living facility, there was ample basis for the Hearing Master to come to a different conclusion which accorded with the recommendation of those professionals who had worked more closely with P.M. Judge Aldisert errs when he attributes the Master's conclusion to the presumption imposed by this court in favor of deinstitutionalization, since the Master stated in his report that "it is not necessary to resort to the presumption in this matter, since the County has done a truly excellent job in planning for P.M.'s community placement (in part because of the parents' active and constructive participation) and since P.M.'s program at Pennhurst, though it has helped him in many ways, seems to have reached its limit and indeed has begun to recede." App. at 289a-90a. Even if the Master had relied upon the presumption in favor of deinstitutionalization, it was one mandated by in banc decisions of this court, which a panel is not free to disregard.
Although both Judge Aldisert and Judge Rosenn disclaim giving the parents an absolute veto over the transfer decision, in effect that is precisely what P.M.'s parents have requested and exactly what this decision gives them. P.M.'s parents have made two principal arguments before us0907that no liberty interest of P.M. is implicated in the transfer decision, and that "the decision of the parents should have controlled." P.M. has an unchallenged liberty interest in not being confined unnecessarily, and as we found in our in banc decisions also has a right to habilitation. It follows that the decision of the parents cannot control as a matter of constitutional law. Judge Rosenn asks "who is it then that insists on the transfer and by what right." Judge Rosenn's at 714 n. 4. Since P.M. is a severely retarded 12 year old child who cannot speak for himself, it is the professionals to whom he has been entrusted, i.e. the Parham "neutral factfinder", who decided in favor of the transfer. The district court was meticulous in following the Supreme Court's decision in Parham which required a neutral factfinder to speak for the child's interest. I can find no basis to reverse.
Finally, at a minimum, the district court should have the opportunity to consider the effect of possible changed circumstances. We have been told there are only two remaining children of school age currently at Pennhurst, Brief for Appellee PARC, et al. at 8 n. 1, P.M. has now been in the community living arrangement for more than a year, and we know absolutely nothing about P.M.'s adaptation and progress in the intervening period. Since the 721 panel disposition is to remand, and Judge Rosenn agrees with *721 me that changed circumstances may be relevant to the district court's ultimate decision, I assume that this issue is open for consideration by the district court.
[1] Appellants raise a third contention in their brief before this court. They argue that the "district court erred in compelling the Commonwealth [of Pennsylvania] and the County [of Chester] to override the parental transfer decision in this case." Joint Brief for Appellants at 41. While I have some difficulty in determining the precise basis

of this contention it appears to rest on the assertion that "states have a valid interest in preserving the family unit and maintaining parental authority over children," id., and that since the Commonwealth would not compel the transfer of P.M. over the parents' objections neither should the district court. The Commonwealth concurs that it would not compel transfer in this case, citing its "long-standing, informal policy of respecting the parents' preferences unless those preferences are not in the best interest of the child ...." Brief for Amicus Curiae at 4 n. 1. Because the Commonwealth developed this position on the basis of the Supreme Court decision in Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (holding that a state could not constitutionally require compulsory school attendance of children through age sixteen), it is at bottom a constitutionally based policy, raising the same issues and concerns as the appellants' denominated constitutional argument in this case. Therefore, I will focus my discussion on the asserted constitutional claim of appellants.
[2] The master, under the district court's order following the Supreme Court's June 1980 stay of our initial appellate decision, was directed to determine that the transfer of P.M. to a CLA was voluntary as well as appropriate or beneficial. In its February 26, 1982 memorandum issued in support of its transfer order, however, the district court ruled that after the Supreme Court disposed of the appeal, the stay lifted and thus any potential objections to the master's determinations on the voluntariness of P.M.'s transfer were moot. No appeal was taken from this mootness ruling, and I express no opinion as to either the ruling itself or the master's finding that the transfer was voluntary.
[3] Although the master did not expressly rely on this presumption in reaching his decision, Hearing Master's Report at 14-15, reprinted in app. at 289a-90a, I will treat it as if he did because the presumption is clearly available to provide added support for that decision.
[4] A major safety concern of the parents that has never been resolved is the possibility of a fire in the CLA that could isolate P.M.'s room from a safe exit route.
[5] Because the instant case involves a conflict between the parents' desires and the dictates of a United States district court, it is the due process clause of the fifth amendment and not that of the fourteenth amendment that is directly at issue. The analysis, however, would be the same under the fourteenth amendment.
[6] While the instant case is not couched in classic child custody terms, in that the conflict is not that of parental custody as against state custody, I feel the rights developed in the custody cases are relevant here. The question at issue in the instant case is whether child custody is more appropriate in one type of state institution or in another state-sponsored living arrangement. The rights established in the custody cases provide analogous support for appellants here because the parents, at bottom, are expressing strong and substantial concerns as to where they feel custody should be.
[7] The right at issue here, that of parents to be able to direct and control the upbringing of their children without unnecessary governmental interference, is a right protected under the auspices of substantive due process. By analogy to fifth and fourteenth amendment equal protection cases, the right herein recognized is analytically equivalent to that group of rights requiring an "intermediate" level of scrutiny. See Plyler v. Doe, 457 U.S. 202, 102 S.Ct. 2382, 72 L.Ed.2d 786 (U.S.1982) (education); Foley v. Connelie, 435 U.S. 291, 98 S.Ct. 1067, 55 L.Ed.2d 287 (1978) (alienage); Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977) (illegitimacy); Craig v. Boren, 429 U.S. 190, 97 S.Ct. 451, 50 L.Ed.2d 397 (1976) (sex discrimination).
[8] As a general rule, we will not reverse a decision made in a prior proceeding on grounds that were not urged or argued in that proceeding. Walker v. Sinclair Refining Co., 320 F.2d 302, 305 (3d Cir.1963). This is not an inflexible rule, however, and it will not be applied when public interest and justice so warrant. Franki Foundation Co. v. Alger-Rau & Associates, Inc., 513 F.2d 581, 586 (3d Cir.1975). Here, although the master failed to give sufficient consideration to the constitutional rights of the parents in determining the placement of P.M., neither justice nor public interest compels reversal because the district court's review of the master's report could have easily corrected the error. I will, therefore, focus my attention on the district court proceedings.
[9] Exception 11 to the report stated:

The Parents except to ... the Hearing Master's Finding that the proposed community placement of P.M. is "more beneficial" than his remaining at Pennhurst [in that it] (1) ... unconstitutionally intrudes upon areas reserved for parental ... judgment ....
Exceptions to the Hearing Master's Report at 4, reprinted in app. at 303a.
[10] The district court summarized its views of the rights of the parents as follows:
Mindful of this venerable legal tradition, this Court's Orders in this case have sought to provide for and encourage parental involvement in the process of developing an individual habilitation plan. Parents and guardians are urged to become intimately involved as members of the team which determines the individual habilitation plans for each member of the plaintiff class. Pursuant to this Court's Orders, parents are given the right to demand a hearing in the event they object to a habilitation plan transferring their son or daughter to a community living arrangement. At the hearing, they have a right to be represented by counsel, present evidence, and present argument as to why a community living arrangement will be less beneficial to their child's habilitation than his or her continued residence at Pennhurst. In addition, if the parents are dissatisfied with the Master's Report, they may file exceptions with the Court, as have the parents of P.M. in this case.
App. at 362a-63a.
[11] Archie Simmons, for example, a physical therapist consultant, testified that the CLA would meet P.M.'s needs but "strongly suggest[ed] that [P.M.] be evaluated periodically, 3 to 6 month intervals, in order to assess his physical and psychological status." App. at 48a. Further, Melissa Perot, an occupational therapist, expressed concerns that the proposed habilitation plan might "prove insufficient to maintain his [P.M.'s] present rate of progress ...," and suggested that other, more intensive therapy might be required. Id. at 254a.
[12] As Ms. Nichols, the other expert who testified in support of the parents' position stated, "[the o]ne-to-one coverage is perhaps the most restrictive thing that I've heard of in a long time. It implies in fact that perhaps the setting is dangerous to [P.M.] without that type of coverage." App. at 148a-49a.
[1] The right of parents encompasses the opportunity to nurture, educate, love, and manage their child, a right which Justice Brennan has characterized as a "constitutionally recognized liberty interest that derives from blood relationship, state-law sanction, and basic human right ...." Smith v. Organization of Foster Families for Equality and Reform, 431 U.S. 816, 846, 97 S.Ct. 2094, 2110, 53 L.Ed.2d 14 (1977).
[2] Dr. Rubin was a psychologist associated with West Chester State College and Ms. Nickles was Chairperson of the Department of Special Education at West Chester State.
[3] In her testimony, P.M.'s mother addressed numerous concerns that her son would meet in community living, including the problem of communication. She stated that for all the laudable sentiments of the professionals
who insist on the CLA as a superior environment for our particular child's needs, no one can say for certain what they are, beyond the love, care, and satisfaction of basic hungers, he has had at Pennhurst. No one has determined that there is in his brain a speech center that can be developed with current technology or special education methods ....
Some means of communication is absolutely essential for neighborhood living, most desirably intelligible speech the average, uninitiated neighbor can understand. But to my knowledge, this point has never been addressed or acknowledged. Certainly, the number of professionals of various species my husband and I have met with interminably have not included one who could provide anything more than a vaguely optimistic but evidentially unsupported answer.
A neighborhood apartment, rowhouse, rancher or colonial is no magic talisman to compensate for insufficient data and inexact methodology in cases such as our son's. We prefer ... prompt, on site medical attention from professionals, such as Dr. Robles, who has treated him in the past, who knows and understands our son, to the uncertainty of a community practitioner with no previous experience with the profoundly retarded as a broad and enormously varying category.

While Pennhurst is certainly not ideal, though much improved since 1972, the average American home has long been cited by studies as a more dangerous site than many workplaces. The CLA's we have seen are designed as average American homes, appropriate for the functional retarded, but hazardous to children like our son ....
I was denied the personal power to back up my sense of responsibility to save [P.M.] before birth. Now it seems incumbent to try to protect his existence, make him safe and comfortable, provide the best opportunities for whatever development he might turn out to have, some potential without expecting miracles. Since the therapy equipment list alone is sufficient evidence to me that decentralized CLA's cannot cost effectively match this quality, I feel the CLA is deprivation for [P.M.].
[4] The district court concluded that the law does not give parents "unbridled discretion in every area of decisionmaking" especially where, as here, "a retarded child has been committed to the custody of the Commonwealth and Chester County ...." But the Commonwealth of Pennsylvania supports the objections of the parents to the transfer. Chester County also supports the parent's objections. Both believe that under the circumstances of this case, it is improper to disregard the views of the child's parents. One is compelled to ask who it is then that insists on the transfer and by what right.
[5] It should be noted that were it not for the underlying litigation which is again under review by the Supreme Court, 50 U.S.L.W. 3998.-01 (1982), the issue in this ancillary review could not be heard in the federal courts.
[6] If there have been any changes in circumstances since the time of the original hearings in this matter, I see no reason why the district court should not have an opportunity to consider such changes in the proceedings on remand.
[1] See Secretary of Public Welfare v. Institutionalized Juveniles, 442 U.S. 640, 648-50, 99 S.Ct. 2523, 2527-28, 61 L.Ed.2d 142 (1979) (upheld professional staff team approach to decisionmaking as comporting with Parham due process requirements).
Save trees - read court opinions online on Google Scholar.

 
 567 F.Supp. 1504 (1983)
Terri Lee HALDERMAN et al. v.
PENNHURST STATE SCHOOL AND HOSPITAL et al.
Civ. A. No. 74-1345.
United States District Court, E.D. Pennsylvania.
July 28, 1983.
David Ferleger, Herbert B. Newberg, Philadelphia, Pa., for Terri Lee Halderman.
Thomas M. Kittredge, Philadelphia, Pa., for Bucks, Chester and Delaware Counties.
Robert B. Hoffman, Deputy Atty. Gen., Harrisburg, Pa., for the Commonwealth of Pennsylvania.
Thomas Gilhool, Public Interest Law Center, Philadelphia, Pa., for Pennsylvania Ass'n for Retarded Citizens.
Herbert B. Newberg, Philadelphia, Pa., for David Ferleger, Esq.
Pamela P. Cohen, Philadelphia, Pa., for Pennhurst Parents Ass'n.
Mitchell W. Dale, Civil Rights Division, Dept. of Justice, Washington, D.C., R. Stephen Barrett, Asst. County Sol., Norristown, Pa., for Montgomery County.
Marc H. Myers, Asst. City Sol., Philadelphia, Pa., for Philadelphia County.
MEMORANDUM
RAYMOND J. BRODERICK, District Judge.
This case is a class-action brought in 1974 on behalf of retarded residents of Pennhurst State School and Hospital ("Pennhurst"), who alleged that the conditions of their confinement at Pennhurst violated their state statutory, federal statutory, and constitutional rights. In 1977, this Court, based on the evidence presented at a 1505 32-day trial, set forth findings of fact and conclusions *1505 of law and determined that the rights of the plaintiff class were being violated by the conditions of residence and treatment at Pennhurst (see 446 F.Supp. 1295, aff'd, 612 F.2d 84, rev'd and remanded, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694, aff'd, 673 F.2d 628, cert. granted, 457 U.S. 1131, 102 S.Ct. 2956, 73 L.Ed.2d 1348 (1982)). This Court's relief, as modified by the Third Circuit's first en banc decision in this matter, requires that each class member receive minimally adequate habilitation in the least restrictive environment. Habilitation is a term of art which, among mental retardation professionals, means treatment of an individual which will afford him a reasonable chance to cope as effectively as his own capacities permit with the demands of his own person and his environment and to raise the level of his physical, mental, and social efficiency (see 446 F.Supp. at 1317). As part of this injunctive remedy, the defendants have been ordered to provide class members with an individual habilitation plan, which constitutes a blueprint for the retarded person's habilitation in the least restrictive, most normalized environment feasible. The IHP is drafted by a team of mental retardation professionals which includes but is not limited to the retarded person's case manager (who is a county employee) and Pennhurst staff (who are state employees), as well as the retarded person's parent, guardian, or certified advocate (provided when the retarded person has no parent or relative to speak for him in the planning process).
Pursuant to this Court's Orders (see Order of March 17, 1978, as amended April 28, 1980), an IHP was drafted for P.M., then a 12-year old. P.M. is a small (4 feet tall, 65 pounds) severely retarded boy who possesses some skills and potential for improvement. In late 1981, P.M.'s IHP was completed. It called for the movement of P.M. from confinement at Pennhurst to a community living arrangement in Chester County. On October 13, 1981, the

County Mental Health and Mental Retardation Officer issued notice of this proposed community placement. On October 19, 1981, W.M., P.M.'s father, requested a hearing on his objections to the planned transfer. Pursuant to this Court's Order of April 24, 1980, the Hearing Master appointed by this Court held a hearing for the purpose of determining whether W.M.'s objections to community placement justified overturning the professional determination of the IHP planning team. The hearing was held on November 24, 1981 and was attended by P.M., his parents, witnesses in support of their case, the County through its representatives, including staff members of P.M.'s proposed community living arrangement, and staff members of Pennhurst. Based on the evidence presented at the hearing, the Hearing Master found that the planned community facility would be more beneficial to P.M.'s habilitation than would continued residence at Pennhurst.
P.M.'s parents, who placed him in the custody of the state mental retardation system nearly 10 years ago, took exception to the Hearing Master's Report, contending that they had an absolute right to veto any change in his current care. The parents also sought a stay of the Hearing Master's Order permitting P.M. to be moved to the community facility in accordance with his professionally drafted IHP. Based on the evidence presented at the hearing, this Court found that the Hearing Master's findings were not clearly erroneous and also found that the parents, having committed their son to the state system of professional care for the retarded, could not dictate the exact contours of P.M.'s habilitation (see 533 F.Supp. 661, 666-68 (E.D.Pa.1982)) and denied the parent's motion for a stay.
In rendering this decision, this Court recognized that parents' interest in directing the upbringing of their children is cognizable and substantial (533 F.Supp. at 666). The Court also observed that "[p]arents who place their children in private facilities are in a position to veto some aspects of their child's habilitation programs in such facilities, and if the parents' views are not accepted by the staff of the facility they may remove the child from the 1506 facility." *1506 533 F.Supp. at 667. The Court then weighed the parents' preference in favor of Pennhurst against P.M.'s liberty interest in not being unnecessarily confined and in P.M.'s right to receive minimally adequate habilitation in the least restrictive environment. The Court concluded that P.M.'s interests outweighed those of his parents (see 533 F.Supp. at 667-68).
P.M.'s parents appealed. On May 10, 1983, the Third Circuit reversed and remanded the matter to this Court, 707 F.2d 702. Judge Aldisert, writing for the panel, concluded that this Court had accorded insufficient weight to the parents' wishes. The case was remanded to this Court to apply the proper standard of weight to be accorded to the parents' views in connection with the habilitation of their son. Judge Aldisert, writing for the majority, concluded that the parents possessed a "substantial right to direct the upbringing of their minor children" which "can only be overcome either by a showing of abuse or neglect or by proof of significant governmental interest running counter to the express parental desires." At 710.
In reviewing the record before the Court as of February 1982, Judges Aldisert and Rosenn concluded that the record did not show a sufficiently significant governmental interest in favor of community placement to overcome the presumption in favor of the parental preference for continued residence at Pennhurst. In a separate concurrence, Judge Rosenn stated that this matter should be "remanded to the district court with directions to reconsider the record and give the views of the parents appropriate weight." At 715. In a footnote, Judge Rosenn stated
If there have been any changes in circumstances since the time of the original hearings in this matter, I see no reason why the district court should not have an opportunity to consider such changes in the proceedings on remand.
At 715, n. 6. Judge Sloviter in her dissenting opinion also stated that a substantial period of time has passed between this Court's findings and the Court of Appeals opinion:
We have been told there are only two remaining children of school age currently at Pennhurst.... P.M. has now been in the community living arrangement for more than a year, and we know absolutely nothing about P.M.'s adaptation and progress in the intervening period. Since the panel disposition is to remand, and Judge Rosenn agrees with me that changed circumstances may be relevant to the district court's ultimate decision, I assume that this issue is open for consideration by the district court.

At 720-21.
Plaintiffs' counsel, in his response to the motion of P.M.'s parents (filed on July 13, 1983) to return P.M. to Pennhurst, avers that currently "there is no place at Pennhurst for P.M. to return to. Pennhurst is closing the unit (Wilson Hall I) on which P.M. formerly resided. There are no children at Pennhurst in any school program ... and there is nobody at Pennhurst compatible with P.M. in age and level of disability. There is no appropriate grouping for him to be placed into." The facilities and programs currently available at Pennhurst for P.M. and P.M.'s present status in the community are factors which should be taken into account in weighing the rights of P.M.'s parents in accordance with the standards set forth by the Third Circuit. The Court has therefore determined that the matter should once again be referred to the Hearing Master. The Court will remand this matter to the Hearing Master with instructions to hold a hearing and to determine all facts necessary to decide this issue based on the situation at the present time. In the event P.M.'s parents object to community placement, the Hearing Master should give deference to their views in accordance with the legal standard set forth by the Third Circuit to this updated record.
An appropriate order will be accordingly entered.
Save trees - read court opinions online on Google Scholar.

 
 559 F.Supp. 153 (1982)
Terri Lee HALDERMAN et al., Plaintiffs, v.
PENNHURST STATE SCHOOL AND HOSPITAL et al., Defendants, United States of America, Plaintiff-Intervenor,
Pennsylvania Association for Retarded Citizens et al., Plaintiffs-Intervenors.
Civ. A. No. 74-1345.
United States District Court, E.D. Pennsylvania.
November 22, 1982.
154 *154 David Ferleger, Philadelphia, Pa., for Terri Lee Halderman.
Thomas M. Kittredge, Philadelphia, Pa., for Bucks, Chester and Delaware Counties.
Robert B. Hoffman, Deputy Atty. Gen., Harrisburg, Pa., for the Com. of Pa.
Thomas Gilhool, Philadelphia, Pa., for Pennsylvania Ass'n for Retarded Citizens.
Herbert B. Newberg, Philadelphia, Pa., for David Ferleger, Esq.
Pamela P. Cohen, Philadelphia, Pa., for Pennhurst Parents Ass'n.
Terissa Chaw, Civ. Rights Div., Dept. of Justice, Washington, D.C., for the U.S.
R. Stephen Barrett, Asst. County Sol., Norristown, Pa., for Montgomery County.
Marc H. Myers, Asst. City Sol., Philadelphia, Pa., for Philadelphia County.
MEMORANDUM
RAYMOND J. BRODERICK, District Judge.
Currently before this Court is a motion filed by defendants the Commonwealth of Pennsylvania Department of Public Welfare ("DPW") and its Secretary, the Honorable Helen O'Bannon (hereinafter "Commonwealth Defendants") to stay a hearing before the Hearing Master in this case which is scheduled for Tuesday, November 23, 1982, and to quash subpoenas compelling the attendance of certain Commonwealth defendant officials at that hearing. For the reasons hereinafter set forth, the Court will deny the motion to stay the Hearing Master's hearing and will deny the motion to quash the subpoenas as to all subpoenaed witnesses except DPW Secretary O'Bannon.
As is now well-known to the litigants, this Court, in an opinion filed December 23, 1977, made findings of fact and conclusions of law holding that defendants were violating the constitutional and statutory rights of members of the 155 plaintiff class by failing to provide them with minimally adequate habilitation in the least restrictive environment. *155 446 F.Supp. 1295. As the trial record in this case reveals, all parties to this litigation admitted that the residents of Pennhurst were not receiving minimally adequate habilitation. The Court found that Pennhurst as an institution is inappropriate and inadequate to habilitate the retarded. At trial, the Commonwealth represented that it intended to close Pennhurst in the early 1980's. This it has not done.
On January 6, 1978, this Court held a hearing to determine the injunctive remedy necessary. The parties were asked to attempt to agree on the terms of the Court's Order, but no agreement was forthcoming. The Court requested that they submit separate proposed orders. On March 17, 1978, the Court issued an injunction which, among other things, required the defendants to provide the retarded residents of Pennhurst with minimally

adequate habilitation in the least restrictive environment and setting forth the procedures for planning, effectuating, and monitoring those transfers.
On December 13, 1979, the Court of Appeals approved the Court's Order and its "determination that, for the retarded class members as a whole, Pennhurst cannot be an appropriate setting in which to provide habilitation." (612 F.2d 84, 114). However, in remanding to this Court, the Court of Appeals directed that an individual hearing should be held for any Pennhurst resident who contends that the living arrangements and services available at Pennhurst are more beneficial to his or her habilitation than those made available in the community.
In light of the Third Circuit's opinion, this Court established an impartial hearing procedure and appointed a Hearing Master who was directed to provide an individual hearing for any Pennhurst resident who contended that his or her habilitation at Pennhurst would be more beneficial than that proposed in the community living arrangement. (Order of April 24, 1980). Whenever a Pennhurst resident or plaintiff class member objects to being transferred to a community living arrangement, the Hearing Master conducts a hearing for such Pennhurst resident or class member for whom a community living arrangement has been prepared for the purpose of determining whether the proposed transfer will be more beneficial to his or her habilitation than would continued residence at Pennhurst. One such hearing is that of L.P., a 50-year-old retarded man who has been residing at Pennhurst.
On October 25, 1982, the Hearing Master, pursuant to this Court's Order of April 24, 1980, held a hearing to assess the merits of L.P.'s proposed transfer to the community. At that hearing, it became apparent that many issues concerning L.P.'s care and habilitation in the community were being made uncertain by a dispute between the Commonwealth defendants, Montgomery County and the County's residential and day program providers of L.P.'s care (Shiloh, Inc. and Prospectus Associates, Inc.). The dispute between the Commonwealth defendants and the providers concerns the rate of reimbursement to be paid by the Commonwealth, which funds the community placements conducted pursuant to this Court's Order to the providers who would operate L.P.'s community living arrangement. The Commonwealth defendants have approved a rate which the County and the providers claim is far too low to allow the program to continue to operate while serving L.P.'s habilitation needs.
At the hearing, the Hearing Master attempted to ascertain the factors that had created this wide divergence of opinion between the defendants and to seek at least interim resolution of the problem so that L.P. could receive the care and habilitation to which both this Court and the Third Circuit have found him entitled. However, the Hearing Master was unable to obtain sufficient information from those present at the hearing, including the representatives of the Commonwealth defendants. The Hearing Master also encountered a similar lack of information in the matters of T.M. and A.B., also members of the Pennhurst plaintiff class whose community 156 habilitation is threatened by the Commonwealth-County *156 Provider dispute over the proper reimbursement rate. For this reason, the Hearing Master concluded, in a subsequent Report regarding L.P. (see Hearing Master's Report of November 12, 1982, Dkt. No. 1662) that certain Commonwealth officials "hold the key to this continuing dilemma" of reimbursement rates for small Interim Care Facilities for the Mentally Retarded (ICF/MRs) (a type of community habilitation facility) such as that planned for L.P.
The Hearing Master therefore set another hearing date of Tuesday, November 23, 1982, for further inquiry into the matter of L.P. and arranged for the subpoena of the following persons as witnesses at the aforesaid hearing: Helen B. O'Bannon, Secretary of the Department of Public Welfare; Jennifer L. Howse, DPW Deputy Secretary for Mental Retardation; Gerald Radke, DPW Deputy Secretary for Medical Assistance; and David Smith of the DPW Office of Mental Retardation. These witnesses were also required to bring with them to the hearing all correspondence, memoranda, records, or other documents or writings in their possession or control relating to establishment or approval of a medical assistance reimbursement rate for the ICF/MR facility planned for L.P. and operated by Shiloh, Inc. at 650 Keeler Road, Lansdale, Pennsylvania.
To compel the attendance of these witnesses and the production of the aforesaid documents at the November 23 hearing, the Hearing Master requested that the Special Master issue and serve upon the Commonwealth officials subpoenas duces tecum requiring them to be present at the commencement of the hearing and to produce the requested documents. The Special Master began to effectuate service of these subpoenas on November 18, 1982. Apparently in anticipation of the service of the subpoenas, the Commonwealth defendants filed with this Court on November 18, 1982 a motion to Stay the Hearing of November 23 and to Quash the Subpoenas.

This Court's Order of April 24, 1980, which created the Office of the Hearing Master and established procedures for the conduct of his hearings, specifically states that the Hearing Master
may require the production of evidence and rule upon the admissibility of evidence, and shall have the power to put witnesses under oath, and may examine witnesses.... Attendance of witnesses at the hearing may be procured by the issuance and service of subpoenas as provided in Rule 45 of the Federal Rules of Civil Procedure.
(Order of April 24, 1980, at 65-66). The Order creating the Hearing Master was never appealed by any party to this litigation. The subpoenas served upon the four Commonwealth officials fall squarely within the terms of this Court's mandate to the Hearing Master, as each of the four is a defendant in this case or an agent of a defendant.
The subpoenas issued also comport with the terms of Fed.R.Civ.P. 53, which provides in relevant part:
Subject to the specifications and limitations stated in [the Court's] order, the master has and shall exercise the power to regulate all proceedings in every hearing before him and to do all acts and take all measures necessary or proper for the efficient performance of his duties under the order. He may require the production before him of evidence upon all matters in the reference and has the authority to put witnesses on oath and may himself examine them and may call the parties to the action and examine them upon oath.
* * * * * *
The parties may procure the attendance of witnesses before the master by the issuance and service of subpoenas as provided in Rule 45. If without adequate excuse a witness fails to appear or give evidence, he may be punished as for a contempt and be subjected to the consequences, penalties, and remedies provided in Rules 37 and 45.
157 Therefore, the Hearing Master in this case has two adequate grounds for requiring *157 the attendance of the Commonwealth defendant officials at the November 23 hearing0907their status as parties or agents of parties and the Master's power to compel the attendance of witnesses through subpoena. Although the Master may not have been required to issue subpoenas because of the party status of the witnesses, subpoenas were issued and served, however, presumably so that the four individuals would have more definite notice of the November 23 hearing and their required participation in it.
The Hearing Master's actions were thus clearly within the scope of his authority pursuant to Fed.R.Civ.P. 53 and this Court's Order of April 24, 1980. See C. Wright and A. Miller, 9 Federal Practice and Procedure, §§ 2609, 2610. The subpoenas also comport with the standards for a subpoenas duces tecum as required by Fed.R.Civ.P. 45. See C. Wright and A. Miller, supra, §§ 2452-2454. Of particular relevance in this instance is the following observation:
A motion to quash a subpoena duces tecum will lie if the subpoena is thought to be unreasonable or oppressive.... A witness may be compelled to produce a document that he controls though he does not have possession of it.
Id. at § 2454, p. 425.
Professors Wright and Miller also note that
The burden to establish that a subpoena duces tecum is unreasonable or oppressive is on the person who seeks to have it quashed. He cannot rely on a mere assertion that compliance would be burdensome and onerous without showing the manner and extent of the burden and the injurious consequences of compliance.
Id. at § 2457, at 435. See also Goodman v. United States, 369 F.2d 166 (9th Cir.1966); Westinghouse Elec. Corp. v. City of Burlington, 351 F.2d 762 (D.C.Cir.1965). The burden is a heavy one, Horizons Titanium Corp. v. Norton Co., 290 F.2d 421 (1st Cir. 1961); Ghandi v. City of Detroit, 74 F.R.D. 115, 124 (E.D.Mich.1977). The

Commonwealth defendants have not made such a sufficient showing, particularly in light of the Hearing Master's previous and repeated efforts to obtain the required information without compelling the attendance of more highly ranked DPW officials.
However, this Court recognizes that Department heads and similarly high-ranking officials should not ordinarily be compelled to testify unless it has been established that the testimony to be elicited is necessary and relevant and unavailable from a lesser ranking officer. See Sneaker Circus, Inc. v. Carter, 457 F.Supp. 771, 794 n. 33 (E.D.N.Y.1978); United States v. Northside Realty Assoc., 324 F.Supp. 287, 293 (N.D.Ga.1971). For that reason, the Court will at this time grant the motion to quash as to defendant DPW Secretary Helen O'Bannon. The Hearing Master will still be able to obtain testimony from Jennifer Howse, Gerald Radke and David Smith, all of the Department of Public Welfare. If their testimony and accompanying documents do not provide sufficient information to the Hearing Master, he may seek to again subpoena Secretary O'Bannon so long as he first certifies to this Court that the Secretary's testimony is necessary and relevant to the matter before him and that this information is not equally available from a lesser ranking government official. An appropriate order will be accordingly entered.
ORDER
AND NOW, this 22nd day of November, 1982, upon consideration of the Commonwealth Defendants Motion to Stay Proceedings and to Quash Subpoenas, for the reasons set forth in this Court's Memorandum of November 22, 1982,
IT IS HEREBY ORDERED:
1. The Motion to Stay Proceedings filed by defendants Commonwealth of Pennsylvania Department of Public Welfare and the Honorable Helen O'Bannon is DENIED;
2. The Commonwealth Defendants' Motion to Quash Subpoenas is DENIED as to the subpoenas of Jennifer Howse, Gerald Radke, and David Smith, and is GRANTED as to the subpoena of the Honorable Helen O'Bannon.
Save trees - read court opinions online on Google Scholar.

 
 555 F.Supp. 1138 (1982)
Terri Lee HALDERMAN, et al., Plaintiffs, v.
PENNHURST STATE SCHOOL AND HOSPITAL, et al., Defendants, United States of America, Plaintiff-Intervenor,
Pennsylvania Association for Retarded Citizens, et al., Plaintiffs-Intervenors.
Civ. A. No. 74-1345.
United States District Court, E.D. Pennsylvania.
December 22, 1982.
David Ferleger, Herbert B. Newberg, Philadelphia, Pa., for Terri Lee Halderman.
Thomas M. Kittredge, Philadelphia, Pa., for Bucks, Chester and Delaware Counties.
1139 *1139 Robert B. Hoffman, Deputy Atty. Gen., Harrisburg, Pa., for the Com. of Pennsylvania.
Thomas Gilhool, Philadelphia, Pa., for Pennsylvania Ass'n for Retarded Citizens.
Herbert B. Newberg, Philadelphia, Pa., for David Ferleger.
Pamela P. Cohen, Philadelphia, Pa., for Pennhurst Parents Ass'n.
Terisa Chaw, Civil Rights Div., Dept. of Justice, Washington, D.C., R. Stephen Barrett, Asst. County Sol., Norristown, Pa., for Montgomery County.
Marc H. Myers, Asst. City Sol., Philadelphia, Pa., for Philadelphia County.
MEMORANDUM
RAYMOND J. BRODERICK, District Judge.
On November 26, 1982, the Hearing Master issued a report and Order concerning T.M. and A.B., two retarded persons who have been transferred from Pennhurst to a community living facility approved for funding by the federal government as a community facility for the mentally retarded (ICF/MR) in Montgomery County. Exceptions have been filed contesting various portions of the Hearing Master's report. Pursuant to this Court's Order of April 24, 1980, the Court will enter an Order setting a date for a hearing on these exceptions. However, the Hearing Master's Report and motions recently filed by the plaintiffs in this case set forth that the community facility in which T.M. and A.B. currently reside may be closed due to a dispute between the Commonwealth defendants, Montgomery County, and the private care providers under contract with the County to provide the minimally adequate habilitation required for T.M. and A.B. pursuant to their individual habilitation plans heretofore approved by the Commonwealth and the County.
In order to prevent irreparable harm to T.M. and A.B., which could occur if their community living facilities were suddenly terminated and to make certain that T.M. and A.B. are not returned to Pennhurst in violation of this Court's Orders, the Court will enter an Order directing the Commonwealth defendants and Montgomery County to take any and all steps necessary to ensure that T.M. and A.B. receive minimally adequate habilitation as described in their individual habilitation plans in their present residence until such time as this Court has had the opportunity to hold a hearing and make a determination concerning the exceptions to the Hearing Master's Report. The Court intends that the individual habilitation plans for T.M. and A.B. be fully complied with and that their current residence be maintained while this Court gives the matter expedited consideration, the hearing regarding the aforesaid exceptions to the Master's Report having been set for January, 1983.

Specifically, T.M. and A.B. reside in an intermediate care facility for the mentally retarded (ICF/MR) located in Pennsburg, Montgomery County, Pennsylvania. An ICF/MR is a facility operated pursuant to the medical assistance program of Title XIX of the Social Security Act (42 U.S.C. § 1396, et seq.). A small ICF/MR is virtually identical to the community living arrangement (CLA) residential treatment programs operated by the Commonwealth and County defendants in this case, which currently house many former residents of Pennhurst who have now begun to enjoy the greater benefits of education, training, habilitation, and life in the community rather than the segregation from society and regression in life skills which they suffered while at Pennhurst (see 446 F.Supp. 1295, 1300-1305). On the basis of funding, ICF/MRs appear to enjoy a financial advantage to the Commonwealth in that small residential facilities operated under the ICF/MR program are 55% federally funded while non-ICF/MR community facilities are 100% state funded. However, despite this relative economic benefit to the Commonwealth of ICF/MRs, the Commonwealth defendants have made little use of the ICF/MR program ( see 545 F.Supp. 410 (E.D.Pa.1982); 542 F.Supp. 619 (E.D.Pa. 1982); 526 F.Supp. 428 (E.D.1981).
1140 *1140 The ICF/MR in which T.M. and A.B. reside is operated by Shiloh, Inc. Pursuant to their Individual Habilitation Plans (IHP), T.M. and A.B. are also to receive day program training from Prospectus, Inc. The IHPs for T.M. and A.B. were provided by a planning assessment team aided by mental retardation professionals.
An individual habilitation plan (IHP) is designed for each retarded resident of Pennhurst for whom a community living arrangement is being considered. The development of such personalized treatment and habilitation plans was mandated by this Court's Order of March 17, 1978 (446 F.Supp. at 1326) as modified by the Order of April 24, 1980. Paragraph 2 of the March 17 Order provides:
Commonwealth and county defendants, as aforesaid, are permanently enjoined to develop and to provide a written individualized program plan, formulated in accordance with professional standards (Opinion, page 25; Roos N.T. 1-115, 1-116, Hare N.T. 8-168) to each member of plaintiff class, to provide to each an individualized habilitation program, to provide annual periodic review thereof and the opportunity to each member of plaintiff class and to his or her next friend to be heard thereon.
446 F.Supp. at 1326.
The injunctive relief ordered by this Court (Order and Memorandum of March 17, 1978; Order of March 5, 1979) as modified in light of the Third Circuit's first en banc decision in this matter (612 F.2d 84) (Order and Memorandum of April 24, 1980) requires that individual habilitation plans be developed for each resident of Pennhurst and other retarded members of the plaintiff class. These proposals are developed by a Planning and Assessment Team which includes but is not limited to the Pennhurst resident, his or her case manager, an employee of a county defendant, and the parent, guardian, or certified advocate of the Pennhurst resident. Frequently joining this team are Pennhurst staff members who have worked with the client, the day program and residential program providers for the retarded client as well as medical and habilitation specialists. At one time, the Special Master monitored the formulation of IHPs to make certain that each plan was formulated in accordance with professional standards so that each Pennhurst resident for whom an IHP was designed would have a reasonable opportunity to acquire and maintain such life skills as their potential capacities permit. On January 4, 1982, this monitoring function was transferred to the Commonwealth defendants who had, previous to that date, permitted their obligation in this respect to be performed by the Special Master.
Thus, pursuant to this Court's Orders, a group of mental retardation professionals designs an IHP for the Pennhurst resident. If the team concludes that the retarded citizen would receive greater habilitative benefit in the community, a particular community facility is selected or established and the retarded person moves to the community facility for a preplacement visit during which his or her reaction to the setting and program can be assessed. Preplacement visits are required before the Commonwealth defendants approve an IHP.
As heretofore noted, the IHP is a plan specifically tailored to the needs of the retarded person. One purpose of a preplacement visit or visits is to afford an opportunity for a meaningful determination as to whether the community facilities being provided pursuant to the IHP are in accordance with the professionally set specifications of the plan. The Court again emphasizes that a preplacement visit or visits should not be made until the community

living arrangements are completed and a determination has been made that the community living arrangement is safe, clean, and adequate, and that the services required to provide a more beneficial program of habilitation are available. As the Circuit Court has cautioned, both this Court and the Hearing Master, as well as the Commonwealth defendants who now approve each IHP, must have assurances before ordering transfers to 1141 community living arrangements *1141 that the sanitary, staffing, and program deficiencies found at Pennhurst are not duplicated on a smaller scale in community living arrangements (see 612 F.2d at 116).
In the cases of T.M. and A.B., as with all Pennhurst residents for whom an IHP has been prepared, the Commonwealth and County defendants have been intimately involved in each step of the planning and implementation process. It was not the Special Master, the Hearing Master, or the Court that drafted the IHPs of T.M. and A.B. Those plans were designed by their case manager, an employee of Montgomery County, and Pennhurst staff members, employees of the Commonwealth. After the IHP was drafted, it was approved by these state and county professionals. At that time, the parents of T.M. and A.B. were the only members of the Planning Assessment Team who declined to approve the plan. The IHP was next presented to the Special Management Unit of the Commonwealth DPW Pennhurst Implementation Team. The Special Management Unit approved the IHP, which provided that T.M. and A.B. should receive certain services in the community including a certain staffing ratio in their community facility.
Thus, pursuant to Court Orders, IHPs were designed for T.M. and A.B. These IHPs were approved by Montgomery County and the Commonwealth defendants. The IHPs, formulated in accordance with acceptable professional standards, called for the transfer of T.M. and A.B. from Pennhurst to community facilities in Montgomery County. Specifically, the IHPs anticipated that T.M. and A.B. would begin their new lives outside Pennhurst in an ICF/MR operated by Shiloh and would receive day program habilitation through Prospectus. The parents of these two retarded citizens each disputed the IHP conclusion that their children would receive greater habilitative benefit in the community rather than in Pennhurst and requested a hearing on this matter before the Hearing Master.
The Hearing Master was appointed by this Court in its Order of April 24, 1980 to comply with the Third Circuit's remand of this case which instructed this Court to provide a mechanism whereby individual determinations would be made for each class member concerning the type of habilitation he or she would receive. Though the Third Circuit affirmed this Court's finding that "for the retarded class members as a whole, Pennhurst cannot be an appropriate setting in which to provide habilitation," (see 612 F.2d at 114), the Circuit Court was concerned that some severely retarded individuals, especially those older individuals who had known no life but that of Pennhurst, might not benefit from community living and that a hearing should be provided to those members of the class who did not wish to leave Pennhurst. Thus, although the IHPs contain the professional determinations that a living arrangement outside of Pennhurst would benefit the individual class member, that class member nevertheless is provided a hearing on the matter before the Hearing Master. At these hearings, the Master, an attorney with vast experience in the mental retardation field, receives evidence and determines, based on the testimony of mental retardation professionals, whether the residence proposed in the IHP will provide greater habilitative benefit to the retarded citizen than would continued confinement at Pennhurst.
In his Report of November 26, 1982, the Hearing Master concluded that the community residence proposed in the IHP of T.M. and A.B. would provide them greater benefit than would remaining at Pennhurst. By this juncture, the parents of T.M. and A.B. had come to believe that community residence was in the best interests of their children. However, it became apparent during the course of the hearing that a funding dispute between the Commonwealth defendants, Montgomery County, Shiloh, Inc., and Prospectus, Inc. might result in Shiloh and Prospectus terminating all services to T.M. and A.B. which would, in effect, require some emergency action by this Court. Apparently, to avoid such an emergency, the Hearing Master ordered that the services described in 1142 the IHPs should be provided to T.M. and A.B., that *1142 T.M. and A.B. continue to reside in their current ICF/MR in Pennsburg, and that the Commonwealth defendants provide Shiloh with a certain reimbursement rate to ensure the provision of these IHP-mandated services. As heretofore noted, exceptions have been filed to the Master's report. This Court will, in its accompanying Order, set a hearing for the purpose of considering these exceptions. The hearing date of January 1983 has been chosen so that this Court may receive evidence and consider the exceptions to the report as soon as practicable.

The Court takes no position regarding the ICF/MR reimbursement rate-setting process and the particulars of the dispute between the Commonwealth defendants, Montgomery County, Shiloh, and Prospectus. As heretofore stated, it is currently this Court's intention to prevent irreparable harm to T.M. and A.B. during the pendency of the expedited consideration of exceptions to the Master's Report and Order. An appropriate Order will be accordingly entered.
ORDER
AND NOW, this 22 day of December, 1982, upon consideration of the Report of the Hearing Master filed November 26, 1982 concerning the community placements of T.M. and A.B., Nos. 82-P-21 and 82-P-22, exceptions to the aforesaid Report having been filed by defendant Montgomery County and the Commonwealth defendants and private care providers Shiloh, Inc. and Prospectus, Inc. for the reasons set forth in this Court's Memorandum of December 22, 1982,
IT IS HEREBY ORDERED:
1. A hearing shall be held in connection with the aforesaid exceptions on January 13, 1982 at 9:30 a.m. in Courtroom 10-B of this United States Courthouse, 601 Market Street, Philadelphia, Pennsylvania.
2. The Commonwealth defendants and the Montgomery County defendants are hereby enjoined and ordered to take any and all steps necessary to ensure that T.M. and A.B. receive minimally adequate habilitation as described in their individual habilitation plans in their present residence until such time as this Court has, after hearing, issued its determination concerning the aforesaid exceptions to the Hearing Master's Report of November 26, 1982.
Save trees - read court opinions online on Google Scholar.

 
 555 F.Supp. 1144 (1983)
Terri Lee HALDERMAN, et al., Plaintiffs, v.
PENNHURST STATE SCHOOL AND HOSPITAL, et al., Defendants, United States of America, Plaintiff-Intervenor,
Pennsylvania Association for Retarded Citizens, et al., Plaintiffs-Intervenors.
Civ. A. No. 74-1345.
United States District Court, E.D. Pennsylvania.
January 14, 1983.
1145 *1145 David Ferleger, Herbert B. Newberg, Philadelphia, Pa., for Terri Lee Halderman.
Thomas M. Kittredge, Philadelphia, Pa., for Bucks, Chester and Delaware Counties.
Robert B. Hoffman, Deputy Atty. Gen., Harrisburg, Pa., for the Com. of Pennsylvania.
Thomas Gilhool, Public Interest Law Center, Philadelphia, Pa., for Pennsylvania Ass'n for Retarded Citizens.
Herbert B. Newberg, Philadelphia, Pa., for David Ferleger.
Pamela P. Cohen, Philadelphia, Pa., for Pennhurst Parents Ass'n.
Terisa Chaw, Civil Rights Div., Dept. of Justice, Washington, D.C., R. Stephen Barrett, Asst. County Sol., Norristown, Pa., for Montgomery County.
Marc H. Myers, Asst. City Sol., Philadelphia, Pa., for Philadelphia County.
MEMORANDUM AND ORDER
RAYMOND J. BRODERICK, District Judge.
Though the defendants in this litigation have been required by Court Order for more than 5 years to provide the members of the plaintiff class with minimally adequate habilitation in the least restrictive environment, the placement of these retarded citizens into such adequate habilitation environments is being accomplished at a very slow pace. On March 2, 1981, this Court was forced to enter an Order mandating the community placements of a specific number of class members between March 2, 1981 and June 30, 1982. At this juncture, the modest requirements of the March 2, 1981 Order still have not been fulfilled. During September and October, 1982, this Court held a hearing concerning the defendants' plans for placing class members in adequate community facilities during fiscal years 1982-1983 and 1983-84 (through June 30, 1984) (hereinafter the "September hearing"). Based on the evidence presented at the hearing and the record in this case, the Court has reluctantly concluded that it must again issue an Order requiring the defendants to provide a specified minimum number of community placements during the next 18 months.
The Order which this Court will enter does not, however, set requirements that will be difficult for the defendants to meet. In fact, the requirements of the Order are consistent with the County defendants' own proposals for community placements during the 1982-83 and 1983-84 fiscal years. The Commonwealth defendants, however, in the plan which they submitted to the Court, apparently have no present intention to fund the County defendants' proposals during the 1982-83 fiscal year and plan to fund only 150 class member placements during fiscal 1983-84, contingent upon receiving federal funds pursuant to the 2176 waiver of Title XIX of the Medicaid Program.

To facilitate understanding of the Court's decision regarding 1982-83 and 1983-84 fiscal year community 1146 placements of the class members, the Court will first review the *1146 history of this matter, particularly the
enforcement Orders of the Court entered to ensure compliance with the primary injunctive Order, and will also review the defendants' past opposition and occasional defiance of the Court's Orders.
History of the Litigation
As is well-known to the litigants, this case began in 1974 as a class action in which the named plaintiffs, retarded persons (the "Pennhurst class") who were either residents of Pennhurst State School and Hospital ("Pennhurst") or on the waiting list for residence at Pennhurst as of May 30, 1974, claimed injury based on violations of certain state and federal statutes and the United States Constitution in connection with their institutionalization at Pennhurst. At trial, all parties, including the Commonwealth defendants as well as the other defendants, agreed that Pennhurst as an institution was inappropriate and inadequate for the habilitation of mentally retarded citizens, and that the retarded should be educated, trained, and cared for in community living arrangements. The defendants insisted, however, that they be permitted to accomplish the community placement of Pennhurst residents pursuant to their own schedule. The Court found this "schedule" to be vague and indefinite. On December 23, 1977, this Court issued findings of fact and conclusions of law (Memorandum of December 23, 1977, 446 F.Supp. 1295) which found that the defendants were violating the constitutional and statutory rights of the Pennhurst Class by failing to provide them with minimally adequate habilitation in the least restrictive environment. This holding has been affirmed on two occasions by the United States Court of Appeals for the Third Circuit, sitting en banc. The legal bases for its affirmances were predicated upon federal and state statutes; the constitutional violations found by this Court have not as yet been directly addressed by either the Third Circuit or the United States Supreme Court.
On January 6, 1978, this Court held a hearing to determine the injunctive relief necessary to remedy the violations. The parties were asked to attempt to agree on the terms of the Court's order, but no agreement was forthcoming. On March 17, 1978, the Court issued an injunctive Order setting forth the relief to which the retarded residents of Pennhurst were entitled (446 F.Supp. at 1326).
This Court further ordered that Individual Habilitation Plans be developed for each member of the plaintiff class, that appropriate community monitoring mechanisms be designed and implemented, that a friend-advocate system be established to represent those class members who were without family or guardian, and that a Special Master be appointed to monitor the defendants' planning and implementation activities and report to the Court on the defendants' compliance with the Court's Orders.
The Order of March 17, 1978 was appealed to the Third Circuit however, defendants' application for a stay of the Order was denied. During the pendency of the appeal, this Court issued three major Orders in this case. One of these, the Order of June 8, 1979, set forth a specific timetable for the transfer to the community by September 1, 1979 of the approximately 55 school-age residents of Pennhurst. This Order was necessary because only three school-age residents of Pennhurst had been placed in community living arrangements between March 17, 1978, the date of the Court's original injunctive Order, and June 8, 1979. As of April 22, 1982, 14 of the school-age residents covered by the Order of June 8, 1979 still had not been transferred to community living arrangements (Report of the Special Master, April 22, 1982).
On December 13, 1979, the Court of Appeals issued an Order substantially affirming this Court's Order of March 17, 1978, and remanding the matter to this Court for further proceedings. Halderman v. Pennhurst State School and Hospital, 612 F.2d 84. This Court, pursuant to the remand order, established an impartial hearing procedure and appointed a Hearing Master to provide the individual determinations mandated by the Circuit Court for 1147 Pennhurst residents being placed into the community, *1147 and for other retarded members of the class being recommended for admission to other state institutions for the mentally retarded.
The United States Supreme Court granted certiorari in this case on June 10, 1980, and on June 30, 1980 entered a limited stay order which, in effect, allowed only "voluntary" transfers of Pennhurst residents to the community pending final disposition of the matter. On July 14, 1980, this Court ordered the Hearing Master to hold a hearing

for each Pennhurst resident for whom a community living arrangement had been prepared, for the purpose of determining whether the proposed transfer from Pennhurst to the community was "voluntary." On December 1, 1980, the Supreme Court declined to disturb this Court's interpretation and application of its stay order. On February 22, 1982, this Court granted the Commonwealth defendants' motion to discontinue voluntariness hearings on the ground that the stay order requiring such hearings was dissolved by the Supreme Court's subsequent decision on the merits. See Memorandum and Order of February 22, 1982.
On April 20, 1981, the United States Supreme Court reversed the Third Circuit's determination that the Bill of Rights for the Handicapped contained in the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. § 6010, created in favor of the mentally retarded a substantive right to appropriate habilitation and treatment in the least restrictive environment. The Supreme Court remanded this case to the Third Circuit for consideration of the federal Constitutional and statutory issues as well as the state law questions raised by this Court in its Memorandum of December 23, 1977 (451 U.S. 1, 29-32, 101 S.Ct. 1531, 1546-47, 67 L.Ed.2d 694).
On February 26, 1982, the Third Circuit, pursuant to the Supreme Court's remand, issued its second en banc decision in this case. The Third Circuit again affirmed, holding that Pennsylvania's Mental Health Mental Retardation Act of 1966, 50 Pa.Stat. Ann. §§ 4101-4704 (Purdon 1969), granted Pennsylvania's retarded citizens the right to adequate habilitation in the least restrictive environment. Although the Supreme Court again granted certiorari on June 21, 1982, there is no stay of this Court's Orders mandating the community placement of those Pennhurst residents whose individual habilitation plans require community living arrangements in order to provide for their adequate habilitation. (Orders of March 17, 1978; June 8, 1979; April 24, 1980; March 2, 1981).
Based on the evidence presented at the trial of this case, the Court found, and the defendants admitted, that Pennhurst, in 1977, did not "meet the minimum standards for the habilitation of its residents." (446 F.Supp. at 1302). The Court also found that Pennhurst was overcrowded and understaffed and without the programs which the experts considered necessary for minimally adequate habilitation. The evidence showed that a large number of Pennhurst residents had actually experienced a regression of basic living skills as a result of their confinement at Pennhurst. All parties to the litigation agreed that Pennhurst as an institution was inappropriate and inadequate for the habilitation of the retarded. (446 F.Supp. at 1304). Programming and training of the retarded Pennhurst residents was found to fall far short of the minimum required for adequate habilitation according to the uncontradicted expert testimony of habilitation professionals. (446 F.Supp. at 1304). Not only was the habilitation then inadequate, but Pennhurst had no plans for improving the programming available to its residents. (446 F.Supp. at 1305).
Furthermore, the evidence presented at trial clearly showed that Pennhurst residents were not only receiving inadequate habilitation but also were regularly subjected to a number of dehumanizing practices. Specifically, this Court found that at Pennhurst restraints were used as control measures in lieu of adequate staffing. (446 F.Supp. at 1306). The Court further found that psychotropic drugs at Pennhurst were used for control and not for 1148 treatment, and the rate of drug use on some of the units at *1148 Pennhurst was extraordinarily high. (446 F.Supp. at 1307). Regarding treatment at Pennhurst, the Court found that the environment at Pennhurst was not only not conducive to learning new skills, but it was so poor that it contributed to the loss of skills already learned. (446 F.Supp. at 1308). One survey showed that more than one-third of the Pennhurst Residents had "some notation of regression in their records." (446 F.Supp. at 1308, n. 40). Pennhurst, at the time of trial, was in fact a dangerous place to live. "Injuries to residents by other residents and through self-abuse, were common.... In addition, there [was] some staff abuse of residents." (446 F.Supp. at 1308-09). The Court also found that many of the residents suffered physical deterioration and intellectual and behavioral regression during their residency at Pennhurst. (446 F.Supp. at 1309).
Based upon the uncontradicted evidence presented at trial, the Court found that
Since the Early 1960's there has been a distinct humanistic renaissance, replete with the acceptance of the theory of normalization for the habilitation of the retarded. Mason & Menolascino, supra, note 6, at 136. [The Right to Treatment for Mentally Retarded Citizens: An Evolving Legal and Scientific Interface, 10 Creighton L.Rev. 124 (1976)]. The principles of normalization are an outgrowth of studies showing that those in large institutions suffered from apathy, stunted growth and loss in I.Q., and that the smaller the living unit on which the retarded

1149

individual lived, the higher the level of behavioral functioning shown by the individual. (Roos, N.T. 1-96 to 1-104). Under the principles of normalization, the retarded individual is treated as much like the non-retarded person as possible. (Id., N.T. 1-106, 1-107). The basic tenet of normalization is that a person responds according to the way he or she is treated. (Glenn, N.T. 5-186, 5-187). The thrust of habilitation through normalization is the remediation of the delayed learning process, so as to develop the maximum growth potential by the acquisition of self-help, language, personal, social, educational, vocational and recreation skills. Mason & Menolascino, supra, note 6, at 139-140. The older theories of habilitating the retarded stressed protecting the individual, and were characterized by little expectation of growth. Given this lack of expectation, the individual rarely exhibited growth. However, once removed from depressing, restrictive routines, the retarded have been able to accomplish a great deal. (Dybwad, N.T. 7-160).
The environment at Pennhurst is not conducive to normalization. It does not reflect society. It is separate and isolated from society and represents group rather than family living. (Hirst, N.T. 7-124). The principles of normalization have been accepted by the administration of Pennhurst and by the Department of Public Welfare, which is responsible for the administration of programs for the retarded in the five county area (Youngberg, N.T. 22-171; Rice, N.T. 26-43 to 26-45; Bilyew, N.T. 24-13; Hirst, N.T. 7-120), and the current intention of the Department of Public Welfare is to transfer all residents from Pennhurst by the early 1980's. (Rice, N.T. 28-48).
The five county area (Bucks, Chester, Delaware, Montgomery and Philadelphia) has some community facilities providing for the education, training and care of the retarded covering all ages of retardation, including the profoundly retarded with multiple handicaps. (Girardeau, N.T. 4-140, 4-141). These community facilities have been an outgrowth of the acceptance of the principle of normalization and the rejection of institutions such as Pennhurst in connection with the habilitation of the retarded.
Many individuals now living at Pennhurst could be moved immediately into the community and would be able to cope with little or no supervision. (Settle, N.T. 6-126; Hirst, N.T. 7-116). All the parties in this litigation are in agreement that given appropriate community facilities, all the residents at Pennhurst, even the most profoundly retarded with multiple *1149 handicaps, should be living in the community. (Dybwad, N.T. 7-68).
The primary limiting factor in the transfer of Pennhurst residents to community facilities has been the failure of the Commonwealth and its subdivisions to provide sufficient living units, vocational and day care facilities and other support services at the community level. Since fiscal year 1972, only 186 Pennhurst residents have been transferred from the institution directly into community living units. (Bilyew, N.T. 24-50); although 176 others were transferred from Pennhurst to other institutions during 1974 and 1975. (Clark, N.T. 21-170).
In November, 1970, Act 256 was signed by the Governor of Pennsylvania. This legislation appropriated twenty-one million dollars for the purpose of planning, designing and constructing community facilities which would enable 900 Pennhurst residents to be transferred to the community. In 1971, the McDowell report was prepared at a cost of $68,000. It detailed the programs and services needed to support the 900 Pennhurst residents in the community and provided a blueprint for the implementation of the Act. (Samuels, N.T. 23-9, 23-10, 23-55). Though seven years have passed since the Act was signed, few of the facilities have become operational. The Department of Public Welfare now expects this program to be completed by 1980. (Id., N.T. 23-44). Over eighteen million dollars of this fund remains unspent but is allocated to building these facilities. (Stipulation, N.T. 7-97). As of April 25, 1977, however, only 37 Pennhurst residents have directly benefitted from the Act. (Samuels, N.T. 23-80).
Comparable facilities in the community are generally less expensive than large isolated state institutions. Services can be purchased at regular rates, rather than at rates which must be paid to attract individuals to work in a setting like Pennhurst. (Conley, N.T. 11-107). The cost of running Pennhurst in 1976 was $27.8 million dollars, or $60 per resident per day. (Id., N.T. 12-28). This

does not include the fair rental value of the buildings at Pennhurst (estimated at $3-$4 per resident per day). Id., N.T. 11-114). The statewide cost of community living arrangements in Pennsylvania for 1976 was $17.64 per individual per day. (PARC Exhibit 63, 64). Program services, which 1/3 of mentally retarded individuals would need, average approximately $10 per individual per day. (Conley, N.T. 11-116, 11-117). Moreover, keeping the retarded individual in the community makes it possible for him or her to get employment. (Settle, N.T. 7-4). The lifetime earnings of a mildly retarded individual often exceeds $500,000. (Conley, N.T. 12-32). For those with an I.Q. between 25 and 50, 45% of men and 12% of women earn about 20% of the average wage. (Id., N.T. 12-31). When the retarded can work, the amount of financial support which society must provide decreases and the individuals may benefit society with the taxes they pay. Furthermore, the investment per individual at Pennhurst is primarily for warehousing and not for the individual's well-being or future planning, as is the case with community facilities. (Id., N.T. 11-23, 11-24).
(446 F.Supp. at 1311-12 (footnotes omitted)). The Court also found that the procedure for funding treatment and habilitation of the retarded gave the county defendants a financial incentive 0907unrelated to the relative habilitative benefits to 0907 place retarded citizens in Pennhurst rather than in appropriate community facilities (446 F.Supp. at 1312-13).
The overwhelming weight of the evidence presented at trial, evidence uncontradicted by the defendants, mandated but one course of injunctive relief0907placing the residents of Pennhurst in the community living arrangements being planned by the Commonwealth and the counties for the habilitation of the retarded (446 F.Supp. at 1325-29). In its first en banc decision in this case, the Third Circuit determined that this Court's original 1150 injunctive order had been too broad in that it ordered that all members of the *1150 plaintiff class be placed in appropriate community living arrangements and that Pennhurst eventually be closed. Said the Third Circuit:
It is probably true, as the trial court found, that in general institutions are less effective than community living arrangements in facilitating the right to habilitation in the least restrictive setting. There is ample testimony on the record indicating the shortcomings of institutions as places for habilitation.
But ... For some patients a transfer from Pennhurst might be too unsettling a move. Long-term patients, for example, may have suffered such degeneration in the minimum skills needed for community living that habilitation outside an institution is a practical impossibility.... We need not decide that issue here. All that we need recognize is that there may be some individual patients who, because of advanced age, profound degree of retardation, special needs or for some other reason, will not be able to adjust to life outside of an institution and thus will be harmed by such a change. The case must therefore be remanded for individual determinations by the court, or by the Special Master, as to the appropriateness of an improved Pennhurst for each such patient.
612 F.2d at 114.
In making these individual determinations, the Third Circuit directed that this Court engage in "a presumption in favor of placing individuals in [community living arrangements]", but "the special needs and desires of individual patients must not be neglected in the process." 612 F.2d at 115. This Court, therefore, in accordance with the Third Circuit's first en banc opinion, entered an order deleting those paragraphs of the March 17, 1978 Order which enjoined admissions to Pennhurst (Order of April 24, 1980). As heretofore noted, that Order also established and appointed the Hearing Master.
The evidence presented at trial established that the effective planning of procedures required to vindicate the rights of the retarded moving from Pennhurst to the community required a Special Master. The Master, pursuant to the Court's direction, was instrumental in drafting and formulating the procedures for structuring the methods by which mental retardation professionals, who are employees of the defendants, would plan for and effectuate the community habilitation of most Pennhurst residents. The Special Master was necessary to monitor the compliance of the defendants with this Court's Orders.

For example, the evidence presented at trial concerning the abuses occurring at Pennhurst indicated that an impartial, independent, outside monitor was necessary to ensure that the retarded residents were no longer restrained, drugged, or otherwise physically harmed. Similarly, it was imperative that the community facilities, which all parties agreed were the only viable alternative for providing minimally adequate habilitation to the plaintiff class, be monitored to make certain that they were safe, sanitary, and beneficial to the habilitation of the retarded. The Commonwealth and County defendants, because of their long record of ignoring the inadequacies of Pennhurst, could not be depended upon to monitor the conditions at Pennhurst and to plan for the minimally adequate habilitation of the Pennhurst class. The Court found that it was necessary to appoint an impartial expert0907the Special Master to 0907 monitor the implementation of the remedy designed to curtail the violations of the plaintiff's rights. Neither the Commonwealth nor the County defendants ever filed an objection with this Court concerning the appointment of the Special Master. In fact, at no time during the course of this litigation has any defendant requested this Court to alter, reduce, or eliminate the Office of the Special Master. The Commonwealth defendants have never filed a motion pursuant to Fed.R.Civ.P. 60(b) suggesting that changed circumstances have eliminated the need for the Special Master. The Commonwealth defendants have, however, committed 1151 contempt of this Court's Orders by refusing to fund the Office of the Special Master. See Memorandum of August *1151 25, 1981, 533 F.Supp. 631. They appealed this Court's finding of contempt to the Third Circuit, which affirmed this Court's findings and conclusions on February 26, 1982 (673 F.2d 628). In its opinion, the Third Circuit suggested that the Commonwealth defendants could file a Rule 60(b) motion if they felt that changed circumstances had eliminated the need for the Special Master. No such motion has ever been filed with this Court by the Commonwealth defendants or any other party to this litigation.
As of March, 1978, the defendants had no program to develop individual habilitation plans for the retarded residents of Pennhurst. The defendants also lacked programs for inspecting the community living arrangements to be provided for the Pennhurst residents for whom such community facilities constituted the least restrictive environment in which they could receive minimally adequate habilitation through programs designed by retardation professionals.
For these heretofore discussed reasons, the Court, in its Order of March 17, 1978 (446 F.Supp. at 1326) established the office of the Special Master, fully intending that the Special Master's office would be a transitional entity, since the implementation of the injunctive relief ordered by this Court is ultimately the responsibility of the defendants. As this Court noted in its Memorandum of November 18, 1981, 526 F.Supp. at 433,
It has never been the Court's intention that the Office of the Special Master become a permanent and continuous operation. This Court will not be reluctant to reduce the staff of the Special Master's Office whenever it is convinced that the Commonwealth and County defendants are moving with due diligence to effectuate the Court's Orders. As of the October 19th [of 1981] hearing, 870 people remained at Pennhurst. Whenever the Commonwealth and County defendants have provided living arrangements in the community for all Pennhurst residents, this Court would probably have no reason to continue the monitoring functions of the Special Master. Unfortunately, as the record in this case reveals, the defendants have not been diligently carrying out their responsibilities to the Pennhurst residents as required by this Court's Orders. Compliance with this Court's Orders requires a monitor who is not subject to the jurisdiction and control of the defendants.
526 F.Supp. at 434.
The Special Master had also performed tasks that the Commonwealth defendants should have performed pursuant to this Court's Orders, such responsibilities as the review of the Individual Habilitation Plans (IHPs) and the inspection of the community living facilities to which Pennhurst residents were transferred. It was not until 1982 that the Commonwealth defendants began to assume these responsibilities. However, these developments, as well as others, convinced this Court that, despite the defendants' record of inadequate compliance, the need for the Special Master would soon no longer exist. On August 12, 1982 (see 545 F.Supp. 410) this Court directed that the Special Master prepare to phase out the Office of the Special Master by December 31, 1982. The Office of the Special Master ceased operation on December 31, 1982.

As heretofore noted, pursuant to the Court's basic injunctive orders (Orders of March 17, 1978 and April 24, 1980), an individual habilitation plan (IHP) must be designed for each retarded resident of Pennhurst for whom a community living arrangement is being considered. The IHP is developed by a team of retardation professionals working with the Pennhurst resident and the parent, guardian, or certified advocate of the Pennhurst resident.

Thus, pursuant to this Court's Orders, a group of mental retardation professionals designs an IHP for the Pennhurst resident. If the team concludes that the retarded citizen's minimally adequate habilitation requires community placement, a particular community facility is selected or established and the retarded person moves 1152 to the community *1152 facility for a preplacement visit during which his or her reaction to the setting and program can be assessed. Preplacement visits are required before the Commonwealth defendants approve an IHP.

As heretofore noted, the IHP is a plan specifically tailored to the needs of the retarded person. One purpose of a preplacement visit or visits is to afford an opportunity for a meaningful determination as to whether the community facilities being provided pursuant to the IHP are in accordance with the professionally set specifications of the plan. The Court again emphasizes that a preplacement visit or visits should not be made until the community living arrangements are completed and a determination has been made that the community living arrangement is safe, clean, and adequate, and that the services required to provide a beneficial program of habilitation are available. As the Circuit Court has cautioned, both this Court and the Hearing Master, as well as the Commonwealth defendants who now approve each IHP, must have assurances before ordering transfers to community living arrangements that the sanitary, staffing, and program deficiencies found at Pennhurst are not duplicated on a smaller scale in community living arrangements (see 612 F.2d at 116).

The transfer of retarded citizens from confinement at Pennhurst to habilitation in the community proceeded at snail's pace from 1978 through 1980. In early 1978, when this Court entered the injunctive order designed to provide to the retarded residents of Pennhurst their state statutory, federal statutory, and federal constitutional rights, the Court hoped and expected that the defendants would provide these rights to the retarded with a minimum of supervision and an absence of coercion. However, in the intervening years, the defendants had acted as though this Court never entered its decision but merely approved the defendants' trial position of community placement according to the defendants' own vague and uncertain schedule. For that reason, this Court, on May 27, 1980, held a hearing on a Rule to Show Cause and after that hearing determined, among other things, that the Commonwealth defendants, based on the evidence presented at the hearing and upon their own representation, were capable of placing 360 Pennhurst residents and class members in community arrangements during the fiscal year commencing July 1, 1981 and ending June 30, 1982. In its Order of March 2, 1981, the Court ordered the Commonwealth defendants to effectuate such transfers on or before June 30, 1982.

The Order required the defendants to transfer: 61 retarded Pennhurst residents from the Southeast Region by June 30, 1981; 150 additional Southeast Region Pennhurst residents by June 30, 1982; 100 retarded persons from the Southeast Region including members of the plaintiff class by June 30, 1982; and 100 Pennhurst residents from outside the Southeast Region by June 30, 1982.

As the Court noted in its Memorandum of March 2, 1981:

1153

In formulating its implementation Order, the Court has arrived at the numbers of individuals to be placed in the community from the defendants' own proposals. The Commonwealth's letters of fund allocation to the defendant Counties for the fiscal year ending June 30, 1981, although making provision for less than half the number of placements proposed to the Court in May, 1980 (111, as opposed to 250), clearly indicate that the implementation Order is well within the capabilities of the defendants and the Court so finds. Likewise, on the basis of the defendants' proposals to the Court in May, 1980, the Court finds that the number of retarded individuals to be provided for in the community within the Southeast Region of Pennsylvania in the fiscal year ending June 30, 1982 (a total of 250) is well within the capabilities of the defendants. In addition, the transfer of Pennhurst residents from Counties outside the Southeast Region should not be further delayed. As heretofore pointed out, community *1153 placements have been proceeding much more rapidly in other areas of the state and on this basis the Court finds that its implementation Order

directing the transfer of 100 Pennhurst residents to community facilities in counties outside the Southeast Region during the fiscal year ending June 30, 1982 is well within the Commonwealth's capabilities.
Memorandum of March 2, 1981 at 13.
In spite of their clear legal duties, the Commonwealth defendants, on March 10, 1981, filed a motion asking this Court to alter or amend the Order of March 2, 1981 on the ground that the non-Southeastern Region counties were outside the scope of this Court's Orders and the Commonwealth's control. On February 4, 1982, the Commonwealth defendants filed a Supplemental Motion to Amend and/or Alter this Court's Order of March 2, 1981. This motion averred that compliance was impossible because the Commonwealth defendants were "without sufficient funds to fund the creation, by June 30, 1982, of new community living arrangements for persons at Pennhurst whose county of origin lies outside the Southeast Region." (Supplemental Motion at 2). A hearing was held on April 16 and 19, 1982 (hereinafter the "April hearing") in connection with the motion to alter or amend filed on February 4, 1982. Based on the evidence presented at the hearing, this Court found that the Commonwealth defendants possessed more than sufficient resources to implement paragraph 3 of the Court's Order of March 2, 1981 (see Memorandum of June 11, 1982, 542 F.Supp. 619). However, the Court amended the March 2 Order to give the Commonwealth defendants an additional 90 days (until September 30, 1982) to comply with the Order. Reports filed with the Court by the Commonwealth defendants and the Special Master indicate that the March 2 Order still has not been complied with fully. In its Memorandum of June 11, 1982, this Court also reiterated its legal and factual conclusion that the Commonwealth defendants possessed the authority under the 1966 Mental Health/ Mental Retardation Act to place retarded Pennhurst residents in counties outside the Southeastern Region of Pennsylvania even though those counties are not joined as defendants in this litigation. See Memorandum of June 11, 1982 at 10-11, 542 F.Supp. at 622-23 (1982).
This Court's Memorandum of March 2, 1981 noted in detail the long period of slow and sporadic community placement of the residents of Pennhurst between March, 1978 and March, 1981. See Memorandum of March 2, 1981 at 6. During that time, the population of Pennhurst declined from 1,156 to 972 at the end of August, 1980. Today, Pennhurst still houses approximately 700 retarded residents. The Court found that, during the 1980-81 fiscal year, there was little progress in community placement, despite the fact that the Commonwealth defendants have, since the early months of 1980, represented that they wished to "exert every effort to expedite the transfer of the retarded residents of Pennhurst to the community" and to fully comply with this Court's Orders. See Memorandum of March 2, 1981 at 6-7. However, this Court, on the basis of the evidence presented at the hearing of May 27, 1980, found that a specific implementation order setting specified levels of community placement was necessary in order to ensure that the retarded residents of Pennhurst received the statutory and constitutional rights to which this Court, in 1977, found them entitled.
At the May 27th, 1980 hearing, the Court was particularly dismayed to find that the community placements of Pennsylvania's retarded citizens were proceeding much more rapidly in areas of the state outside the Southeast Region. No satisfactory explanation of this paradoxical situation was ever offered to the Court. Despite the slow pace of community placement and habilitation, the Court remained optimistic that the Commonwealth defendants would comply with the reasonable requirements set forth in the March 2 Order.
After the entry of the March 2, 1981 Order, the Commonwealth and County defendants filed motions to alter, 1154 amend, or stay the March 2 Order. However, without *1154 providing this Court an opportunity to rule on their
motion, the defendants applied on April 16, 1981 to the Third Circuit for a stay of the March 2 Order. The Court of Appeals denied defendants' motion on May 26, 1981. On July 1, 1981, the plaintiffs, due to the almost complete absence of activity by the defendants to comply with the March 2 Order filed a motion for a finding of contempt. The plaintiffs alleged that the defendants (with the exception of Chester County) had not complied with the Order of March 2, 1981.
On July 7, 1981, the Court issued an Order to show cause why the Commonwealth defendants and Bucks, Delaware, Montgomery and Philadelphia Counties should not be held in civil contempt for their failure to comply with Paragraph 1 of this Court's Order of March 2, 1981. A hearing was held on July 23 and 24, and August 4, 11 and 12, 1981. Philadelphia County, on August 11, 1981, entered into a consent order with the plaintiffs. Based on

the evidence presented at the Show Cause hearing, this Court in its Memorandum and Order of September 11, 1981 found that Bucks, Delaware, and Montgomery Counties were, as of June 30, 1981, "not in substantial compliance with Paragraph 1 of the Order of March 2, 1981 in that they violated their obligation to act diligently and with a steadfast purpose to comply with the Court's Order." See Memorandum of September 11, 1981 at 10, 526 F.Supp. at 422. However, because the counties, through a flurry of activity between June 30, 1981 and the entry of the September 11 Memorandum and Order had come close to compliance with the March 2, 1981 Order of this Court, and though the Court found the Bucks, Delaware and Montgomery defendants to be in contempt, it imposed only one sanction on these defendants, i.e., that these defendants pay plaintiffs' counsel reasonable attorneys' fee for their efforts in prosecuting the contempt. Specifically, this Court held
Although the Bucks County defendants, the Delaware County defendants, and the Montgomery County defendants were in civil contempt of the Court's Order, the Court determined that the imposition of a civil fine was not necessary in that it would serve no coercive functions since these 3 counties are now in substantial compliance with the Court's Order of March 2, 1981, it is hereby ORDERED that the Bucks County defendants, the Delaware County defendants, and the Montgomery County defendants shall pay reasonable counsel fees and costs to the plaintiffs in connection with the preparation and trial of these contempt proceedings.
Order of September 11, 1981, at 2. This Order was affirmed by the Third Circuit, without opinion, on November 19, 1982.
In its September 11 Memorandum, the Court found that the Commonwealth defendants were not in civil contempt of the March 2 Order. See Memorandum of September 11, 1981 at 18-19, 526 F.Supp. 419-20 (1982). At this juncture, the Commonwealth defendants appeared to be acting diligently and with steadfast purpose to effectuate the Court's Orders. However, subsequent events are casting doubt as to whether the Commonwealth defendants are acting diligently to implement the injunctive relief to which the plaintiff class is entitled. The Commonwealth defendants, even though they had informed the Court on May 26, 1981 that they no longer wished to have the Court consider their motion to alter or amend the March 2, 1981 Order, took no action between that date and February 4, 1982 designed to effectuate paragraph 3 of the March 2 Order (requiring the community placement of 100 Pennhurst residents from outside the Southeast Region during the 1981-82 fiscal year). Instead, they merely filed a second "Supplemental" motion to alter or amend, raising the same previously rejected legal arguments and adding that they were now also lacking in funds for implementation. The evidence presented at the April, 1982 hearing showed the lack of funds argument to be meritless. As this Court found in its Memorandum of June 11, 1982, 542 F.Supp. 619, the Commonwealth defendants had ample funds to comply 1155 with the Order. They had, however, *1155 failed to earmark any of these funds for compliance with paragraph 3 of the March 2 Order. Instead, they had used money that could have been employed in satisfaction of their obligations under the Court Order to de-institutionalize mentally retarded citizens elsewhere in the state and to make capital improvements at large state institutions, including Pennhurst. As this Court observed in its Memorandum of June 11, 1982
The evidence presented by the Commonwealth defendants failed to support their contention. Frankly, the evidence shows that sufficient funds are available. On the basis of the testimony of Dr. Howse, the Deputy Secretary of the Department of Public Welfare for Mental Retardation, and various internal documents of the Department of Public Welfare, the Court finds that the reason the Commonwealth defendants have not initiated the transfer of Pennhurst residents from outside the Southeast Region into the community is not because they were without funds, but because they considered other projects to merit greater priority than this Court's Order that the residents of Pennhurst be placed in community facilities. In short, the Commonwealth defendants have, since the March 2, 1981 Order, acted as though the Order had never been issued and administered the funds appropriated by the legislature for community living arrangements in total disregard of the Court's Order of March 2, 1981.
Memorandum of June 11, 1982 at 14, 542 F.Supp. at 624. This conduct of the Commonwealth defendants was a direct contradiction of Dr. Howse's 1981 contempt hearing testimony, at which time she stated that the Department would devote the highest priority to implementation of the March 2 Order.

Thus, after months of resistance, the Order of March 2, 1981 is in the process of being implemented. The entire series of events antedating and postdating the Order of March 2 demonstrates that, without the entry of specific Orders, the defendants have done little to comply with the primary injunctive Order which governs this case. See Memorandum of March 2, 1981; Memorandum of September 11, 1981 (526 F.Supp. 414); Memorandum of June 11, 1982 (542 F.Supp. 619); Memorandum of August 12, 1982 (545 F.Supp. 410). Nevertheless, this Court was at that time willing to believe that the defendants should be given every opportunity to set for themselves a reasonable timetable for the accomplishment of the objectives of the remedial relief ordered by this Court in 1978. For this reason, the Court, on August 12, 1982, ordered:
The defendants shall submit to this Court, on or before September 15, 1982, their: (1) plans to provide community living arrangements together with all services required by the retarded person's individual habilitation plan for Pennhurst plaintiff class members (not covered by the School-Age Order) in the Southeast Region of Pennsylvania (Bucks, Chester, Delaware, Montgomery, and Philadelphia Counties) during the period commencing October 1, 1982 and closing June 30, 1984; (2) plans to provide community living arrangements together with all the services required by the retarded person's individual habilitation plan for retarded persons in the Southeast Region of Pennsylvania who are not members of the Pennhurst plaintiff class for the period commencing October 1, 1982 and closing June 30, 1984; and (3) plans to provide community living arrangements together with all the services required by the retarded person's individual habilitation plan for Pennhurst plaintiff class members (not covered by the School-Age Order) from counties outside the Southeast Region of Pennsylvania during the period commencing October 1, 1982 and closing June 30, 1984; (4) plans designed to assure compliance with this Court's Order of April 24, 1980.
A hearing was held concerning the plans submitted by the defendants on September 29, and October 13, and 20, and 27, 1982. Based on the evidence presented at the hearing and the plans and representations of the defendants, the Court makes the following findings of fact.
1156 *1156 The Defendants' Capabilities During the 1982-83 and 1983-84 Fiscal Years
In plans submitted to this Court prior to the hearing, the five counties of Southeastern Pennsylvania represented to this Court that they could competently provide community living facilities and habilitative services to 348 persons between now and June 30, 1984. At the hearing, the Counties reaffirmed this capability but emphasized that these placements were to a large extent contingent upon receipt of adequate funding from the Commonwealth defendants. As noted often times in this litigation, Pennsylvania's Mental Health/Mental Retardation Act of 1966 (the 1966 Act) sets forth the duties owed to the retarded citizens and makes responsibility for discharging those duties coordinate upon both the state and the counties (see 446 F.Supp. 1295; In re Schmidt, 494 Pa. 86, 429 A.2d 631 (1981); In re Sauers, ___ Pa.Cmwlth. ___, 447 A.2d 1132 (Pa.Comm.Ct. (1982)). In practice, however, this statutory mandate has translated into a procedure whereby the counties plan for and implement the community living and habilitation of the retarded citizen while the Commonwealth provides the County (or private care providers secured by the County) with funds adequate to accomplish the residential and habilitation objectives set forth in the retarded person's IHP.
Specifically, the County defendants have represented that they can, between now and June 30, 1984, provide community living and habilitation for plaintiff class members and others as follows. For fiscal year 1982-83 (July 1, 1982 to June 30, 1983), Bucks County proposes moving 9 Pennhurst residents and 15 other retarded persons to the community. Chester County proposes moving 8 Pennhurst residents and 22 other retarded persons. Delaware County proposes moving 15 Pennhurst residents and 15 other retarded citizens. Montgomery County proposes moving 13 Pennhurst residents and 18 others. Philadelphia County proposed no class member movement to the community during the 1982-83 fiscal year.

For fiscal year 1983-84 (July 1, 1983 to June 30, 1984), the counties made the following representations. Bucks County proposed to move no Pennhurst residents (because it would have transferred the last remaining Bucks County Pennhurst resident to the community during 1982-83) and 18 others. Chester County proposed moving 7 Pennhurst residents and 23 others. Delaware County proposed moving 15 Pennhurst residents and 15 others. Montgomery County proposed moving 13 Pennhurst residents and 17 others. Philadelphia County proposed transferring 63 Pennhurst residents and 62 other retarded citizens during 1983-84. See Dkt. Nos. 1565, 1566, 1569 (County Plans); Exhibit P-23 of hearing.
Summarized in tabular form, the plans submitted by the County defendants for 1982-83 through 1983-84 are:

Proposed Community Placements of Retarded Persons for Fiscal 1982-83:

Pennhurst Residents

Others

Bucks

9

15

Chester

8

22

Delaware

15

15

Montgomery

13

18

Philadelphia

0

0

__

__

TOTAL:

45

70

For Fiscal Year 1983-84:

Pennhurst Residents

Others

Bucks Chester Delaware Montgomery Philadelphia
TOTAL:

0

18

7

23

15

15

13

17

63

62

__

___

98

135

Total for 1982-83 and 1983-84 fiscal years: 348
The five Southeastern Pennsylvania counties have in the past demonstrated their ability to place similar numbers of retarded citizens in community living arrangements within this amount of time (approximately 18 months). Indeed, they have accomplished a proportionately greater number of placements in the course of seeking to comply with the March 2, 1981 Order of this Court. That Order required these counties to place 320 persons in 1157 community facilities within a 16-month period. As *1157 heretofore noted (pp. 1154-1155, supra) the counties (with the exception of Chester County) initially dragged their feet regarding this Order, resulting in the contempt findings against Bucks, Delaware, and Montgomery Counties. However, as also heretofore noted, these counties showed themselves very capable of accomplishing planning and placement of the retarded when under the threat of contempt (pp. 1154-1155, supra). It is thus clear that the counties are capable of fulfilling the representations of their 1982-84 plans so long as they receive adequate funding from the Commonwealth defendants.
The Court further takes judicial notice of the fact that the placements previously implemented by the County defendants have, in the main, been successfully accomplished and have enabled the retarded residents of Pennhurst transferred to the community to enjoy a better life that offers them the chance of habilitation, training, and personal growth so that they may enjoy life as fully as their capacities permit. This Court notes that few complaints regarding community placements have been directed toward this Court or the Special Master. Indeed,

many parents or relatives of plaintiff class members who were initially apprehensive about community placements have become ardent supporters of community habilitation in the least restrictive environment.
Systematic study of the progress of retarded citizens receiving habilitation in community facilities shows that the retarded residents of Pennhurst have made significant behavioral strides while in the community. In fact, all studies thus far presented to this Court show that Pennhurst residents placed in appropriate community living arrangements are, as each day passes, improving in habilitative skills. Their habilitation in the community stands in stark contrast to the finding in this record that an overwhelming number of the retarded at Pennhurst experienced a regression in life skills while at the institution. See 446 F.Supp. at 1308.
One recent study showed that former Pennhurst residents have, on average, exhibited an increase of nearly six points (on a 128-point scale) in their Behavior Development Survey (BDS) adaptive behavior score. See C. Feinstein, J. Lemanowicz, J. Conroy, Progress of Clients in Community Living Arrangements: Class Members Compared to Others (Sept. 19, 1981); (Plaintiff's Exhibit 10 at Hearing of December 8, 1982). See also 526 F.Supp. at 434.
A more recent Temple University Developmental Disabilities Center Study focused on habilitation in Chester County community facilities and found that former Pennhurst residents now residing in these community homes had exhibited a more than 15-point gain in their BDS adaptive behavior scores (on a 128-point scale) and an average .435 point gain in their BDS maladaptive behavior scores (on a 22-point scale; a higher BDS maladaptive behavior score indicates that the retarded citizen shows less maladaptive behavior). This recent study also showed that these former Pennhurst residents now receiving community habilitation also exhibited substantial gains in life skills as measured by other tests generally accepted by the scientific community but less widely employed than the BDS adaptive and maladaptive behavior scores. See Temple University Developmental Disabilities Center Evaluation and Research Group, Pennhurst Class Members in CLAs: Report # 2: Chester County Monitoring, July 8, 1982. (Exhibit E of Commonwealth Defendants' Exhibit 1, submitted at this Court's Hearing of December 8, 1982 regarding enforcement mechanisms necessary to replace the Office of the Special Master).
The progress displayed by former Pennhurst residents now receiving community habilitation has demonstrably altered the attitude displayed by their families toward community placement. A recent report commissioned as part of the Longitudinal Study of the Court Order begun by the U.S. Department of Health and Human Services in July, 1979 found that parental responses to questions concerning their view of their children's community 1158 habilitation "reveal a *1158 dominant pattern of extreme satisfaction with the quality and benefits of the community residences, tempered by deep concerns about the future security and permanence of the arrangements." J. Conroy and A. Latib, Family Impacts: Pre-Post Attitudes of 65 Families of Clients Deinstitutionalized June 1980 to May 1982, August 31, 1982, Plaintiff's Exhibit 10 (presented at this Court's Hearing of December 10, 1982) at 1.
In particular, this report found that family attitudes toward community habilitation "changed sharply to more positive attitudes" toward community habilitation after these families had seen the progress made by their own children in community facilities. Id. at 8. Family satisfaction with community habilitation affected many aspects of family conduct. The report found that
The respondents also reported that they enjoyed their visits to [community facilities to see their children]. They had found visits to Pennhurst `scary' and were intimidated by converging crowds of retarded persons. Other respondents felt the [community] setting was conducive to bringing younger siblings for visits. Previously, parents had not wanted to expose their children to the large, hospital-like impersonal environment of Pennhurst.
Id. at 14.
Increased family satisfaction with community habilitation was recently displayed by a witness before this Court during the Court's Hearing of December 8, 1982 concerning enforcement mechanisms necessary to replace the Office of the Special Master. Mr. Leon Beeson recently testified that he and his wife were initially opposed to community placement. However, when they saw the vast strides being made by their son in community facilities,

they became advocates of community placement. In particular, Mr. Beeson observed that his son was making habilitative gains in his community home and day program that he had been unable to make during his many years of confinement at Pennhurst. The Reports of the Hearing Master also show many parents to have become converts to community placement after seeing their children make rapid habilitative progress during only the short preplacement visits conducted pursuant to the development of individual habilitation plans. William McKendry, mental retardation program administrator for Chester County, testified at the December hearing that parental satisfaction with the county-placement of Pennhurst residents into community living arrangements was widespread. See also Memorandum of September 11, 1981, 526 F.Supp. at 422. This Court, on the basis of the overwhelming evidence contained throughout the record in this case, finds that the county defendants are capable of effectuating 348 quality community placements of retarded citizens during the 1982-83 and 1983-84 fiscal years.
The Court notes that, after these planned transfers take place, Bucks County will no longer have any retarded citizens residing at Pennhurst. Chester, Delaware and Montgomery Counties will, after effectuating their planned transfers, have only a few of their retarded citizens remaining at Pennhurst. The plans submitted by the County defendants demonstrate that the primary goal of this Court's Orders can be accomplished expeditiously when the defendants make sincere efforts to implement the Court's Orders.
Despite the expressed capabilities of the County defendants, however, the Commonwealth defendants failed to request funds in their proposed budget for 1983-84 for the County defendants' planned placement of plaintiff class members in the community. In fact, the evidence presented at the hearing shows that the Commonwealth defendants have no plans at present to seek such funding in their proposed budget request to the Governor's office for 1983-84. It was testified that when the Governor's office informed the Commonwealth defendants that their budget should be trimmed, they did not bring to the governor's attention the need to effectuate community placements in order to comply with this Court's Orders in this litigation.
1159 *1159 The evidence presented at the September hearing also shows that the Commonwealth defendants not only failed to seek funding to implement the plans of the County defendants but also failed to even consult with the Counties as to the Counties' capabilities for community placements. This course of Commonwealth defendants conduct is highly unusual in light of the defendants' joint responsibilities under the Mental Health/ Mental Retardation Act of 1966. Pursuant to the Pennsylvania Supreme Court decision of In re Joseph Schmidt, 494 Pa. 86, 429 A.2d 631 (1981), both the Commonwealth and the Counties are jointly responsible for the community habilitation of the state's retarded citizens. The County defendants have begun to fulfill their responsibilities under the Act and the Court's Order for the 1982-83 and 1983-84 fiscal years by planning for the community habilitation of a reasonable number of class members during those fiscal years. The Commonwealth defendants, pursuant to the Orders of this Court, have not diligently planned for the funding required by the Counties to provide community facilities for the Pennhurst plaintiff class. This the Commonwealth defendants had not done at the time of the September hearing.
The Commonwealth defendants testified that they had no plan to provide any community placements in the Southeast Region during fiscal 1982-83. Their sole plan is to provide 150 placements during 1983-84, contingent upon the receipt of federal funds pursuant to the 2176 waiver program of Title XIX of the Medicaid Program. The Commonwealth defendants submitted a plan (see Dkt. No. 1559) which envisions placing 50 Pennhurst residents from outside the Southeast Region in community living arrangements (funded 100 percent by the state) and placing 100 class members 80 0907 Pennhurst residents and 20 others in 0907 community living arrangements eligible for 55 percent federal funding pursuant to Section 2176 of the Omnibus Budget Reconciliation Act of 1981, 42 U.S.C. § 1396n(c)-(f) during the 1983-84 fiscal year. All of the Southeast Region community placements proposed by the Commonwealth defendants during the 1982-83 and 1983-84 fiscal years would occur in Philadelphia County only during 1983-84. According to the Commonwealth defendants' plan and testimony at the September hearing, this limited planning is contingent on receiving federal approval to operate facilities for these persons pursuant to the 2176 waiver. As heretofore noted, the Commonwealth defendants have submitted no plan for the community placement of Pennhurst residents from the Southeast Region during the 1982-83 fiscal year.

At the September hearing, the Commonwealth defendants testified that their decisions regarding compliance with the Court's Orders were based on political considerations and that these considerations were a primary factor in their community placement plans for fiscal 1982-83 and fiscal 1983-84. (See N.T. of November 3, 1982 at 30, 107-131 (testimony of DPW Secretary Helen O'Bannon). The Orders of the Court in this case are not contingent upon political conditions. Rather, this Court's Orders in this litigation are based solely on the rights of the retarded residents of Pennhurst to receive minimally adequate habilitation.
This Court is concerned with the vindication of these legal rights, not the methods by which the Commonwealth defendants intend to fund the community placements required by this Court's Orders. The Commonwealth defendants may place all Pennhurst class members in community facilities eligible for federal funding pursuant to the 2176 Waiver, the ICF/MR program, or any other program. Indeed, this Court has frequently urged the Commonwealth defendants to make greater efforts to make use of the available federal programs which would essentially halve the state's cost of providing the community habilitation mandated by this Court's Orders. If, however, the Commonwealth defendants choose to follow a course of funding which fails to take advantage of federal funds, the Court will not intervene so long as the Court's Orders, which require only that the defendants 1160 provide *1160 the plaintiffs with their legal rights, are fulfilled. However, this Court has always had difficulty understanding the Commonwealth defendants' reluctance to pursue available federal funding which in many instances would lessen the direct burden on Pennsylvania taxpayers. (See pp. 1159-1161, infra, describing in brief the 2176 Waiver, the ICF/MR program, and the relative economic benefits of community habilitation as compared to habilitation received in large state institutions).
The Court further notes that the Commonwealth defendants, in submitting to the Court their plan for 1982-83 and 1983-84 community placements, not only failed to consult with the County defendants but also failed to plan for any community placements of Pennhurst class members from Bucks, Chester, Delaware and Montgomery Counties during the next two years. Rather, all of their proposed community placements would involve class members from Philadelphia County or from counties outside the Southeastern Region of Pennsylvania. The view of the Commonwealth defendants that they need not plan for the placement of Bucks, Chester, Delaware and Montgomery county class members is in direct contradiction of this Court's Order of March 17, 1978 as amended April 24, 1980, which requires the Commonwealth defendants, in conjunction with the other defendants, to take all necessary steps to effectuate the community transfer of Pennhurst residents, especially all Pennhurst residents for whom community living facilities are professionally appropriate for providing minimally adequate habilitation in the least restrictive environment.
The Commonwealth defendants, by failing to even attempt to plan for the community placement of suburban county class members during the upcoming two fiscal years, appear to have totally disregarded this Court's injunctive orders in this case.
The evidence presented at the September hearing demonstrates that the Commonwealth defendants have consistently failed to take full advantage of federal aid programs which could drastically reduce the Commonwealth's cost of community placement of the mentally retarded. Furthermore, the Commonwealth defendants have not planned and are not today planning to make optimal use of these federal programs in order to effectuate the community habilitation of the mentally retarded. In addition, the Commonwealth defendants continue to appear reluctant to take advantage of the potential economies that can be realized when community habilitation supplants institutional confinement as the primary means by which a state provides for the education, training, and care of its retarded citizens.
Specifically, the Commonwealth defendants have been slow to begin to adopt two federal programs designed to pay more than one-half the costs (normally borne entirely by the state) in connection with the community habilitation of the mentally retarded. These are (1) the use of small interim care facilities for the mentally retarded (ICF/MRs); and (2) the use of community living arrangements eligible for 55 percent federal funding pursuant to the federal government's "2176 waiver" program (explained more fully at pp. 1160-1161, infra).
A small ICF/MR is a community facility in which 4 to 10 retarded persons live and receive habilitative services either at home or in a nearby day program, much as they would in a community living arrangement. A small ICF/ MR closely resembles one of the many community living arrangements containing an average of three persons

per unit that are already providing community habilitation for many of Pennsylvania's retarded citizens. The United States government administers, through Title XIX of the Social Security Act, 42 U.S.C. § 1396d, a program which makes available to states more than one-half of the funds required to operate an approved intermediate care facility for the mentally retarded (ICF/MR). Many other states are meeting these standards and obtaining ICF/MR funds on a much greater scale than Pennsylvania.
1161 Despite the apparent advantages of the use of ICF/MR qualified facilities for the *1161 community habilitation of Pennhurst residents, the Commonwealth defendants have been slow to adopt and implement this program. In 1981-82 for example, only 27 community living arrangements in the Southeast Region were converted to ICF/MR status during fiscal 1981-82. The Commonwealth defendants have planned to operate a larger number of ICF/ MR facilities during fiscal 1982-83, largely to use these facilities to house class members that the defendants have been required to place pursuant to this Court's Order of March 2, 1981. However, funding disputes between the Commonwealth and providers of community facilities and habilitation have made it difficult to determine whether the Commonwealth defendants will in fact establish and operate these ICF/MRs. See Memorandum of December 22, 1982. It can clearly be said, however, that the Commonwealth defendants have failed to utilize the ICF/MR program to its fullest extent in furtherance of the implementation of this Court's Order of March 17, 1978 as amended April 24, 1980.
The Commonwealth defendants have also had available to them, since October, 1981, the opportunity to acquire 55 percent federal funding of new community living arrangements pursuant to the 2176 waiver provided for in the Omnibus Budget Reconciliation Act of 1981, Section 2176 of P.L. 97-35 (enacted August 13, 1981; effective date of section 2176, October, 1981) (hereinafter "2176 Waiver"). The 2176 Waiver is now a part of Title XIX of the Social Security Act, 42 U.S.C. § 1396a et seq. and is codified at 42 U.S.C. § 1915(c). During the course of the September hearing, witnesses also referred to the 2176 Waiver as the "medicaid waiver," the Title XIX waiver, and the "Home and Community-Based Services Waiver."
Under the 2176 Waiver, a state, once its plan for implementation of the waiver has been approved by the federal government, may establish new community-based living arrangements and have 55 percent of the cost of operating the facility funded by the federal government. Currently, the CLAs to which Pennhurst residents have been transferred are 100 percent state-funded.
As with the ICF/MR program, eligibility for the 2176 Waiver provides that the community facilities that will receive federal funding meet certain minimum qualifications that may raise the operating cost of the facility slightly. However, a state that participates in the 2176 Waiver program or the ICF/MR program will spend approximately half of what it would otherwise spend to operate community facilities for the mentally retarded when the facilities are not eligible for these federal programs. Like the ICF/MR program, the 2176 Waiver program offers to the Commonwealth defendants a great opportunity to provide minimally adequate habilitation of the state's retarded citizens in flexible community-based facilities and programs at less than half the cost that the state has heretofore paid to operate its community facilities.
The Commonwealth defendants delayed even the study of the feasibility of participation in the 2176 waiver program. Despite the obvious funding advantages of the 2176 Waiver, the Commonwealth defendants have limited their Waiver request to Pennhurst residents from Philadelphia and have not included the four suburban County defendants.
The Commonwealth defendants initially represented to the Court that this limited 2176 Waiver application would be filed on October 1, 1982. It was, however, not filed until November 5, 1982. The federal officials in the Department of Health and Human Services (HHS) have since returned the application to the Commonwealth defendants because of technical deficiencies in the first waiver application. It is thus currently unclear whether and when the Commonwealth defendants will be approved for participation in this federal funding program limited to Philadelphia County during fiscal 1983-84.
The Commonwealth defendants testified that they currently intend a 2176 Waiver for Philadelphia County only 1162 before seeking to receive 55 percent federal funding for *1162 other community facilities. However,
administrators of community facilities for the mentally retarded in other states that have made or are planning to make extensive use of the 2176 Waiver program have determined that there exist substantial administrative

economies of scale in operating 2176 Waiver-eligible community living arrangements on a statewide basis rather than first experimenting with the program in a few counties. Put more simply, it appears that the paperwork and other administrative overhead required to implement the 2176 Waiver program in one large urban County (Philadelphia) might prove to be as onerous as would be required to establish the 2176 Waiver throughout the Southeast Region of Pennsylvania. See N.T. of Oct. 27, 1982 at 25. Jeffrey Sandler, Director of the Division of Developmental Disabilities for the state of Colorado, testified at the September Hearing, based on both his personal knowledge regarding Colorado and his expert professional knowledge that other states are planning to make extensive use of the 2176 Waiver program. Indeed, the plans for financing community habilitation of the retarded on a statewide basis suggest that the 2176 Waiver can be quickly instituted on a widespread basis to serve a state's mentally retarded citizens at a substantial saving of state dollars. This evidence affords little, if any, justification for the Commonwealth defendants' decision to exclude the four suburban County defendants in the 2176 Waiver program. Once again, the conduct of the Commonwealth defendants indicates that they have priorities which they have placed above the habilitation of the state's mentally retarded citizens who are subject to this Court's Orders.
While this Court has been critical of the Commonwealth defendants' administration of the state's programs for the retarded, particularly their failure to fully utilize federal funding, the Court has no intention of ordering the Commonwealth defendants to pursue any particular method of funding. This Court has not, in the past, told and does not intend in the future to tell the Commonwealth defendants how they must finance the transfer, placement and habilitation of Pennhurst residents; it has only required that they effectuate these placements. The manner of funding compliance with this Court's Orders must be determined by the Commonwealth defendants. This Court will, however, as it has in the past, order the Commonwealth defendants to comply with this Court's injunctive Orders so that the retarded residents of Pennhurst may receive habilitation in accordance with their legal rights.
The Commonwealth defendants' priorities concerning the use of available funds is not a sufficient basis for the Commonwealth defendants' failure to comply with this Court's Orders. The Commonwealth defendants' attitude toward funding, as demonstrated by the evidence in this record, especially the evidence presented at the September hearing and the Hearing of April 16 and 19, 1982, has always been based on their own determination that other DPW programs were of higher priority than this Court's Orders in this litigation. In late May, 1982, for example, the Department of Public Welfare found that there were available $1.6 million of "carryover funds" originally appropriated to the Department in the 1980-81 budget. The Commonwealth defendants spent $509,000 of these funds in Allegheny county for additional costs associated with community placements. $188,871 was spent in Dauphin county to finish a phase-down of the Harrisburg Hospital Mental Retardation Unit which, unlike Pennhurst, is not the subject of a Court Order. $140,000 was spent in Lancaster County for implementing nonPennhurst community placements. See N.T. 44-47, Comm.Def.Ex. 2. As previously noted in this Court's Memorandum of June 11, 1982 (542 F.Supp. 619), the Commonwealth defendants have spent more than $2.9 million to effectuate the closing of Marcy Hospital by transferring its residents to community habilitation facilities, even though Marcy was not the subject of a federal court order. See 542 F.Supp. at 627.
During fiscal 1983-84, the Commonwealth defendants also plan to spend a substantial amount of the DPW 1163 budget to reduce the populations at the Polk and Selingsgrove mental retardation institutions. *1163 Polk now
has a population of 1,221. Selingsgrove's population is approximately 1,100. During 1983-84, the Commonwealth defendants desire to place enough persons in community facilities so that the populations of both Polk and Selingsgrove fall below 1,000. In other words, the Commonwealth defendants plan to place at least 321 persons from Polk and Selingsgrove in community facilities but refuse to support the modest plans of the County defendants to place 143 Pennhurst residents and other members of the plaintiff class in community facilities during the next 18 months.
At this juncture, it behooves all concerned to once again assess the situation. For five years now, this Court has only required that the Commonwealth defendants do what they themselves said at trial that they wished to do0907provide for the community-based habilitation of the retarded residents of Pennhurst where such treatment was the least restrictive professionally appropriate habilitation for the individual. As the evidence presented at trial and at numerous post-trial hearings has made clear, community habilitation appears more cost-effective than institutionalization. In the long run, full compliance with this Court's Order of March 17, 1978, as amended April 24, 1980, could save the Commonwealth and its taxpayers substantial sums of money.

As persons are transferred to the community, the operation of Pennhurst can be streamlined so that the operation of the institution costs far less. Unfortunately, the Commonwealth defendants have not seized this opportunity to reduce costs. In 1977, when Pennhurst's population exceeded 1,200 persons, its staff complement was 1,400. In 1982, with a population of between 600 and 700 persons, there were still 1,400 staffers at Pennhurst and the Pennhurst budget was $46 million, more than three times the budget of other state institutions in Pennsylvania housing comparable numbers of retarded residents. The per diem cost of maintaining a retarded resident at Pennhurst was more than $180 per day in 1982, compared to an average per diem cost of $135 per day in community facilities (ranging between $85 per day and $160 per day in community facilities). Clearly, a shift in emphasis to community habilitation should be less costly to the Commonwealth, provided the Commonwealth defendants desire to effectuate this Court's Orders in the most economical manner. As DPW Deputy Secretary Howse has observed:
On balance, the community program is less expensive than institutionalization and offers a higher quality of service. However, ... it takes time to realize cost savings in the deinstitutionalization program.
Howse, "Piecing Together Existing Financial Resources," reprinted in P. Roos, B. McCann and M. Addison, Shaping the Future Community Based Residential Services and Facilities for Mentally Retarded People, (1980) at 67, (See N.T., October 13, 1982 at 158-160).
The Commonwealth defendants can both comply with this Court's Orders, save the taxpayers substantial sums, and enable many of the state's retarded citizens to enjoy a better life in which they are encouraged to develop their capabilities rather than to occupy space in an institution. All that need occur for this to happen is a serious effort by the defendants to implement the Court's Orders while taking full advantage of the ICF/MR program, the 2176 Waiver, and the opportunity to streamline Pennhurst. The actions of the Commonwealth defendants have often suggested that they desire to frustrate the legal rights of the plaintiff class rather than to accord these rights to the state's retarded. The dilatory tactics of the Commonwealth defendants create more than a forensic conflict between some state officials and this federal court. They threaten the quality of life for hundreds of retarded individuals who have committed no wrong and whose legal rights are being violated by continued confinement at Pennhurst.
On the basis of the evidence presented at the September hearing and other evidence that has been presented since this case began in 1974, this Court finds that the defendants reasonably can provide community living 1164 arrangements together with all the services required by the retarded person's *1164 Individual Habilitation Plan for at least 143 Pennhurst residents (not covered by the School-Age Order or the Order of March 2, 1981) from the Southeast Region of Pennsylvania 9 0907 from Bucks County; 15 from Chester County; 30 from Delaware County; 26 from Montgomery County; and 63 from Philadelphia County during the period from January 14, 1983 to June 30, 1984. The Court further finds that the defendants reasonably can provide community living arrangements together with all the services required by the retarded person's Individual Habilitation Plan for at least 81 other class members not currently residing at Pennhurst from the Southeast Region of Pennsylvania 13 0907 from Bucks County, 18 from Chester County, 12 from Delaware County 14 0907 from Montgomery County, and 24 from Philadelphia County during the period from January 14, 1983 to June 30, 1984. The Court also finds that the Commonwealth defendants reasonably can provide community living facilities, together with all the services required by the retarded person's Individual Habilitation Plan for at least 50 Pennhurst residents (not covered by the School-Age Order or the Order of March 2, 1981) from counties outside the Southeast Region of Pennsylvania during the period from January 14, 1983 to June 30, 1984. An appropriate Order will be accordingly entered.
ORDER
AND NOW, this 14th day of January, 1983, for the reasons set forth in this Court's Memorandum of January 14, 1983,
IT IS HEREBY ORDERED:

1. Defendants shall provide community living facilities, together with all the services required by the retarded person's Individual Habilitation Plan for at least 143 Pennhurst residents from the Southeast Region of Pennsylvania (not covered by the School-Age Order or the Court's Order of March 2, 1981) 9 0907 from Bucks County; 15 from Chester County; 30 from Delaware County; 26 from Montgomery County; and 63 from Philadelphia County, and for at least 81 other members of the plaintiff class from the Southeast Region of Pennsylvania not now residing in Pennhurst 13 0907 from Bucks County; 18 from Chester County; 12 from Delaware County; 14 from Montgomery County; and 24 from Philadelphia County 0907during the period from the date of this Order to June 30, 1984.
2. The Commonwealth defendants shall provide community living facilities, together with all the services required by the retarded person's Individual Habilitation Plan for at least 50 Pennhurst residents (not covered by the School-Age Order or the Order of March 2, 1981) from Counties outside the Southeast Region of Pennsylvania during the period from the date of this Order to June 30, 1984,
IT IS FURTHER ORDERED: Within 60 days of the date of this Order, the Commonwealth and County defendants shall each prepare and submit to this Court specific plans (including but not limited to timetables, identification of the retarded persons for whom community living facilities and services will be provided, and arrangements being made to obtain appropriate providers for residential, programatic and support services) for complying with this Order.
Save trees - read court opinions online on Google Scholar.

 
 566 F.Supp. 185 (1983)
Terri Lee HALDERMAN et al., Plaintiffs, v.
PENNHURST STATE SCHOOL AND HOSPITAL, et al., Defendants, United States of America, Plaintiff-Intervenor,
Pennsylvania Association for Retarded Citizens et al., Plaintiffs-Intervenors.
Civ. A. No. 74-1345.
United States District Court, E.D. Pennsylvania.
June 13, 1983.
David Ferleger, Philadelphia, Pa., for Terri Lee Halderman.
Thomas M. Kittredge, Philadelphia, Pa., for Bucks, Chester and Delaware Counties.
Robert B. Hoffman, Deputy Atty. Gen., Harrisburg, Pa., for the Com. of Pa.
Thomas Gilhool, Philadelphia, Pa., for Pennsylvania Ass'n for Retarded Citizens.
Herbert B. Newberg, Philadelphia, Pa., for David Ferleger, Esq.
Pamela P. Cohen, Philadelphia, Pa., for Pennhurst Parents Ass'n.
Terissa Chaw, Civil Rights Div., Dept. of Justice, Washington, D.C., R. Stephen Barrett, Asst. County Sol., Norristown, Pa., for Montgomery County.
Marc H. Myers, Asst. City Sol., Philadelphia, Pa., for Philadelphia County.
MEMORANDUM
RAYMOND J. BRODERICK, District Judge.
Pursuant to the injunctive relief ordered by this Court in 1977 designed to provide the retarded residents of Pennhurst their statutory and constitutional rights, an Individual Habilitation Plan (IHP) was drafted for L.P., a class member. The IHP called for L.P.'s movement from confinement at Pennhurst to a community living facility in Montgomery County. L.P.'s parents initially objected to the placement and demanded a hearing before the Hearing Master established by this Court's Order of April 24, 1980 as required by the Third Circuit's first en banc opinion in this case (see 612 F.2d 84, 112 (3d Cir.1979)). Prior to this hearing, the parents withdrew their objections to L.P.'s community habilitation, based in part upon representations made to the parents by the Commonwealth, Montgomery County, and the private care providers obtained by these governmental entities. However, the Hearing Master discovered that these representations were not in fact accurate and held a hearing to determine whether the parents' consent had been obtained in violation of due process (Hearing Master's Report of January 4, 1983 at 2).
After a hearing, the Hearing Master determined that community residence would be more beneficial to L.P. than 186 remaining at Pennhurst, but that, due to the refusal of *186 the Commonwealth defendants to provide adequate
funding for the private care provider obtained by the County and Commonwealth, L.P. would be unable to receive habilitation and services in accordance with his IHP. The Hearing Master ordered the Commonwealth defendants to reimburse the private care provider at a specified per diem rate for the care and training of L.P. The Commonwealth defendants took exception to the Hearing Master's Report and Order of January 4, 1983 contending that the per diem rate was too high. Montgomery County and the private care providers' Shiloh, Inc. and Prospectus, Inc., also took exception to the Hearing Master's Report, contending that the per diem was too low. This Court held a hearing on the exceptions on April 13, 1983. For the reasons hereinafter set forth, this

Court will enter an Order modifying the Hearing Master's Order. The Court will order that the defendants ensure that L.P. receive habilitation in the community as required by his IHP but will vacate that portion of the Hearing Master's Order which sets a specified per diem rate of reimbursement to Shiloh and Prospectus.
Before discussing the specifics of L.P.'s situation, some background discussion is in order. In 1977, this Court, after 32 days of trial, set forth findings of fact and conclusions of law which determined that the constitutional and statutory rights of the retarded residents of Pennhurst were being violated by their continued confinement at Pennhurst (see Memorandum of December 23, 1977, 446 F.Supp. 1295). The Court instructed the parties to attempt to agree on the form of order necessary to provide to the plaintiff class injunctive relief to ensure that they received their rights as set forth in the Memorandum of December 23, 1977. However, no agreement was forthcoming. On March 17, 1978, this Court entered its original injunctive Order in this case which mandated, inter alia, the movement of Pennhurst residents to appropriate community living facilities where they would receive minimally adequate habilitation in the least restrictive environment. This Order was affirmed but modified by the Third Circuit. The Circuit Court directed that individual determinations be made for each class member as to the appropriate habilitation. As the Circuit Court reasoned, there might be some individuals who "because of advanced age, profound degree of retardation, special needs or for some other reason, will not be able to adjust to life outside of an institution." (612 F.2d at 114). The Circuit Court therefore remanded the case to this Court for individual determinations "as to the appropriateness of an improved Pennhurst for each such patient." (612 F.2d at 114). In so doing, the Third Circuit directed that "the court or the Master should engage a presumption in favor of placing individuals" in the community. (612 F.2d at 115). As suggested by the Third Circuit, this Court established the Hearing Master for the purpose of making individual determinations when necessary. (See Order of April 24, 1980).
After the Third Circuit's 1979 en banc opinion in this case, certiorari was granted on June 10, 1980. On April 20, 1981, the United States Supreme Court reversed the Third Circuit's determination that the Bill of Rights for the Handicapped contained in the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. § 6010, created in favor of the mentally retarded a substantive right to appropriate habilitation and treatment in the least restrictive environment. The Supreme Court remanded this case to the Third Circuit for consideration of the federal constitutional and statutory issues, as well as the state law questions raised by this Court in its December 23, 1977 decision. (See 451 U.S. 1, 101 S.Ct. 1531, 1546-47, 67 L.Ed.2d 694).
On February 26, 1982, the Third Circuit, pursuant to the Supreme Court's remand, issued its second en banc decision in this case. The Third Circuit again affirmed, holding that Pennsylvania's Mental Health/Mental Retardation Act of 1966, 50 Pa.Stat.Ann. §§ 4101-4704 (Purdon 1969), granted Pennsylvania's retarded citizens the right to adequate habilitation in the least retrictive environment. (See 673 F.2d 628 (3rd Cir.1982)). The Third 187 Circuit again *187 affirmed the injunctive relief ordered by this Court on March 17, 1978 as amended in the Order of April 24, 1980. Although the Supreme Court again granted certiorari on June 21, 1982, there is no stay of this Court's Orders mandating the community placement of those Pennhurst residents whose individual habilitation plans require community living facilities in order to provide them minimally adequate habilitation.
Thus, pursuant to the Court's injunctive Orders, a planning and assessment team composed of mental retardation professionals, including L.P.'s case manager who is an employee of Montgomery County, and Pennhurst staff professionals, who are state employees, prepared an IHP for L.P. L.P.'s parents, Mr. and Mrs. A.P., were also involved at every stage of the planning and review process, as required by this Court's Order of April 24, 1980. The plan provided that L.P. should be transferred to a community living facility in Montgomery County and that he receive a specified level of services, staffing care, and habilitation while at the community home. L.P.'s IHP also called for him to receive habilitation, training, and education during the day from a "day program provider". The community residence to which L.P. was transferred was to be administered by Shiloh, Inc., a private contract provider selected by the county and approved by the Commonwealth. Shiloh had subcontracted with Prospectus, Inc. to provide L.P.'s day-care programs.
The Commonwealth of Pennsylvania, through the Pennhurst Implementation Team's Special Management Unit, which is a division of the state Department of Public Welfare's Office of Mental Retardation (DPW/OMR), approved L.P.'s IHP and found it to be more beneficial to L.P.'s habilitation than continued confinement at Pennhurst. Montgomery County also approved of L.P.'s IHP. The Office of the Special Master, which is no longer

in operation, also approved the IHP. (The Special Master's Office ceased its existence on December 31, 1982; see Memorandum of August 12, 1982, 545 F.Supp. 410).
There appeared to be no problem at the time L.P. was transferred from Pennhurst. He is a 50-year-old retarded person who is classified as profoundly mentally retarded, but who possesses a substantial amount of life skills, including speech and independent ability to attend to his personal hygiene. (See Hearing Master's Report of November 1, 1982, Dkt. No. 1638, at 2). The community living facility is a four-bedroom house in Lansdale where he would receive services designed to provide him a higher quality of care, training, and habilitation, something which the mental retardation professionals familiar with his situation unanimously agreed would provide L.P. with minimally adequate habilitation.
Shortly after L.P. was transferred to the community facility, a problem developed concerning funding at his community home. It was the plan of both the state and county that L.P. was to receive his community residence and habilitation in a home that would be funded pursuant to the Small Intermediate Care Facility for the Mentally Retarded (ICF/MR) program. The ICF/MR program is a part of Title XIX of the Social Security Act and provides that, where certain conditions are met, a state and county may furnish a retarded person with a community living facility and receive 55% federal funding. Prior to the advent of the small ICF/MR program only large institutions such as Pennhurst had been eligible for the 55% federal funding provided by the ICF/MR program. The 55% federal funding under the prior ICF/MR program was encouraging states to ignore the fact that institutionalization of the retarded was not providing the minimally adequate habilitation which this Court had ordered. In 1974, the ICF/MR program was revised to permit 55% federal funding in those situations where the mentally retarded were transferred to small ICF/MR community facilities, as well as large ICF/MR institutions.
Under the amended ICF/MR program, a residential habilitation facility in the community must be designed and 188 constructed to accommodate between four and ten mentally retarded persons residing at the facility. *188 The
state initially bears the cost of operating the residence and the daytime training programs, but is reimbursed by the federal government for 55% of these costs. No county funds are involved but the counties of Pennsylvania select the retarded persons to receive community habilitation and for planning the particular type of programs which will provide these individuals with minimally adequate habilitation in the least restrictive environment as required by law. See Halderman v. Pennhurst, 673 F.2d 628; In re Schmidt, 494 Pa. 86, 429 A.2d 631 (1981); In re Sauers, 68 Pa. Cmwlth. 83, 447 A.2d 1132, 1136 (Pa.Comm. Ct.1982).
Some clarification of terms is perhaps necessary. This Court has heretofore discussed ICF/MR community residences, community living arrangements, and 2176 Waiver community facilities. This Court has consistently considered all three types of community facilities as providing the minimally adequate habilitation required by the Court's Orders. The small ICF/MR community facilities have heretofore been discussed.
A Community Living Arrangement (CLA) is a community facility that is 100% state funded. In Pennsylvania, CLAs contain an average of approximately three residents. In order to qualify for 55% federal funding pursuant to the small ICF/MR program, a community facility must contain a minimum of four residents. Because this and other ICF/MR requirements for obtaining 55% federal funding pursuant to the ICF/MR program constrained the flexibility of the states in meeting the needs of their retarded citizens through federally aided programs, Congress, in the Omnibus Budget Reconciliation Act of 1982, created the 2176 Waiver program as a new part of Title XIX of the Social Security Act. If a state applies for and obtains approval from the federal government, it may operate CLAs containing less than four residents and yet obtain 55% federal funding. Thus, the major distinction between the state-funded CLA, the ICF/MR and the 2176 Waiver CLA is their source of funding and administration. All three community facilities are designed to provide the retarded minimally adequate habilitation in a more normal, less segregated, less restrictive environment than institutions for the mentally retarded such as Pennhurst.
As this Court has frequently noted (see 545 F.Supp. 410 (E.D.Pa.1982); 542 F.Supp. 619 (E.D.Pa.1972); 526 F.Supp. 428 (E.D.Pa. 1981)), the Commonwealth has been slow to explore the possibility of participation in the ICF/MR and 2176 Waiver programs which would reduce the cost to the state of operating programs for the mentally retarded by as much as one-half. This Court was pleased to hear in 1981 that the state was planning to participate in the ICF/MR program in order to provide Pennsylvania's retarded with their rights under the 1966 Act at a lower cost to the state. The Commonwealth represented to the Court during 1981 and 1982 that it was beginning to participate in the ICF/MR program in order to provide services to the retarded and to comply with

this Court's Orders at a reduced cost to the state. Pennsylvania has been one of the last states to participate in the ICF/MR program, claiming that it declined to participate at an earlier date in order that the state court anticipate and avoid any problems in the implementation and administration of the program.
One would have expected great things when the defendants determined that L.P. would receive habilitation in accordance with his individual habilitation plan at an ICF/MR community facility. Instead, L.P., like other class members selected for ICF/MR residence (see Report of the Hearing Master re T.M. and A.B., Dkt. No. 1677, November 23, 1982), has had his constitutional and statutory rights jeopardized by bureaucratic infighting that directly contravenes this Court's injunctive orders in this case.
As heretofore noted, this Court's 1977 decision found that the retarded class members possessed certain constitutional and statutory rights which were not being fulfilled at Pennhurst. Consequently, comprehensive 189 injunctive relief was required to *189 rectify this situation and ensure that they received treatment and habilitation commensurate with their legal rights. For this reason, this Court, in its Order of March 17, 1978, established the requirement that each class member have developed for him or her an Individual Habilitation Plan (IHP) and that this plan would contain the judgment of mental retardation professionals as to what residence, living accommodation, and education would be required for that retarded person in order to provide him or her with minimally adequate habilitation in the least restrictive environment. The IHP, a product of professional evaluation by professionals employed by the defendants, sets forth concrete, specific, and individualized terms a minimally adequate habilitation plan for that retarded person. In L.P.'s case, the Commonwealth and County defendants both approved L.P.'s IHP. Shiloh had obtained Commonwealth approval to operate several ICF/MRs, including the facility to which he was transferred. At this juncture, the prospects for L.P. appeared bright. He left Pennhurst for a community home wherein he would receive the habilitation specified in his IHP. Unfortunately, a dispute which developed between the Commonwealth defendants and Shiloh threatens to close the community home to which L.P. was transferred.
Sometime after the IHP was approved and after Shiloh received its certificate of operation from the Commonwealth, the Commonwealth defendants refused to provide to Shiloh funds for the operation of the ICF/ MR facility in which L.P. was residing.
Pursuant to the ICF/MR program as operated by the Commonwealth, various habilitation and residence providers obtained certification from the Commonwealth to function as community facility providers. For L.P., Montgomery County and the state selected Shiloh to provide him with residence and habilitation in accordance with his IHP. At the time Shiloh was selected, no rates of reimbursement to Shiloh were determined. Shiloh was to submit request vouchers to the Commonwealth for the reasonable costs incurred in providing care and services to L.P. and the Commonwealth, pursuant to the agreement entered into between Shiloh and the state, was to reimburse Shiloh for its reasonable costs in serving L.P.'s needs. As heretofore noted, L.P.'s needs were defined by the IHP.
Shiloh requested reimbursement at the rate of $165.52 per client per day to provide L.P. with the residential and day-care required by his IHP. The Commonwealth, pursuant to its administration of the ICF/MR program, approved for this ICF/MR a budget for fiscal 1983 (July 1, 1982 through June 30, 1983, the state's fiscal year) of only $186,725.00, or a per diem per resident rate of $127.89. (See Master's Report of January 4, 1983, Dkt. No. 1733 at 8).
The Commonwealth defendants arrived at their figure through their procedure for reviewing requests for reimbursement in the ICF program. As heretofore noted, the federal government has long made available 55% federal funding to states operating varying types of Intermediate Care Facilities (ICFs). As previously noted, however, most ICFs have, until recently, been only large institutions for the mentally retarded (such as Pennhurst) or for the mentally ill, or nursing homes. Thus, the state was somewhat familiar with the administration of an ICF program and had established a procedure for selecting and approving ICF providers and their requested reasonable cost reimbursement rates. However, until the recent advent of the small ICF program for the community habilitation of the mentally retarded, the state had dealt with only large institutions. A substantial portion of the state's ICF program involved nursing homes which, by definition, provide a more uniform degree of care for a relatively large number of individuals who all receive approximately the same level of services. Consequently, when assessing the appropriateness of a reimbursement rate for individuals at a nursing home, the DPW, through its Office of Medical Assistance (OMA), has found it effective to determine an average per

diem per resident cost at nursing homes throughout the state and to use this figure as a measuring stick for 190 requested reimbursements. *190 Under this system, OMA generally approves as reasonable those requested
reimbursements falling below the state average but imposes greater scrutiny on those which exceed the average.
The dispute concerning Shiloh's rates has an already long history. During the summer of 1982, DPW/OMA announced that it would establish caps for rates of reimbursement requested by ICFs and set forth for public comment a suggested cap figure based in part on the ICF averages. This announcement brought an outcry from the small ICF/MR providers and counties depending upon the successful operation of the ICF/MR program for fulfilling this Court's Orders in Halderman v. Pennhurst. The counties, principally Philadelphia and Montgomery Counties, and the private ICF/MR providers contended that any such cap as formulated by OMA was unrealistic in light of the particularized needs of the retarded individuals destined for community habilitation in an ICF/MR. Quite simply, they pointed out that community habilitation of the retarded is a more complicated, more individualized, and often more expensive task than administering a nursing home for essentially normal and healthy but elderly persons.
A conference concerning this dispute and its impact upon this case was held in chambers in September, 1982, at which time the Commonwealth, through DPW/OMA Deputy Secretary Gerald Radke conceded that the caps first suggested and the formula for deriving them were inappropriate in the context of ICF/MRs. Radke added, however, that DPW had reopened the administrative process for determining a fair means of figuring ICF/MR caps and that the Department remained committed to the caps as a budget control measure. The counties, speaking for the ICF/MR providers, contended that any cap program was useful only in identifying providers who might not be cost-efficient and that the actual dollar determination of the correct per diem reimbursement rate would require case-by-case assessment. The Court directed these parties to meet and negotiate to attempt to resolve their dispute but no agreement has been forthcoming. Both Philadelphia and Montgomery Counties have since filed motions with this Court asking that the Court direct the Commonwealth defendants to provide an "adequate" rate of reimbursement to ICF/MR providers so that the counties would be able to place retarded class members in ICF/MR community homes in order to fulfill the requirements of the Court's Orders. (This Court's Order of June 14, 1983, Dkt. No. ___, will, for the reasons set forth in this Memorandum, grant the motions of Philadelphia County and Montgomery County).
Against this backdrop, L.P., a retarded class member, became a pawn in this bureaucratic economic dispute. As heretofore noted, an IHP had been drafted for L.P. by mental retardation professionals and the Commonwealth defendants had approved this IHP. A private ICF/MR provider had been obtained for L.P., and then after L.P. was moved to the community facility, the Commonwealth defendants determined that they would reimburse Shiloh for only three-fourths of the amount claimed as necessary to provide residence and habilitation for L.P. in accordance with his IHP.
In December, 1982, the Court was advised that the reimbursement offered by the Commonwealth was unacceptable to Shiloh and that Shiloh was contemplating closing its ICF/MR in which L.P. resided and returning L.P. to Pennhurst. This Court, in its Order of December 22, 1982, enjoined the defendants from returning L.P. to Pennhurst. In order to avoid ceasing operations, Shiloh, which represented that it could not function as planned on the funding offered by the state, reduced the level of services being provided to L.P. Currently, L.P. is receiving fewer services than set forth in his IHP. Obviously, this development imperiled L.P.'s minimally adequate habilitation and his receipt of his legal rights. L.P. has since been transferred from the Lansdale ICF/MR first planned for L.P. to one operated by Shiloh in Pennsburg because the funding shortage has forced Shiloh to close 191 two of its five community habilitation facilities. (See Hearing *191 Master's Report of November 1, 1982; January 4, 1983). The parties agree that L.P. is not now receiving all the services, staffing, and habilitation set forth in his IHP due to the rate dispute.
The Hearing Master, at the extended hearing concerning L.P., attempted to determine which of Shiloh's requested reimbursement amounts were reasonable and necessary in light of L.P.'s IHP. Finding this amount to be $148.58, the Hearing Master ordered that the Commonwealth defendants remit this amount to Shiloh for each day in which L.P. resided in the community and received habilitation. The Commonwealth defendants have not paid these amounts but have taken exception to the Hearing Master's Report, contending that the Master had no authority to set a specific dollar amount for per diem reimbursement for L.P.'s residence and care.

At a hearing held before this Court on April 13, 1983, the Commonwealth defendants did not dispute any of the facts or conclusions of the Hearing Master's Report of January 4, 1983. Rather, the Commonwealth defendants based their exceptions on their contention that the Hearing Master could not direct the state to pay a particular per diem rate. The Commonwealth defendants presented no evidence at the hearing to dispute the Hearing Master's findings. For that reason, this Court will treat the Hearing Master's findings as uncontested. Nonetheless, this Court has reviewed the record of the hearing before the Hearing Master (a three-volume transcript compiled by an official federal court reporter; Dkt. Nos. 1719, 1720, 1721 (filed December 29, 1982), and finds that the Hearing Master's findings are not clearly erroneous.
In fact the record before the Master is crystal clear. The Commonwealth defendants have refused to pay to Shiloh the requested per diem reimbursement rate largely because they prefer a lower level of staffing and services for L.P. than that set forth in his IHP. The Commonwealth contends that it has done this as part of a general effort to control the costs of the ICF/MR program.[1]
The Commonwealth, in determining what it would pay to Shiloh in connection with L.P.'s care, did not give adequate consideration to the contents of L.P.'s individual habilitation plan. Thus, when the Commonwealth reviewed Shiloh's reimbursement request, and thought the figure too high, it refused to pay to Shiloh certain funds associated with particular staffing and programmatic needs of L.P. as set forth in his IHP. The Commonwealth has taken the position that such services and staffing could be dispensed with in the interests of budget control. See Testimony of Dr. David Smith, D.P.W. Budget Officer, N.T. at 530-55; Testimony of Gerald Radke, DPW/OMA Deputy Secretary, N.T. at 350-58; Testimony of DPW/OMR Deputy Secretary Jennifer Howse, N.T. at 47-51; see also Hearing Master's Report of January 4, 1983 at 8, 11, 24-26.
The Commonwealth's actions in ignoring the IHP prepared by the professional planning team is a violation of this Court's Orders. This Court's Order of March 17, 1978, as amended April 24, 1980, requires that the defendants provide to the retarded class members community living facilities "together with all the services required by the retarded person's Individual Habilitation Plan." See Order of April 24, 1980 at 3-4. See also Memorandum of December 22, 1982, 555 F.Supp. 1138 (E.D.Pa.1982). A federal court's injunctive order issued to redress legal wrongs cannot be disregarded by those to whom it is directed. This Court's Orders required the defendants in this litigation to provide minimally adequate habilitation to the retarded members of the class. The minimal habilitation 192 *192 which the defendants must provide is set forth in each class member's IHP. The Commonwealth defendants who, under the state statute, fund community care for the retarded, must ensure that plaintiff class members such as L.P. receive habilitation in accordance with their IHPs. The Commonwealth defendants are not relieved of this obligation on the ground that they have been engaged for the past eighteen months in a dispute with the contract provider concerning the rate at which the provider should be reimbursed for providing L.P. with minimal habilitation which state and county professionals determined to be necessary for L.P.
The dispute between the Commonwealth and Shiloh appears to be one of contract. This Court is not concerned about the bureaucratic dispute between these two entities. The Court's sole concern is the receipt by L.P. of his legal rights and services in accordance with his IHP. These services may be provided by the state, the county, or a private contract provider so long as L.P. receives services in accordance with his IHP.
The Commonwealth's sudden concern about L.P.'s ICF/MR costs seems to this Court inconsistent with its willingness to pay high costs for other retarded persons. In the matter of L.P., DPW has balked at paying a per diem of $164.00 per day for L.P.'s residence and care. However, the per diem per resident cost at Pennhurst, which is also an ICF, is $180.00 per day. (See Memorandum of June 11, 1982, 542 F.Supp. 619). The average per diem cost of a CLA in Montgomery County is approximately $175.00 per day. As heretofore noted, CLAs are 100% state-funded and small ICF/MRs are only 45% state-funded and 55% federally-funded. Thus, the Commonwealth has been paying per diems of $175.00 per day at CLAs in Montgomery County and it is now refusing to pay a net per diem of $74.48 per day (the state's share of L.P.'s per diem at Shiloh's requested reimbursement rate). As the Hearing Master stated "[W]hile there was no direct evidence [at the hearing] of these [Commonwealth] officials commanding their subordinates to frustrate the District Court's orders, in light of the views they [the Commonwealth officials] expressed at the [L.P.] hearing the result could hardly have been otherwise." (Report of January 4, 1983 at 24).

However, as heretofore pointed out, this Court does not intend to become involved in this particular funding dispute. The remedy ordered by the Hearing Master is not one preferred by the Court. As previously noted, the Commonwealth contends that the Hearing Master may not order payment of a particular per diem reimbursement rate. The Court takes no position on this argument at this time. Although the Court now perceives no reason why it should become involved in the state's own administrative function in supervising the ICF/MR program and determining the rate of reimbursement to contractors, the day may come where the only means of effecting a valid federal court order would be an order such as the Hearing Master's Order that Shiloh receive a certain amount of funding so that L.P. could receive habilitation consonant with his IHP and his legal rights. If such a remedy were in fact the least drastic means of fulfilling a court order, principles of federalism and comity would have to yield to the federal Constitution and its Supremacy Clause, thereby permitting such a federal court order, through either the Court or the Hearing Master, despite its obvious impingement on the state's functions.
In this case, however, there remain available to this Court other means for enforcing its Orders in this litigation. For that reason, the Court will not affirm this portion of the Hearing Master's Order but will instead direct that the Commonwealth defendants ensure that L.P. begin to receive all of the staffing, services, and habilitation set forth in his IHP at his present ICF/MR residence on or before July 1, 1983. The Commonwealth may accomplish this in several ways. It may remit to Shiloh the funds Shiloh has required to fulfill the terms of L.P.'s IHP. Or the state 193 may *193 arrange for another private care provider to furnish the IHP-mandated services to L.P. Or the state may itself furnish a community residence and services to L.P.
This Court is not concerned with the source of funds, the entity providing services, or the relative cost of services. Those are concerns of the defendants to this litigation. This Court's only concern is that the retarded class members receive their constitutional and statutory rights as enunciated in the decisions of this Court and the Third Circuit. The rights of a retarded person to enjoy his or her constitutional and statutory rights to receive adequate habilitation in society are not to be denied on the basis of a contract dispute between the Commonwealth and a provider. If the Commonwealth feels that it can obtain a less expensive provider than Shiloh or can itself provide L.P. with the required services at a lower cost than Shiloh, this Court's Orders will not be violated. L.P. must receive his IHP-mandated services. Anything less than that is contempt of this Court's Orders.
At this point, the Court wishes to stress that the dispute between the Commonwealth, Shiloh and Prospectus has involved only budgetary arguments. No one involved in the IHP planning process for L.P., the hearing before the Hearing Master, or the hearing before this Court on April 13, 1983, has questioned the quality of services provided to L.P. by Shiloh and Prospectus. The Hearing Master found the performance of Shiloh and Prospectus frontline staff to be exemplary (see Hearing Master's Report of November 1, 1982 at 7) and his findings are amply supported by the record.
As heretofore noted, L.P.'s parents initially objected to his placement in the community and requested a hearing before the Hearing Master seeking to obtain the Court's disapproval of the transfer. However, when L.P. was sent to the Shiloh community living facility for a pre-placement visit, they observed his rapid habilitation progress as contrasted to his stagnation at Pennhurst and became convinced that community habilitation was a better way for their son. Then, however, the Commonwealth's actions in disregard of L.P.'s IHP and this Court's Orders threatened his hopes for a brighter future. As the Hearing Master noted
[E]ven as they surveyed the wreckage of Shiloh's ICF/MR program, Mr. and Mrs. A.P. were unwilling to abandon their vision of how things could be. Asked their preference among all the possible placements now open to L.P., they flatly rejected a return to Pennhurst 0907 because of the excellence and commitment of the Shiloh and Prospectus staff, and because of the dramatic improvement they had seen in their son's behavior and abilities. The honesty and courage of these troubled, caring parents stands in stark and shining contrast to the cynical and petty bureaucratic maneuverings that now threaten L.P.'s future in the community.
(Report of November 1, 1982 at 7). An appropriate Order will be accordingly entered.

[1] The IHP is not a plan cast in concrete. This Court's Order of April 20, 1980 provides that the professional planning team shall review each class member's IHP every six months. If someone on the planning team desires an immediate revision of the IHP, a special team meeting can be convened. Upon agreement of the team of habilitation professionals, a retarded class member's IHP can be revised. However, the IHP may not be amended in a de facto manner by the unilateral conduct of one of the defendants.
Save trees - read court opinions online on Google Scholar.

 
 610 F.Supp. 1221 (1985)
Terri Lee HALDERMAN, et al. v.
PENNHURST STATE SCHOOL AND HOSPITAL, et al.
Civ. A. No. 74-1345.
United States District Court, E.D. Pennsylvania.
April 5, 1985.
1222 *1222 David Ferleger, Philadelphia, Pa., for plaintiffs.
Mitchell W. Dale, Lawrence Goldberg, Washington, D.C., for U.S.A.
Thomas K. Gilhool, Frank Laski, Philadelphia, Pa., for PARC.
Sandra Swenson, Pamela Cohen, Philadelphia, Pa., for Pennhurst Parents-Staff Ass'n.
Allen C. Warshaw, Harrisburg, Pa., for Com. of Pa.
James M. McNamara, Doylestown, Pa., for Bucks County.
Thomas M. Kittredge, Philadelphia, Pa., for Chester, Bucks, Delaware and Montgomery Counties.
Patricia H. Jenkins, Media, Pa., for Delaware County.
R. Stephen Barrett, Norristown, Pa., for Montgomery County.
Mark A. Aronchick, Pauline Cohen, Richard Gold, Philadelphia, Pa., for Philadelphia County.
MEMORANDUM
RAYMOND J. BRODERICK, District Judge.
No one, and certainly not this Court, anticipated that this civil action commenced on May 30, 1974 would be actively litigated for more than ten years, requiring 2,192 docket entries, about 500 Court orders, twenty-eight published opinions, and three arguments before the U.S. Supreme Court. See 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984); 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed. 2d 694 (1981); 707 F.2d 702 (3d Cir.1983); 673 F.2d 645 (3d Cir.1982) (en banc); 673 F.2d 647 (3d Cir.1982) (en banc); 612 F.2d 84 (3d Cir.1979) (en banc); 612 F.2d 131 (3d Cir. 1979) (en banc); 566 F.Supp. 185 (E.D.Pa. 1983); 97 F.R.D. 522 (E.D.Pa.1983); 555 F.Supp. 835 (E.D.Pa.1983); 555 F.Supp. 1144 (E.D.Pa.1982); 555 F.Supp. 1142 (E.D. Pa.1982); 555 F.Supp. 1138 (E.D.Pa.1982); 559 F.Supp. 153 (E.D.Pa.1982); 96 F.R.D. 60 (E.D.Pa.1982); 545 F.Supp. 410 (E.D.Pa. 1982); 542 F.Supp. 619 (E.D.Pa.1982); 536 F.Supp. 522 (E.D.Pa.1982); 533 F.Supp. 649 (E.D.Pa.1982); 533 F.Supp. 641 (E.D.Pa. 1982); 526 F.Supp. 428 (E.D.Pa.1981); 526 F.Supp. 423 (E.D.Pa.1981); 526 F.Supp. 414 (E.D.Pa.1981); 526 F.Supp. 631 (E.D.Pa. 1981); 526 F.Supp. 409 (E.D.Pa.1981); 452 F.Supp. 867 (E.D.Pa.1978); 451 F.Supp. 233 (E.D.Pa.1978); 446 F.Supp. 1295 (E.D.Pa. 1977).
The concluding chapter of this litigation is at hand. The Final Settlement Agreement is now before this Court for approval. As with all settlement agreements, this settlement is a creature of compromise. As with all things of this world, the settlement is not perfect. It is, however, a fair, adequate, and reasonable settlement, which will protect the rights and well-being of all the mentally retarded persons who resided at Pennhurst on and after May 30, 1223 1974, as well as all retarded persons on the Pennhurst waiting list as of that date who have *1223 received habilitative services in the community pursuant to prior orders of this Court.

It has taken eleven years of litigation to produce this settlement. It is ironic that when this action was tried in 1977, all parties agreed that Pennhurst as an institution was inappropriate and inadequate for the habilitation of mentally retarded persons. (Habilitation is a term of art which refers to the education, training, and care which will enable a retarded person to reach his or her maximum potential.) During the course of the trial, no one took issue with the many professionals in the field of mental retardation who testified that "normalization" has been universally accepted as the only successful method of habilitating a retarded person. Normalization, as the term implies, is the antithesis of institutionalization. The basic principle of normalization is that a retarded person must be cared for, trained and educated in a normal community environment.
Mental retardation is an impairment in learning capacity and adaptive behavior. It has been estimated that about three percent of the population in the United States may be classified as "mentally retarded." However, the overwhelming majority of that three percent are only "mildly" retarded, and are capable of achieving self-support, while the remainder are capable of achieving some degree of self care. As pointed out by the United States Supreme Court in Kremens v. Bartley, 431 U.S. 119, 135, 97 S.Ct. 1709, 1718, 52 L.Ed.2d 184 (1977), careful attention must be paid to the differences between mental illness and mental retardation. There is no question that mental illness and mental retardation are separate and distinct conditions which require different types of treatment. Although retardation is wholly distinct from mental illness, retarded individuals, just as other members of society, often suffer from mental and emotional illness. Mental retardation is not a disease which can be cured through drugs or treatment. However, with proper habilitation, the level of functioning of every retarded person may be improved.
Throughout history, retarded individuals have been mistreated, and their dire need for treatment, education and training has been ignored. Wolfensberger, The Origin and Nature of Our Institutional Models 3 (1975). Retardation is not a violation of the law. Being mentally retarded does not make juveniles or adults dangerous to society. Mentally retarded persons are individuals who, because of circumstances beyond their control, are unable to function at the same levels as others in society. They do require specialized education, training and care. They do have a constitutional right under the Equal Protection Clause of the Fourteenth Amendment to receive as much education and training as is provided by the government to those whom society considers as "not retarded." Pennsylvania Association for Retarded Children v. Commonwealth of Pennsylvania, 343 F.Supp. 279 (E.D.Pa. 1972). In this case the Court was faced with a situation where retarded members of our society had been "incarcerated" in an institution. These retarded citizens had not violated any laws and, with very few exceptions, were not dangerous to society. Their only need was for care, education, and training.
Pennhurst, a residential institution for retarded persons, was founded in 1908. It is owned and operated by the Commonwealth of Pennsylvania, and is located in Spring City, Pennsylvania, about 30 miles from Philadelphia. At the time of the trial of this case in 1977, the resident population was approximately 1,230, reduced from a high of nearly 4,000 in the early 1960s. The Pennhurst staff numbered approximately 1,500. All parties conceded at trial that the institution had undergone tremendous improvement since the 1950s when, at best, the treatment of the residents could be described as "warehousing." Even with these improvements, however, the defendants admitted that Pennhurst did not meet the professionally accepted minimum standards for the habilitation of its retarded residents. Despite these admissions, the defendants insisted that no constitutional or statutory rights of 1224 the residents were *1224 being violated. The years of litigation have, however, brought about an awareness that a retarded person does have a right to minimally adequate habilitation in the least restrictive setting.
History of the Litigation
As is well-known to the litigants, this case began in 1974 as a class action in which the named plaintiffs, retarded persons (the "Pennhurst Class") who were either residents of Pennhurst State School and Hospital or on the waiting list for residence at Pennhurst as of May 30, 1974, claimed injury based on violations of certain state and federal statutes and the United States Constitution. At trial, all parties agreed that Pennhurst as an institution was inappropriate and inadequate for the habilitation of mentally retarded citizens, and that retarded persons should be educated, trained, and cared for in community living arrangements. However, the defendants insisted that they

be permitted to accomplish the community placement of Pennhurst residents and the closing of Pennhurst at their own pace.
On December 23, 1977, this Court issued findings of fact and conclusions of law (Memorandum of December 23, 1977, 446 F.Supp. 1295) which found that the defendants were violating the constitutional and statutory rights of the Pennhurst Class by failing to provide them with minimally adequate habilitation in the least restrictive environment.
Based on the evidence presented at the trial of this case, the Court found that Pennhurst in 1977 was overcrowded and understaffed and without the programs which the experts considered necessary for minimally adequate habilitation. The evidence showed that a large number of Pennhurst residents had actually experienced a regression of basic living skills as a result of their confinement at Pennhurst. Programming and training of the retarded Pennhurst residents was found to fall short of the minimum required for adequate habilitation according to the uncontradicted expert testimony of habilitation professionals. 446 F.Supp. at 1304. Not only was the habilitation then inadequate, but Pennhurst had no plans for improving the programming available to its residents. 446 F.Supp. at 1305.
The evidence presented at trial clearly showed that Pennhurst residents were not only receiving inadequate habilitation but also were regularly subjected to a number of dehumanizing practices. Specifically, this Court found that at Pennhurst restraints were used as control measures in lieu of adequate staffing. 446 F.Supp. at 1306. The Court further found that psychotropic drugs at Pennhurst were used for control and not for treatment, and that the rate of drug use on some of the units at Pennhurst was extraordinarily high. 446 F.Supp. at 1307. Regarding treatment at Pennhurst, the Court found that the environment at Pennhurst was not only not conducive to learning new skills, but it was so poor that it contributed to the loss of skills already learned. 446 F.Supp. at 1308. One survey showed that more than one-third of the Pennhurst residents had "some notation of regression in their records." 446 F.Supp. at 1308, n. 40. Pennhurst, at the time of trial, was in fact a dangerous place to live: "Injuries to residents by other residents and through self-abuse, were common.... In addition, there [was] some staff abuse of residents." 446 F.Supp. at 1308-09. The Court also found that many of the residents suffered physical deterioration and intellectual and behavioral regression during their residency at Pennhurst. 446 F.Supp. at 1309.
This Court held: (1) when a state involuntarily commits a retarded person, it must provide habilitation that will afford a reasonable opportunity to acquire such skills as his or her capabilities will permit, and that due process requires that once a state undertakes the habilitation of a retarded person it must do so in the least restrictive setting consistent with his habilitative needs; (2) that because the retarded persons had been physically abused, their constitutional right to be free from harm had been violated; (3) that retarded persons have the constitutional 1225 right to non-discriminatory habilitation and that Pennhurst residents had been segregated in an institution *1225 that was not only separate, but was not equal, thus denying their equal protection rights guaranteed by the 14th Amendment; (4) similarly, that Section 504 of the Rehabilitation Act of 1973 (29 U.S.C. § 794), which provides that no handicapped person shall be excluded from any program receiving federal aid because of his handicap, had been violated; (5) that the Pennsylvania Mental Health/Mental Retardation Act of 1966, 50 Pa.Stat.Ann. § 4201 (Purdon 1969), which provides that the Department of Public Welfare shall have the power and duty to assure availability of adequate mental retardation services, gives retarded persons a statutory right to minimally adequate habilitation. In effect, this Court provided our Circuit Court with several reasons for upholding its order that the retarded residents of Pennhurst should be transferred to community living arrangements.
On January 6, 1978, this Court held a hearing to determine the injunctive relief necessary to remedy the violations. The parties were asked to attempt to agree on the terms of the Court's order, but no agreement was forthcoming. On March 17, 1978, the Court issued an injunctive Order setting forth the relief to which the retarded residents of Pennhurst were entitled: an appropriate community living arrangement and all necessary support services. The Court ordered that Individual Habilitation Plans be developed for each member of the plaintiff class, that appropriate community monitoring mechanisms be designed and implemented, that a friend-advocate system be established to represent those class members who were without family or guardian, and that a Special Master be appointed to monitor the defendants' planning and implementation activities and report to the Court on the defendants' compliance with the Court's orders.

During the course of this litigation, questions were raised concerning the appointment of a Special Master, whose primary function was to monitor the implementation of the Court's remedial decree. The Court wishes to point out, however, that this was the only occasion where this Court has ever determined it necessary to appoint a Special Master. The retarded residents of Pennhurst for the most part were unable to articulate their complaints concerning violations of the Court's orders. They were not a class capable of enunciating complaints concerning noncompliance with the injunction. This Court needed someone at Pennhurst who would observe and report violations of its orders.
This Court's judgment was appealed to the Third Circuit. It was determined that the entire court should sit en banc and decide the appeal. Nine judges sat; Judge Gibbons wrote the majority opinion. 612 F.2d 84 (3d Cir.1979) (en banc). The majority opinion held that the Developmentally Disabled and Bill of Rights Act, 42 U.S.C. § 6010, provided mentally retarded persons with a right to adequate treatment. This Act was not considered by the trial court. The Court of Appeals held that the Pennhurst residents had standing to sue to enforce the Bill of Rights provision set forth in the Act, and, on this basis, determined that this Court's injunctive order should be affirmed with some exceptions. The Court of Appeals stated that on remand this Court should engage in a presumption in favor of placing individuals in community living arrangements, but that "the special needs and desires of individual patients must not be neglected in the process," and suggested that this could be handled by the appointment of a Master. 612 F.2d at 115. The majority opinion commented on each of the five grounds which this Court had offered as a basis for its holding, but stated that the preferred order was to turn first to the federal statutory issues and then to the state statutory issues before considering the constitutional questions. Commenting on this Court's finding of constitutional violations, the Circuit Court stated that while there was substantial case law supporting this Court's position, the Circuit's resolution of the controversy on statutory grounds obviated the necessity for consideration of the constitutional issues. 612 F.2d at 130.
1226 This Court, pursuant to the Third Circuit's remand order, established an impartial *1226 hearing procedure and appointed a Hearing Master to provide the individual determinations mandated by the Circuit Court.
On April 20, 1981, the United States Supreme Court, in an opinion written by Justice Rehnquist, reversed the judgment of our Circuit Court on the ground that the Developmentally Disabled Assistance and Bill of Rights Act established a federal grant program which was voluntary for the States and that the Act did not create any substantive rights for retarded persons. 451 U.S. 1, 31, 101 S.Ct. 1531, 1546-47, 67 L.Ed.2d 694 (1981). The opinion also held that the Act did not make granting rights to retarded persons a condition to receiving money from the federal government under the Act. The Supreme Court remanded the case to the Circuit Court to address (1) the federal constitutional claims; (2) the claims under the Pennsylvania statute and (3) the claims under Section 504 of the Rehabilitation Act of 1973.
On February 26, 1982, our Circuit Court, pursuant to the Supreme Court's remand, issued its second en banc decision, which again affirmed the judgment of this Court, holding that the Pennsylvania Mental Health/Mental Retardation Act of 1966, 50 Pa.Stat.Ann. §§ 4101-4704, (Purdon 1969), granted to Pennsylvania's retarded citizens the right to adequate habilitation in the least restrictive environment. 673 F.2d 647 (3d Cir.1982) (en banc).
The Supreme Court again granted certiorari and after two oral arguments, reversed the judgment of the Third Circuit on January 23, 1984. 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). In a five to four decision, the Court held that the Eleventh Amendment barred a federal court from ordering prospective injunctive relief against state officials on the basis of violations of state law, even where the state law claims were properly brought into the federal court under pendent jurisdiction. See D. Shapiro, Wrong Turns: The Eleventh Amendment and the Pennhurst Case, 98 Harv.L.Rev. 61 (1984). Once again the Supreme Court remanded to the Court of Appeals for a determination of the remaining federal statutory and constitutional issues.
While the case was pending (for the third time) before the Court of Appeals, the parties entered into settlement negotiations conducted by the Honorable Max Rosenn, Senior Circuit Judge of the Third Circuit. On July 12, 1984, the parties executed a Final Settlement Agreement. By Order dated July 20, 1984, the Third Circuit remanded the case to this Court for proceedings pursuant to Fed.R.Civ.P. 23(e). By Order of August 8, 1984, this Court directed that all members of the plaintiff class, and their parents and guardians, be notified of the Final

Settlement Agreement pursuant to the notification provisions of Appendix C of the Agreement; that any objections to the Agreement by any member of the plaintiff class, or any party, be filed with the Clerk of Court and mailed to all counsel no later than September 18, 1984; and that a hearing on the proposed settlement would be held in accordance with Rule 23(e) on September 25, 1984.
On September 25, 1984, a hearing on the proposed settlement was held before this Court. Subsequent to that hearing, at the request of the Commonwealth defendants, this Court deferred a decision on the approval or disapproval of the proposed settlement while the parties discussed the effect of unanticipated federal funding cutbacks upon the viability of the settlement. At a final hearing held in December, 1984, counsel for the Commonwealth defendants, all the County defendants, the plaintiff class, intervening plaintiff P.A.R.C., and intervening plaintiff United States of America recommended that this Court approve the settlement.
The Settlement Agreement
Currently there are approximately 435 residents remaining at Pennhurst, compared to 1,154 residents at the time this Court's community placement orders became effective in March of 1978. In November of 1983, prior to the second remand from the Supreme Court in this case, the Commonwealth of Pennsylvania announced that it 1227 intended to close Pennhurst (the *1227 same intention expressed by the Commonwealth at the trial of this case in 1977). The Settlement Agreement provides that the Commonwealth will close the Pennhurst State School and Hospital by July 1, 1986, and never again will that institution be used as a residential facility for retarded persons.
Under the terms of the proposed settlement, the Commonwealth and County defendants have agreed to provide community living arrangements to those members of the plaintiff class for whom such placement is deemed appropriate by the individual planning process, together with such community services as are necessary to provide each person with minimally adequate habilitation, until such time as the retarded individual no longer is in need of such living arrangements and/or community services. The defendants agree to provide residential and habilitative services to all persons who have been furnished with such services pursuant to prior orders of this Court. The defendants agree to develop and provide a written habilitation plan, formulated in accordance with professional standards, to each member of the plaintiff class; provide an individualized habilitation program to each member of the plaintiff class; and permit each class member and his family or guardian to be heard in connection with his or her program. The defendants also agree to provide an annual review of each person's individualized habilitation program, and to monitor the services and programs provided to the class members in accordance with a detailed, professionally-established monitoring and visitation procedure. All defendants shall assure that all persons provided with services under the terms of the agreement shall be afforded: (1) protection from harm; (2) safe conditions; (3) adequate shelter and clothing; (4) medical, health-related, and dental care; (5) protection from physical and psychological abuse, neglect, or mistreatment; (6) protection from unreasonable restraint and the use of seclusion; and (7) protection from the administration of excessive or unnecessary medication. Furthermore, the agreement mandates that no retarded person shall be transferred from Pennhurst solely to meet a timetable.
The agreement also provides:
1. The Commonwealth defendants will make available, in fiscal year 1984-85, $43.5 million (an amount approximately equal to that expended to operate Pennhurst in fiscal year 1982-83), to be expended on the following purposes, in the following order of priority:
a. The continued operation of Pennhurst for those still there;
b. The maintenance of community services for those persons placed in the community pursuant to orders of the district court;
c. The creation of community placements and services for persons presently residing at Pennhurst at a rate designed to allow the closing of Pennhurst by July 1, 1986;
d. The creation of community placements and services for 100 residents of Selinsgrove and Ebensburg Centers;

e. The creation of community placements and services for approximately 83 individuals residing in or from the five defendant counties who are not presently at Pennhurst;
f. The creation of community placements and services for additional individuals residing in the five defendant counties who are not presently at Pennhurst.
2. The Commonwealth defendants will make available, in fiscal year 1985-86, $43.0 million to be expended on the following purposes, in the following order of priority:
a. The continued operation of Pennhurst for those still there;
b. The maintenance of community services for those persons placed in the community in 1983-84 pursuant to orders of the district court and in 1984-85 except those 100 residents of Selinsgrove and Ebensburg placed in the community in 1984-85;
1228 c. The creation of community placements and services for persons still residing *1228 at Pennhurst at a rate designed to allow the closing of Pennhurst by July 1, 1986;
d. The maintenance of community placements and services for 100 residents of Selinsgrove and Ebensburg Centers placed in 1984-85;
e. The creation of community placements and services for approximately 32 individuals residing in or from the five defendant counties who are not presently at Pennhurst;
f. The creation of community placements and services for additional individuals residing in the five defendant counties who are not presently at Pennhurst.
3. The Commonwealth defendants will make available, in fiscal year 1986-87, sufficient funds to maintain community programs and services for all individuals placed in the community pursuant to the settlement and the prior orders of the district court, and will also fund the Special Management Unit in an amount sufficient to allow it to carry out its functions. Should there be funds available to them from the amounts referred to in the previous paragraphs in excess of that required for the purposes stated in the previous sentence, Commonwealth defendants will use those funds for the provision of community services for individuals with retardation.
It should be noted that this settlement in no way limits the Commonwealth's provision of habilitative and residential services for retarded persons throughout Pennsylvania who are not parties to this action.
The functions of the Hearing Master are to be discontinued upon approval of the settlement. In place of the Hearing Master, an independent neutral retardation professional, agreed upon by the parties to be William A. McKendry, shall be retained by the Commonwealth. Mr. McKendry served for many years as mental retardation program administrator for Chester County, and is well-acquainted with the history of this litigation. As the independent retardation professional, he is charged with the review of any aspect of a transitional individual habilitation plan raised by objection of the class member, County, Commonwealth, parent, advocate, or plaintiffs' counsel. He must also conduct a review of the plan and render a final and binding decision in accordance with the procedures set forth in the settlement agreement.
The Settlement Agreement provides that the definition of the plaintiff class shall be amended. The plaintiff class, as previously certified by this Court, was defined as follows:
All persons who as of May 30, 1974, and at any time subsequent, have been or may become residents of Pennhurst State School and Hospital. The members of the class are persons resident at Pennhurst State School and Hospital, persons residing in Bucks, Chester, Delaware, Montgomery and Philadelphia Counties who are on a waiting list for placement at Pennhurst State School and Hospital, and persons residing in Bucks, Chester, Delaware, Montgomery and Philadelphia Counties, who, because of the unavailability of alternate services in the community, may be placed at the Pennhurst State School and Hospital.

The amendment set forth in the settlement agreement provides that persons who are on the waiting list for placement at Pennhurst (and who have not received any habilitative services under any prior orders of this Court), as well as those persons who "may be placed" at Pennhurst, shall no longer be considered members of the plaintiff class, and that their claims shall be dismissed pursuant to Fed.R.Civ.P. 41 without prejudice to their asserting any claims which they may have in any court of competent jurisdiction.
Finally, the settlement agreement directs that this Court shall retain jurisdiction until July 1, 1989, and that as of that date this action shall be marked closed, provided, of course, that at that time all defendants are in compliance with the agreement.
Notice of and Objections to Proposed Settlement
Pursuant to Fed.R.Civ.P. 23(e), a Notice of Settlement (setting forth a summary of the settlement agreement and 1229 procedures *1229 for comment or objection) was personally served upon the 435 class members residing at
Pennhurst at that time. Notices were mailed to the last known address of 1,065 class members who no longer reside at Pennhurst but who were Pennhurst residents for some period between May 30, 1974 and the time of notification (August 1984). Notices were also mailed to the 1,924 class members who were on the Pennhurst waiting list as of March 17, 1978. Notices were also mailed to the last known address of the family, guardian, or advocate of each of the class members described above. A total of 6,671 notices were mailed or personally served.
Fifty-three objections, on behalf of some sixty persons, were filed with the Clerk prior to the hearing held on September 25, 1984. Of the 435 current Pennhurst residents, objections were filed on behalf of 34 persons, or 7.8% of that portion of the class. Of the 1,065 former Pennhurst residents in the class, objections were filed on behalf of 9 persons, or 0.85% of that portion of the class. Of the 1,924 class members on the Pennhurst waiting list as of March 17, 1978, objections were filed on behalf of 17 persons, or 0.88% of that portion of the class. General objections were filed by counsel for the Parents-Staff Association, which earlier in this litigation had been granted leave to intervene. The total number of objections received 0907approximately sixty 0907represents 0.89% of the total number of notices served on class members and their families/guardians.
The objections to the settlement fall into two broad categories. The first of these are the concerns 0907familiar to this Court0907 of family members of Pennhurst residents (and in one case from the resident herself) who object to relocating their relative from Pennhurst to the community. These objectors typically perceive Pennhurst as offering its residents more security, familiarity, and services than may be found in the community living arrangements, and it is their opinion that, for a variety of reasons, an institutionalized environment is more appropriate than community placement for their family member. Approximately twenty-five of the objections received by this Court fall into this category, as do objections on behalf of seven persons who expressed dissatisfaction with recent transfers of family members from Pennhurst to a community living arrangement.
The second general category includes eighteen objections filed on behalf of persons on the Pennhurst waiting list, expressing objection to the redefinition of the plaintiff class to exclude persons on the waiting list. A number of these objections 0907approximately six0907were filed on behalf of persons who express satisfaction with their current community placement and who request confirmation that under the terms of the settlement their community services will not be terminated. The balance of these objectors express fear that exclusion from the waiting list might disrupt funding either for their current placement in other institutions, or for community living arrangements not yet established.
Of the remaining (approximately eight) objections, several express concern over funding uncertainties with respect to the entire settlement, while others express concern over various aspects of the proposed placement procedures or monitoring process.
At the hearing on September 25, 1984, two members of the plaintiff class testified. Eight persons testified on behalf of family members. In addition, testimony was received from Dr. Robert W. Curtis, a mental health and retardation professional who expressed some reservations concerning the proposed settlement on behalf of the

parents-Staff Association. Finally, the Court received the testimony of Dr. James Conroy, the Director of Research of the Developmental Disabilities Center at Temple University, who reported the results of a longitudinal study designed to determine, through a variety of measurements, whether retarded persons transferred from Pennhurst to community living arrangements pursuant to this Court's orders are "better off" in the community than they were at Pennhurst.
1230 *1230 Analysis of the Settlement
The approval or disapproval of a class action settlement is left to the sound discretion of the trial court, which must determine whether the proposed settlement is fair, adequate, and reasonable. Walsh v. Great Atlantic & Pacific Tea Co., 726 F.2d 956 (3d Cir.1983). The Third Circuit has identified nine factors generally relevant to the court's determination of the adequacy, fairness, and reasonableness of a proposed settlement. See Girsh v. Jepson, 521 F.2d 153, 157 (3d Cir.1975) (citing City of Detroit v. Grinnel, 495 F.2d 448 (2d Cir. 1974)). The factors relevant to a proposed class settlement involving no money fund or determination of damages include (1) the complexity, expense, and likely duration of the litigation; (2) the reaction of the class to the settlement; (3) the stage of the proceedings; (4) the risks of establishing liability; and (5) the range of reasonableness of the settlement in light of all the attendant risks of the litigation. Girsh v. Jepson, 521 F.2d at 157.
The Third Circuit has stated that "[w]e review the district court's application of [the fair, adequate, and reasonable] standard only for abuse of discretion," and that
[g]reat weight is accorded [the] views [of the trial judge] because he is exposed to the litigants, and their strategies, positions, and proofs. He is aware of the expense and possible legal bars to success. Simply stated, he is on the firing line and can evaluate the action accordingly.
Walsh v. Great Atlantic & Pacific Tea Co., 726 F.2d at 965, quoting Ace Heating & Plumbing Co. v. Crane Co., 453 F.2d 30, 34 (3d Cir.1971). In this light, the Court will proceed to evaluate the settlement agreement and the reactions of the parties to the settlement.
The reaction of the class to the proposed settlement has been considered. As noted above, fifty-three objections, on behalf of some sixty persons, were filed. This total represents approximately 0.89% of the 6,671 notices of the settlement which were mailed or served to class members and their families. Only 7.8% of that portion of the class currently residing at Pennhurst filed objections. Less than one percent of that portion of the class who are former residents of Pennhurst filed objections. Less than one percent of that portion of the class who were on Pennhurst's waiting list in 1978 filed objections. In light of the considerable controversy accompanying the history of this litigation, and the announced intention of the Commonwealth to close Pennhurst, the number of objecting class members is remarkably small.
As noted above, the objections fall into two broad categories. One group of objections expresses concern or dissatisfaction with the redefinition of the plaintiff class to exclude those who were on Pennhurst's waiting list at the time the lawsuit was commenced. With respect to those "waiting list" class members currently receiving care, education, and training pursuant to prior orders of this Court, the settlement provides that they shall continue to receive such services. Furthermore, no class member currently on the waiting list has indicated that any funding which they or their families are receiving for other placements will be terminated by virtue of their exclusion from the class. The reason for initially including as class members all persons on the Pennhurst waiting list as of May 30, 1974, was to protect persons who actually were at risk of being sent to Pennhurst. Many (if not most) of the persons on the "waiting list" were not awaiting admission to Pennhurst. Their names were placed on the Pennhurst waiting list as a requirement for the receipt of funding which had been made available to provide financial aid to families who were paying for habilitation of a retarded family member in private institutions. It has never been this Court's intention to interfere in any manner with such funding procedures. See N.T., Exceptions Re: J.B.N., January 17, 1983, at 30-31. Furthermore, over the past eleven years of this litigation, it has become apparent to the Court that this so-called "waiting list" included the names of many persons who were not seeking 1231 habilitative care in facilities provided by the Commonwealth *1231 of Pennsylvania and the five defendant counties. Over the past eleven years, those who did seek such habilitation had it provided for them pursuant to orders of this Court. As counsel for the parties have pointed out, although the amended definition of the class

does exclude those who were on the Pennhurst waiting list and who have not been subject to prior orders of this Court, their exclusion does not in any way prejudice their right to seek habilitation from the Commonwealth and the five defendant counties in the event that, at some date in the future, they determine that they are in need of such services. The Court finds that the eleven-year-old Pennhurst waiting list has outlived its usefulness in this litigation.
Objections also were received from present Pennhurst residents (or family members of present residents) who objected to relocating from Pennhurst to the community. These objections, most of which were filed on behalf of long-time residents of Pennhurst, express concern about leaving "familiar surroundings." There is no question that those who have resided at Pennhurst for many years will have difficulty adjusting to their new surroundings. Moving is a traumatic experience for most older people, even those who are not retarded. However, such transfers can be accomplished with a minimum of disruption by employing a program of preplacement visits in order to afford an opportunity for them to become familiar with their new living arrangements. The Court is well aware that many of the Pennhurst residents will encounter an emotional reaction to a new life outside the institution. However, the Court finds that with care and sensitivity, such transfers can be accomplished without harm to the individual.
The Court also received objections from the Pennhurst Parents-Staff Association. Its basic objection appears to be that Pennhurst should not be closed. The Court well understands that those members of the staff presently employed at Pennhurst are not happy with the prospect that their employment will be terminated with the closing of Pennhurst. In its Order of March 17, 1978, this Court evidenced its understanding of their problem by ordering the formulation of a plan to provide alternative employment. This portion of the Court's Order, however, was set aside by the Third Circuit on appeal.
The Parents-Staff Association also has expressed genuine concern that the monitoring procedures provided in the settlement agreement may not be as effective as the present Court-ordered procedures in assuring adequate habilitation to members of the plaintiff class. The Court shares this concern but, as will hereafter be discussed, under the terms of the settlement agreement this Court will retain jurisdiction at least until July 1, 1989, for the purpose of assuring compliance with the terms of the settlement. The Parents-Staff Association has, within the last few years, become a forceful advocate for the rights of retarded persons, and the Court therefore is confident that the Parents-Staff Association will continue its vigilance.
The Court is well aware of the concerns expressed as to the availability of future funding to implement the terms and provisions of this settlement. The Court is reasonably certain that since the parties are in agreement and are vitally concerned with the implementation of this agreement, their sincerity and determination will be sufficiently persuasive to the sources of funding, particularly since the studies have shown that closing Pennhurst and transferring its retarded residents to the community will be considerably less costly than providing them with adequate habilitation at Pennhurst.
The Court notes that the parties' choice of William A. McKendry as the Independent Retardation Professional is an excellent choice. This Court has had the opportunity to observe the performance of Mr. McKendry in his capacity as the mental retardation program administrator for Chester County, wherein he displayed the expertise and sensitivity which well qualify him for the duties which he now assumes.
This Court would be remiss if it did not take this opportunity to express its gratitude to the present Hearing 1232 Master, Michael *1232 S. Lottman, who has performed the difficult tasks assigned to him as Hearing Master in an
outstanding manner.
Finally, since the settlement agreement specifically provides that this Court shall continue to have jurisdiction concerning the enforcement of the settlement until the case is finally marked closed on July 1, 1989, and that the orders of this Court set forth in Appendix A of the settlement agreement shall have permanent force and effect, the Court has no hesitancy in finding that the settlement is fair, adequate, and reasonable.
The Court's paramount concern always has been whether the retarded residents at Pennhurst were receiving minimally adequate habilitation in the least restrictive environment. This Court never has hesitated to disapprove any practice or proposal which did not measure up to this concern. The Court has, in the words of the Third

Circuit, been "on the firing line" in this litigation for more than eleven years, and in light of that experience and the evidence presented in support of the settlement, it has no hesitancy in approving this settlement.
Continued litigation of the constitutional as well as the state and federal statutory claims would not only be timeconsuming and expensive, but when one considers that it has taken more than seven years of appellate review to reach this stage of the litigation, with none of the constitutional claims yet determined by the Court of last resort, it is certain that an ultimate conclusion to this litigation would not be reached in the immediate future. Furthermore, this litigation is now at the juncture where the parties are able to fully assess all the costs and risks of continued litigation.
In addition, the now-available empirical evidence has vindicated the opinions of the mental retardation experts that institutionalization cannot provide minimally adequate habilitation. During the course of this litigation, transfers from Pennhurst to community living arrangements have been successfully accomplished, and have enabled these individuals to enjoy a better life. The care, training, and education received by them in the community have enabled them to experience life as fully as their capabilities permit. Indeed, many parents and other relatives of retarded class members who were initially apprehensive and expressed objections to having their loved ones transferred from Pennhurst to a community living arrangement are now ardent supporters of community habilitation outside the institution of Pennhurst. The progress displayed by these former Pennhurst residents habilitated in the community has demonstrably altered the attitude expressed by their families toward community placement.
Systematic studies of the progress of retarded citizens receiving habilitation in community facilities show that the retarded residents of Pennhurst have made significant behavioral strides while in the community. In fact, all studies thus far presented to this Court show that Pennhurst residents placed in appropriate community living arrangements are, as each day passes, improving in habilitative skills. Their habilitation in the community stands in stark contrast to the finding in this record that an overwhelming number of the retarded at Pennhurst experienced a regression in life skills while at the institution. See 446 F.Supp. at 1308.
A 1981 study showed that former Pennhurst residents had, on average, exhibited an increase of nearly six points (on a 128-point scale) in their Behavior Development Survey (BDS) adaptive behavior score. See C. Feinstein, J. Lemanowicz, J. Conroy, Progress of Clients in Community Living Arrangements: Class Members Compared to Others (Sept. 19, 1981).
A 1982 Temple University Developmental Disabilities Center Study focused on habilitation in Chester County community facilities and found that former Pennhurst residents now residing in this community had exhibited a more than 15-point gain in their BDS adaptive behavior scores (on a 128-point scale) and an average .435 point gain in the BDS maladaptive behavior scores (on a 22-point scale; a higher BDS maladaptive behavior score 1233 indicates that the retarded *1233 citizen shows less maladaptive behavior). This study also showed that these former Pennhurst residents now receiving community habilitation also exhibited substantial gains in life skills as measured by other tests generally accepted by the scientific community but less widely employed than the BDS adaptive and maladaptive behavior scores. See Temple University Developmental Disabilities Center Evaluation and Research Group. Pennhurst Class Members in CLAs: Report # 2: Chester County Monitoring, July 8, 1982.
A 1982 report commissioned as part of the Longitudinal Study of the Court Order begun by the U.S. Department of Health and Human Services in July, 1979 found that parental responses to questions concerning their view of their children's community habilitation "reveal a dominant pattern of extreme satisfaction with the quality and benefits of the community residences, tempered by deep concerns about the future security and permanence of the arrangements." J. Conroy and A. Latib, Family Impacts: Pre-Post Attitudes of 65 Families of Clients Deinstitutionalized June 1980 to May 1982, August 31, 1982. In particular, this report found that family attitudes toward community habilitation "changed sharply to more positive attitudes" toward community habilitation after these families had seen the progress made by their own children in community facilities. Id. at 8. Family satisfaction with community habilitation affected many aspects of family conduct. Id. at 14.
At the hearing on the settlement held on September 25, 1984, James Conroy, Director of Research of the Developmental Disabilities Center at Temple University, summarized the final results of the five year longitudinal study which systematically has tracked and monitored the progress of Pennhurst residents placed in community

living arrangements (CLAs) under this Court's Orders. The purpose of the study was to measure each person's relative growth and development in the institution and the community, and to assess the impact of deinstitutionalization on their families. The findings are remarkable:
1. As measured by a variety of standards, former Pennhurst residents show significantly faster developmental growth in the CLAs than they did at Pennhurst.
2. Former Pennhurst residents receive more services and program time in CLAs than they did at Pennhurst (an average of ten hours per day compared to six at Pennhurst).
3. Prior to the transfer of a resident from Pennhurst into a CLA, over 60% of families surveyed opposed relocation, with 64% strongly disagreeing with the decision to transfer. Six months after the relocation of their relative to the CLA, the same families overwhelmingly approved of the decision: over 80% agreed with the decision (64% strongly agreed), and only 4% still strongly disagreed with the decision.
4. Following relocation to a CLA, families perceived their relatives' general happiness 0907 as measured by a variety of standards 0907 to be much greater in the CLA than at Pennhurst.
5. The expenditure of public dollars per resident was less in the CLAs than in Pennhurst.
Dr. Conroy testified that the results of the five year longitudinal study overwhelmingly demonstrated that those persons transferred from Pennhurst to a CLA pursuant to this Court's orders were "better off in every way." See Conroy, J.W., and Bradley, V.J., The Pennhurst Longitudinal Study: A Report of Five Years of Research and Analysis, Temple University Developmental Disabilities Center (Philadelphia 1985).
This settlement is more than just a termination of litigation; it is the beginning of a new era for retarded persons. It is a confirmation that all parties to this litigation are now in complete agreement that the retarded citizens of this Commonwealth have a right to care, education and training in the community. It is a recognition by the Commonwealth and its Counties that retarded persons are not subjects to be warehoused in institutions, but that 1234 they are individuals, the great majority of whom *1234 have a potential to become productive members of society.
Save trees - read court opinions online on Google Scholar.

 
 784 F.Supp. 215 (1992)
Terri Lee HALDERMAN, et al., Plaintiffs, v.
PENNHURST STATE SCHOOL AND HOSPITAL, et al., Defendants.
Civ. A. No. 74-1345.
United States District Court, E.D. of Pennsylvania.
January 31, 1992.
David Ferleger, Philadelphia, Pa., for Halderman.
Judith A. Gran, Frank J. Laski, Public Interest Law Center, Philadelphia, Pa., for Pennsylvania Ass'n for Retarded Citizens (now ARC/PA).
Howard Ulan, Com. of Pennsylvania Dept. of Public Welfare, Harrisburg, Pa., Arthur E. Peabody, Jr., Robert H. Stern, Pamela K. Chen, U.S. Dept. of Justice, Washington, D.C., for defendants.
RAYMOND J. BRODERICK, District Judge.
Again, as the Third Circuit stated in its 1990 decision, "we revisit the seemingly endless litigation over the closing 216 of Pennhurst *216 State School and Hospital ("Pennhurst")." Halderman v. Pennhurst State School and Hosp.,
901 F.2d 311, 314 (3d Cir.), cert. denied, ___ U.S. ___, 111 S.Ct. 140, 112 L.Ed.2d 107 (1990). Now before this Court is defendant Commonwealth of Pennsylvania's motion pursuant to Fed. R.Civ.P. 60(b)(5) and (6) seeking to modify the Final Settlement Agreement ("FSA") that was approved and entered as a consent decree and order of this Court on April 5, 1985. Asserting developments in both constitutional and statutory law, defendant's motion seeks to modify the FSA by vacating Appendix A of the FSA. Having determined, pursuant to the recent Supreme Court decision, Rufo v. Inmates of Suffolk Co. Jail, ___ U.S. ___, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992), that the Commonwealth has not carried its burden of establishing a significant change in factual circumstances or in law, this Court will deny defendant's motion.
The history of proceedings in this case is lengthy and will not be set out except as is pertinent to defendant Commonwealth's present motion. At the outset, however, this Court must express its dismay that, after having determined that there has been no change in law or fact that could support defendant Commonwealth's present motion, this Court must conclude that this motion is yet another attempt by the Commonwealth to avoid, or at least to delay, full compliance with the legal obligations the Commonwealth knowingly and willingly assumed as a result of its acceptance of the FSA that was approved and entered as an order of this Court in 1985. While the FSA propelled the Commonwealth into recognition as a leader in habilitation for its retarded citizens, this Court must note that as of 1989, some members of the Pennhurst class remained institutionalized, contrary to the obligations the Commonwealth undertook under the FSA. In November, 1991, further, this Court was notified in the course of another matter that fifteen of the 191 members of the plaintiff class who reside in Delaware County have yet to be placed into community living arrangements. Finally, this Court must note that Appendix A is the "heart and soul" of the FSA, in that Appendix A sets out the affirmative obligations owed to the Pennhurst class members. Indeed, without Appendix A, the FSA would be a nullity. Although the services and safeguards of Appendix A are generally the joint responsibility of the Commonwealth and county defendants, no county defendant has joined the Commonwealth's present motion to vacate Appendix A.
This case spans back to May of 1974, when suit was brought as a class action on behalf of former and present residents of Pennhurst School and Hospital, a state institution for persons with retardation in Spring City, Pennsylvania, against officials of the Commonwealth of Pennsylvania. In 1975, the Pennsylvania Association for Retarded Citizens (now ARC/PA), among others, intervened as plaintiffs, adding as defendants the Mental Health/Mental Retardation Administrators of Bucks, Chester, Delaware, Montgomery and Philadelphia Counties. Also in 1975, the United States of America intervened as a party plaintiff. In November of 1976, the class was

certified as consisting of all present and future residents of Pennhurst, those who were on a waiting list for placement at Pennhurst, and those who, because of the unavailability of alternate services in their community, may be placed at Pennhurst.
In 1977, the case went to trial. After 32 days of testimony limited solely to the issue of liability, this Court made findings of fact and conclusions of law which are detailed in Halderman v. Pennhurst State Sch. & Hosp., 446 F.Supp. 1295 (1977). Summarizing, this Court found, based on the evidence presented, that Pennhurst in 1977 was overcrowded, understaffed and without the programs which experts considered necessary for minimally adequate habilitation. ("Habilitation" is the term of art used to refer to that education, training and care required by retarded individuals to reach their maximum development.) Not only was habilitation inadequate, with no plans for improving the programming available, but the evidence clearly showed that a large number of the Pennhurst 217 residents had experienced marked regression *217 in basic living skills as a result of their confinement at Pennhurst and that the residents of Pennhurst were regularly subjected to a number of dehumanizing practices. Specifically, this Court found that restraints were used in lieu of adequate staffing as control measures, that psychotropic drugs were used not for treatment but for control, and that the rate of drug use on some of the units was extraordinarily high. The Court also found that Pennhurst was a dangerous place to live, with injuries to residents commonplace from other residents and through self-abuse, and sometimes from staff. Many residents suffered loss of teeth, broken bones, and physical deterioration as a result of this abuse. Moreover, because routine housekeeping services were not available during evenings and on weekends, it was common to find urine and feces on ward floors over these periods. The average age of the residents was 36, and the average stay at Pennhurst was 21 years.
In 1984, following eleven years of active litigation, approximately 500 court orders, 28 published opinions and three arguments before the United States Supreme Court, a summary of which is found in this Court's opinion, Halderman v. Pennhurst State Sch. & Hosp., 610 F.Supp. 1221 (E.D.Pa. 1985), the parties reached a settlement under the guidance of Judge Rosenn of the Third Circuit Court of Appeals. The parties executed the FSA, pursuant to which the definition of the plaintiff class was limited to those persons who were residents of Pennhurst on or after May 30, 1974.
In determining whether to approve the FSA, this Court held a hearing on September 25, 1984. Among those testifying was Dr. James Conroy, the director of research at the Developmental Disabilities Center at Temple University, who summarized the final results of a five-year longitudinal study that had systematically tracked and monitored the progress of the Pennhurst residents who had been transferred to community living arrangements pursuant to orders of this Court. The purpose of the study was to measure each person's relative growth and development in the institution and in the community, and to assess the impact of deinstitutionalization. The study found that the former Pennhurst residents showed significantly faster development growth in the community than they had at Pennhurst. They received more services and more program time at less cost in public dollars. Prior to the transfer of residents from Pennhurst, over 60 percent of the families surveyed had opposed the transfer, of which 52 percent were strongly opposed. Six months later, the same families overwhelmingly approved of the decision: 81 percent agreed with the decision to transfer, of which 64 percent strongly agreed, while only 4 percent continued their strong disagreement. Measured by a variety of standards, the families generally perceived the happiness of their retarded relatives to be much greater in the CLAs than at Pennhurst. Id. at 1233; Conroy, J.W. and Bradley, V.J., The Pennhurst Longitudinal Study: A Report of Five Years of Research and Analysis, Temple University Developmental Disabilities Center (Philadelphia 1985).
The FSA was approved and entered as a consent decree and order of this Court on April 5, 1985. Under the terms of the proposed settlement, the Commonwealth and County defendants, agreed, among other things, to provide community living arrangements to those members of the plaintiff class for whom such placement is deemed appropriate, as determined by professional judgment through the individual planning process, together with such community services as are necessary to provide each person with minimally adequate habilitation until such time as the retarded individual no longer is in need of such living arrangements and/or community services.
The FSA has four components: the main body of the Agreement, which consists of 22 paragraphs and a glossary of terms; Appendix A, which sets forth the substantive services, safeguards and monitoring which the Commonwealth and County defendants agreed to provide each class member; Appendix B, which sets forth the

218 Commonwealth's obligations with respect to allocation of the funds made available by *218 the closure of Pennhurst; and Appendix C, which concerns approval of the Agreement and notice to members of the plaintiff class.
Appendix A, in full, states:
A1. Plans and services shall be provided by Commonwealth and County Defendants to class members as determined in accordance with this Final Settlement Agreement by a professional judgment, expressed through the interdisciplinary team process, and approved or disapproved by the County Mental Health and Mental Retardation Administrator or his or her designee.
A2. Commonwealth and County Defendants shall provide community living arrangements to the members of the Plaintiff class for whom such placement is called for by the individual planning process, together with such community services as are necessary to provide them with minimally adequate habilitation, as defined in the individual planning process, until such time as the retarded individual is no longer in need of such living arrangement and/or community service.
A3. The Defendants agree that they will continue to provide residential and habilitative services to those persons who were furnished such services pursuant to the placement orders of the District Court in this case or who are being furnished such services under this Final Settlement Agreement (with the exception of the Selinsgrove and Ebensburg Center residents to be placed under Appendix B), including the IHP planning process, written IHPs, case management and monitoring, as provided in this Appendix A.
A4. Commonwealth and County Defendants shall develop and provide a written individualized program plan, formulated in accordance with professional standards, to each member of plaintiff class, provide to each an individualized habilitation program, provide annual periodic review thereof and provide the opportunity to each member of plaintiff class and to his or her next friend to be heard thereon.
A5. Commonwealth and County Defendants shall monitor the services and programs being received by class members as follows:
a. Each TIHP shall be reviewed and approved by the Commonwealth Defendants through the Special Management Unit to assure it meets the needs of the person and is formulated in accordance with professional standards.
b. The County Defendants will monitor the programs and services being received by each individual class member in accordance with his or her IHP. This monitoring will include an annual on-site visit of all residential and day programs serving class members to examine the strengths and weaknesses of the facilities are safe and adequately staffed, and that services of necessary quantity and quality are available. A written report of the site visit shall be provided to the program provider and the Commonwealth. Until July 1, 1989, the Commonwealth will make such reports available to Plaintiffs' Counsel for inspection or copying. The County Defendants shall follow up to require corrective action and the implementation of recommendations.
c. The Commonwealth Defendants shall continue, either by themselves or by qualified contractor, to measure annually by suitable instruments the progress of each class member and the characteristics of the person's environment. The findings, including any significant decrease in adaptive behavior or environmental quality, shall be reported promptly to the County Administrators and distributed by them to providers and case managers. Said findings, aggregated by County and by provider, will be furnished by the Commonwealth Defendants to the Plaintiffs' Counsel until July 1, 1989.
d. Every person receiving services under the Final Settlement Agreement shall have a case manager who shall be responsible to the County Mental Health and Mental Retardation Administrator, and whose caseload shall not exceed the ratios set forth in the respective

219

countystate *219 Title 19 waiver agreements. The Commonwealth Defendants will provide at least

three working days' training to newly hired case managers and continuing annual training to them.

e. The Commonwealth Defendants, through the Special Management Unit, will visit the residential and day program of each class member placed from Pennhurst hereafter within 120 days of such placement. Thereafter the Commonwealth Defendants will monitor the Counties' performance of their obligations under Subparagraph b above, and will monitor annually on-site the residential and day programs of 20% of such class members. Such monitoring shall continue for two and one-half years from the date upon which each County's last Pennhurst resident leaves Pennhurst; in the event that, during any such period, the Commonwealth Defendants shall establish, by duly promulgated regulation, a state-wide on-site monitoring system, the provisions of such regulation shall supercede the monitoring provisions of this Subparagraph e.

f. The Commonwealth functions set forth at Subparagraph a, d, and e above shall be carried out by a unit sufficiently staffed, located within the Southeastern Region and elsewhere, as appropriate, and supervised by qualified professionals responsible for the work of the unit.

A6. Commonwealth and County Defendants shall take adequate actions and shall require providers of residential or habilitative services to take adequate actions to provide individuals served hereunder with the following:

a. Protection from harm.

b. Safe conditions.

c. Adequate shelter and clothing.

d. Medical, health-related and dental care.

e. Prohibition of physical and psychological abuse, neglect or mistreatment.

f. Prohibition of unreasonable restraint and prohibition of the use of seclusion.

g. Prohibition of administration of excessive or unnecessary medication.

A7. Commonwealth and County Defendants will maintain written rules pertaining to implementation of the provisions of Paragraph A6 above, including procedures requiring prompt reviews/investigation of any complaints pertaining thereto, and adoption of necessary corrective actions in response to such reviews/investigations.

A8. County and Commonwealth Defendants shall require any provider of residential or habilitative services to comply with the Community Residential Mental Retardation Facility Regulations, 55 Pa. Code, Chapter 6400 (12 Pa.Bull. 384), the ICF/MR Regulations, 42 C.F.R. 442.400, 43 Fed.Reg. 190 (Sept. 29, 1978), the Day Program Regulations, 55 Pa.Code 2-7-1 (8 Pa.Bull.) and the Vocational Rehabilitation Regulations, 55 Pa.Code 9056 (10 Pa.Bull.1897), as applicable. Until July 1, 1989, Commonwealth Defendants will provide Plaintiffs' Counsel with thirty (30) days' advance notice of any proposed changes in the above state regulations at the time any such changes are filed with the Legislative Reference Bureau. The Commonwealth Defendants' provision of advanced notice to Plaintiffs' Counsel does not apply to regulatory changes where proposed rulemaking had been omitted and the regulations are published as final rulemaking in accordance with the provisions of the Commonwealth Documents Law, 45 P.S. 1102 et seq.

FSA, Appendix A.

The jurisdictional component for Appendix A is found in ¶ 14 of the main body of the FSA, which states:

14. Subject to paragraphs 15 and 16 below, the parties agree that as of the dates specified in those paragraphs, the District Court will mark this case closed and settled, will vacate the

judgment and all orders of the Court except those in Appendix A, which shall remain in effect permanently (subject to Fed. R.Civ.P 60(b)), ..."
FSA, ¶ 14 (emphasis added).
220 In approving the FSA and entering the consent decree, this Court, in its 1985 opinion, *220 Halderman v. Pennhurst State Sch. & Hosp. 610 F.Supp. 1221 (E.D.Pa.1985), stated that when the action was tried in 1977, all parties were in agreement that Pennhurst as an institution was inappropriate and inadequate for the habilitation of the retarded. Referring to the 1977 trial, this Court further stated,
During the course of the trial, no one took issue with the many professionals in the field of mental retardation who testified that "normalization" has been universally accepted as the only successful method of habilitating a retarded person. Normalization, as the term implies, is the antithesis of institutionalization. The basic principle of normalization is that a retarded person must be cared for, trained and educated in a normal community environment.
Halderman, 610 F.Supp. at 1223.
The 31-page Memorandum approving the FSA and the consent decree concludes:
This settlement is more than just a termination of litigation; it is the beginning of a new era for retarded persons. It is a confirmation that all parties to this litigation are now in complete agreement that the retarded citizens of this Commonwealth have a right to care, education and training in the community. It is a recognition by the Commonwealth and its counties that retarded persons are not subjects to be warehoused in institutions, but that they are individuals, the great majority of whom have a potential to become productive members of society.
610 F.Supp. at 1233-34.
This Court not only approved the FSA, but incorporated the FSA into its Order of April 5, 1985, which provides:
IT IS HEREBY ORDERED that the Final Settlement Agreement is APPROVED, and IT IS FURTHER ORDERED that the provisions of the Final Settlement Agreement executed on July 12, 1984 heretofore made a part of the record in this case shall have the full force and effect of an Order of this Court.
Order of April 5, 1985.
Subsequent to the approval of the FSA, however, it has been necessary for both the Pennhurst class and the ARC/PA plaintiffs to file motions against the Commonwealth and County defendants for enforcement of Appendix A. In 1989, one such motion was filed by ARC/PA. This Court held hearings over a period of four days, at which defendant Commonwealth contended that it had no legal obligation to the members of the Pennhurst class and that this Court was without jurisdiction to enforce the FSA. This Court found that it did, indeed, have jurisdiction, and that the Delaware and Montgomery County defendants and defendant Commonwealth were not in substantial compliance with the provisions of the FSA and the judgments entered by this Court pursuant to Appendix A. This Court found that 68 out of the 191 members 0907 more than one-third 0907 of the Pennhurst class who reside in Delaware County were not receiving the minimally adequate habilitation mandated by the FSA; and that 6 of the 200 members of the Pennhurst class who resided in Montgomery County were not receiving the mandated minimally adequate habilitation. Conceding that Montgomery County's compliance was admirable, still, this Court determined that as long as one member of the class is being denied the habilitative services to which he or she is entitled pursuant to the FSA, there was not substantial compliance. Halderman v. Pennhurst State School and Hosp., No. 74-1345, 1989 WL 100207, 1989 U.S. Dist. LEXIS 10147 (E.D.Pa. Aug. 28, 1989).
The Third Circuit affirmed. Halderman v. Pennhurst State School and Hosp., 901 F.2d 311 (3rd Cir.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 140, 112 L.Ed.2d 107 (1990). Before the Third Circuit, the Commonwealth argued that under the explicit terms of the FSA, jurisdiction of this Court was for a limited period and that the period had expired before this Court entered its findings in August of 1989. The Commonwealth argued, further, that the parties had meant the obligations of Appendix A to remain in effect permanently as moral rather than

221 legal obligations, and that, since the court was to give up its jurisdiction on the specified dates, the Appendix A *221 obligations could not be continuing legal obligations. The Third Circuit determined that the jurisdictional terms of the FSA specified only the cessation of active supervision over the case by the district court, after which it would "simply resort to the usual continuing jurisdiction that courts routinely exercise over their injunctions." Id. at 320. The Third Circuit, further, determined that ¶ 14 clearly referred to the Appendix A obligations as `orders of the Court,' not ethical commands. Id. at 319-20. Appendix A, thus, was determined to be "permanent", subject to Rule 60(b), and the Commonwealth was held to have a continuing legal obligation to the Pennhurst class. As the Third Circuit stated:
[W]e reject the appellants' reading of the FSA and accept the district court's construction as better reflecting the bargained for positions of the parties as evidenced by the four corners of the instrument.
Id. at 321.
Having, thus, failed in its 1989 attempt to avoid the legal obligations it knowingly assumed in 1985 by its acceptance of the FSA, the Commonwealth now makes another attempt in avoidance. In its present motion, defendant Commonwealth asserts that, subsequent to the entry of the FSA on April 5, 1985, developments in both constitutional law (substantive due process and equal protection) and statutory law (§ 504 of the Rehabilitative Act of 1973, 29 U.S.C. § 794) have eliminated the legal predicates for Appendix A. Therefore, the Commonwealth asserts that, pursuant to paragraph 14, the FSA should now be modified under Rule 60(b)(5) and (6) by vacating Appendix A.
Rule 60(b)(5) and (6) state in pertinent part:
On motion and upon such terms as are just, the court may relieve a party or a party's legal representative 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.
Rule 60(b)(5) and (6).
In making its determination, this Court is guided by the recent Supreme Court decision, Rufo v. Inmates of Suffolk County Jail, ___ U.S. ___, 112 S.Ct. 748, 116 L.Ed.2d 867. In Rufo, the Supreme Court held that the "grievous wrong" standard of United States v. Swift & Co., 286 U.S. 106, 52 S.Ct. 460, 76 L.Ed. 999 (1932), does not apply to requests to modify consent decrees stemming from institutional reform litigation. Under the "flexible standard" adopted by the Supreme Court, a party seeking modification of an institutional reform consent decree bears the burden of establishing that a significant change in factual conditions or law warrants revision of the decree. Id., ___ U.S. at ___, 112 S.Ct. at 759-760.
In its present motion, the Commonwealth asserts that recent Supreme Court and Third Circuit decisions have undermined the legal predicates on which the FSA was based, specifically, the legal theories of constitutional substantive due process, equal protection, and federal statutory rights under § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. Further, the Commonwealth asserts that considerations of equity and fairness mandate the modification of the FSA by vacating Appendix A.
First, under constitutional substantive due process, the Commonwealth asserts that there has been a "reversal of holding[s] that voluntary residents have a constitutional right to mental retardation services" in recent Supreme Court and Third Circuit decisions. Commonwealth Br. at 8, citing, e.g., DeShaney v. Winnebago County Dept. of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989); Fialkowski v. Greenwich Home for Children, Inc., 921 F.2d 459 (3rd Cir.1990); Philadelphia Police and Fire Assn. v. Philadelphia, 874 F.2d 156 (3rd Cir.1989). Asserting that this Court, in 1977, found the substantive due process rights of voluntary residents of 222 Pennhurst to be the same as *222 those of involuntary, court-committed residents, the Commonwealth states that the cited cases have produced "the kind of change in the law that routinely results in the modification of consent decrees." Commonwealth Br. at 9.

This Court disagrees with Commonwealth's expansive interpretation of the cases it cites. Under the facts of this case, nevertheless, this Court determines that the cases are inapposite. In 1977, after 32 days of testimony, this Court did not make the finding of fact that the substantive due process rights of the voluntary and involuntary residents were the same. Rather, this Court found that all of the Pennhurst residents were involuntary residents. As stated heretofore, this action has progressed through 28 published opinions, three arguments before the Supreme Court, the entering of the FSA in 1985, and the Commonwealth's 1989 claim that this Court lacked jurisdiction over this matter. Throughout the many appeals that have been taken over the course of fourteen years of litigation, it is only now, with the Commonwealth's present motion, that any of the defendants, including the Commonwealth, has challenged this finding of fact that all of the residents of Pennhurst were in fact involuntarily committed.
In its present motion, defendant Commonwealth attempts to distinguish involuntary residents of Pennhurst as being only those residents who were court-committed. Defendant asserts that it is only to those who were involuntary due to court commitment that the Commonwealth owes any legal duty. This Court disagrees that such a distinction may be made. In its 1977 opinion, this Court stated:
We wish to make it clear that our finding that the retarded at Pennhurst are being deprived of their constitutional right to minimally adequate habilitation is not limited to those residents who were court committed. Nearly fifty percent of the residents at Pennhurst did not go through court commitment procedures. They have been, and are being, deprived of minimally adequate habilitation to the same extent as those who were court committed. Moreover, as we have heretofore found, voluntariness in connection with admission and exit from Pennhurst is an illusory concept. The record in this case shows that Pennhurst residents had no practical alternative at the time of their admission and at the present time, they have no place else to go.
No constitutional mandate has been called to our attention which would require a state to provide habilitation for its retarded citizens. However, whenever a state accepts retarded individuals into its facilities, it cannot create or maintain those facilities in a manner which deprives those individuals of the basic necessities of life.
Id. at 1318. (emphasis added).
Further, this Court stated,
Approximately 21 of the 45 living units at Pennhurst are locked to prevent individuals from leaving their living units. Those individuals over the age of 18 who have been "voluntarily" admitted to Pennhurst are theoretically free to leave the institution at any time. Those admitted on the petition of their parents are informed by their caseworker when they reach the age of 18 that they do not have to remain at Pennhurst. If the residents state that they wish to leave the institution and the staff determines that there is no place for them in the community, or believes that the individuals are not ready to go into the community, the staff will petition the courts to have the individuals committed to the institution by a court. Furthermore, those residents who either do not understand their alternatives, or are physically unable to indicate that they wish to leave Pennhurst, will be deemed to have consented to their continued placement at the institution. Thus, the notion of voluntariness in connection with admission as well as in connection with the right to leave Pennhurst is an illusory concept.
Id. at 1310-11 (citations omitted) (emphasis added).
223 Contrary to defendant Commonwealth's assertion, recent cases do not undermine *223 this Court's finding of fact that all of the residents of Pennhurst were involuntary. This Court so found on the basis of the Commonwealth's affirmative actions of accepting them into Pennhurst, in restraining them at Pennhurst, and in depriving them of their constitutional right to minimally adequate habilitation, a failure that could well mean commitment for life, since it was unlikely that they would ever advance to a stage at which they might be found ready by the staff to go out into the community. As this Court found, the residents of Pennhurst were being deprived of the opportunity to prepare themselves to move into the community.

Recent case law supports this view. As the Supreme Court in DeShaney v. Winnebago Co. DSS, 489 U.S. 189, 109 S.Ct. 998, 1005, 103 L.Ed.2d 249 (1989), stated:
[W]hen the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs0907e.g., food, clothing, shelter, medical care, and reasonable safety it 0907 transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause. ... In the substantive due process analysis, it is the State's affirmative act of restraining the individual's freedom to act on his own behalf0907through incarceration, institutionalization, or other similar restraint of personal liberty0907which is the "deprivation of liberty" triggering the protections of the Due Process Clause, ...
DeShaney 109 S.Ct. at 1005-06 (citations omitted) (emphasis added).
Further, as in 1977, this Court continues to entertain serious doubts as to whether retarded individuals should ever be subjected to "commitment." Halderman, 446 F.Supp. at 1315. Mental retardation is an impairment in learning capacity and adaptive behavior; it is wholly distinct from mental illness. Id. at 1298. Generally, the mentally retarded have not been found guilty of a crime, nor are they, with proper habilitation, a danger to themselves or to society. As Dr. Conroy's study, cited supra, amply shows, with minimally adequate habilitation, the great majority of the mentally retarded can become functioning members of the community.
This Court determines, therefore, that pursuant to Rufo, ___ U.S. ___, 112 S.Ct. 748, defendant Commonwealth has not carried its burden of establishing that a significant change in the law of substantive due process warrants modification of the FSA by vacating Appendix A.
Defendant Commonwealth also asserts that the Supreme Court decision of City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985), has undermined the equal protection predicate on which the FSA was based. As demonstrated heretofore, the right to relief found by this Court in its 1977 opinion did not stem from suspect or quasi-suspect class analysis. Further, the obligations which defendant Commonwealth is now trying to avoid stem not from this Court's 1977 opinion, but from the FSA which the Commonwealth knowingly and willingly accepted after active negotiation. Therefore, this Court determines that the Commonwealth has asserted no basis on which the rational basis standard enunciated in Cleburne might mandate a modification of the FSA.
This Court determines, therefore, that pursuant to Rufo, ___ U.S. ___, 112 S.Ct. 748, defendant Commonwealth has not carried its burden of establishing that a significant change in the law of equal protection warrants modification of the FSA by vacating Appendix A.
As its final basis for modification of the FSA, the Commonwealth asserts that a footnote in a Third Circuit decision in Clark v. Cohen, 794 F.2d 79, 84 n. 3 (3rd Cir.), cert. denied, 479 U.S. 962, 93 L.Ed.2d 404 (1986), has undermined the right to relief found by this Court in its 1977 opinion under § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794. This footnote simply states that § 504 "prohibits discrimination against the handicapped in 224 federally funded programs. It imposes no affirmative *224 obligations on the states to furnish services." Id.
In Clark, the Third Circuit made it clear that Caroline Clark, who had been involuntarily committed to an institution at the age of fifteen had been deprived of her liberty interest to be free from commitment without procedural due process, id. at 86, and that her substantive liberty right to appropriate treatment under Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982), was violated. Clark, 794 F.2d at 87. On these bases, the Third Circuit affirmed that Clark was entitled to the injunctive relief ordered by the lower court: that the defendants were to comply with the settlement they had reached with Clark, in which they were to develop a program of community services for her that would permit her to live in a community living arrangement, and that the Commonwealth was to provide the necessary funding. The Third Circuit did not address Clark's claim under § 504, however, because the lower court had found that Clark had failed to prove that she was discriminated against solely on the basis of her handicap.

Further, the Commonwealth neglects to point out that in enacting the Americans with Disabilities Act of 1990, Congress affirmed that § 504 prohibits unnecessary segregation and requires reasonable accommodations to provide opportunities for integration. Congress also extended protection to include all state and local programs, regardless of the receipt of federal financial assistance.
Last, § 504 of the Rehabilitation Act was only one of several bases on which this Court relied in making its finding that the residents of Pennhurst were being illegally deprived of the habilitative services to which they were entitled.
Thus, pursuant to Rufo, ___ U.S. ___, 112 S.Ct. 748, defendant Commonwealth has not carried its burden of establishing that there has been a significant change in the law in connection with Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, that warrants modification of the FSA by vacating Appendix A.
Finally, defendant Commonwealth asserts that considerations of equity and fairness support the modification of the FSA by vacating Appendix A. As set out above, the Commonwealth has asserted no basis in law or fact on which the FSA should be modified. Further, as affirmed by the Third Circuit in Halderman, 901 F.2d 311 (3rd Cir.), cert. denied, ___ U.S. ___, 111 S.Ct. 140, 112 L.Ed.2d 107 (1990), the Commonwealth remains in noncompliance with the FSA; and as determined by this Court in a very recent hearing on another matter, the Commonwealth as of November of 1991 still has not complied with the FSA as to the placement of fifteen members of the Pennhurst class. Last, as stated heretofore, it is clear that defendant Commonwealth's motion to modify the FSA by vacating Appendix A would, in fact, eviscerate a settlement agreement that was reached after years of litigation. This Court determines, therefore, that defendant Commonwealth has established no basis in equity or fairness to support this motion.
Having determined, pursuant to Rufo, ___ U.S. ___, 112 S.Ct. 748, that defendant Commonwealth has failed to carry its burden of establishing that there has been a significant change in factual circumstance or in any law that warrants a modification of the FSA by vacating Appendix A, the motion of defendant Commonwealth to modify the FSA will be denied.
Save trees - read court opinions online on Google Scholar.

 
 901 F.2d 311 (1990)

Terri Lee HALDERMAN, a retarded citizen, by her mother and guardian, Winifred HALDERMAN; Larry Taylor, a retarded citizen, by his parents and guardians, Elmer and
Doris Taylor; Kenny Taylor, a minor, a retarded citizen, by his parents and guardians, Elmer and Doris Taylor; Robert Sobetsky, a minor, a retarded citizen, by his parents and
guardians, Frank and Angela Sobetsky; Theresa Sobetsky, a retarded citizen, by her parents and guardians, Frank and Angela Sobetsky; Nancy Beth Nowman, a retarded
citizen, by her parents and guardians, Mr. and Ms. Horace Nowman; Linda Taub, a retarded citizen, by her parents and guardians, Mr. and Mrs. Allen Taub; George Sorotos,
a minor, a retarded citizen, by his foster parents, William and Marion Caranfa, all of the above individually and on behalf of all others similarly situated; the Parents and Family Association of Pennhurst Pennsylvania Association for Retarded Citizen, Jo Suzanne
Moskowitz, a minor, by her parents and next friends, Leonard and Nancy Moskowitz, 312 Robert Hight, a minor, by his parents and next *312 friends, John and Jeanne Hight, David
Preusch, a minor by his parents and next friends, Calvin and Elizabeth Preusch, and Charles DiNolfi, on behalf of themselves and all others similarly situated, Plaintiffs-
Intervenors, United States of America, Plaintiff-Intervenor,
v. PENNHURST STATE SCHOOL & HOSPITAL, Department of Public Welfare of the Commonwealth of Pennsylvania, Frank S. Beal, Secretary of the Department of Public Welfare, Stanley Meyers, Deputy Secretary for Mental Retardation, Department of Public Welfare, Helene Wohlgemuth, Former Secretary, Department of Public Welfare, Aldo Colautti, Executive Deputy Secretary, Department of Public Welfare, Wilbur Hobbs, Deputy Secretary for Southeastern Region, Department of Public Welfare, Russell Rice, Jr., Commissioner of Mental Retardation for Southeastern Region, Department of Public Welfare, C. Duane Youngberg, Superintendent, Pennhurst State School & Hospital, Robert Smilovitz, Former Assistant Superintendent, Pennhurst State School & Hospital, Joseph Foster, Assistant Superintendent, Pennhurst State School & Hospital, Margaret Green, Betty Uphold, Alice Barton, P.E. Klick, Dr. Parocca, Helen Francis, employees and agent of Pennhurst State School & Hospital, John Doctor, James Nurse, Jane Aide, Jill Therapist, Richard Roe, Jane Doe, unknown and unnamed staff, employees and agents of Pennhurst State School & Hospital, each individual Defendant sued individually and in his or her official capacity, George Hetzger, Joseph Catania, and Roger Bowers, Commissioners for Bucks County, Robert Strebl, Earl Baker and Leo McDermott, Commissioners for Chester County, Faith R. Whittlesey, Charles Keller, and William Spingler, Commissioners for Delaware County, A. Russell Parkhouse, Frank W. Jenkins and Lawrence H. Curry, Commissioners for Montgomery County, Mayor Frank L. Rizzo and The City of Philadelphia, as Authorities for Philadelphia County, Peter Bodenheimber, Mental Health/ Mental Retardation Administration for Bucks County, William A. McKendry, Mental Health/ Mental Retardation Administrator for Chester County, P. Paul Burrichter, Mental Health/ Mental Retardation Administration for Delaware County, Herman A. Roether, Mental Health/Mental Retardation Administration for Montgomery County and Leon Soffer, Mental
Health/Mental Retardation Administrator for Philadelphia County. Appeal of PENNHURST STATE SCHOOL AND HOSPITAL, the Department of Public Welfare, Secretary of Public Welfare, the Deputy Secretary of Mental Retardation, the

Executive Deputy Secretary of Public Welfare, the Deputy Secretary for Southeast Region, the Commissioner for Mental Retardation for Southeast Region, the Superintendent for Pennhurst State School and Hospital and the Employees and Agents for Pennhurst State School and Hospital, Appellants No. 89-1788. Appeal of COMMISSIONERS AND MENTAL HEALTH/MENTAL RETARDATION ADMINISTRATOR of Montgomery County, Pennsylvania, Appellants No. 89-1841. Appeal of The MENTAL HEALTH/MENTAL RETARDATION ADMINISTRATION and County Council of Delaware County, Pennsylvania, Appellants No. 89-1842.
Nos. 89-1788, 89-1841 and 89-1842.
United States Court of Appeals, Third Circuit.
Argued March 1, 1990. Decided April 17, 1990.
3134 *313 *314 John A. Kane, Chief Counsel, Howard Ulan (argued), Asst. Counsel, Dept. of Public Welfare, Com. of Pa., Office of Legal Counsel, Harrisburg, Pa., for appellants No. 89-1788, Pennhurst State School and Hosp., the Dept. of Public Welfare, Secretary of Public Welfare, the Deputy Secretary of Mental Retardation, the Executive Deputy of Public Welfare, the Deputy Secretary for Southeast Region, the Com'r for Mental Retardation for Southeast Region, the Superintendent for Pennhurst State School and Hosp. and the employees and agents of Pennhurst State School and Hosp.
R. Stephen Barrett (argued), Solicitor's Office, Norristown, Pa. for appellants No. 89-1841, Com'rs and Mental Health/Mental Retardation Adm'r of Montgomery County, Pa.
Thomas M. Kittredge (argued), Morgan, Lewis & Bockius, Philadelphia, Pa., for appellants No. 89-1842, the Mental Health/Mental Retardation Adm'n and County Council of Delaware County, Pa.
David Ferleger (argued), Philadelphia, Pa., for appellees, Terri Lee Halderman, et al.
Judith A. Gran (argued), Public Interest Law Center of Philadelphia, Philadelphia, Pa., for appellees, Ass'n for Retarded Citizens/Pa., et al.
Before HUTCHINSON and COWEN, Circuit Judges, and LECHNER, District Judge[*].
OPINION OF THE COURT
COWEN, Circuit Judge.
Today we revisit the seemingly endless litigation over the closing of Pennhurst State School and Hospital ("Pennhurst"). In March 1989, the Association of Retarded Citizens/Pennsylvania ("ARC/PA") moved the district court for enforcement of a settlement agreement entered into by all the parties to this litigation six years ago which supposedly ended their dispute. After holding evidentiary hearings on the motion, the district court entered an order finding the various state defendants in this action (whom we will refer to collectively as "the Commonwealth"), the Montgomery County defendants ("Montgomery County"), and the Delaware County defendants ("Delaware County") in substantial non-compliance with the agreement and its court order incorporating the agreement. The Commonwealth and the two Counties now appeal the district court's order, as well as the denial of their motions to dismiss due to the court's lack of subject matter jurisdiction. Because we find that the district court had subject matter jurisdiction and did not err in finding the Commonwealth and the Counties in substantial noncompliance, we will affirm.
315 *315 I.

BACKGROUND
The Pennhurst case has a long and complex procedural history.[1] It suffices for our purposes to note that the original complaint was filed in 1974 as a class action by Terri Lee Halderman against the Commonwealth, Delaware County, Montgomery County, and various officials of three other counties.[2] The ARC/PA intervened as a party plaintiff in 1975.[3] The case was actively litigated for eleven years, producing 28 published opinions and three arguments before the United States Supreme Court.
Ultimately, all parties conceded that Pennhurst was not providing adequate care and habilitation to its retarded residents. On July 12, 1984, under the guidance of Judge Rosenn of this Court, the parties reached a settlement. In approving the settlement agreement 0907 titled and referred to by the parties as the Final Settlement Agreement ("FSA") 0907 the district court explained that:
the Commonwealth and County defendants have agreed to provide community living arrangements to those members of the plaintiff class for whom such placement is deemed appropriate by the individual planning process, together with such community services as are necessary to provide each person with minimally adequate habilitation, until such time as the retarded individual no longer is in need of such living arrangements and/or community services. The defendants agree to provide residential and habilitative services to all persons who have been furnished with such services pursuant to prior orders of this Court. The defendants agree to develop and provide a written habilitation plan, formulated in accordance with professional standards, to each member of the plaintiff class; provide an individualized habilitation program to each member of the plaintiff class; and permit each class member and his family or guardian to be heard in connection with his or her program. The defendants also agree to provide an annual review of each person's individualized habilitation program, and to monitor the services and programs provided to the class members in accordance with a detailed, professionally-established monitoring and visitation procedure. All defendants shall assure that all persons provided with services under the terms of the agreement shall be afforded: (1) protection from harm; (2) safe conditions; (3) adequate shelter and clothing; (4) medical, health-related, and dental care; (5) protection from physical and psychological abuse, neglect, or mistreatment; (6) protection from unreasonable restraint and the use of seclusion; and (7) protection from the administration of excessive or unnecessary medication.
Halderman v. Pennhurst State School and Hosp., 610 F.Supp. 1221, 1227 (E.D.Pa.1985).
The basic structure of the FSA is relevant to the resolution of this appeal. The FSA consists of four sections: the main body of the agreement, consisting of 22 paragraphs containing general obligations of the parties, conditions and definitions; Appendix A, which sets forth the specific obligations of the Commonwealth and the Counties as detailed in the district court's opinion quoted above; Appendix B, which allocates the funds made available by the 316 closure of Pennhurst, establishes both a *316 cost review procedure for the individual habilitation plans and a funding dispute resolution mechanism, and contains an application for federal funding; and Appendix C, which concerns the required notice to members of the class.
In March 1989, the ARC/PA filed several motions with the district court, joined in by the Halderman plaintiffs, for "Enforcement, Further Orders and Extension of the Final Settlement Agreement" as to the Commonwealth, and Montgomery and Delaware Counties. After holding evidentiary hearings over a period of four days between June 21 and July 6, 1989, the district court found that the Commonwealth and both Counties were in substantial noncompliance with the FSA. Specifically, the court found that Montgomery County was not providing the habilitative services mandated by the FSA to six members of the class, App. at 811-12, and that Delaware County was not providing the required habilitative services to 68 members of the class, App. at 810. In addition, the court found that the Commonwealth was in substantial noncompliance with the FSA because it was jointly responsible with the Counties for providing the habilitative services to the class members and also because it was failing to provide the necessary monitoring of the Counties' compliance. App. at 809, 811, 813-14.

The district court rejected the Appellants' arguments that under the terms of the FSA, the district court had lost jurisdiction over the case. First, the court found that the contractual obligations of Appendix A were, in effect, court orders. App. at 814-16. Second, the court found that the terms of the FSA 0907 specifically ¶¶ 14-16 0907 are unambiguous and provide the court with continuing jurisdiction to enforce its Appendix A orders. App. at 812-13. Alternatively, the court found that it had jurisdiction over the case, at least as to the Commonwealth, pursuant to a December 2, 1989 amendment of the FSA. App. at 812. The court interpreted the amendment as extending the jurisdictional period contained in the FSA to sometime in 1990.[4]
The district court entered an order on August 28, 1989, requiring the Commonwealth and the Counties to comply with all provisions of the FSA by March 1, 1990. App. at 801.[5] In addition, the court ordered that ¶¶ 10, 12-16, 18 and 21 of the main text of the FSA and ¶¶ A5(c), A5(e) and A8 of Appendix A "shall remain in full force and effect notwithstanding any language contained therein calling for earlier expiration...." App. at 802. The district court further ordered that the Commonwealth and the Counties are to file monthly progress reports to the court until they come into full compliance. App. at 802.
On appeal, the Commonwealth and the Counties contest both the district court's denial of their motions to dismiss on the jurisdiction issue and the court's finding that they are in substantial noncompliance with the FSA. On the compliance issue, the Commonwealth argues that, under state law, the Counties have the sole responsibility to place the class members in community living arrangements. In addition, the Commonwealth 317 argues that the *317 evidence presented at the hearing showed that it was providing the required monitoring services under the FSA. Montgomery County does not dispute that six members of the class from its county are not being provided the care mandated by the FSA, but contends that since 194 of the 200 former Pennhurst residents from Montgomery County are being properly cared for, the County is in substantial compliance. Likewise, Delaware County does not dispute the district court's finding that 68 members of the class from its county are not being provided the services mandated by the FSA. Rather, Delaware County's argument is that its obligations under the FSA are conditioned upon adequate funding from the Commonwealth which has not been forthcoming.[6] We have jurisdiction over these appeals pursuant to 28 U.S.C. § 1291 (1982).
II.
JURISDICTION
The first issue we address is the jurisdictional one. This circuit has not yet conclusively settled the question of whether courts have inherent jurisdiction to enforce settlement agreements in cases that were once properly before them. Compare Fox v. Consol. Rail Corp., 739 F.2d 929, 932 (3d Cir.1984), cert. denied, 469 U.S. 1190, 105 S.Ct. 962, 83 L.Ed.2d 968 (1985) and Kelly v. Greer, 365 F.2d 669, 671 (3d Cir.1966), cert. denied, 385 U.S. 1035, 87 S.Ct. 772, 17 L.Ed.2d 682 (1967) with Washington Hosp. v. White, 889 F.2d 1294, 1298-99 (3d Cir.1989). Under either view, the district court retained jurisdiction over the case sub judice. Its order approving the FSA under Fed.R.Civ.P. 23(e) reads in relevant part:
IT IS HEREBY ORDERED that the Final Settlement Agreement is APPROVED, and IT IS FURTHER ORDERED that the provisions of the Final Settlement Agreement executed on July 12, 1984 heretofore made a part of the record in this case shall have the full force and effect of an order of this Court.
App. at 53. Thus, the district court not only approved the FSA, but incorporated it into an order of the court. Cf. White, 889 F.2d at 1299 ("a stipulated agreement signed by the court does allow a district court to retain jurisdiction"); McCall-Bey v. Franzen, 777 F.2d 1178, 1188-89 (7th Cir.1985) (district court had jurisdiction to enforce a settlement agreement when the court's "order of dismissal states that it is pursuant to the parties' stipulation; the stipulation states that the dismissal is pursuant to the terms and conditions in the settlement agreement; and one of those terms is the sentence [`the parties retain their rights to petition the Court regarding any breach or violation of this agreement.']").[7] As the Court of Appeals for the Seventh Circuit has explained:

[Although] we have rejected the suggestion that federal judges have inherent power to enforce settlement agreements arising out of lawsuits that were once before them[,] ... we have expressed no doubt of the power of a district court to dismiss a lawsuit conditionally, retaining jurisdiction to effectuate terms of settlement agreed to by the parties. Nor do we think there is any magic form of words that the judge must intone in order to make the retention of jurisdiction effective. All that is necessary is that it be possible to infer that he did intend to retain jurisdiction 0907 that he did not dismiss the case outright, thereby relinquishing jurisdiction.
McCall-Bey, 777 F.2d at 1188.
318 Even though the district court retained jurisdiction, however, the Appellants *318 argue that under the explicit terms of the FSA such jurisdiction was for a limited time period and that that period expired before the district court entered its findings in August 1989. The FSA's built-in jurisdictional component is found in ¶¶ 14 and 16 of the main body of the text:
14. Subject to paragraphs 15 and 16 below, the parties agree that as of the dates specified in those paragraphs, the District Court will mark this case closed and settled, will vacate the judgment and all orders of the Court except those in Appendix A, which shall remain in effect permanently (subject to Fed.R.Civ.P. 60(b)), and will cease to have active jurisdiction of this case....
....
16. The parties desire that there be an orderly transition to the cessation of active jurisdiction specified in Paragraph 14. For each of the five sets of County Defendants ... the "date specified" in Paragraph[] 14 ... shall be two years after the last of each of the County's residents leaves Pennhurst. For the Commonwealth Defendants, the "date specified" in Paragraph[] 14 ... shall be July 1, 1989.
App. at 23-24.
The Commonwealth argues that under the terms of ¶ 16 of the FSA, the "date specified" in ¶ 14 (on which the court "will mark this case closed and settled" and "cease to have active jurisdiction" with regard to the Commonwealth) was July 1, 1989. App. at 23. Since ¶ 14, according to the Commonwealth's interpretation, states that, as of the "date specified," the district court ceases "active jurisdiction" over the case, the court lost jurisdiction to decide the compliance issue before it issued its August 1989 findings and order.
Likewise, Delaware County argues that the last of its residents left Pennhurst on April 2, 1987 and, therefore, according to ¶¶ 14 and 16 the district court lost jurisdiction over the case, vis-a-vis Delaware County, on April 2, 1989, i.e., two years later. This was well before the court's August 1989 findings and order. Similarly, the last Montgomery County resident left Pennhurst in August 1986, so the County argues that the district court lost jurisdiction over the case, vis-a-vis Montgomery County, in August 1988, one year before the district court rendered its decision in the instant case.[8]
ARP/PA and the Halderman plaintiffs counter that under the FSA, the district court retained subject matter jurisdiction over the case in order to enforce the obligations agreed to by the parties under Appendix A. According to the Appellees, the district court simply ceased active jurisdiction over the case as of the dates specified in ¶ 16. The ARP/PA and the Halderman plaintiffs urge us to read the term "active jurisdiction" to mean simply "active supervision."
In resolving this dispute, we treat the FSA as a contract. See White, 889 F.2d at 1300; Fox v. United States Dep't of Housing, 680 F.2d 315, 319 (3d Cir.1982) ("[a]lthough consent decrees are judicial acts, they have many of the attributes of contracts voluntarily undertaken")[9]; Philadelphia Welfare Rights Org. v. Shapp, 602 F.2d 1114, 1119-20 (3d Cir.1979), cert. denied, 444 U.S. 1026, 100 S.Ct. 689, 62 L.Ed.2d 660 (1980). The agreement should be construed consistently with fundamental precepts of contract construction. See United States v. ITT Continental Baking Co., 420 U.S. 223, 236-38, 95 S.Ct. 926, 934-36, 43 L.Ed.2d 148 (1975).

Thus, we must attempt to construe the FSA so as to give meaning to all of its words and phrases. White, 889 319 F.2d at 1300; Rossville Salvage Corp. v. S.E. Graham Co., 319 F.2d 391, 395 (3d Cir.1963) *319 (contract
construction "which gives effect and meaning to a term is to be preferred over one which makes such term mere surplusage or without effect"). Likewise, a clear provision cannot be overcome by a doubtful one, see Kingston Dodge, Inc. v. Chrysler Corp., 449 F.Supp. 52, 54 (M.D.Pa.1978), nor should a court adopt a construction that causes two reconcilable provisions to conflict, see Keystone Fabric Laminates, Inc. v. Federal Ins. Co., 407 F.2d 1353, 1356 (3d Cir.1969). Cf. Thermice Corp. v. Vistron Corp., 832 F.2d 248, 252-53 (3d Cir.1987).
Further, we are mindful that our task is not to reveal the "subjective intention of the parties `but what [their] words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used.'" Fox, 680 F.2d at 320 (quoting Holmes, The Theory of Legal Interpretation, 12 Harv.L.Rev. 417, 419 (1899)). "As in statutory construction, we reject a view that would `make a fortress out of a dictionary,' because a word or a phrase `is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.'" Id., at 320 (quoting Cabell v. Markham, 148 F.2d 737, 739 (2d Cir.), aff'd, 326 U.S. 404, 66 S.Ct. 193, 90 L.Ed. 165 (1945) (L. Hand, J.), and Towne v. Eisner, 245 U.S. 418, 38 S.Ct. 158, 62 L.Ed. 372 (1918) (O. Holmes, J.), respectively).
Hence, in determining the meaning of the FSA's provisions our first resort is to the four corners of the agreement. United States v. Armour & Co., 402 U.S. 673, 682, 91 S.Ct. 1752, 1757, 29 L.Ed.2d 256 (1971); Fox, 680 F.2d at 319. "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." Armour, 402 U.S. at 682, 91 S.Ct. at 1757.[10]See also Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 574, 104 S.Ct. 2576, 2585, 81 L.Ed.2d 483 (1984) . The agreement memorializes the bargained for positions of the parties and should be strictly construed to preserve those bargained for positions. See, e.g., Williams v. Vukovich, 720 F.2d 909, 920 (6th Cir.1983).
Applying these principles to the case sub judice, we find that the Appellants' proffered reading of the FSA is untenable and, according to the explicit terms of the FSA, the district court has continuing jurisdiction to enforce the Appellants' obligations under Appendix A.[11] The plain language of ¶ 14 of the agreement provides that the provisions of "Appendix A ... shall remain in effect permanently." App. at 23 (emphasis added). The use of the word "permanently" conveys the definite impression that the parties did not envision that the obligations found in Appendix A would end on certain dates in the future.[12]
The Commonwealth tries to avoid this plain language by explaining that the parties meant the obligations of Appendix A would remain in effect permanently as moral rather than legal obligations. We find this position 320 unconvincing. It is belied by the fact that ¶ 14 clearly refers to the *320 Appendix A obligations as "orders of the Court," not ethical commands. Furthermore, the Commonwealth's position flies in the face of the bracketed clause in ¶ 14 which states that the district court's orders in Appendix A will remain in effect permanently, although "(subject to Fed.R.Civ.P. 60(b))." There is simply no reason to have written this bracketed provision into the FSA if the parties meant the obligations of Appendix A to be only moral obligations after July 1, 1989. Moral obligations are not subject to Rule 60(b), legal ones are. If the Commonwealth and the Counties wanted to violate a moral obligation, they certainly would not have to go back to federal court seeking to reopen the case in order to do so. The fact that the parties agreed that the obligations of Appendix A were to be permanent court orders, subject to Rule 60(b), strongly implies to us that the obligations were to be continuing legal obligations enforceable by appropriate judicial authority. See generally McCall-Bey, 777 F.2d at 1186 ("Any time a district judge enters a judgment, even one dismissing a case by stipulation of the parties, he retains, by virtue of Rule 60 (b), jurisdiction to entertain a later motion to vacate the judgment on the grounds specified in the rule, some of which have no time limit.").
The Commonwealth and the Counties contend that such a reading of the Appendix A obligations conflicts with the final phrase of the first sentence in ¶ 14 which states that on the dates specified the district court "will cease to have active jurisdiction of the case." They argue that the Appendix A obligations cannot be continuing legal obligations if the district court gives up its jurisdiction over the case on the dates specified.

What the Appellants' argument fails to appreciate, however, is the glaring qualification that the parties' have placed on the word "jurisdiction" in ¶ 14. The Appellants would have us give no effect to the word "active" in the phrase "active jurisdiction." While admittedly not the most enlightening phrase, the fact that the parties chose to qualify the word "jurisdiction" suggests an attempt to contrast active jurisdiction with some other kind of jurisdiction, rather than no jurisdiction at all. For if the parties meant to imply that jurisdiction per se would end on the dates specified in ¶ 16, then they could have simply left the word "jurisdiction" unqualified.

So, while "active jurisdiction" is not a legal term of art, we believe it is reasonable to suppose that normal speakers of English under these circumstances, i.e., the resolution of a complex class action suit necessitating the creation of various monitoring and support mechanisms, as well as an extensive amount of court attention, would use the term to mean that after the dates specified in ¶ 14 the district court would cease "hands on" control over the matter and simply resort to the usual continuing jurisdiction that courts routinely exercise over their injunctions. In other words, the court would cease active supervision over the case after the dates specified. We note that the equating of "active jurisdiction" with "active supervision" is not an uncommon practice both in class action cases involving consent decrees, see Dowell v. Board of Educ., 890 F.2d 1483, 1492 n. 17 (10th Cir.1989); Vaughns v. Board of Educ., 574 F.Supp. 1280, 1327 (D.Md.1983), and in other contexts as well, see, e.g., L.H. v. Jamieson, 643 F.2d 1351, 1354 (9th Cir.1981) (discussing state court's jurisdiction over committed juveniles). Our construction has the benefit both of reconciling all of the provisions of ¶ 14 and giving meaning to all its words and phrases; while the Appellants' proffered reading would treat the qualification of jurisdiction as mere surplusage.

Moreover, in light of the district court's extensive experience with this case and the FSA, we believe some deference is due to its conclusions about the meaning of the agreement's jurisdictional provisions. See Keith v. Volpe, 784 F.2d 1457, 1461 (9th Cir.1986).[13] We simply note that the district court stated at the evidentiary hearing that:

321

... there is no question, I think I made that absolutely clear, if you are violating *321 any orders in

the Appendix, ... which are permanent orders, there is no question. And that 0907 why label them

permanent? What would have been the sense of a Court issuing orders that if the orders were

only to be in effect for two years or three years? What kind of relief would that have been for the

members of the class?

That would have been a farce. And this Court did not consider the Settlement Agreement to have been a subterfuge to do something for a short period of time, and then revert back to the old methods.

App. at 341-42.

For the foregoing reasons, we reject the Appellants' reading of the FSA and accept the district court's
construction as better reflecting the bargained for positions of the parties as evidenced by the four corners of the instrument.[14] Thus, we find that the district court had jurisdiction to decide the compliance issue.[15]

III.

SUBSTANTIAL COMPLIANCE

A. The Commonwealth

The district court found that 68 members of the class from Delaware County and six members from Montgomery 322 County are not receiving the habilitative services mandated under the FSA. In particular, these *322 members
have either not been provided with Transitional Individual Habilitation Plans ("TIHPs"), Individual Habilitation Plans ("IHPs"), proper placement in accord with individualized habilitation plans, or, in some cases, adequate staff support, treatment, recreational and social activities, medical care, and occupational and speech therapy.

App. at 809-811. In addition, the court found that there is an inadequate number of county case managers to service the needs of class members from Delaware County. App. at 810. The district court concluded that the Commonwealth is jointly responsible with the Counties for these deficiencies under ¶¶ A1-A4 of Appendix A, as well as responsible for inadequate monitoring of the Counties with regard to the formation and implementation of TIHP's, and the provision of habilitative and other services. App. at 813-14.
The Commonwealth contends that it is in compliance with the FSA. First, the Commonwealth argues that as a matter of basic contract law, existing state law and regulations implicitly form part of every contract. Since state law puts the responsibility on the Counties for placing retarded individuals into the community, the Commonwealth cannot be in violation of the FSA on placement grounds. Second, the Commonwealth argues that even if it is responsible for community placement, the facilities now housing the class members are adequate community living arrangements ("CLAs") under applicable state regulations. Third, the Commonwealth argues that the evidence presented at the hearing shows that it is providing adequate monitoring services. We find none of these arguments persuasive.
While the Commonwealth is correct that a principle of basic contract law is that statutory and regulatory provisions of the state in which the contract is executed or performed become a part of the contract, this expression of the rule is incomplete. One plain and obvious exception to this broad principle is where the contract discloses a contrary intention. See 17 Am.Jur.2d Contracts § 257, 656 & n. 3 (1964) (cases cited therein); 17A C.J.S. Contracts § 330 (1963). See, e.g., Skandia America Reinsurance Corp. v. Schenck, 441 F.Supp. 715, 724 (S.D.N.Y.1977) ("Unless the contract provides otherwise, the law in force at the time it is entered into becomes a part of the contract") (applying New York law). This exception has been generally recognized by Pennsylvania courts. See Meneice v. Camp Kadimah Co., 157 Pa.Super. 380, 383, 43 A.2d 621, 622 (1945) (where existing law may affect a contract, the incorporation of the law into the contract is a matter of the intent of the parties); Morse v. Maurer, 35 Pa.Super. 196, 198-99 (1908). Cf. Commonwealth ex rel. Schnader v. U.S. Fidelity & Guaranty Co., 314 Pa. 140, 170 A. 686, 688 (1934) (court should not accept a construction of a contract which would conform to the language of a federal statute when the parties intended to disregard the statute). It is indisputable that the Commonwealth explicitly agreed in Appendix A to be jointly responsible with the Counties for providing CLAs to class members as provided for in their individual habilitation plans, as well as community services necessary to provide them with minimally adequate habilitation. App. at 31. So the fact that, absent the FSA, a different allocation of responsibility might be imposed by state law is irrelevant to our determination whether the Commonwealth is in violation of its voluntarily agreed to obligations under the FSA.
Likewise, the Commonwealth's appeal to state mental health regulations to show that CLAs can range as high as 20 clients per unit, see Brief for Appellant Commonwealth at 31, is unavailing. First, even if the argument succeeded it would only establish, at best, that 28 class members from Delaware County, out of the 74 class members cited by the district court as receiving inadequate treatment, have received proper placement, i.e., 12 class members at a 12 bed facility located on the main campus of Elwyn Institute and 16 class members in two eight bed facilities in Aston. App. at 810. And, even as to the class members at the 12 bed facility on Elwyn's main campus the Commonwealth's argument is weak. The Director of Mental Retardation Services for Delaware 323 County, *323 Dr. Steve Chafetz, testified that he made a mistake in advising Delaware County to change the original eight bed facility at the site into a 12 bed facility because "the clients were not able to get the individual care that they got when it was an eight bed facility." App. at 442.
But more importantly, we believe that the Commonwealth misconstrues the import of the district court's finding. As we read the FSA, the testimony, and the district court's opinion, the Commonwealth and the Counties are required to provide each individual class member community placement when it is called for by the individual's planning process. App. at 31. This individual process includes, inter alia, initial TIHPs which specify the services necessary to facilitate an individual's transfer to a residential facility; written IHPs which incorporate the assessments of an interdisciplinary team as to the individual's goals and the habilitative services necessary to meet those goals; and, importantly, approval and monitoring of all plans by the Special Management Unit ("SMU"), a group of Commonwealth employees. App. at 27-28. The district court's finding that 68 Delaware County and six Montgomery County residents are not receiving the community living arrangements mandated by the FSA, is simply a finding that the class members are not being adequately provided with the court-mandated individualized habilitation process, whether that inadequacy is evidenced by a lack of a TIHP, IHP, SMU approved

residential placement or IHP required occupational, therapeutic, recreational, social or medical care and treatment. Thus, we agree with the Halderman plaintiffs when they argue that what is at issue in this appeal is not the definition of how many individuals can be housed in a facility before it no longer is a CLA, but whether the class members are all receiving the individual attention and planning that they have a right to under the agreement. The district court found that 74 were not being so provided and none of the Appellants have effectively attacked this finding as clearly erroneous.
Finally, the Commonwealth argues that its monitoring obligations were carried out fully and adequately. The Commonwealth points to the testimony of Vicki Stillman-Toomey, the Regional Program Manager for the Southeast Region which is responsible for the SMU, to the effect that the SMU completed all 120 on-site visitations to class members as required by the FSA, it monitored up to 100% of the class members until County quality assurance programs were in place and it continues with follow-up and spot check visitations even after the two and a half year period mandated by the FSA. App. at 520-21. However, as we read the district court's opinion, the court found the Commonwealth in violation of its monitoring duties not because of inadequate on-site inspections or its failure to oversee the FSA process, but in its apparent lack of authority to force counties into compliance when deficiencies are identified. As the court explained:
When deficiencies are identified, the unit notifies the involved County officials, attempts to persuade them to take corrective action, and follows up to determine if corrections are made. When "jawboning" fails, the Unit perceives itself as powerless to obtain compliance. The Special Management Unit has apparently never undertaken any other measures to correct a county's failure to supply the habilitation to which a class member is entitled pursuant to the Settlement.
App. at 814. The district court quite naturally interpreted "monitoring" to include not just note-taking, but corrective action if necessary. Thus, the district court found the Commonwealth in substantial noncompliance with its monitoring obligations because it never took any enforcement steps, beyond persuasion, to correct the large number of problems its on-site, and other, inspection visits have revealed. This factual finding is clearly supported by both the testimony of Vicki Stillman-Toomey, see App. at 561-67, and Philip S. Briscoe, the Director of the SMU, see App. at 209-215.[16]
324 *324 B. Montgomery County
The district court found that six out of the original 200 residents of Pennhurst from Montgomery County are not being provided the habilitative services mandated by the FSA. Montgomery County does not dispute this finding; instead, the County argues that because 97% of its class members have been provided with adequate services, it is in substantial compliance with the FSA. We disagree.
While the original suit in this case was a class action, the obligations of the Commonwealth and the Counties under the FSA clearly run to class members as individuals, not as a group. Indeed, the entire thrust of the FSA is a promise by the Commonwealth and the Counties to treat the class members as unique individuals with different needs and habilitative requirements. For example, the IHP is supposed to be an individualized treatment program "based upon an ... assessment of an individual's strength and needs ... set[ting] forth specific short and long term goals and objectives for the person's habilitation and specif[ying] the services and the methods for delivering them which are necessary to the individual's habilitation," App. at 28 (emphasis added); all professional decisions must be "based upon all information relevant to the habilitation and placement of the individual," App. at 29 (emphasis added); and the requirement of a CLA is tied to the "individual planning process," App. at 31 (emphasis added).
Moreover, the principle advanced by Montgomery County, though not recognized by the County we assume, would appear to allow the County, at least consistently with the FSA, to treat a few retarded class members in any fashion they want so long as they comply with the FSA with regard to a substantial number of other retarded class members. It is safe to say that this inequitable and disconcerting principle is not what the parties contemplated when they agreed to the FSA, it is not within the specific language of the agreement, and it certainly is not part of the spirit with which the parties resolved this troublesome litigation. It is the individual rights

of retarded individuals the FSA seeks to protect not some class construct. Therefore, we agree with the district court that substantial compliance must be measured with respect to the services each individual retarded class member is receiving and not with respect to the services received by the class as a whole.
C. Delaware County
The district court found that 68 former residents of Pennhurst from Delaware County are not receiving the habilitative services mandated by the FSA. Delaware County does not contest this finding, but instead argues that under ¶ 13 of the FSA its obligations are expressly conditioned on complete funding by the Commonwealth. Since the County alleges that the Commonwealth has failed to adequately fund the placement programs mandated by the FSA, its obligations under Appendix A, it contends, are tolled and thus it cannot be in substantial noncompliance with the agreement.
This argument is not unappealing, since the Commonwealth seems to implicitly concede that it might not be giving Delaware County enough money both to fund services for the plaintiff class of retarded individuals and to maintain the same level of services for the nonplaintiff class of retarded individuals already receiving aid from Delaware County. See Brief for Appellant Commonwealth at 28-29. Nevertheless, we do not believe that 325 Delaware County's *325 argument is valid as a defense to an enforcement action by the Appellees.
Paragraph 13 of the FSA reads in relevant part: "The obligation of the County Defendants to provide services under this [FSA] is conditioned upon the provision by the Commonwealth Defendants of complete funding for such services...." App. at 22. Thus, under the terms of ¶ 13, Delaware County must satisfy its obligations under the FSA if the Commonwealth gives it enough money to fund the services mandated by the FSA. From the testimony at the hearing, there was no dispute that had Delaware County used the general community residential funding provided by the Commonwealth to satisfy its obligations under the FSA first, the funds would have been sufficient to meet the habilitation needs of all the class members. App. at 485 (testimony of Dr. Chafetz). In our view, this is all that the language of ¶ 13 requires. It does not mandate any specific funding level for the nonplaintiff class of retarded individuals, in addition to complete funding for class members.[17]
Thus, we find that ¶ 13 does not provide Delaware County with a valid defense to an enforcement action by the Appellees as to its joint obligations under Appendix A. We caution that our holding does not mean that Delaware County does not have a legitimate action directly against the Commonwealth, either under some contractual provision in the FSA or some other statutory source, in order to obtain complete funding for the plaintiff class and the maintenance of existing funding levels for the nonplaintiff class of retarded individuals. We simply hold that a claim that general funding from the Commonwealth has been insufficient to meet a county's mental health needs cannot be used to avoid that county's obligations under the FSA.[18]
IV.
To summarize, we agree with the district court that under the plain terms of the FSA, the district court had jurisdiction to enforce violations of its orders in Appendix A. In addition, we find no errors in the district court's determination that the Commonwealth, Montgomery County and Delaware County are all in substantial noncompliance with the terms of Appendix A. Costs taxed against the Appellant in each of the appeals.
[*] The Honorable Alfred J. Lechner, Jr., United States District Judge for the District of New Jersey, sitting by designation.
[1] For a discussion of the history of this litigation, see Halderman v. Pennhurst State School and Hosp., 610 F.Supp. 1221, 1224-26 (E.D.Pa.1985).
[2] The plaintiff class as certified by the district court, consisted of all retarded persons residing at Pennhurst as of May 1974, persons "who are on a waiting list for placement at Pennhurst," and persons residing in the defendant counties but "who, because of the unavailability of alternative services in the community, may be placed at ...

Pennhurst...." Halderman v. Pennhurst State School and Hosp., 610 F.Supp. 1221, 1228 (E.D.Pa.1985). The settlement agreement amended the certified class to exclude persons who were either on a waiting list or who might have been, but were not, placed at Pennhurst. We will refer collectively to this latter class as the "Halderman plaintiffs" or the "plaintiff class."
[3] ARC/PA's name in 1975 was the Pennsylvania Association for Retarded Citizens.
[4] The FSA originally provided that Pennhurst would be closed on July 1, 1986. The amendment on December 2, 1986, as to which only the Halderman plaintiffs, the ARC/PA, the Commonwealth and Philadelphia County were parties, extended the date for the closing of Pennhurst until October 31, 1986. The amendment also was apparently meant to change the dates on which the district court was to lose "active jurisdiction" over the case. Paragraph 7 reads:
The time for ending the Court's active jurisdiction set forth in the [FSA] is hereby tolled until the last resident of the Defendant County or out-of-region counties leaves Pennhurst for an appropriate community placement, at which time the specified time period shall continue to run. Provisions of the [FSA] not otherwise affected by this Amendment shall remain unchanged.
App. at 56-57. Sometime after the December 2, 1986 amendment, a stipulation was approved by the court again extending the date of closure until October 26, 1987. Pennhurst was finally closed on October 27, 1987.
[5] In its opinion, the district court noted that its initial reaction was to find the Commonwealth and the two Counties in contempt for violating the court's orders in Appendix A, but reconsidered after recognizing that a majority of the 1200 former Pennhurst residents covered by the FSA had already been helped by the Appellants' efforts at compliance.
[6] We note that none of the Appellants has raised as an issue the remedial provisions contained in the district court's August 1989 order.
[7] See also United States v. Baus, 834 F.2d 1114, 1127 n. 13 (1st Cir.1987) (noting that some courts have held "that while federal courts necessarily have the power to vacate their own judgments, they do not necessarily have jurisdiction to hear collateral disputes arising under state contract law, at least not where the district court has not explicitly retained jurisdiction or where the district court has not approved of the settlement agreement and incorporated it into an order of the court....") (emphasis added) (citations omitted).
[8] In effect, the Commonwealth and the Counties are urging us to read the term "active jurisdiction" in ¶ 14 to mean simply "jurisdiction."
[9] We note that this Court has held that a Stipulation of Dismissal that is "so ordered" by the district court is the functional equivalent, and has the same effect as, a consent order or consent decree. Washington Hosp. v. White, 889 F.2d 1294, 1299 & n. 9 (3d Cir.1989). Accord Williams v. Vukovich, 720 F.2d 909, 920 (6th Cir.1983) ("A consent decree is essentially a settlement agreement subject to continued judicial policing") (cases cited therein).
[10] The Supreme Court has explained:
Consent decrees are entered into by parties to a case after careful negotiation has produced agreement on their precise terms.... 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 opposing purposes 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 purpose of one of the parties to it.
United States v. Armour & Co., 402 U.S. 673, 681-82, 91 S.Ct. 1752, 1757-58, 29 L.Ed.2d 256 (1971) (emphasis in the original).

[11] The construction of the FSA is a matter of law over which we exercise plenary review. See, e.g., Washington Hosp. v. White, 889 F.2d 1294, 1299 (3d Cir.1989).
[12] We find that what ceases on the "dates specified" in ¶ 14 is the active supervision of the district court over the rights, obligations and conditions specified in the main body of the FSA and Appendices B and C. See discussion, infra, at p. 322-23.
[13] Although we emphasize that given our above analysis we need not rely on the district court's view for our conclusion here.
[14] Although not argued as such by any party, we also do not find the FSA to be ambiguous. To be ambiguous, an agreement must be reasonably capable of more than one construction. White, 889 F.2d at 1301. But it is incumbent on the Appellants to provide us with a reasonable, tenable reading of the agreement which varies from that adopted by the district court. See Thermice Corp. v. Vistron Corp., 832 F.2d 248, 252 (3d Cir.1987). Cf. ITT, 420 U.S. at 234, 235, 95 S.Ct. at 933, 934 (describing the first analytical step under Armour and its progeny as determining whether the language of the decree can support the construction urged by the non-prevailing party below). And while a court should consider reasonable alternative semantic references advanced by the parties, the court should not demote the written word to a reduced status. See Mellon Bank v. Aetna Business Credit, Inc., 619 F.2d 1001, 1013 (3d Cir.1980). Because the Appellants' proffered reading of the FSA would either give no effect to the plain language of the agreement calling for the permanency of the provisions contained in Appendix A, or else conflict with language in ¶ 14 to the effect that the Appendix A obligations are legal and subject to Federal Rule of Civil Procedure 60(b), as well as read the qualifying word "active" right out of the agreement, we find that the Appellants' construction is untenable. Since no other possible reading is before us, we believe that the FSA is unambiguous in calling for the continuing jurisdiction of the district court over its Appendix A orders.
[15] As a result of our analysis, we need not address the alternative basis on which the court exercised jurisdiction over this matter, i.e., the December 2, 1986 amendment's alleged extension of the time period over which the court retained jurisdiction.
Furthermore, we do not find that the 30 day notice provision of ¶ 18 speaks to the question of jurisdiction such that it would bar the district court from reaching the compliance issue as Montgomery County asserts. Paragraph 18 memorializes certain promises the parties have made to each other; it does not deal with the power of the federal courts. Montgomery County is the only Appellant to raise this issue, and although the County only phrases its argument in terms of jurisdiction, we also do not believe that the district court erred in failing to dismiss the Appellees' claim against Montgomery County based on the substantive contractual provision. Clearly, the parties did not intend ¶ 18 to allow the counties to surreptitiously hide their noncompliance and bide their time until "caught" by the Appellees, and then when "caught" to have an additional 30 days in order to remedy their intentional noncompliance. Rather, the parties' purpose was surely to require the Appellees to notify the counties of problems that the counties themselves might not be aware of so that the problem can get corrected without court intervention. Certainly, the adequate provision of services to the retarded class members is, or should be, a concern and priority with all parties to this litigation. This being the case, the fact that the motion for enforcement was filed in March 1989, the evidentiary hearing was not held until the end of June 1989, and the court's findings were not made until August 1989, shows that the mere lack of notice to Montgomery County was not a sufficient spur to remedial action. Indeed, to our knowledge the County was still not in compliance at the time of oral argument in March 1990, approximately one year later. Thus, under these circumstances, to dismiss this action as to Montgomery County and require the Appellees to provide the County with notice and then wait 30 days before instituting suit would serve no contractual or just purpose.
[16] The Commonwealth also argues in its brief that it provided the advocacy services and case manager training required under the FSA. See Brief for Appellant Commonwealth at 33. This would appear to be simply a mistaken carry over of its identical arguments found in the Commonwealth's Post-Hearing Brief in Opposition to Plaintiffs' Motions for Enforcement, Further Orders and Extensions of the Final Settlement Agreement, App. at 742, since we searched in vain for a finding by the district court that the Commonwealth was in substantial noncompliance on these grounds. Nor do we believe that the court could have found noncompliance on these grounds because

the advocacy requirement does not appear in Appendix A and from our review of the record there was insufficient evidence presented at the hearings to support a finding that the Commonwealth provided inadequate training of case managers.
[17] Paragraph 13 seems to be the counterpart to ¶ 17 which allows the Commonwealth to petition the court and avoid its obligations under the FSA if the General Assembly either fails to appropriate sufficient funds to implement the FSA or fails to increase funding for community services equal to or greater than the funding saved by closing Pennhurst. No arguments were made to the district court, or this Court, that either of these events had occurred.
[18] We observe that ¶¶ B10-B13 of the FSA appears to set up "final and binding" arbitration as the way to settle any funding disputes between the Commonwealth and the Counties.
Save trees - read court opinions online on Google Scholar.

 
 725 F.Supp. 861 (1989)
Terri Lee HALDERMAN, et al. v.
PENNHURST STATE SCHOOL AND HOSPITAL, et al.
Civ. A. No. 74-1345.
United States District Court, E.D. Pennsylvania.
November 27, 1989.
862 *862 David Ferleger, Philadelphia, Pa., for plaintiffs.
R. Stephen Barrett, Asst. County Solicitor, Norristown, Pa., for Montgomery County.
Thomas M. Kittredge, Philadelphia, Pa., for Chester, Bucks and Delaware Counties.
Richard Gold, Philadelphia, Pa., for Philadelphia County.
MEMORANDUM
RAYMOND J. BRODERICK, District Judge.
Plaintiffs' counsel again move for an award of attorneys' fees for the monitoring and enforcement of the Pennhurst settlement agreement, the terms of which are described in Halderman v. Pennhurst State School & Hosp., 610 F.Supp. 1221 (E.D.Pa.1985). They seek $41,925 in compensation for the period commencing July 1, 1986 and ending July 27, 1987 against defendants Bucks, Chester, Delaware, and Montgomery Counties. Counsel's first petition, which requested $37,534.44, was dismissed by Order on November 24, 1987 because it did not identify with sufficient particularity what amounts were sought against each defendant County. Although defendants did oppose the initial request for fees, they have not filed objections to this renewed motion.
I.
Section 1988 of Title 42 states that in certain civil rights proceedings the court, "in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee." Several courts have held that the reasonable post-judgment monitoring of consent decrees or settlements is compensable under section 1988, 863 particularly when defendants, as here, see, e.g., Halderman v. Pennhurst *863 State School & Hosp., No. 74-1345, slip op., 1989 WL 100207 (E.D.Pa. Aug. 28, 1989), have displayed hostility toward or disregard for the terms of the agreement. See Brewster v. Dukakis, 786 F.2d 16, 18-19 (1st Cir.1986); Delaware Valley Citizens' Council for Clean Air v. Pennsylvania, 762 F.2d 272, 276-77 (3d Cir.1985), aff'd in part and rev'd in part, 478 U.S. 546, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986); Garrity v. Sununu, 752 F.2d 727, 738 (1st Cir.1984); Northcross v. Board of Education, 611 F.2d 624, 637 (6th Cir.1979), cert. denied, 447 U.S. 911, 100 S.Ct. 2999, 64 L.Ed.2d 862 (1980); Bond v. Stanton, 630 F.2d 1231, 1233 (7th Cir.1980); Miller v. Carson, 628 F.2d 346, 348 (5th Cir.1980); Imprisoned Citizens Union v. Shapp, No. 70-3054, slip op., 1988 WL 59270 (E.D.Pa. June 8, 1988). Moreover, when the decree or settlement assigns various future responsibilities to the parties, compensation for executing its terms are permissible, unless, of course, the compact forbids it. See generally In re Burlington Northern, Inc. Employment Practices Litigation, 832 F.2d 422, 427 (7th Cir.1987).
The Pennhurst settlement agreement implicitly contemplates that plaintiffs' attorneys will perform a monitoring function. The agreement not only requires defendants to assemble implementation reports concerning class members and distribute them to class counsel, it also provides plaintiffs with remedies in the event that defendants fail to adhere its dictates. See Final Settlement Agreement ¶¶ 9(e), 18 & 21; id., app. A ¶¶ A5(b)-(c) & A8; id., app. B ¶ B9; Amendment to Final Settlement Agreement, Dec. 2, 1986, ¶¶ 5 & 7-8. For example,

paragraph 18 permits class members to institute enforcement proceedings if they ascertain "that any party to this Final Settlement Agreement is failing adequately to discharge its obligations hereunder." Authority to acquire and review data necessary to determine the adequacy of each defendant's compliance obviously inheres within this provision, for without that authority the rights delineated in the agreement would be rendered meaningless.
II.
The benchmark of an award under fee shifting statutes such as section 1988 is that the costs assessed against the non-prevailing party be "reasonable." See Pennsylvania v. Delaware Valley Citizens' Council for Clean Air (Delaware Valley I), 478 U.S. 546, 562, 106 S.Ct. 3088, 3096, 92 L.Ed.2d 439 (1986). The initial estimate of fees, or lodestar, is calculated by multiplying the number of hours reasonably devoted to the litigation by a reasonable hourly rate for each attorney involved. Blum v. Stenson, 465 U.S. 886, 888, 104 S.Ct. 1541, 1543, 79 L.Ed.2d 891 (1984); see also Blanchard v. Bergeron, ___ U.S. ___, 109 S.Ct. 939, 944-45, 103 L.Ed.2d 67 (1989). The Supreme Court has emphasized that the resulting figure is "more than a mere `rough guess'" of the final award. Delaware Valley I, 478 U.S. at 564, 106 S.Ct. at 3097. Rather, it is "`presumed to be the reasonable fee' to which counsel is entitled." Id. (quoting Blum, 465 U.S. at 897, 104 S.Ct. at 15). Although the fee award should be adequate enough to attract competent counsel, which in turn enlarges "the likelihood that the congressional policy of redressing public interest claims will be vindicated," Student Public Interest Research Group v. AT & T Bell Laboratories, 842 F.2d 1436, 1449 (3d Cir. 1988); see also House Comm. on the Judiciary, The Civil Rights Attorney's Fees Award Act of 1976, H.R.Rep. No. 1558, 94th Cong., 2d Sess. 9 (1976), it should not constitute an undue windfall. Delaware Valley I, 478 U.S. at 565, 106 S.Ct. at 3098. As a result, the district court must exclude from the lodestar calculation those hours not "reasonably expended" on the litigation, Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983), and may apply either a contingency or quality enhancement only in rare circumstances. Pennsylvania v. Delaware Valley Citizens' Council for Clean Air (Delaware Valley II), 483 U.S. 711, 728, 107 S.Ct. 3078, 3088, 97 L.Ed.2d 585 (1987); Delaware Valley I, 478 U.S. at 565, 106 S.Ct. at 3098; Blum v. Witco Chem. Corp. (Blum II), 888 F.2d 975, 980 (3d Cir.1989).
864 *864 In this case, plaintiffs' counsel have submitted summaries of their diaries in addition to affidavits indicating that they recorded contemporaneously the time expended monitoring and enforcing the settlement agreement. Defendants do not dispute the validity of the hours claimed. As such, the Court finds that counsel have tendered sufficiently "accurate records of the amount of time spent and the manner in which it was spent" for the Court to assess fairly attorneys' fees without the necessity of a hearing. In re Meade Land & Dev. Co., 527 F.2d 280, 283 (3d Cir.1975); see also Blum v. Witco Chem. Corp. (Blum I), 829 F.2d 367, 377 (3d Cir.1987).
A. Reasonable Hours
Plaintiffs' counsel seek reimbursement for the following expenditure of hours:
David Ferleger, Esq.
Against Bucks County ................................. 1.40 Against Chester County ............................... 1.40 Against Delaware County .............................. 2.90 Against Montgomery County ............................ .30 Against All Defendants Collectively .................. 19.40
Barbara Hoffman, Esq.
Against Bucks County ................................. .10 Against Delaware County .............................. .10 Against All Defendants Collectively .................. 22.20

Barbara Sheehan, Law Clerk
Against All Defendants Collectively .................. 35.10
Although the Count finds on the basis of the record that reimbursement for plaintiffs' counsel's monitoring efforts is justified because those services were related reasonably to the goals of the settlement, see Delaware Valley, 762 F.2d at 276; Imprisoned Citizens Union, supra, the Court also concludes that some modification of plaintiffs' requested hours is in order. First, counsel is entitled as a general proposition to recover for time spent preparing attorneys' fees requests, see Institutionalized Juveniles v. Secretary of Public Welfare, 758 F.2d 897, 924 (3d Cir. 1985), but the Court may not award fees for time devoted to unsuccessful fee claims just as it typically may not grant compensation for time expended on unsuccessful claims asserted in the litigation proper. See Hensley, 461 U.S. at 435, 440, 103 S.Ct. at 1940, 1943; Durett v. Cohen, 790 F.2d 360, 363 (3d Cir.1986); Proffitt v. Municipal Auth. of Morrisville, 716 F.Supp. 845, 850 (E.D.Pa.1989). Therefore, we will not allow the 2.5 hours that Ms. Sheehan spent on the 1987 fee petition which the Court dismissed as inadequate, see Hensley, 461 U.S. at 436-37, 103 S.Ct. at 1941-42, especially since that time is vaguely characterized.
Second, plaintiffs' counsel submit that because it is not certain that any particular county will disgorge payment for the fees and costs attributable to it, the Court should require each defendant County to pay the full cost for all time spent against the Pennhurst defendants collectively. For instance, assuming that David Ferleger engaged in 20 hours of work directed against all defendants generally and that he charges $200 per hour, by counsel's logic the Court should order each and every fee defendant to pay $4000, for a total recovery of $16,000. Adjustments for excess payments, class attorneys' argument continues, can be made later. This is inappropriate.
The Court need not pause to discern whether the County defendants are in fact jointly and severally liable for fees. See Dean v. Gladney, 621 F.2d 1331, 1340 (5th Cir.1980) (articulating standards), cert. denied, 450 U.S. 983, 101 S.Ct. 1521, 67 L.Ed.2d 819 (1981); Shakman v. Democratic Org. of Cook Co., 634 F.Supp. 895, 904 (N.D.Ill.1986) (same); Vulcan Soc. of Westchester Co. v. Fire Dep't of White Plains, 533 F.Supp. 1054, 1064 865 (S.D.N.Y. 1982). Even if they are, that conclusion does not require the Court to assign joint *865 and several liability or to permit duplicative payments. As the Eleventh Circuit has held,
In addition to having discretion on when to apportion fees, district courts also have wide discretion on how to divide liability for fees.... Most simply, in cases with roughly equal wrongdoers in which the court does not want to impose joint and several liability for attorney's fees, the fees can be divided equally among the defendants.
Council for Periodical Distributors Ass'ns v. Evans, 827 F.2d 1483, 1487 (11th Cir.1987) (citations omitted). Class attorneys themselves represent that the monitoring of the Pennhurst settlement agreement was of a general character, directed for the most part against defendants' collective performance. More importantly, however, rendering the Counties jointly and severally responsible in the manner contemplated by plaintiffs' attorneys would be inefficient. Adoption of their proposed fee allocation method virtually guarantees that they will receive at least some redundant payments, while the assumption that defendants will disregard an order awarding fees is speculative. Thus, to authorize duplicative awards merely would inject needless complexity into the administration of the award and invite further expenditure of judicial resources, for the Court would be obliged, of course, to mediate any disputes concerning later adjustments for overlapping fee recovery.
Third, counsel state that the category of collective time includes those hours "which were expended generally in the case, with regard to all the Defendants, including the Commonwealth and all counties." Plaintiffs' Renewed Motion for Fees at 2. Two defendants, however, are not before the Court. The Commonwealth and the City of Philadelphia previously remitted a portion of the fees and expenses sought in plaintiffs' original motion "with the understanding that counsel for the plaintiff-class would not seek any further compensation for the services rendered during the relevant period from these defendants." Halderman v. Pennhurst State School & Hosp., No. 74-1345, slip op. at 1, 1987 WL 25235 (E.D.Pa. Nov. 24, 1987); see also Plaintiffs' Letter of Sept. 10, 1987, at 2 n. **. Plaintiffs' attorneys either have or should have recovered fees for the shares of those collective hours attributable to the Commonwealth and Philadelphia, and they may not now seek to impute that same time to other defendants.

Last, plaintiffs' counsel ask that the Court enhance the number of compensable hours by ten percent to account for time worked but not documented. They claim that the failure to record those hours was due to the itinerant nature of the representation. Although there is some precedent for this form of adjustment, see Greater Los Angeles Council on Deafness v. Community Television of S. California, 813 F.2d 217, 221 (9th Cir.1987), there is little reason why attorneys, whose professional duties often dictate that they travel, cannot keep contemporaneous notations when conducting business outside the office. Indeed, that is standard practice, and adherence to it is not particularly onerous. Additionally, even if the Court were inclined to embrace the rule advanced by counsel, plaintiffs' attorneys do not sufficiently specify what work they engaged in or indicate what basis they have to believe than an enhancement of ten percent accurately compensates for time not recorded. In consequence, the Court could not possibly review whether the expenditure of those undocumented hours were reasonable or even related to the monitoring and enforcement of the Pennhurst settlement agreement. See Hensley, 461 U.S. at 433-34, 103 S.Ct. at 1939-40; In re Meade Land & Dev. Co., 527 F.2d at 283.
To summarize, the Court will not impose joint and several liability for the payment of attorney services directed against all defendants generally, but instead will allocate responsibility among the defendant Counties equally. The Court further will disallow one-third of those collective hours claimed in order to reflect counsel's prior receipt of fees for that time from the Commonwealth and Philadelphia. Thus, reimbursement for the following hours is proper:
866 *866 David Ferleger, Esq. Against Bucks County ................. 4.63 Against Chester County ............... 4.63 Against Delaware County .............. 6.13 Against Montgomery County ............ 3.53
Barbara Hoffman, Esq.
Against Bucks County ................. 3.80 Against Chester County ............... 3.70 Against Delaware County .............. 3.80 Against Montgomery County ............ 3.70
Barbara Sheehan, Law Clerk
Against Bucks County ................. 5.43 Against Chester County ............... 5.43 Against Delaware County .............. 5.43 Against Montgomery County ............ 5.43
B. Hourly Rates
The second step in computing the lodestar involves a determination of the hourly rate at which plaintiffs' counsel should be paid. "The reasonable value of an attorney's time is the price that time normally commands in the marketplace, which is generally reflected in the attorney's normal billing rate." Black Grievance Comm. v. Philadelphia Elec. Co., 802 F.2d 648, 652 (3d Cir.1986), vacated, 483 U.S. 1015, 107 S.Ct. 3255, 97 L.Ed.2d 754 (1987), remanded, 825 F.2d 768 (3d Cir.1987); see also Missouri v. Jenkins, ___ U.S. ___, 109 S.Ct. 2463, 2469, 105 L.Ed.2d 229 (1989) ("Our cases have repeatedly stressed that attorney's fees awarded under [section 1988] are to be based on market rates for the services rendered."); In re Fine Paper Antitrust Litigation, 751 F.2d 562, 590-91 (3d Cir.1984). By affidavits, Mr. Ferleger and Ms. Hoffman state that near the end of the relevant period their usual hourly rates were $200 and $150, respectively. The services of the law clerk were billed at $25 per hour. Because there are no special circumstances in this case suggesting that the Court should set a different

rate, see Student Public Interest Research Group, 842 F.2d at 1445; Fritz v. White, 711 F.Supp. 1350, 1357 (E.D.Pa.1989), and because defendants do not dispute the propriety of these levels of compensation, the Court finds that the actual billing rates are reasonable, particularly in light of counsel's extensive experience as advocates for the handicapped. See Halderman v. Pennhurst State School & Hosp., 533 F.Supp. 649, 658 (E.D.Pa.1982).
Plaintiffs' attorneys urge the Court to utilize in calculating the award their present hourly charges, rather than their 1986-87 rates, in order to compensate for the delay in payment. Adjustments for delay, such as by the "application of current rather than historic hourly rates," are permissible under section 1988. Jenkins, 109 S.Ct. at 2469; see also Blum II, supra; Institutionalized Juveniles, 758 F.2d at 923-24. Because the payment of fees often is deferred for years even though an attorney's "expenses of doing business continue," Delaware Valley II, 483 U.S. at 716, 107 S.Ct. at 3081, a contrary rule would create great hardship and thus deter "otherwise willing attorneys from accepting complex civil rights cases" in contravention of the purpose of section 1988. Jenkins, 109 S.Ct. at 2469 n. 6.
Compensation for delay by employment of counsel's 1989 rates is not proper in this case. In figuring the lodestar the Court has applied the rates at which plaintiffs' attorneys billed their clients effective July 1, 1987. Prior to that, counsel's hourly charges were slightly lower. By utilizing the market rate current when the motion for fees originally was filed, the Court already has incorporated an appropriate enhancement for the various delays in payment for services conducted between July 1, 1986 and July 27, 1987. No upward adjustment for delay after July 27, 1987, however, is justified. The applicants seek an interim fee award, which in economic terms "does not 867 differ from an enhancement *867 for delay in payment." Id. In fact, not only are they functionally equivalent to upward rate adjustments for delay, interim awards are allowed precisely because deferral of payment often causes considerable hardship. The Court is not confronted with a situation in which counsel was unable for years to petition for fees because they had not yet received a favorable decision. The delay since July 27, 1987 is attributable solely to counsel's own conduct, namely, their initial submission of a deficient fee petition and their subsequent inaction for two years. Thus, plaintiffs' counsel received an opportunity to avoid much of the adverse impact that results from delay, but chose not to avail themselves of it.
In consideration of the foregoing, the Court will award fees in this manner:
David Ferleger, Esq. 4.63 hours against Bucks County @ $ 200/hr ........................ $ 926 4.63 hours against Chester County @ $ 200/hr ...................... $ 926 6.13 hours against Delaware County @ $200/hr ..................... $ 1226 3.53 hours against Montgomery County @ $200/hr .................... $ 706
Barbara Hoffman, Esq. 3.80 hours against Bucks County @ $ 150/hr ........................ $ 570 3.70 hours against Chester County @ $150/hr ....................... $ 555 3.80 hours against Delaware County @ $ 150/hr ..................... $ 570 3.70 hours against Montgomery County @ $ 150/hr ................... $ 555
Barbara Sheehan, Law Clerk 5.43 hours against Bucks County @ $25/hr ........................ $135.75 5.43 hours against Chester County @ $25/hr ...................... $135.75 5.43 hours against Delaware County @ $ 25/hr .................... $135.75 5.43 hours against Montgomery County @ $ 25/hr .................. $135.75
C. Expenses
Plaintiffs' counsel also seek $970.96 in costs. Although the Court finds the expenses reimbursable, the total figure must be reduced by one-third in recognition of those portions attributable to the Commonwealth and

Philadelphia, as explained previously. The Court therefore will award $647.32 in costs, to be divided equally among the defendant Counties.
III.
To conclude, the Court will allow attorneys' fees and costs in the following amounts:
Against Bucks County Attorneys' Fees ................................................ $1631.75 Allowable Costs ................................................ $ 161.83 Total ........................................................ $1793.58
Against Chester County Attorneys' Fees ................................................ $1616.75 Allowable Costs ................................................ $ 161.83 Total ........................................................ $1778.58
Against Delaware County Attorneys' Fees ................................................ $1931.75 Allowable Costs ................................................ $ 161.83 Total ........................................................ $2093.58
Against Montgomery County Attorneys' Fees ................................................ $1396.75 Allowable Costs ................................................ $ 161.83 Total ........................................................ $1558.58
Total Against County Defendants ................................... $7224.32
868 *868 ORDER
AND NOW, this 27th day of November, 1989, for the reasons set forth in this Court's Memorandum of November 27, 1989,
IT IS ORDERED that defendant Counties shall pay fees and costs to plaintiffs' attorney David Ferleger for the period of July 1, 1986 to July 27, 1987 in these amounts: Defendant Bucks County, $1793.58; Defendant Chester County, $1778.58, Defendant Delaware County, $2093.58; and Defendant Montgomery County, $1558.58.
Save trees - read court opinions online on Google Scholar.

 
 834 F.Supp. 757 (1993)
Terri Lee HALDERMAN, et al., Plaintiffs, v.
PENNHURST STATE SCHOOL AND HOSPITAL, et al., Defendants.
Civ. A. No. 74-1345.
United States District Court, E.D. Pennsylvania.
August 17, 1993.
758 *758 David Ferleger, Philadelphia, PA, for plaintiffs.
Thomas Gilhool, Harrisburg, PA, for Pennsylvania Ass'n for Retarded Citizens, Moskowitz, Hight and DiNolfi.
Norman J. Watkins, Deputy Atty. Gen., Dept. of Justice, Harrisburg, PA, for defendants.
Peter A. Glascott, James M. McNamara, Asst. City Sol., Doylestown, PA, for County of Bucks, George Metzer, Roger Bowers, Joseph Catania, Peter Bodenheimer.
Robert DeLuca, U.S. Atty., and Walter Batty, J. Stanley Pottinger, Asst. Atty. Gen., Civ. Rights Div., U.S. Dept. of Justice, Arthur Peabody, Washington, DC, for U.S.
Frank, Margolis, Edelstein & Scherlis, Joseph Goldberg, Philadelphia, PA, for Margaret Green, Betty Uphold, Alice Barton, P.E. Klick, Dr. Parocca and Helen Francis.
Thomas Kittredge, Philadelphia, PA, Patricia H. Jenkins, Media, PA, for Faith Whittlesey, Char. Keeler, Wm. Spingler, Comm. of Delaware Cty., P.P. Burrichter-Del. Cty.
Joseph M. Davidson, Marc H. Myers, Howland W. Abramson, Asst. City Solicitors, for Mayor Frank L. Rizzo.
Stephen A. Sheller, P.C., Philadelphia, PA, for Eric Cohen, et al.
Thomas F. Schilpp, Luchsinger, Schilpp, Murphy & Noel, Media, PA, for Commissioners of County of Delaware and Paul Burrichter, Admin.
Paul Sacks, Asst. City Sol., Philadelphia, PA, for Mayor Frank L. Rizzo, City Council of Philadelphia and Leon Soffer.
Roger M. Reynolds, Mont. County Sol., Ward A. Cotton, Sol., Montgomery, Joseph A. Smyth, Asst. Mont. County Sol., Norristown, PA, for A. Russell Parkhouse, Frank W. Jenkins, Lawrence H. Curry, Mont. County Comm., and Hermann A. Roether.
Jeffrey Cooper, Deputy Atty. Gen., Dept. of Justice, Harrisburg, PA, for Pennhurst State School & Hosp., Dept. of Public Welfare, Frank S. Beal, Stanley Meyers, Aldo Colautti, Wilbur Hobbs, Russell Rice, Jr. and C. Duane Youngberg.
Joseph P. Green, Jr., Montgomery County Legal Aid, Norristown, PA, for W.P. and R.G.
John Rogers Carroll, Philadelphia, PA, for Patricia Jenkins.
Larry Goldberg, Washington, DC, for U.S.
Thomas M. Kittredge, Philadelphia, PA, for Montgomery County and Bucks County defendants.
Steven M. Coren, Philadelphia, PA, for W.M. and B.M. (Parents of P.M.).
Edward Blumstein, Philadelphia, PA, for Parents of J.B.N.

Robert O. Baldi, New Hope, PA, for Dorothy Klock, John Klock and Sall Klock-Ward.
John F. Stoviak, Philadelphia, PA, for Cynthia J. Colona, and Her Parents Mr. & Mrs. William Colona.
Ilene W. Shane, Philadelphia, PA, for C.C.
Alan Held, Civil Rights Div., Washington, DC, for U.S.
Joseph M. Davidson, Asst. City Sol., Marc H. Myers, Asst. City Sol., Philadelphia, PA, for Mayor F.L. Rizzo, City Council of Philadelphia and Leon Soffer.
Pamela P. Cohen, Sandra Swenson, Philadelphia, PA, for Intervention Pennhurst Parents-Staff Ass'n.
Richard Kirschner, Kirschner, Walters & Willig, Philadelphia, PA, for Intervention, Council 13, American Federation of State, County & Mun. Employees, AFL-CIO.
Adjoa A. Burrow, U.S. Dept. of Justice, Civ. Rights Div., Sp. Litigation Section, Washington, DC, for U.S.
759 *759 James C. Everett, Philadelphia Ass'n for Retarded Citizens, Philadelphia, PA, for R.M., Parents of D.M.
Herbert B. Newberg, Philadelphia, PA, for plaintiffs Parents and Family Assoc. of Pennhurst, et al.
Larry J. Goldberg, Civil Rights Div., Washington, DC, for U.S.
Dennis E. Haggerty, Philadelphia, PA, for R.S. Parent and Court-Appointed Guardian of D.S.
Robert W. Lentz, Paoli, PA, for Kimberly Carol Lentz and Nancy Ann Macbeth.
Edmund A. Tiryak, Andrew F. Erba, Community Legal Services, Inc., Philadelphia, PA, for Daniel B.
Peter A. Galante, Philadelphia, PA, for Catherine Devitt.
MEMORANDUM
RAYMOND J. BRODERICK, District Judge.
In 1974, this action was filed on behalf of the retarded residents of Pennhurst State School and Hospital asserting violations of their constitutional and statutory rights. After eleven years of active litigation including approximately 500 court orders, 28 published opinions and three arguments before the Supreme Court, the parties entered into a Final Settlement Agreement ("FSA") which was approved and entered as a consent decree and Order of this Court ("Court Decree") on April 5, 1985. Nevertheless, in the eight years following the entrance of the Court Decree, the plaintiffs have been forced to file several motions for enforcement, necessitated by the actions of the defendants.
In response to one such motion, filed in 1989, the Commonwealth defendants contended that the Court Decree embodied only moral, and not legal, obligations and was unenforceable against them. This Court determined, and the Third Circuit affirmed, that defendants' contentions were meritless. Halderman v. Pennhurst State School and Hospital, No. 74-1345, 1989 WL 100207, 1989 U.S. Dist. LEXIS 10147 (E.D.Pa. Aug. 28, 1989), aff'd, Halderman v. Pennhurst State School and Hospital, 901 F.2d 311 (3rd Cir.), cert. denied, 498 U.S. 850, 111 S.Ct. 140, 112 L.Ed.2d 107 (1990). In 1991, the Commonwealth defendants filed their own motion, this time contending that, due to alleged changes in constitutional and statutory law, the Court Decree should be modified, making it unenforceable against them. Again this Court determined, and the Third Circuit affirmed, that defendants' contentions were meritless. Halderman v. Pennhurst State School and Hospital, 784 F.Supp. 215 (E.D.Pa.), aff'd, 977 F.2d 568 (3rd Cir.1992).
Now, within 8 months of the Third Circuit's rejection of the meritless contentions of the Commonwealth defendants' 1991 motion, they have filed another motion. In their present motion, the defendants assert that all plaintiffs except the United States should be dismissed from this action based on alleged eleventh amendment

claims. This Court notes that dismissal of all plaintiffs except the United States would remove those parties directly affected by the actions of the Commonwealth defendants, leaving only the United States as a party capable of bringing enforcement actions.
Having determined that the Commonwealth defendants' present contention has no more merit than those they raised in 1989 or in 1991, this Court will deny the Commonwealth defendants' motion. In doing so, this Court again, as it did in its 1992 opinion, expresses its dismay that the Commonwealth defendants' motion appears to have been an attempt at delaying full compliance with the Court Decree into which they knowingly and willingly entered in 1985.
The history of the proceedings in this case is lengthy and is set out in summary in this Court's 1992 opinion, which was filed in response to the Commonwealth defendants' 1991 motion. Halderman, 784 F.Supp. 215, (E.D.Pa.), aff'd, 977 F.2d 568 (3rd Cir.1992). The proceedings will not be repeated herein except as needed for an understanding of the present posture of this case. In May of 1974, suit was brought as a class action on behalf of former and present residents of Pennhurst State School and Hospital, a state institution for persons with 760 retardation in Spring City, Pennsylvania, against various officials of the *760 Commonwealth of Pennsylvania including those of the Pennhurst State School and Hospital and the Department of Public Welfare. In 1975, the Pennsylvania Association for Retarded Citizens (now ARC/PA), among others, intervened as plaintiffs, adding as defendants the Mental Health/Mental Retardation Administrators of Bucks, Chester, Delaware, Montgomery and Philadelphia Counties. Also in 1975, the United States of America intervened as a party plaintiff. In November, 1976, the class was certified. The definition of class was amended in 1985, pursuant to the Court Decree, to include only those who were residents of Pennhurst on or after May 30, 1974.
In 1977, after a 32-day trial limited to the issue of liability, this Court made findings of fact and concluded that certain constitutional and statutory rights of the Pennhurst class had been and were being violated. Halderman v. Pennhurst State School and Hospital, 446 F.Supp. 1295 (1977). A summary of this procedural history which followed may be found in this Court's 1985 opinion, Halderman, 610 F.Supp. 1221, 1225-26 (E.D.Pa. 1985). In brief, the defendants appealed to the Third Circuit Court of Appeals, and then to the Supreme Court. On remand from the Supreme Court, the Third Circuit affirmed on different grounds. On appeal, the Supreme Court heard two oral arguments and remanded once again. Throughout, the findings of fact made by this Court in 1977 were never challenged. Among those findings were that Pennhurst was overcrowded, understaffed and without the programs which experts considered necessary for minimally adequate habilitation. (Habilitation is the term of art used to refer to that education, training and care required by retarded individuals to reach their maximum development.) The evidence clearly showed that, in many instances, life skills that had been possessed by the residents at the time of their admission had been destroyed.
The evidence further showed that the residents of Pennhurst were regularly subjected to a number of dehumanizing practices, including restraints and psychotropic drugs being used as control measures in lieu of adequate staffing. There were hundreds of resident injuries, both major and minor, reported each month, including some reports of beatings and rapes of the residents by staff. As a direct result of abuse, many residents suffered loss of teeth, broken bones, and physical deterioration. Pennhurst was isolated and segregated, with few of the retarded capable of aiding or protecting their fellow residents, or of complaining about their own treatment. Moreover, because routine housekeeping services were not available during evenings and on weekends, it was common to find urine and feces on ward floors over these periods. The average age of the residents was 36, and the average stay at Pennhurst was 21 years.
Following the final remand from the Supreme Court and while the case was pending before the Third Circuit, the Commonwealth and the County defendants chose to end active litigation and to enter into the FSA with the plaintiffs under the guidance of Judge Rosenn of the Third Circuit Court of Appeals. As stated above, the definition of the plaintiff class was limited to those persons who were residents of Pennhurst on or after May 30, 1974.
This Court reviewed and approved the FSA, and entered it as a Court Decree and Order of this Court on April 5, 1985. Halderman v. Pennhurst State School and Hospital, 610 F.Supp. 1221 (E.D.Pa.1985).

As summarized in this Court's 1992 opinion, Halderman, 784 F.Supp. at 217-18, the FSA has four components. The main body of the FSA consists of 22 paragraphs and a glossary of terms. Appendix A is the "heart and soul" of the FSA, and sets forth the substantive services, safeguards and monitoring which the Commonwealth and County defendants agreed to provide each class member. Appendix A is quoted in full in this Court's 1992 opinion, Halderman, 784 F.Supp. at 218-19. Under its terms, the Commonwealth and County defendants agreed, among other things, to provide community living arrangements to each member of the plaintiff class for whom such placement is deemed appropriate, as determined by professional judgment through the individual planning 761 process, together with such community services as are necessary to provide *761 each person with minimally adequate habilitation until such time as the person no longer is in need of such living arrangements and/or community services.
Of the remaining two components of the FSA, Appendix B sets forth the Commonwealth's obligations with respect to allocation of the funds made available by the closure of Pennhurst, while Appendix C concerns the approval of the FSA and notice to members of the Pennhurst class.
Pennhurst State School and Hospital was at last closed in 1987. Litigation in this matter, nevertheless, has continued. As stated above, the actions of the defendants have necessitated the filing of several motions by the plaintiffs for enforcement of the Court Decree. As also stated above, in 1989, in response to one such motion filed by ARC/PA, the Commonwealth defendants asserted that the defendants had moral, but not legal, obligations to the members of the Pennhurst class and further, that this Court was without jurisdiction to enforce the Court Decree. This Court, after holding hearings over a period of four days, found that it had jurisdiction and that the defendants in entering into the Court Decree had assumed legal obligations to the Pennhurst class. Further, the Court found that the Commonwealth defendants as well as two of the county defendants were not in substantial compliance with the provisions of the Court Decree and the judgments entered by this Court, in that significant members of the Pennhurst class were still not receiving minimally adequate habilitation. Halderman v. Pennhurst School and Hospital, No. 74-1345, 1989 WL 100207, 1989 U.S. Dist. LEXIS 10147 (E.D.Pa. Aug. 28, 1989), aff'd, Halderman v. Pennhurst School and Hospital, 901 F.2d 311 (3rd Cir.), cert. denied, 498 U.S. 850, 111 S.Ct. 140, 112 L.Ed.2d 107 (1990). Affirming, the Third Circuit determined that, following the entry of the Court Decree, jurisdiction over this matter by the district court remained, pursuant to "the usual continuing jurisdiction that courts routinely exercise over their injunctions." Id. at 320. The Third Circuit further determined that Appendix A obligations were "orders of the Court" and not ethical commands. Id. at 319-20. Appendix A, thus, was determined to be "permanent" subject to Rule 60(b). The Commonwealth defendants were held to have a continuing legal obligation to the Pennhurst class.
In 1991, the Commonwealth defendants made another attempt to avoid the legal obligations they knowingly assumed when they entered into the Court Decree. This time, the Commonwealth defendants filed a motion in which they asserted that Appendix A, the "heart and soul" of the Court Decree, should be vacated. They claimed that, subsequent to the entry of the Court Decree, the legal predicates for Appendix A had been undermined by developments in constitutional substantive due process and equal protection law and in federal statutory rights under Section 504 of the Rehabilitative Act of 1973, 29 U.S.C. § 794. The Commonwealth defendants also asserted that vacation of Appendix A was supported by equity and fairness.
Guided by the then-recent Supreme Court decision, Rufo v. Inmates of Suffolk County Jail, ___ U.S. ___, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992), this Court determined that the Commonwealth defendants, as the party seeking modification of an institutional reform consent decree, had failed to carry their burden of establishing that significant change in factual conditions or law warranted revision of the Court Decree. The Commonwealth defendants had based their assertion of changes in constitutional substantive due process on cases holding that voluntary residents had no constitutional right to mental retardation services. This Court in 1977, however, had made a finding of fact based on 32 days of testimony that the residents of Pennhurst were involuntary. Recent case-law, including DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), supported that finding: the Commonwealth defendants had affirmatively acted in accepting the residents into Pennhurst, in restraining them at Pennhurst, and in depriving them of their constitutional right to minimally adequate habilitation, a failure that could well have meant commitment for life,

762 since it was unlikely that they would ever advance to a stage at which they might be *762 found ready by the staff to go out into the community. As the Supreme Court in DeShaney, at 199, 109 S.Ct. at 1005, stated:
[W]hen the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs 0907 e.g., food, clothing, shelter, medical care, and reasonable safety 0907 it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause.... In the substantive due process analysis, it is the State's affirmative act of restraining the individual's freedom to act on his own behalf 0907 through incarceration, institutionalization, or other similar restraint of personal liberty 0907 which is the "deprivation of liberty" triggering the protections of the Due Process Clause,....
In their 1991 motion to vacate Appendix A, the Commonwealth defendants also asserted that the equal protection predicate on which the Court Decree was based had been undermined by the rational basis standard enunciated by the Supreme Court in City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985). The right to relief found by this Court in 1977, however, had not stemmed from suspect or quasisuspect class analysis. Further, the obligations which the Commonwealth defendants were attempting to avoid had not come from the Court's 1977 opinion, but had come instead from the FSA into which the Commonwealth defendants had knowingly and willingly entered after active negotiation.
As to the Commonwealth defendants' assertion that the Section 504 right to relief found by this Court in its 1977 opinion had been undermined, the defendants cited a footnote in the Third Circuit decision of Clark v. Cohen, 794 F.2d 79, 84 n. 3 (3rd Cir.), cert. denied, 479 U.S. 962, 107 S.Ct. 459, 93 L.Ed.2d 404 (1986). In Clark, however, the Third Circuit had not addressed Clark's Section 504 claim because the lower court had found that she had failed to prove that she was discriminated against solely on the basis of her handicap. In the footnote relied upon by defendants, the Third Circuit had stated simply that Section 504 "prohibits discrimination against the handicapped in federally funded programs. It imposes no affirmative obligations on the states to furnish services." Id.
In 1977, however, this Court had specifically found a violation under Section 504 of the federal statutory right of the Pennhurst residents to habilitation in a non-discriminatory manner. Further, this Court noted in its 1992 opinion, Halderman, 784 F.Supp. at 224, that Congress, in enacting the Americans with Disabilities Act of 1990, had affirmed that Section 504 prohibits unnecessary segregation and requires reasonable accommodations to provide opportunities for integration. Congress also extended protection to include all state and local programs, regardless of the receipt of federal assistance.
The Commonwealth defendants' final assertion in their 1991 motion was that equity and fairness supported vacating Appendix A. However, as this Court noted in its 1992 opinion, the Commonwealth defendants had still not complied fully with the Court Decree: as of November of 1991 0907 six years after defendants chose to enter into the Court Decree 0907 fifteen members of the Pennhurst class had not received appropriate placement. Because vacation of Appendix A would eviscerate the Court Decree, and because the defendants had knowingly and willingly chosen to enter into it after eleven years of active litigation, this Court determined that no considerations of equity and fairness supported defendants' motion. Further, as stated heretofore, this Court expressed its dismay that, having determined that there had been no change in law or fact supporting the Commonwealth defendants' motion, the Court had reached the conclusion that the motion had been yet another attempt by defendants to avoid, or at least to delay, full compliance with the Court Decree.
On September 11, 1992, in a not-for-publication opinion of two and one-half pages, the Third Circuit affirmed. Halderman v. Pennhurst State School and Hospital, No. 92-1186 [977 F.2d 568 (Table)] (3rd Cir., Sept. 11, 1992). 763 As to their constitutional substantive *763 due process assertions, the Commonwealth defendants had contended on appeal that DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989), and its progeny had altered the obligations which a state owes to the mentally retarded. The Third Circuit stated that the Commonwealth defendants read DeShaney far too expansively, in that DeShaney had not involved the rights of those in institutions, and had not eliminated the state's obligations under Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982), to provide prospective remedies for inadequate institutional care. The Third

Circuit held that, because the law underlying the substantive due process analysis had not changed, it would not reach the Commonwealth defendants' arguments as to equal protection and Section 504. The Third Circuit stated, however, that it was unpersuaded by the Commonwealth's assertion that equity required the vacation of Appendix A.
Having failed in 1989 and again in 1991 in their attempts to avoid the legal obligations they knowingly assumed in 1985 by their acceptance of the Court Decree, the Commonwealth defendants have filed yet another motion. Asserting Eleventh Amendment immunity, the defendants now seek dismissal of all plaintiffs except the United States. Although defendants insist that during the extended litigation in this matter they have not waived the Eleventh Amendment issue they now raise, it would appear to this Court that the Commonwealth defendants, in entering into the Court Decree, have "unequivocally expressed" their consent both to suit and to be bound by the Court Decree. See Pennhurst State School and Hospital v. Halderman, 465 U.S. 89, 99, 104 S.Ct. 900, 907, 79 L.Ed.2d 67 (1984) (a State may waive sovereign immunity and consent to suit against it in federal court, but the consent must be unequivocally expressed). It would appear to this Court that, in entering into the Court Decree in 1985, the Commonwealth defendants waived any entitlement to raise Eleventh Amendment immunity to enforcement of that Decree. See Kozlowski v. Coughlin, 871 F.2d 241, 244 (2d Cir.1989) (by entering into the consent decree, the New York State Department of Correctional Services Commissioner waived eleventh amendment immunity). Nevertheless, this Court will address their present argument.
In their 1993 motion, the Commonwealth defendants insist that dismissal of all plaintiffs except the United States is required by the Supreme Court's recent opinion, Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., ___ U.S. ___, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993). They insist that dismissal of all plaintiffs except the United States would not change the obligations of the Commonwealth defendants under Appendix A but would merely permit enforcement actions to be brought only by the United States, with the class members becoming intended beneficiaries. As this Court noted above, dismissal of plaintiffs except the United States parties would remove those parties who have been most active in seeking to enforce compliance with the Court Decree.
The Commonwealth defendants assert that any prior uncertainty in Eleventh Amendment law in distinguishing between permitted prospective relief and prohibited retrospective, or compensatory, relief has now been clarified by the Supreme Court in Puerto Rico Aqueduct, at ___, 113 S.Ct. at 688. Asserting that a "bright line" has been established by Puerto Rico Aqueduct, they contend that Appendix A has been transformed from permitted prospective relief into prohibited compensatory relief. The Commonwealth defendants base this alleged transformation on a statement by the Third Circuit in its unpublished 1992 opinion, Halderman, No. 92-1186 (Sept. 11, 1992), which defendants interpret as holding that Appendix A is a remedy for inadequate institutional care in the past. The Commonwealth defendants argue that, with the closing of Pennhurst in 1987, there were no further ongoing constitutional violations. They argue further that the Pennhurst class did not take their substantive due process rights to care with them upon their release from Pennhurst. They conclude that under Puerto Rico Aqueduct, Appendix A is relief intended to repair past injury and is thus wholly compensatory. Because the 764 Eleventh Amendment bars awards *764 of compensatory relief to private parties against a state or its officials, the Commonwealth defendants assert that all plaintiffs except the United States must be dismissed.
The present argument of the Commonwealth defendants, like their 1989 and 1991 arguments, is meritless. First, there is nothing in Puerto Rico Aqueduct that might possibly be construed as transforming the prospective injunctive relief of the Court Decree into compensatory relief. In Puerto Rico Aqueduct, the issue before the Supreme Court was whether a district court order denying a claim of Eleventh Amendment immunity by a state or state entity was an appealable order under the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The parties were an autonomous government instrumentality and a private engineering firm with which it had contracted to assist it in the task of upgrading many of its wastewater treatment plants. Puerto Rico Aqueduct, thus, was not a suit in which constitutional claims were made and prospective relief to correct ongoing constitutional and statutory deprivations were sought, nor was it a case brought against state officials.
In Puerto Rico Aqueduct, the Supreme Court discussed the collateral order doctrine, and then noted that the engineering firm had maintained that the doctrine was inapplicable because the Eleventh Amendment did not

confer immunity from suit but was merely a defense to liability. The Supreme Court, id., ___ U.S. at ___, 113 S.Ct. at 688, stated:
Support for this narrow view of the Eleventh Amendment is drawn mainly from Ex parte Young, 209 U.S. 123, 28 S.Ct. 441 [52 L.Ed. 714] (1908), under which suits seeking prospective, but not compensatory or other retrospective relief, may be brought against state officials in federal court challenging the constitutionality of official conduct enforcing state law.
The Supreme Court then proceeded to review the doctrine of Ex parte Young. Quoted in full, the Supreme Court stated:
The doctrine of Ex parte Young, which ensures that state officials do not employ the Eleventh Amendment as a means of avoiding compliance with federal law, is regarded as carving out a necessary exception to Eleventh Amendment immunity. See, e.g., Green v. Mansour, 474 U.S. 64, 68, 106 S.Ct. 423, 426, 88 L.Ed.2d 371 (1985). Moreover, the exception is narrow: it applies only to prospective relief, does not permit judgments against state officers declaring that they violated federal law in the past, id., at 73, 106 S.Ct. at 428, and has no application in suits against the States and their agencies, which are barred regardless of the relief sought. Cory v. White, [457 U.S. 85, 102 S.Ct. 2325, 72 L.Ed.2d 694 (1982) ]. Rather than defining the nature of Eleventh Amendment immunity, Young and its progeny render the Amendment wholly inapplicable to a certain class of suits. Such suits are deemed to be against officials and not the States or their agencies, which retain their immunity against all suits in federal court.
In the whole of Puerto Rico Aqueduct, there are no further references to prospective and retrospective relief. Contrary to the assertion of the Commonwealth defendants, there is nothing in Puerto Rico Aqueduct that can be construed as mandating that the permitted prospective relief which they agreed to provide in entering into the Court Decree has now been transformed into prohibited compensatory relief.
Nevertheless, the Commonwealth defendants assert that, under their "bright line" theory, Appendix A has now become compensatory based on their interpretation of a sentence of the Third Circuit in its unpublished 1992 opinion, Halderman, No. 92-1186 (3rd Cir., Sept. 11, 1992). The statement of the Third Circuit, slip op. at 4, on which the defendants hinge their argument, quoted in full, is:
We agree with the Court's holding in Thomas S. ex rel. Brooks v. Flaherty, 902 F.2d 250, 253-55 (4th Cir.) [cert. denied, 498 U.S. 951, 111 S.Ct. 373, 112 L.Ed.2d 335 (1990)], that DeShaney did not eliminate the state's obligations under Youngberg v. Romeo, 457 U.S. 307 [102 S.Ct. 2452, 73 L.Ed.2d 28] (1982), to provide prospective remedies for inadequate institutional care.
765 *765 Defendants assert that the above-quoted statement of the Third Circuit is a holding that Appendix A is a remedy for inadequate institutional care in the past. Defendants' assertion is absurd.
As stated heretofore, in Halderman, No. 92-1186 (3rd Cir., Sept. 11, 1992), the Third Circuit affirmed this Court's determination that no changes in constitutional substantive due process analysis nor equitable considerations supported the Commonwealth defendants' assertion that Appendix A should be vacated. The defendants had argued on appeal that DeShaney, 489 U.S. 189, 109 S.Ct. 998 (1989), and its progeny had altered the obligations which a state owes to the mentally retarded. The Third Circuit responded, stating that DeShaney did not involve the rights of those in institutions but instead, dealt with a state's obligations when it did not have institutional control over a child. The Third Circuit stated that it agreed with the Fourth Circuit's holding in Thomas S., 902 F.2d at 253-55, that DeShaney did not eliminate the state's obligations under Youngberg to provide prospective remedies for inadequate institutional care.
Youngberg was brought by a mother as next friend of her mentally retarded son, Nicholas Romeo, who had been involuntarily committed at Pennhurst. A member of the Pennhurst class action before this judge, Romeo had not requested injunctive relief in his separate suit before another judge of this court. In Youngberg, the Supreme Court held that Romeo had a Fourteenth Amendment right to safe conditions, id., 457 U.S. at 315, 102 S.Ct. at 2458; to freedom from bodily restraint, id. at 316, 102 S.Ct. at 2458; and, in view of the relief asserted by Romeo, to minimally adequate habilitation related to these needs, id. at 319, 102 S.Ct. at 2460.

In Thomas S., a class of mentally retarded adults in public psychiatric hospitals in North Carolina sued the Secretary of North Carolina Department of Human Resources. After a bench trial, the district court ordered injunctive relief. On appeal, the Secretary argued, among other things, that persons who were no longer in state custody had no substantive due process rights to minimally adequate treatment and thus should not have been included in the district court's order. The Fourth Circuit, Thomas S., 902 F.2d at 254-55, in discussing DeShaney, stated:
DeShaney does not support the proposition that persons who were in state custody at the time of class certification and later released have no right to a remedy.... Here all members of the class were institutionalized patients on the date of certification.... The district court sought to remedy the harm suffered by class members whether they remained in the institution or had been discharged. The object of the court's order is twofold: to ameliorate the lingering effects, if any, of improper treatment; and to remedy inappropriate community placements, if any.... We believe that the state's duty to render the kind of treatment prescribed by Youngberg is not discharged by simply releasing a class member from the institution where he or she had been hospitalized. Otherwise the state could unilaterally avoid the obligations imposed by Youngberg and defeat the claims of class members by terminating their institutional care while the case was pending.
Thomas S., 902 F.2d at 254-55 (citations omitted) (emphasis added.)
The Third Circuit's statement on which the Commonwealth defendants base their argument, repeated for convenience, is:
We agree with the Court's holding in Thomas S. ex rel. Brooks v. Flaherty, 902 F.2d 250, 253-55 (4th Cir.) [cert. denied, 498 U.S. 951, 111 S.Ct. 373, 112 L.Ed.2d 335 (1990) ], that DeShaney did not eliminate the state's obligations under Youngberg v. Romeo, 457 U.S. 307 [102 S.Ct. 2452, 73 L.Ed.2d 28] (1982), to provide prospective remedies for inadequate institutional care.
Contrary to the Commonwealth defendants' contention, the Third Circuit in the above-quoted statement did not hold that Appendix A was a remedy for inadequate institutional care in the past. Rather, in light of the cases cited, the Third Circuit said that, for the purpose of the relief mandated in Appendix A, the release of the Pennhurst 766 plaintiffs from Pennhurst did not bring them within the ambit of DeShaney. Rather, according *766 to the Third Circuit, they remained within the ambit of Youngberg. That is, the Commonwealth's obligations to correct the constitutional violations that were being suffered by the Pennhurst plaintiffs were not eliminated simply by their release from Pennhurst.
The contention of the Commonwealth defendants that, because Pennhurst has been closed, the Pennhurst plaintiffs do not presently enjoy substantive due process rights to care is plainly contrary to the statement of the Third Circuit on which they rely. Neither the constitutional rights nor the constitutional violations which this Court found in 1977 ended with the closing of Pennhurst. More to the point, however, is the fact that the relief to which the Pennhurst plaintiffs are entitled arises directly from the Court Decree into which the defendants voluntarily chose to enter in 1985.
As discussed above, the actions of the Commonwealth defendants have necessitated repeated motions by the plaintiffs for enforcement of Appendix A. In 1993, full compliance is still a goal. This Court notes that, in an attempt to resolve pending motions by the plaintiffs to hold the Commonwealth and Philadelphia defendants in contempt of the Court Decree, those defendants chose to enter into a stipulated agreement with the ARC/PA and Halderman plaintiffs, pursuant to which the Commonwealth and Philadelphia defendants agreed to formulate and file with this Court their collaborative plan to address the continuing violations of the Court Decree. The stipulated agreement was entered as an Order of this Court on August 19, 1991. This collaborative plan was at last filed on July 8, 1993 0907 three months after the Commonwealth defendants filed their present motion to dismiss all nonUnited States parties from this suit.
In 1985, it was hoped that the entry of the Court Decree as an Order of this Court would bring an end to eleven years of litigation in this matter. It saddens this Court to note that, although the Commonwealth defendants have

yet to fully comply with the Court Decree, they have nevertheless chosen to continue litigation an additional eight years, now with a meritless assertion that the Court Decree is a remedy for "past" constitutional violations.
As the Supreme Court stated in Papasan v. Allain, 478 U.S. 265, 277, 106 S.Ct. 2932, 2940, 92 L.Ed.2d 209 (1986):
Young's applicability has been tailored to conform as precisely as possible to those specific situations in which it is "necessary to permit the federal courts to vindicate federal rights and hold state officials responsible to the supreme authority of the United States."
Id. (quoting Pennhurst State School and Hospital v. Halderman, 465 U.S. at 105, 104 S.Ct. at 910) (internal quotation marks omitted).
With full compliance remaining at issue eight years after the entry of the FSA, this Court has no doubt that this is such a case.
ORDER
AND NOW, this 16th day of August, 1993; the Commonwealth defendants having filed a motion to dismiss all non-United States plaintiffs from this action; for the reasons set forth in this Court's Memorandum of August 16th, 1993;
IT IS ORDERED: the motion of the Commonwealth defendants to dismiss all non-United States plaintiffs is DENIED.
Save trees - read court opinions online on Google Scholar.

 
 855 F.Supp. 733 (1994)
Terri Lee HALDERMAN, et al., Plaintiffs, v.
PENNHURST STATE SCHOOL AND HOSPITAL, et al., Defendants.
Civ. A. No. 74-1345.
United States District Court, E.D. Pennsylvania.
May 25, 1994.
734567 *734 *735 *736 *737 Judy Gran, David Ferleger, Philadelphia, PA, for plaintiffs.
Jerome J. Shestack, Zachary Grayson, Barry M. Klayman, Wolf, Block, Schorr & Solis-Cohen, Philadelphia, PA, for Commonwealth.
Doris Leisch, Philadelphia, PA, Robert Stern, U.S. Dept. of Justice, Washington, DC, for U.S.
738 *738 MEMORANDUM
RAYMOND J. BRODERICK, District Judge.
Presently before the Court are petitions for fees and expenses on behalf of attorneys for the plaintiff class in connection with contempt proceedings brought against defendants County of Philadelphia ("County") and Commonwealth of Pennsylvania ("Commonwealth") for their violations of this Court's Order of April 5, 1985 ("Court Decree"). See Halderman, et al. v. Pennhurst State Sch. & Hosp., et al., 610 F.Supp. 1221 (E.D.Pa.1985) ("Halderman I") for the terms of the Court Decree. Attorney David Ferleger, who represents Halderman plaintiffs, originally petitioned the Court for fees and expenses in the amount of $363,889, but he settled with defendants in the amount of $260,000. The Court approved the settlement agreement between defendants and Ferleger on May 6, 1994. That Agreement calls for the Court to decide the issue of allocation of Ferleger's fees as between the two defendants. Attorneys for Association of Retarded Citizens of Pennsylvania ("ARC"), Judith Gran, Frank J. Laski and Barbara Ransom did not settle their fees with defendants; they seek a total of $554,842.01 in compensation for the period April 7, 1987 through April 27, 1994. Both defendants filed objections to ARC's petition for fees and expenses. Thus, in addition to the issue of allocation, the Court must decide the reasonableness of ARC's attorney fees.
I.
The fees and expenses of ARC's attorneys were incurred in connection with the contempt motion filed against the County and Commonwealth by the plaintiff class in 1987. The Court Decree called for the defendants to provide community living arrangements, minimally adequate habilitation, and other services to the Pennhurst class, who are mentally retarded persons. The contempt proceedings were stayed in August 1991 when the parties entered into an agreement to settle the matter. That agreement called for the parties to work together to develop a plan to "improve the quality and management of the Philadelphia service system for all those [mentally retarded] receiving services, including, but not limited to, [Pennhurst] class members." Settlement Agt., Aug. 15, 1991. This effort became known as the "Community Collaborative." The Community Collaborative was no less than a major effort to restructure the entire mental retardation system within the County of Philadelphia. Unfortunately, after almost two years of meetings and negotiations, the parties were unable to devise a plan that was satisfactory to the plaintiff class. Therefore, in August 1993 the plaintiffs notified the Court that they were unable to reach a satisfactory settlement with the defendants, and they asked the Court to schedule a hearing on their 1987 contempt motion.

The hearing was held over a nine-day period in December 1993. The evidence presented at the hearing overwhelmingly demonstrated that the defendants had engaged in a sustained willful effort to disregard the Court Decree by failing to provide community living arrangements and minimally adequate habilitation to a majority of the class members. Halderman, et al. v. Pennhurst State Sch. & Hosp., 154 F.R.D. 594 (E.D.Pa.1994) ( "Halderman III"). Accordingly, the Court held both the County and the Commonwealth in contempt and ordered that they both comply with the Court Decree within the times specified in the Order.
II.
ARC plaintiffs now seek compensation for the costs and expenses of prosecuting the contempt motion. Plaintiffs believe that they are entitled to such compensation under two theories. The first is that plaintiffs, as prevailing parties in a civil rights action, have the right to recover attorney fees and costs pursuant to 42 U.S.C. § 1988. Their second theory is that they are entitled to recover such costs under the Court's inherent equitable power to punish contempt. As set forth below, the Court has determined that plaintiffs are entitled to recover their costs of litigating this matter under both theories.
Under section 1988, costs assessed must be "reasonable." Pennsylvania v. Delaware Valley Citizens' Council for 739 Clean *739 Air ("Delaware Valley I"), 478 U.S. 546, 562, 106 S.Ct. 3088, 3096, 92 L.Ed.2d 439 (1986). The
estimate of fees, also known as the lodestar, is calculated by multiplying the number of hours reasonably devoted to the litigation by a reasonable hourly rate for each attorney involved in the case. Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 1543, 79 L.Ed.2d 891 (1984); see also Blanchard v. Bergeron, 489 U.S. 87, 94-95, 109 S.Ct. 939, 944-45, 103 L.Ed.2d 67 (1989); Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir.1990). In Delaware Valley I, the United States Supreme Court stated that the resulting figure "`is presumed to be the reasonable fee' to which counsel is entitled." Id. at 564, 106 S.Ct. at 3098 (citation omitted) (emphasis in original). Further, while the award must be large enough to attract competent counsel, it must not constitute an undue windfall. Id. at 565, 106 S.Ct. at 3098 (citations omitted). Consequently, a district court must exclude from the lodestar calculation any hours not "reasonably expended" on the litigation, Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983). According to the United States Court of Appeals for the Third Circuit, "[h]ours are not reasonably expended if they are excessive, redundant, or otherwise unnecessary." Dellarciprete, 892 F.2d at 1183.
The burden of establishing the reasonableness of attorneys' fees falls on the party requesting the fees. Id. To meet this burden, the fee petitioner is required to "submit evidence supporting the hours worked and rates claimed." Id. (citing Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983)). The burden then shifts to the party opposing the fee to demonstrate that the fee is not reasonable. Id. (citing Bell v. United Princeton Properties, Inc., 884 F.2d 713 (3d Cir.1989)). The court is not permitted, however, to "decrease a fee award based on factors not raised at all by the adverse party." Id. (citations omitted). Once the opposing party has objected, the court has wide discretion to adjust the fees in light of those objections. Id. (citation omitted).
In this case, the Court held a hearing on May 6, 1994 for the purpose of hearing objections to the fees and to determine the reasonableness of such fees. The Court's findings and conclusions are as follows.
A. Reasonable Attorney Hours
Counsel for ARC seek reimbursement against both defendants collectively for the following expenditure of hours:

Judy Gran, Esq................... Barbara Ransom, Esq.............. Frank Laski, Esq................. Morgan Harting, Law Clerk........ Total ...........................

1993.5 242.0 192.5 200.05
2628.05

On the basis of the record, the Court finds that some modification of the foregoing hours is necessary. First, plaintiffs are only entitled to compensation that is reasonably related to the litigation. Blum, 465 U.S. at 888, 104 S.Ct. at 1543. Defendants point out, and plaintiffs concede, that Judy Gran and Frank Laski devoted 356.8 hours (337.7 hours for Ms. Gran and 19.1 for Mr. Laski) to work related to the Community Collaborative. Defendants object to these hours on the basis that most of this work was not reasonably related to the contempt litigation. The Court agrees with the defendants on this point. The Collaborative's goal was to redesign the entire system of governmental delivery of services to the mentally retarded in Philadelphia. That population numbers in the thousands. This class action litigation, however, only pertains to approximately 600 mentally retarded citizens of Philadelphia. While the Court lauds the Collaborative's efforts to streamline the delivery of services to all mentally retarded citizens in the City of Philadelphia, this Court's jurisdiction only extends to the approximately 600 individuals who were certified as members of the plaintiff class. Thus, ARC's counsel expended a large number of hours in search of a remedy that pertained to thousands of individuals who were not the subject of this suit.
Furthermore, several witnesses testified at the hearing that Judy Gran, who incurred the lion's share of the disputed hours, stated to them on several occasions that she was participating in the Collaborative in the capacity of a "civilian" and/or "interested party" and not as an attorney for class members. Ms. Gran's statements are 740 further evidence *740 that the hours spent on work related to the Collaborative were not reasonably related to the contempt litigation.
Plaintiffs' counsel argues, on the other hand, that such time is compensable pursuant to counsels' monitoring efforts. As stated in prior opinions of this Court, "[t]he Pennhurst settlement agreement implicitly contemplates that plaintiffs' attorneys will perform monitoring functions." Halderman v. Pennhurst, 725 F.Supp. 861, 863 (E.D.Pa. 1989) ("Halderman II"). "Moreover, when the decree or settlement assigns various future responsibilities to the parties, compensation for executing its terms is permissible, unless, of course, the compact forbids it." Id. (citations omitted). However, even under plaintiffs' monitoring theory, the hours expended must be reasonably related to monitoring that affects class members. Therefore, this Court will only award a reasonable amount of hours for monitoring of the settlement agreement and the work of the Community Collaborative as it affected the approximately 600 class members. The Court finds that a reasonable amount of time for such activity would be two hours per month for Ms. Gran for the period during which the settlement agreement was in effect and the Collaborative was functioning. A review of the records indicates that this time period commenced in May 1991 and ended in June 1993. Therefore, for these twenty-four (24) months, counsel Judy Gran shall be entitled to recover for forty-eight (48) hours expended. The hours spent by Mr. Laski were not required for purposes of monitoring of the settlement agreement; therefore, he shall not be awarded any hours for this activity. In sum, as to hours expended on the Community Collaborative, 19.1 hours will be deducted from Mr. Laski's hours and 289.7 hours will be deducted from Ms. Gran's hours in the final award.
Defendants also object to seventy (70) hours (67.5 hours for Ms. Gran and 2.5 hours for Mr. Laski) for work related to writing press releases, speaking with reporters and otherwise publicizing the contempt motion. This litigation concerns an important public issue, i.e., the habilitation of mentally retarded citizens of Philadelphia. In such a case, the Court is keenly aware of the importance of having counsel provide the media with correct information. Nevertheless, counsel for parties involved in litigation affecting the public interest are entitled only to a reasonable amount of time for such activity. In applying this "reasonableness" standard, the Court finds that Ms. Gran should be compensated for thirty-five (35) hours and Mr. Laski for 1.5 hours of publicity-related work. The Court will deduct the difference of 32.5 hours for Ms. Gran and one (1) hour for Mr. Laski from the final award.
Similarly, defendants object to 47.3 hours expended by Ms. Gran related to a conflict of interest claim against Commonwealth defendant's counsel. This claim, however, was never asserted in court. Pursuant to section 1988, the court may not award fees for time expended on unsuccessful claims. Dellarciprete, 892 F.2d at 1183. The Court therefore will disallow these hours.
Defendants also object to a total of 52.5 hours (32.7 hours for Ms. Gran and 19.8 hours for Mr. Laski) for which there is inadequate description. Of these 52.5 hours, 5.1 hours (3.4 hours expended by Ms. Gran and 1.7 hours expended by Mr. Laski) do appear to be reasonably related to this litigation in that they involve communications either with clients or the Special Master. Therefore, the Court will disallow the difference of 47.4 hours (29.3 hours for Ms. Gran and 18.1 hours for Mr. Laski).

Defendants also have asserted a series of objections that the Courts find to be unwarranted. First, defendants object to 18.5 hours spent by Ms. Gran in what defendants' term "casework" activity. Defendants assert that it is impossible to tell from Ms. Gran's petition whether she was acting as an advocate or legal representative with respect to the class members with whom she had contact during these hours. The Court has reviewed the disputed hours and finds that they are reasonably related to monitoring of the Court Decree and/or to bringing the contempt litigation. As stated in prior opinions of this Court, see, e.g., Halderman II, 725 F.Supp. at 863, the 741 Pennhurst consent decree contemplates that the plaintiffs will undertake *741 monitoring activities to ensure compliance with the settlement agreement. Further, the consent decree provides that the plaintiffs may institute enforcement proceedings if they determine "that any party to this Final Settlement Agreement is failing adequately to discharge its obligations hereunder." Id. Inherent within this provision is the authority of plaintiffs to collect and review data necessary to determine compliance with the settlement agreement. Id. The hours expended by Ms. Gran in connection with class members are reasonably related to the monitoring authority vested in plaintiffs by the settlement agreement as well as the contempt litigation. There are approximately 600 mentally retarded class members in this case, who reside and/or work in various locations throughout the City of Philadelphia. Each class member's problems are unique, and compliance on the part of the defendants varies with respect to each individual class member. The monitoring and tracking of each of these individuals is a timeconsuming and difficult task. Defendants are well aware of this problem inasmuch as this Court found during the contempt proceedings that the defendants have lost track of as many as 176 class members in the past nine years of this litigation. Halderman III, 154 F.R.D. at 594-595. The Court will not penalize Ms. Gran for performing her monitoring and tracking functions, particularly where defendants have so egregiously failed to monitor class members in compliance with the Court Decree, see id. Accordingly, the Court will allow all of the hours defendants ascribe to "casework."
Defendants also object to thirteen (13) hours (2 hours for Mr. Laski and 11 hours for Ms. Gran) spent interviewing some of the prospective candidates for the position of Special Master who were listed on the Commonwealth defendant's list. The Court views this work was reasonably related to the contempt litigation. The Special Master is responsible for assuring compliance by the defendants with the Court's Order of March 28, 1994. Therefore, counsel for the plaintiffs are entitled to know the qualifications and background of potential candidates for the position. Accordingly, the hours will be included in the final award.
Defendants challenge an additional twenty-seven (27) hours spent by Ms. Gran accompanying experts on visits to class member sites as unnecessary to the contempt litigation. They argue that support staff or nonprofessionals could have accompanied these experts. The disputed hours involve visits to Embreeville, Allegheny Valley School ("AVS") and various boarding homes where class members reside. It should be noted that the Court previously found that defendants are in profound contempt with respect to class members who are institutionalized at Embreeville and AVS. Under these circumstances, the Court considers the hours spent by Ms. Gran to be reasonable and necessary to the outcome of the contempt litigation. Therefore, the Court will allow all of these hours.
Defendants also request the Court to disallow seventy-seven (77) hours expended by Ms. Gran for time spent on activities that were "duplicative" of her co-counsel, David Ferleger. The Court notes, however, that in large class action suits such as this one, some duplication of effort is inevitable. Moreover, most of the challenged hours were devoted to writing and assembling ARC's findings of fact. The Court carefully reviewed each party's findings at the conclusion of the contempt proceedings. Contrary to defendants' assertion, the Court found both Mr. Ferleger's and Ms. Gran's findings to be non-duplicative and most helpful to the Court. In fact, both Mr. Ferleger and Ms. Gran appear to have made a conscious effort to be non-duplicative in their submittals to the Court. Therefore, the challenged hours will be included in the final award.
Defendants have also requested that the Court disallow 229.45 attorney and law clerk hours spent with four experts as well as $216.59 in costs. After reviewing the charges for these items, the Court finds that they were reasonably incurred in bringing the action. Although three of these experts were not used at trial, their reports undoubtedly benefitted ARC's attorneys in preparing their case. As noted above, there are approximately 600 742 class members in this case. *742 Plaintiffs had to establish contempt as to most of these class members and give the court some basis for awarding the appropriate equitable relief. Accordingly, plaintiffs necessarily were

required to spend a substantial amount of time interviewing class members and researching and evaluating their medical and habilitation records. For these reasons, the Court does not consider the time spent with these experts to be unreasonable.
Finally, defendants argue that the lodestar should be reduced across the board by at least 20% because plaintiffs obtained substantially less relief than they sought. See Hensley, 461 U.S. at 440, 103 S.Ct. at 1943 (where plaintiff achieves only limited success, court should award only reasonable hours in relation to results achieved). The basic thrust of defendants' argument is that since plaintiffs did not receive any compensatory damages, their lodestar should be reduced. The Court cannot accept defendant's contention for several reasons. First, even the Hensley Court acknowledged that a plaintiff who failed to recover damages but received equitable relief was entitled to a full award if the equitable relief obtained warranted the expenditure of hours. Id. at 435 n. 11, 103 S.Ct. at 1940-41 n. 11. In this Court's view, plaintiffs achieved substantially all of the relief they requested and to which they were entitled and with the exception of the foregoing adjustments, the relief obtained by the plaintiffs justified the amount of time expended. Furthermore, this Court never determined that plaintiffs were not entitled to compensatory damages. To the contrary, the Court found that while compensatory damages may be warranted, the Court would have difficulty in ascertaining the exact amount of compensation to which each member of the plaintiff class would be entitled. Halderman III, 154 F.R.D. at 609. Under these circumstances, the Court concludes that a 20% reduction would be unfair to plaintiffs.
As a result of the foregoing adjustments, the Court finds that reimbursement for the following hours is proper:
Judy Gran ........................ 1594.7 Frank Laski ...................... 154.3 Barbara Ransom ................... 242.0 Morgan Harting ................... 200.05
B. Hourly Rates
The second step in computing the lodestar is to calculate the hourly rate at which counsel should be compensated. The hourly rate must be reasonable and is generally "calculated according to the prevailing market rates in the relevant community." Dellarciprete, 892 F.2d at 1183 (citing Blum v. Stenson, 465 U.S. 886, 895, 104 S.Ct. 1541, 1547, 79 L.Ed.2d 891 (1984)); Black Grievance Comm. v. Philadelphia Elec. Co., 802 F.2d 648, 652 (3d Cir.1986), vacated on other grounds, 483 U.S. 1015, 107 S.Ct. 3255, 97 L.Ed.2d 754, remanded, 825 F.2d 768 (3d Cir.1987); see also Missouri v. Jenkins, 491 U.S. 274, 284, 109 S.Ct. 2463, 2469, 105 L.Ed.2d 229 (1989) (hourly rates for attorneys should be based on prevailing market rate). The United States Supreme Court has recognized, however, that "compensation received several years after the services were rendered 0907 as it frequently is in complex civil rights litigation 0907 is not equivalent to the same dollar amount received reasonably promptly as the legal services are performed, as would normally be case with private billings." Jenkins, 491 U.S. at 284, 109 S.Ct. at 2469; Blum v. Witco Chem. Corp., 888 F.2d 975, 980 (3d Cir.1989); Institutionalized Juveniles v. Secretary of Pub. Welfare, 758 F.2d 897, 923-24 (3d Cir.1985). Therefore, "an appropriate adjustment for delay in payment 0907 whether by application of current rather than historic hourly rates or otherwise 0907 is within the contemplation of [section 1988]." Id. Finally, in determining an attorney's hourly rate, the court should assess the rates of attorneys with comparable skill, experience and reputation. Dellarciprete, 892 F.2d at 1183 (citing Blum, 465 U.S. at 895 n. 11, 104 S.Ct. at 1547 n. 11; Student Pub. Interest Research Group v. AT & T Bell Labs, 842 F.2d 1436, 1442 n. 3 (3d Cir.1988)).
Ms. Ransom and Mr. Harting have requested reimbursement for hours commencing in 1993 and 1994 743 respectively. Ms. Gran and Mr. Laski, however, have submitted *743 statements for hours commencing with the
filing of the contempt petition in 1987. With respect to these two attorneys, there has been a substantial delay in payment, i.e., seven years. Therefore, they urge the Court to apply their current, rather than historic, hourly charge to compensate for the delay in payment. Their current hourly rates are $200 and $250, respectively. To account for the long delay, the Court will utilize the attorneys' current market rates as permitted under section 1988, which the Court finds reasonable in light of their extensive experience and expertise in the field of litigation

related to the rights of the mentally retarded. This result is fair, given that the seven-year delay was not attributable to any conduct on the part of the attorneys, see, e.g., Halderman II, 725 F.Supp. at 867 (delay due to counsel's deficient fee petition); rather the delay was occasioned by the fact that counsel had not received a favorable decision on their contempt motion.
Defendants have not voiced any objection to the hourly rate of $60 charged by Mr. Harting. With respect to Ms. Ransom, however, the County maintains that the work she performed was not as an attorney but as a computer programmer. Therefore, the County asserts that none of her work should be billed at an attorney rate. Ms. Ransom's hourly rate is $140. At the hearing regarding counsels' fees, Ms. Gran testified that Ms. Ransom is trained as a computer programmer; however, the work she performed in connection with the contempt motion involved decisionmaking as to how to organize the data. According to Ms. Gran, these decisions were more properly made by an attorney, rather than a computer technician. Moreover, the records indicate that Ms. Gran spent very little of her time in computer-related activities. Accordingly, a wholesale reduction of her rate would be unjust. The Court will reduce Ms. Ransom's hourly rate, however, with respect to 9.5 hours spent "typing," which is a clerical activity. For these hours, Ms. Ransom's hourly rate will be reduced to a reasonable hourly clerical rate, $15.
Accordingly, the Court will award fees as follows:

Judy Gran, Esq. 1594.7 hours at $200/hr. ..........
Frank Laski, Esq. 154.3 hours at $250/hr. ...........
Barbara Ransom, Esq. 232.5 hours at $140/hr. ........... 9.5 hours at $15/hr. ............
Morgan Harting 200.05 hours at $60/hr. ...........

$318,940.00
$ 38,575.00
$ 32,550.00 $ 142.50
$ 12,003.00

C. Expenses

1. Excess and Unnecessary Copying

ARC of PA plaintiff's counsel also seeks payment of $62,134.01 in costs. The Court finds that some of these expenses are not reimbursable. First, there is the matter of excess in-office copying. Plaintiff's counsel seeks reimbursement for approximately 107,126 in-office copies for which it charged $.25 per page for a total of $26,779.25. As a result of the hearing and the Court's review of the charges, it is apparent that much of this copying was either unrelated to the litigation and/or excessive. For example, counsel charged $2,167.50 for 8,670 copies made after the Court issued its opinion in the contempt proceedings. At the hearing on fees, ARC's counsel, Ms. Gran, accounted for the charge by testifying that her office made numerous copies of this Court's 70-page opinion for ARC of PA. The Court finds these copies to be excessive and unnecessary. In addition, 7,269 copies were made by counsel during the time period when the settlement agreement was in effect (1991-1993). Most of these copies were unnecessary as there was no litigation activity at that time in connection with the contempt proceeding.
The foregoing are two specific examples of what this Court considers to be unnecessary copy charges. In general, however, the amount of office copying seems to be unreasonably high. By way of comparison, the amount of copies made by ARC's counsel is over three times that of her co-counsel, David Ferleger (35,476), who performed essentially the same amount of work. Accordingly, the Court will reduce the amount of office copies for which ARC may be reimbursed to a total of 40,000. Moreover, ARC's counsel's charge per page for copying ($.25) is unreasonably high. The Court finds that $.20 per page is more than adequate to cover counsel's 744 costs. Therefore, ARC may be reimbursed *744 for in-office copying in the amount of $8,000.00. The Court will deduct the difference of $18,779.25 from ARC's final award.

ARC's counsel also seeks reimbursement for out-of-office duplication of thirty-seven (37) copies of their findings of fact. The total charge for the thirty-seven copies was $553.00. The Court finds that twenty-five (25) sets of counsel's findings were unnecessary and will therefore disallow the charge in the amount of $321.25.
2. Travel
ARC's counsel also seeks reimbursement for travel expenses of Mr. Laski who permanently resides in Boston, Massachusetts but who also acts as a supervisor to Ms. Gran and other attorneys in the Public Interest Law Center of Philadelphia. Specifically, counsel has charged for $481.50 for airfare for Mr. Laski to fly from Boston to Philadelphia during the contempt hearings in December 1993 and $267.00 in airfare for Mr. Laski to attend the hearing to defend his fee petition. Defendants object to these travel charges because they believe they are not a necessary or reasonable expense. They assert that if Mr. Laski chooses to reside in Boston, they should not be forced to pay for his return trips to Philadelphia. The Court is inclined to agree with the defendants in this case. Moreover, there is insufficient documentation as to the necessity of Mr. Laski's travel in December 1993. He did not appear in court during the contempt proceedings, nor is there any indication in counsel's statement that he performed any work in connection with the litigation during this time period. Accordingly, all of these travel expenses appear to be unreasonable to this Court. Therefore, the Court will disallow $748.50 in travel expenses for Mr. Laski.
3. Miscellaneous Expenses
ARC's counsel also seeks reimbursement for $720.27 in postage, $45.00 in temporary office help, and $861.18 in courier and express mail charges. Defendants argue that the postage and temporary office help charges are normally part of overhead and not billed separately. They maintain that these charges are already reflected in counsel's hourly rate. As to the courier and express mail charges, defendants contend that much of it was not related to the litigation. The Court finds that $17.00 in express mail charges were incurred in connection with work performed for the Community Collaborative and therefore are not litigation-related. This expense will be disallowed. The remaining express mail and courier charges will be included in the final award.
As to the charges for temporary clerical help and postage, the Court is aware that under section 1988 some courts do not allow such costs if they are not normally billed separately to fee-paying clients. See, e.g., Laffey v. Northwest Airlines, Inc., 746 F.2d 4, cert. denied, 472 U.S. 1021, 105 S.Ct. 3488, 87 L.Ed.2d 622 (1984); Ramos v. Lamm, 713 F.2d 546 (10th Cir.1983). The Third Circuit, however, has never decided this issue. Nevertheless, this Court finds that these charges are not necessarily reflected in counsel's hourly rate. Moreover, the charges appear to be reasonable and litigation-related. Therefore, they will be included in the final award.
4. Expert Fees and Costs
The last area of disputed expenses concerns ARC's counsels' request for reimbursement of $13,662.73 in expert fees and costs. Plaintiffs retained four experts, all of whom toured class member sites, interviewed class members, researched and evaluated class member records and prepared reports. While all four experts were listed for trial, only one them, Dr. James Conroy, actually presented testimony. Defendants maintain that section 1988 as it existed when the contempt motion was filed in 1987 precluded recovery of expert witness fees and costs. See West Virginia Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 102, 111 S.Ct. 1138, 1148, 113 L.Ed.2d 68 (1991) (expert fees and costs not recoverable under section 1988 except that witnesses who testify are entitled to the statutory witness fee of $40.00 per day). Moreover, while the Civil Rights Act of 1991 (the "Act") amended this provision to specifically allow for reimbursement of expert fees, defendants assert that the United States 745 Supreme *745 Court has recently held in Landgraf v. USI Film Products, ___ U.S. ___, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994), that the Act does not apply retrospectively. Thus, defendants insist that since plaintiffs' contempt motion was filed in 1987, reimbursement for such expenses would be barred pursuant to Landgraf.

This Court need not reach defendants' argument regarding Landgraf and retroactivity of the Civil Rights Act of 1991, because it is clear that the amended attorney fee statute does not pertain to this action. Section 113(a) of the Civil Rights Act of 1991 amended the attorney fee provision of the Act to specifically provide that expert fees are reimbursable as part of attorney fees in actions "to enforce a provision of section 1981 or 1981a of this title." 42 U.S.C. § 1988(c) (as amended Nov. 21, 1991). The Pennhurst complaint, however, was not brought under section 1981; plaintiffs only alleged violations of sections 1983 and 1986. Therefore, the provision contained in section 1988 that provides for an award of expert fees does not reach this action.
Nevertheless, the Court has the inherent equitable power in this case to award expert fees. The underlying litigation was a civil contempt action in which the defendants were found to be in deliberate and willful contempt of an order of this Court. Prevailing plaintiffs in contempt actions are entitled to recover the entire cost of bringing the contempt action. Quinter v. Volkswagen of America, 676 F.2d 969, 975 (3d Cir.1982) (emphasis added); see also Chambers v. Nasco, Inc., 501 U.S. 32, 45, 111 S.Ct. 2123, 2133, 115 L.Ed.2d 27 (1991) (in contempt action, court may fashion award to make plaintiff "whole for expenses caused by his opponent's obstinacy"; award to plaintiff consisting of entire cost of litigation upheld); Lichtenstein v. Lichtenstein, 425 F.2d 1111, 1113 (3d Cir.1970) ("In a contempt proceeding, the court may, in its discretion award expenses, costs, and fees to the petitioner."). The United States Supreme Court has held that a court's "inherent power" to impose sanctions for contempt is "governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases." Chambers, 501 U.S. at 43, 111 S.Ct. at 2132. Thus, "if in its informed discretion, neither the statute nor the rules are up to the task, the court may safely rely on its inherent power." Id. at 50, 111 S.Ct. at 2136. In this case, the Court finds that whether or not expert fees are recoverable pursuant to section 1988, they are recoverable in this case as a cost of bringing the contempt litigation so long as the expenses were reasonably incurred, Lichtenstein, 425 F.2d at 1113; see also Roberts v. S.S. Kyriakoula D. Lemos, et al., 651 F.2d 201, 204 (3d Cir.1981) (court has "equitable discretion to award expert fees where expert's testimony is indispensable to determination of the case").
Dr. Conroy testified at trial, and defendants do not dispute that his charges were reasonably incurred. Moreover, the Court finds that Dr. Conroy's testimony was necessary and indispensable to this Court's findings on contempt. Therefore, the Court will allow the plaintiffs reimbursement of all of his expenses in the amount of $9,040.00. The other three experts did not testify, however, the Court finds that their participation also was indispensable to this case. As noted, these experts interviewed class members, researched and evaluated class members' medical and habilitation records and wrote reports that enabled the attorneys to prepare and present their contempt case to the Court. Each of these experts has a specialized background in treatment of the mentally retarded. Their expertise was essential to a coherent presentation of evidence involving the well-being of approximately 600 class members, each of whom has unique medical and habilitative needs that are beyond the ken of an attorney. It would be incongruous for the Court to allow hours spent by the attorneys with these experts, yet disallow fees to these same experts. Therefore, their collective expenses in the amount of $4,622.73 will be included in the final award.
III.
The last issue concerns the proper allocation of fees and expenses between the two defendants. The County 746 requests the *746 Court to apportion the costs one-half to each party. The Commonwealth, on the other hand,
argues that an appropriate allocation would be for the Commonwealth to pay one-third and the County to pay two-thirds based on the relative culpability of the defendants. The essence of the Commonwealth's argument is that it was merely a passive participant in the contempt and that it has only two compliance obligations under the Court's Order. There is only one problem with the Commonwealth's argument 0907 it is factually inaccurate. The Court's March 28 Opinion discusses the Commonwealth's contempt at length and notes that both defendants "have engaged in sustained and deliberate avoidance of their obligations under the Court Decree." Halderman III, 154 F.R.D. at 608. Furthermore, the County's funding for mental retardation services is provided almost exclusively by the Commonwealth pursuant to The Mental Health and Mental Retardation Act of 1966, codified at 50 Pa.Cons.Stat. Ann. § 4101 et seq. Yet the Deputy Secretary of the Commonwealth's Department of Mental Health and Retardation admitted in open court during the contempt proceedings that the Commonwealth

allocates money to comply with the Court Decree only when threatened with a contempt action. Id., 154 F.R.D. at 604-605. The Commonwealth was more than a mere passive participant. As found by this Court in the contempt proceedings, it was a co-equal partner with the County in contempt of an order of this Court for a period spanning seven years. In recognition of this fact, the Court's Order of March 28, 1994 contains numerous obligations that apply to the Commonwealth, not the least of which is that the Commonwealth shares joint responsibility with the County to provide community living arrangements to between thirty-three and fifty-five class members.
Consistent with its prior opinion in this case, however, the Court will not pause to consider whether to impose joint and several liability on defendants. See Halderman II, 725 F.Supp. at 864-65 (Court need not reach issue of joint and several responsibility to allocate fees among defendants). As stated by the Eleventh Circuit,
In addition to having discretion on when to apportion fees, district courts also have wide discretion on how to divide liability for fees.... Most simply, in cases with roughly equal wrongdoers in which the court does not want to impose joint and several liability for attorney's fees, the fees can be divided equally among the defendants.
Id. (quoting Council for Periodical Distrib. Ass'ns v. Evans, 827 F.2d 1483, 1487 (11th Cir.1987)) (citations omitted). In Halderman II, supra, the Court was concerned that imposition of joint and several liability might lead to duplicative awards. If so, the Court would be required to mediate disputes concerning overlapping fees, thereby inviting further expenditure of judicial resources. This case presents similar concerns. Therefore, the Court will require that each defendant pay one-half of the entire amount of both Halderman and ARC's fees and expenses as follows:

Against Commonwealth of Pennsylvania ARC attorney fees .................... ARC allowable expenses ............... Halderman fees & expenses ............ Total ..............................

$201,105.25 $ 21,134.00 $130,000.00 $352,239.25

Against County of Philadelphia ARC attorney fees .................... ARC allowable expenses ............... Halderman fees & expenses ............ Total ..............................
Total Against County and Commonwealth

$201,105.25 $ 21,134.00 $130,000.00 $352,239.25 $704,478.50

ORDER

AND NOW, this 25th day of May, 1994, for the reasons set forth in this Court's Memorandum of May 25th, 1994,
IT IS ORDERED:
1. Defendant County of Philadelphia and Commonwealth of Pennsylvania shall pay fees and costs to Halderman plaintiffs' attorney, David Ferleger, in these amounts: Defendant County of Philadelphia: $130,000.00; Defendant Commonwealth of Pennsylvania: $130,000.00;
2. Defendant County of Philadelphia and Commonwealth of Pennsylvania shall pay fees and costs to Association of Retarded Citizens of Pennsylvania plaintiffs' attorneys, Judy Gran, Frank Laski and Barbara Ransom in these amounts: Defendant County of Philadelphia: $222,239.25 Defendant Commonwealth of Pennsylvania: $222,239.25;
747 *747 3. All payments required to be made pursuant to this Order, shall be made within thirty (30) days of the date of this Order.

Save trees - read court opinions online on Google Scholar.

 
 49 F.3d 939 (1995)

Terri Lee HALDERMAN, a retarded citizen, by her mother and guardian, Winifred

HALDERMAN, Larry Taylor, a retarded citizen, by his parents and guardians, Elmer and

Doris Taylor; Kenny Taylor, a minor, a retarded citizen, by his parents and guardians,

Elmer and Doris Taylor; Robert Sobetsky, a minor, a retarded citizen, by his parents and

guardians, Frank and Angela Sobetsky; Theresa Sobetsky, a retarded citizen, by her

parents and guardians, Frank and Angela Sobetsky; Nancy Beth Bowman, a retarded

citizen, by her parents and guardians, Mr. and Ms. Horace Bowman; Linda Taub, a

retarded citizen, by her parents and guardians, Mr. and Mrs. Allen Taub; George Sorotos,

a minor, a retarded citizen, by his foster parents, William and Marion Caranfa, all of the

above individually and on behalf of all others similarly situated; The Parents and Family

Association of Pennhurst; Pennsylvania Association for Retarded Citizens; Jo Suzanne

Moskowitz, a minor, by her parents and next friends, Leonard and Nancy Moskowitz;

Robert Hight, a minor, by his parents and next friends, John and Jeanne Hight; David

Preusch, a minor by his parents and next friends, Calvin and Elizabeth Preusch, and

Charles DiNolfi, on behalf of themselves and all other similarly situated, Plaintiffs-

Intervenors,

United States of America, Plaintiff-Intervenor,

v.

PENNHURST STATE SCHOOL & HOSPITAL; Department of Public Welfare of the

Commonwealth of Pennsylvania; Frank S. Beal, Secretary of the Department of Public

Welfare; Stanley Meyers, Deputy Secretary for Mental Retardation, Department of Public

Welfare; Helene Wohlgemuth, Former Secretary, Department of Public Welfare; Aldo

Colauti, Executive Deputy Secretary, Department of Public Welfare; Wilbur Hobbs, Deputy

Secretary for Southeastern Region, Department of Public Welfare; G. Duane Youngberg,

Superintendent, Pennhurst State School & Hospital; Robert Smilovitz, Former Assistant

Superintendent, Pennhurst State School & Hospital; Joseph Foster, Assistant

Superintendent, Pennhurst State School & Hospital; Margaret Green, Betty Uphold, Alice

Barton, P.E. Kilick, Dr. Parocca, Helen Francis, employees and agents of Pennhurst State

School & Hospital; John Doctor, James Nurse, Jane Aide, Jill Therapist, Richard Roe,

Jane Doe, unknown and unnamed staff, employees and agents of Pennhurst State School

& Hospital, each individual Defendant sued individually and in his or her official capacity;

George Hetzger, Joseph Catania, and Roger Bowers, Commissioners for Bucks County;

Robert Strebl, Earl Baker, and Leo McDermott, Commissioners for Chester County; Faith

940

R. Whittlesey, Charles Keller, *940 and William Spingler, Commissioners for Delaware

County; A. Russell Parkhouse, Frank W. Jenkins and Lawrence H. Curry, Commissioners

for Montgomery County; Mayor Frank L. Rizzo and The City Council of Philadelphia, as

Authorities for Philadelphia County; Peter Bodenheimber, Mental Health/Mental

Retardation Administration for Bucks County; William A. McKendry, Mental Health/Mental

Retardation Administrator for Chester County; P. Paul Burrichter, Mental Health/Mental

Retardation Administrator for Delaware County; Hermann A. Rother, Mental Health/Mental

Retardation Administration for Montgomery County, and Leon Soffer, Mental Health/

Mental Retardation Administration for Philadelphia County, Commonwealth of

Pennsylvania, Appellant.

No. 94-1674.

United States Court of Appeals, Third Circuit.
Argued December 19, 1994. Decided March 2, 1995.
941 *941 Jerome J. Shestack (argued), Barry M. Klayman, Wolf, Block, Schorr and Solis-Cohen, Philadelphia, PA, for appellant, Com. of Pa.
Frank J. Laski, Esquire (argued), Judith A. Gran, Public Interest Law Center of Philadelphia, Philadelphia, PA, for appellees.
Before: GREENBERG, SAROKIN and WEIS, Circuit Judges.
OPINION OF THE COURT
WEIS, Circuit Judge.
In this appeal from the inclusion of specific items in a grant of attorneys' fees and expenses growing out of a contempt proceeding, we hold that no payment is due for time spent on public relations efforts. Thus, we will disallow those fees as well as those for duplicative work. Other claims that were not supported by evidence at a hearing on fees or that were improperly inflated because the tasks performed were easily delegable to personnel with substantially lower hourly rates, will also be denied.
In 1985, after years of negotiation, the parties reached a settlement in this suit brought to require appropriate care for mentally retarded citizens in Pennsylvania. A consent decree was entered, but it was not long before the controversy erupted again. In 1987, the plaintiff-class filed a motion to have the court hold the City of Philadelphia and the Commonwealth of Pennsylvania in contempt for failing to adhere to the terms of the consent decree. Extended efforts at settlement resulted in an agreement in 1991. However, this attempt also failed to resolve the dispute, and plaintiffs renewed their 1987 motion. After a hearing in 1993, the district court found the City and the Commonwealth in contempt in an opinion reported at Halderman v. Pennhurst State Sch. & Hosp., 154 F.R.D. 594 (E.D.Pa.1994).
Plaintiffs' counsel then applied for fees and expenses. After some negotiation, David Ferleger, Esquire, who had represented the class, agreed to accept $260,000, and that matter is not at issue. After a hearing, the court awarded fees to the Association of Retarded Citizens of Pennsylvania for the services of its counsel, who had also participated in the proceedings on behalf of plaintiffs. The court directed that the City and the Commonwealth each pay $222,239.25 to cover the Association's attorneys' fees and expenses. Halderman v. Pennhurst State Sch. & Hosp., 855 F.Supp. 733, 746 (E.D.Pa.1994). Only the Commonwealth has appealed.
An award of fees and expenses in this case is permissible under 42 U.S.C. § 1988 and under the court's inherent power to reimburse a party for outlays incurred in securing an adjudication of contempt. Robin Woods, Inc. v. Woods, 28 F.3d 396, 400-01 (3d Cir.1994). The formula for awarding fees in the contempt context is usually the more generous. In that setting, the innocent party is entitled to be made whole for the losses it incurs as the result of the contemnors' violations, including reasonable attorneys' fees and expenses. Id.; see Chambers v. NASCO, Inc., 501 U.S. 32, 46, 111 S.Ct. 2123, 2133, 115 L.Ed.2d 27 (1991); Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 258, 95 S.Ct. 1612, 1622, 44 L.Ed.2d 141 (1975).
The Commonwealth has raised five objections to specific items included in the district court's computations. We will discuss them seriatim.
I. PUBLICITY EFFORTS
942 The Association's counsel sought compensation for seventy hours of "work related *942 to writing press releases, speaking with reporters and otherwise publicizing the contempt motion." The district court observed that the litigation was over "an important public issue, i.e., the habilitation of mentally retarded citizens" but reduced the

requested number of hours to 36.5 as being the maximum amount that the Association could reasonably recover for this activity. The total amount awarded for publicity efforts was $7,375.00.
In Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169 (4th Cir.1994), the Court of Appeals rejected a 42 U.S.C. § 1988 claim for fees for public relations efforts "to sway public opinion and influence State policymakers to change [the defendant's police] enforcement policies." Id. at 176. The Court commented that "[t]he legitimate goals of litigation are almost always attained in a courtroom, not in the media." Id.
In another § 1988 case, Hart v. Bourque, 798 F.2d 519, 523 (1st Cir.1986), the Court of Appeals for the First Circuit approved the disallowance of time "spent on arrangements for lectures or publications about the case." Similarly, in Greater Los Angeles Council on Deafness v. Community Television of S. Cal., 813 F.2d 217, 221 (9th Cir.1987), the Court of Appeals for the Ninth Circuit concluded that fees for lobbying and publicity claimed under the Rehabilitation Act and the Equal Access to Justice Act were properly disallowed by the trial court.
However, in a Title VII employment case, Davis v. City & County of San Francisco, 976 F.2d 1536, 1545 (9th Cir.1992), vacated in part on other grounds, 984 F.2d 345 (9th Cir.1993), the same Court of Appeals affirmed an award for counsel's "time spent in giving press conferences and performing other public relations work." The district court had defended the allowance as a valid effort to obtain the support of elected officials that was vital to obtaining a consent decree. The Court of Appeals concluded that because private attorneys perform public relations work in connection with their representation of private clients, civil rights attorneys may do so as well. We find the Davis opinion somewhat inconsistent with the Court's earlier views in Greater Los Angeles Council on Deafness and are not persuaded by its reasoning.
The fact that private lawyers may perform tasks other than legal services for their clients, with their consent and approval, does not justify foisting off such expenses on an adversary under the guise of reimbursable legal fees. We are more impressed with the reasoning in Rum Creek Coal Sales that the proper forum for litigation is the courtroom, not the media. It is particularly inappropriate to allow public relations expenses in the case at hand while it was pending before the district judge who had approved the consent decree and subsequent settlement agreement. The allowance of $7,375.00 must, therefore, be disapproved.
II. FEES FOR ESCORTING EXPERTS
The Association submitted a request of $200 per hour for lead counsel's time spent accompanying non-testifying experts on various site visits. In other instances, this function was carried out by a paralegal at $60 per hour. The district court concluded that the hours spent were "reasonable and necessary to the outcome of the contempt litigation."
We have cautioned on a number of occasions that when a lawyer spends time on tasks that are easily delegable to non-professional assistance, legal service rates are not applicable. We cannot condone "the wasteful use of highly skilled and highly priced talent for matters easily delegable to non-professionals." Ursic v. Bethlehem Mines, 719 F.2d 670, 677 (3d Cir.1983); Prandini v. National Tea Co., 557 F.2d 1015, 1020 (3d Cir.1977).
Even the use of a paralegal for the work described in this claim at $60 per hour appears to be questionable. However, it has not been challenged, and we will not rule on it. In any event, we are persuaded that a disallowance of $3,780.00, as suggested by the Commonwealth, should be granted.
III. AWARD OF EXPENSES FOR NON-TESTIFYING EXPERTS
943 The Association submitted a claim for $13,662.73 in fees and costs expended in retaining *943 three nontestifying experts, and $9,040.00 for an additional expert who did testify. All of the experts purportedly toured class-member sites, interviewed class members, researched and evaluated records, and prepared reports. The district court awarded $9,040.00 for the testifying expert, but allowed only a total of $4,622.73 for the remaining experts, apparently in the belief that the entire claim for experts was $13,662.73. Actually, the total claim for experts, including the one who testified, was $22,702.73.

Approval of the testifying expert's fees in the amount of $9,040.00 has not been challenged on appeal, and the Commonwealth objects only to the claim for the three non-testifying expert witnesses. The district judge found their participation "indispensable to this case" and, relying on equitable powers to remedy the contempt rather than on 42 U.S.C. § 1988, allowed the $4,622.73 collective sum. We agree that granting reimbursement fees of this nature would be proper in a contempt action and, therefore, need not discuss the § 1988 issues.
The difficulty here, however, is the lack of evidentiary support for the district court's ruling on the work of the nontestifying experts. At oral argument, the Association's counsel correctly conceded that there was no support presented at the fee hearing for the necessity of the experts' consultations, nor is there any evidence to account for the services that they performed. Consequently, the award of $4,622.73 for the expenses attributable to those witnesses who did not testify cannot be sustained.
IV. ATTORNEY CONSULTATION WITH EXPERTS
Similarly, the court approved $40,107.59 for the time that plaintiffs' counsel spent in consulting with those experts, finding that a substantial amount of time was required to interview class members as well as to research and evaluate their medical and habilitation records. The burden of proof is on the party claiming reimbursement. Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3d Cir. 1990). Despite the fact that the Commonwealth had objected to this particular request, the Association never demonstrated why these activities were necessary. Although an allowance might well have been proper, once again, plaintiffs failed to produce any evidence at the hearing convened to resolve these issues. Therefore, the Association has not sustained its burden.
We will not grant the Commonwealth's request in full, however, because it appears that it overlaps, to some extent, the $3,780.00 fees for escorting experts discussed in Section II. We will, therefore, deduct $3,780.00 from the $40,107.59, thereby reducing the disallowance for this item to $36,327.59.
V. DUPLICATION OF EFFORT
The Commonwealth contends that there was extensive duplication of legal services by the Association's counsel and Mr. Ferleger. Two specific instances submitted for our consideration are (1) the dual attendance at depositions by the Association's counsel and by Mr. Ferleger, and (2) counsel's failure to coordinate their work in the extensive preparation of proposed findings of fact, resulting in two separate submissions rather than a single consolidated one.
In many cases, the attendance of additional counsel representing the same interests as the lawyers actually conducting the deposition is wasteful and should not be included in a request for counsel fees from an adversary. See Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 1940, 76 L.Ed.2d 40 (1983). The fact that a private client may accede to the practice and pay the additional fees does not necessarily make them reasonable nor necessary when they are to be paid by the other party to the proceedings. We do not meet the issue here, however, because the Commonwealth did not raise it in the district court. See Student Pub. Interest Research Group of N.J., Inc. v. AT & T Bell Labs., 842 F.2d 1436, 1454 (3d Cir.1988).
However, the failure of counsel to coordinate their efforts in the preparation of the findings of fact was challenged, and we therefore will consider it. The district court found that both sets of requests for findings were non944 repetitious and helpful and that it *944 appeared that counsel had made a conscious effort to be non-duplicative.
Mr. Ferleger submitted findings of 132 pages. Principal counsel for the Association testified at the hearing in the district court that she had filed proposed findings of 131 pages as well. She conceded that "we never discussed filing a single joint proposed findings" and defended the practice of separate submissions throughout the proceedings because different parties were being represented. Perhaps there may have been a justification for that procedure during some phases of the litigation, but we are unable to discern the necessity of preparing uncoordinated, separate findings when the interests of those representing the retarded citizens were identical.

We have examined the requests for findings and are convinced that coordination between counsel would have reduced the total time required for preparation. Redundant review of the record by both counsel and the drafting of parallel requests is wasteful in a situation like this, and some sort of cooperation should have been employed.
We therefore conclude that the Commonwealth's request for a fifty-percent reduction in the 154 hours it asserts the Association's principal counsel spent in preparation of the findings of fact should be granted. The Association has not questioned the amount of time allocated to that task, and therefore, we accept the Commonwealth's computation. We thus conclude that the record requires a disallowance in the amount of $15,400.00 for the redundant work in preparing proposed findings of fact.
VI. ACROSS-THE-BOARD REDUCTION
The Commonwealth contends that the lodestar should have been reduced by 20% across-the-board because plaintiffs obtained substantially less relief than they sought. The district court disagreed and concluded that "plaintiffs achieved substantially all of the relief they requested and to which they were entitled and with the exception of the [disallowed items], the relief obtained by the plaintiffs justified the amount of time expended." On review of objections to specific items in the plaintiffs' fee schedule, the district court reduced the $554,842.01 originally requested by $110,363.51 and permitted a total of $444,478.50.
Because it had conceded in the district court that it was not in compliance with all of the terms of the settlement agreement, the Commonwealth contends that this was not a "risky" case and the only real issue was the scope of the remedy. We note, however, that the concession was not made until the outset of the hearing 0907 after the plaintiffs' work was substantially completed. The trial judge expressed his surprise in responding to defendants' counsel, "You're telling me it was a slam dunk. I wished I had realized the first day I saw you in this courtroom that this was going to be a slam dunk.... [N]obody told me at that juncture that ... [you were] admitting liability or I would have said: Fine, the hearing is over."
The reality is that both liability and remedy were contested and that the district court did grant very substantial relief to plaintiffs. We are not persuaded that the district judge erred in rejecting an across-the-board reduction and, instead, choosing to evaluate specific items in the fee requests.
VII. CONCLUSION
Granting the following expenses was inconsistent with a proper exercise of discretion and will be disallowed as listed:

$ 7,375.00 $ 3,780.00 $ 4,622.73 $36,327.59 $15,400.00 __________ $67,505.32

Publicity Escorting Experts Non-Testifying Experts' Expenses Attorney Consultation with Experts Duplication of Servic
TOTAL REDUCTION OF AWARD

Because the fees were to be evenly divided between the Commonwealth and the City of Philadelphia, the award of counsel fees and expenses against the Commonwealth will be reduced by $33,752.66.

The case will be remanded to the district court for modification of the judgment against the Commonwealth by 945 reducing it to *945 $188,486.59. In all other respects, the judgment of the district court will be affirmed.

Save trees - read court opinions online on Google Scholar.

 
 855 F.Supp. 747 (1994)
Terri Lee HALDERMAN, et al., Plaintiffs, v.
PENNHURST STATE SCHOOL AND HOSPITAL, et al., Defendants.
Civ. A. No. 74-1345.
United States District Court, E.D. Pennsylvania.
June 2, 1994.
Judy Gran, PILCOP, Charlotte Nichols, Claudia Huot, Law Dept., Philadelphia, PA, for City of Philadelphia.
David Ferleger, Philadelphia, PA, for plaintiffs.
Jerome J. Shestack, Zachary Grayson, Barry M. Klayman, Wolf, Block, Schorr & Solis-Cohen, Philadelphia, PA, for Com.
Doris Leisch, Office of DPW, Philadelphia, PA, Robert Stern, U.S. Dept. of Justice, Sp. Litigation, Washington, DC, for U.S.
MEMORANDUM
RAYMOND J. BRODERICK, District Judge.
748 In 1987, plaintiffs filed a contempt motion against defendants' County of Philadelphia *748 ("County") and Commonwealth of Pennsylvania ("Commonwealth"). In 1990, all parties to this action, including both the County and the Commonwealth, agreed to the appointment of a Special Master to investigate and evaluate the level of defendants' compliance with this Court's Order of April 5, 1985 ("Court Decree"). As detailed in prior opinions of this court, see, e.g., Halderman, et al. v. Pennhurst State Sch. & Hosp., et al., 154 F.R.D. 594 (E.D.Pa.1994), the Court Decree required the defendants to provide community living arrangements, minimally adequate habilitation and other services to the approximately 600 mentally retarded Pennhurst class members. Plaintiffs charged in their contempt motion that the defendants were not meeting their obligations under the Court Decree. The parties specifically agreed to the appointment of Dr. Sue A. Gant, Ph.D. to serve as Special Master. Accordingly, the Court appointed Dr. Gant to the position pursuant to Rule 53 of the Federal Rules of Procedure and ordered that she file a report with the Court detailing her findings. Dr. Gant filed her report in 1991. The contempt matter was not litigated, however, until December 1993. In preparation for the contempt hearing, the Court ordered the Special Master to update her 1991 report as well as to be prepared to testify at the hearing. The Special Master updated her 1991 report; she also was present for and did testify at the contempt proceedings. She now submits a statement for her fees and expenses incurred in connection with those proceedings.
The Special Master requests a total of $124,018.96 ($100,087.00 in fees and $23,931.96 in expenses) for the period September 7, 1993 through May 6, 1994. The defendants filed objections to the Special Master's statement, and the Court held a hearing on May 6, 1994 to hear those objections and take evidence regarding the reasonableness of the Special Master's fees.
The allocation and rate of compensation of the fees and expenses of a Special Master is a matter within the discretion of the district court. Newton v. Consolidated Gas Co. of New York, 259 U.S. 101, 105, 42 S.Ct. 438, 439, 66 L.Ed. 844 (1922). As a benchmark, however, the Supreme Court has stated that such fees and expenses must be reasonable. Id. There are approximately 600 class members in this case who live and work at various sites within the City of Philadelphia. The defendants have a number of different obligations to the class, and their compliance varies as to each individual class member. In order to determine the level of defendants' noncompliance, the Special Master interviewed class members, staff members who care for them, and County and Commonwealth employees who are responsible for funding and administering services to class members. In

addition, she toured various class member sites in Philadelphia, researched and evaluated class members' medical and habilitation records, and analyzed County and Commonwealth records and monitoring reports. She spent a total of 1038.4 hours on this activity, including travel time. The amount of hours expended by Dr. Gant is reasonable, given the complexity of this case and the extensive fact-finding required to update the Court in preparation for the contempt proceedings.
The defendants have voiced two objections to the amount of hours expended by the Special Master. First, they assert that she should not be compensated for 87.7 hours spent reviewing and notating trial transcripts of the contempt proceedings. They maintain these hours were unnecessary, because the Special Master was present in court to hear such testimony. The Court finds, however, that the challenged hours were reasonably spent in connection with the contempt case. Counsel for the Commonwealth told Dr. Gant in open court at the beginning of the proceedings that she would be called as a witness to give an updated and detailed opinion of the defendants' level of compliance based on evidence presented in court. To perform the obligation imposed upon her by the Commonwealth defendant, Dr. Gant was required to, and did, keep meticulous notes of all of the evidence she heard with respect to each class member. Moreover, because the defendants stipulated during the contempt proceedings that they were not in compliance with respect to some portions of the Court Decree, Dr. 749 Gant was under the reasonable *749 impression that her services would be needed after the hearings to further monitor defendants' compliance. Thus, it was necessary for her to keep careful track of defendants' compliance activities, which were brought out through the evidence. Dr. Gant's use of trial transcripts was reasonable and necessary for all of these reasons. Accordingly, the Court will allow all of these hours as well as the $2,110 spent by the Special Master to purchase the trial transcripts.
Defendants' second objection is that the Special Master should not be compensated for 2.4 hours spent in meetings with plaintiffs' attorneys regarding her fees and expenses. The defendants view these hours as unnecessary. The Court agrees with the defendants and will disallow these hours, which total $240.00.
Defendants have not challenged the Special Master's hourly rate for professional services, which is $100 per hour. They have voiced objection, however, to the fact that she charged a professional, rather than a clerical, rate for 14.5 hours spent duplicating or faxing documents and making travel arrangements. At the hearing on fees, the Special Master agreed to a reduction in her hourly rate for these hours from $100 per hour to $15 per hour. The Court finds $15.00 to be a reasonable rate for these services. The Court has calculated the difference to be a total of $1232.50 and will deduct this amount in arriving at the final award.
With respect to the Special Master's expenses, defendants object to $10,430 expended for data entry, typesetting, layout and design of exhibits and other materials for the contempt proceedings. Gant's company, Gant, Yackel & Associates, Inc. Computer Services, performed these services. Defendants contend that this charge was "unnecessary and excessive." Dr. Gant explained at the hearing on fees and expenses that the amount of the charge was substantially less than the prevailing market rate for such work. She also testified that the services were necessary to a clear presentation of her evidence in court. She said that there was an extensive amount of data on class members and defendants' compliance and that some of it was best understood in chart or graph format. The Court finds this out of pocket expense was necessary and reasonable. During the contempt proceedings, the parties deluged the Court with thousands of pages of documents. The Special Master sifted through this and other material she had independently obtained and digested it into a format that made it comprehensible. Her charts and graphs assisted the Court to better understand the evidence and to frame a remedy that best suited class members. For this reason, the expense for computer and design services will be included in the final award.
Defendants also challenge a meal expense in the amount of $53.00 as being inadequately documented. The Court finds that $26.50 of this charge was reasonable and will disallow the remainder from the final award.
Finally, the Commonwealth defendant objects to the $.25 charge per page for photocopying of documents as being unreasonably high. The Court agrees with the defendant and will reduce the charge per page to $.20. The difference is $27.50, which the Court will deduct from the final award.
The last issue concerns allocation of the Special Master's expenses. The Commonwealth defendant objects to paying any portion of the Special Master's fees and expenses and further asserts that the Special Master had

"significant, undisclosed conflicts of interest with plaintiffs' counsel that should have precluded her appointment and continuing service as Special Master in this case." Def.'s Mem. Opp'n. Fees & Costs at 1. The conflict of interest charge is specious at best. Defendants have presented this Court with absolutely no evidence to substantiate such a contention. Therefore, the Court rejects defendant's argument.
The Commonwealth also maintains that it should not be required to pay the Special Master's fees and expenses because it is the less culpable defendant. The Commonwealth voiced this same objection in connection with plaintiffs' attorney fee applications. The Court rejected defendant's argument then, see Halderman, et al. v. 750 Pennhurst State Sch. & Hosp., et al., No. 74-1345, slip op. at *750 23-24, ___ F.Supp. ___, ___ _ ___ (E.D.Pa. May 25, 1994), as it does now. The Court will not repeat its reasoning except to reiterate that the Opinion issued by this Court on March 28, 1994 in connection with the contempt motion explicitly states that the County and Commonwealth are equally culpable contemnors. Halderman, et al., 154 F.R.D. 594, 608 (E.D.Pa.1994). For this reason, each defendant shall be required to pay one-half of the Special Master's fees and expenses as follows:
Against the County Special Master fees ..............$ 49,320.00 Special Master expenses ..........$ 11,926.03 total ..........................$ 61,246.03
Against the Commonwealth Special Master fees ..............$ 49,320.00 Special Master expenses ..........$ 11,926.03 total ..........................$ 61,246.03
Total Against County and Commonwealth ....................................$122,492.06
Save trees - read court opinions online on Google Scholar.

 
 899 F.Supp. 209 (1995)
Terri Lee HALDERMAN, et al. v.
PENNHURST STATE SCHOOL & HOSP., et al.
Civ. A. No. 74-1345.
United States District Court, E.D. Pennsylvania.
August 16, 1995.
210 *210 David Ferleger, Philadelphia, PA, for plaintiffs.
Jerome J. Shestack and Barry M. Klayman, Wolf, Block, Schorr and Solis-Cohen, Philadelphia, PA, for The Commonwealth Defendants.
MEMORANDUM
RAYMOND J. BRODERICK, District Judge.
"A request for attorney's fees should not result in a second major litigation. Ideally of course, litigants will settle the amount of the fee." Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983). Despite this Court's hope that the parties would heed the Supreme Court's admonition and settle their fee dispute, presently before this Court are the four fee petitions of Plaintiffs Terri Lee Halderman, et al. ("Halderman Plaintiffs") for attorney's fees and expenses from the Commonwealth of Pennsylvania (the "Commonwealth") seeking compensation in the amount of $61,656.00 for attorney David Ferleger's work implementing the Court's March 28, 1994 Contempt Order. The Halderman Plaintiffs seek $14,388 for the period of May 4, 1994 to August 16, 1994; $14,318 for the period of August 17, 1994 to November 27, 1994; $15,047 for the period of November 23, 1994 to March 2, 1995; and $17,903 for the period of March 2, 1995 to May 9, 1995. The Court will treat these petitions as one request.
Prior to the hearing on the instant fee petitions, held on June 8, 1995, Mr. Ferleger settled his fees and expenses with the County of Philadelphia, and the minimal compensation he seeks from Delaware and Bucks Counties will be addressed by separate order. (Plaintiffs the Arc, Pennsylvania, et al. ("Arc") have also petitioned the Court for attorneys' fees and expenses on behalf of Judith A. Gran and Frank Laski of PILCOP for the period of May 4, 1994 to April 30, 1995. The Court is not now considering this request.)
Twice during the pendency of these fee petitions, the Court ordered the Commonwealth to pay Halderman Plaintiffs a sixty per cent interim fee award of $17,223.60 for the period of May 4, 1994 to November 27, 1994 and $9,028.20 for the period of November 23, 1994 to March 2, 1995 (totalling $26,251.80). The Court made several, unsuccessful attempts to settle this dispute, making its view that fee litigation is a costly and inefficient use of the parties and the Court's time abundantly clear. Finally, it appearing that further efforts between the parties to reach a compromise would be futile, the Court proceeded with a hearing on June 8, 1995. Although the hearing was scheduled before the Halderman Plaintiffs filed their fourth fee petition seeking compensation for the period of March 2, 1995 to May 9, 1995, both parties agreed that it would be most efficient for the Court to consider this request as well.
Mr. Ferleger has incurred the vast majority of his fees and expenses in connection with the implementation of this Court's March 28, 1994 Contempt Order ("Contempt Order"). After a hearing held over nine days in December 211 1993, this Court found that the evidence *211 overwhelmingly demonstrated that the County of Philadelphia and the Commonwealth had engaged in a sustained and willful effort to disregard the Court's Order of April 5, 1985 ("Court Decree"), (see Halderman, et al. v. Pennhurst State Sch. & Hosp., et al., 610 F.Supp. 1221 (E.D.Pa.1985) for the terms of the Court Decree), by failing to provide community living arrangements and minimally adequate habilitation to a majority of class members. Finding that the defendants' actions demonstrated a clear need for

judicial oversight, the Court held both the County and the Commonwealth in contempt and issued an Order intended to make certain that the members of the Pennhurst class receive adequate habilitation in community living arrangements as mandated by the Court Decree. Halderman, et al. v. Pennhurst State Sch. & Hosp., 154 F.R.D. 594 (E.D.Pa.1994).
The Commonwealth challenges both the reasonableness of Mr. Ferleger's requested hourly rate of $250.00 and the number of hours for which he seeks compensation. The Commonwealth also objects to some of Mr. Ferleger's expenses as excessive and unjustified.
For the reasons set forth below, the Court has determined that Mr. Ferleger is entitled to an award of $55,008.80 for attorney's fees and expenses for the period of May 4, 1994 to May 9, 1995. The Court will deduct from this award the interim fee of $26,251.80 previously paid by the Commonwealth, leaving a balance of $28,757.00.
I. DISCUSSION
A. Calculation of the Lodestar
As prevailing parties in this litigation, Halderman Plaintiffs are entitled to an award of attorney's fees and expenses under 42 U.S.C. § 1988, which provides that in federal civil rights actions the "court, in its discretion, may allow the prevailing party ... a reasonable attorney's fee as part of the costs", see Hensley, 461 U.S. at 426, 103 S.Ct. at 1935, as well as under the Court's "inherent power to reimburse a party for outlays incurred in securing adjudication of contempt." Halderman et al. v. Pennhurst et al., 49 F.3d 939, 941 (3d Cir.1995). A reasonable fee is one that is "adequate to attract competent counsel, but.... [does] not produce windfalls to attorneys." Blum v. Stenson, 465 U.S. 886, 897, 104 S.Ct. 1541, 1548, 79 L.Ed.2d 891 (1984). Indeed, one of the primary purposes of § 1988 is to encourage able attorneys to bring and vigorously litigate civil rights cases when it might not otherwise be financially feasible for them to do so. In enacting § 1988, Congress recognized that fee awards were an "essential remedy if private citizens are to have a meaningful opportunity to vindicate important Congressional policies ..." See City of Riverside, et al. v. Rivera, 477 U.S. 561, 578, 106 S.Ct. 2686, 2696, 91 L.Ed.2d 466 (1986) (plurality opinion) (discussing the rationale behind 42 U.S.C. § 1988).
"The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate." Hensley, 461 U.S. at 433, 103 S.Ct. at 1939. This calculation is generally known as the lodestar. Pennsylvania v. Delaware Valley Citizens' Council, 478 U.S. 546, 563, 106 S.Ct. 3088, 3097, 92 L.Ed.2d 439 (1986) (Delaware Valley I); Lindy Bros. Builders, Inc., 487 F.2d 161, 168 (3d Cir. 1973) (Lindy I). The Supreme Court has emphasized that the resulting figure is "more than a mere `rough guess'" of the final award, Delaware Valley I, 478 U.S. at 564, 106 S.Ct. at 3098, but is "presumed to be the reasonable fee contemplated by § 1988". Blum, 465 U.S. at 896, 104 S.Ct. at 1548.
The fee petitioner bears the burden of establishing the reasonableness of the request and is required to "submit evidence supporting the hours worked and rates claimed." Rode, et al. v. Dellarciprete, et al., 892 F.2d 1177, 1183 (3d Cir.1990) (quoting Hensley, 461 U.S. at 433, 103 S.Ct. at 1939). The burden then shifts to the party opposing the fee to demonstrate that the fee is not reasonable, and the Court is not permitted to "decrease a fee award based on factors not raised at all by the adverse party." But once the opposing party has objected, the court has wide discretion to adjust the fees in light of those objections. Id.
212 *212 1. Number of Hours
The first step in calculating the lodestar is to determine the number of hours "reasonably expended" for which an attorney can be compensated. Hensley, 461 U.S. at 434, 103 S.Ct. at 1939. Hours are not reasonably expended if they are "excessive, redundant, or otherwise unnecessary," Rode, 892 F.2d at 1183, or not reasonably related to the litigation. Halderman Plaintiffs seek reimbursement for the following expenditure of hours against the Commonwealth:

May 4, 1994 to August 16, 1994: August 17, 1994 to November 27, 1994: November 23, 1994 to March 2, 1995: March 2, 1995 to May 9, 1995:
Total:

53.1 50.6 47.25 66.8 ______ 217.75

These hours represent the Commonwealth's share, or just over fifty per cent of the total hours expended. (In the few instances when activities only concerned the Commonwealth, Mr. Ferleger allocated to the Commonwealth 100 per cent of the time expended.) All subsequent references to hourly figures reflect the Commonwealth's share only 0907 i.e. in almost all instances, fifty per cent of the total time expended on the task.

The Court has spent a great deal of time considering the Commonwealth's numerous and detailed objections to the reasonableness of the hours for which Mr. Ferleger seeks compensation. The Court has determined that, with few exceptions, the hours Mr. Ferleger has spent implementing the Court's Contempt Order are reasonable and justified by the gravity of the defendants' contempt and the complexity of the Court's Order.

The Commonwealth objects to the hours Mr. Ferleger spent on activities related to PILCOP's fee application; former Special Master Dr. Gant's fee request; and researching and drafting discovery motions related to his own fee applications. Although the Court finds that Mr. Ferleger is entitled to compensation for this work, and that the hours expended on such tasks were reasonable, as is set forth below, the Court will apply a lower hourly rate to this work as well as to Mr. Ferleger's work on his own fee petitions. The Court finds that Mr. Ferleger spent a total of 39 hours on fee-related tasks.

The Court also finds no basis for the Commonwealth's objections to the hours Mr. Ferleger spent preparing the following documents on behalf of the Halderman Plaintiffs: Motion for a Declaratory Order for Class Definition; Motion for Assessment of Fines for Contempt of ¶ 7 of the Court's March 28, 1994 Contempt Order and for Providing Incorrect Information to the Special Master; Memorandum with supplementary authority in connection with motions for fines and sanctions against defendants; Abuse/Neglect Registry Motion; and its Motion for violation of the Final Settlement Agreement, Order of August 28, 1989, and Order of April 17, 1990. The Court has reviewed these motions and finds that regardless of whether some are still pending or the Court has disposed of them favorably to the defendants, they are all related to this litigation, and are neither excessive, redundant, nor otherwise unnecessary. All were filed to protect legitimate interests of the Halderman Plaintiffs, and none are lacking in legal or factual bases. The Court observes, moreover, that while it hopes and, indeed, urges the parties to avail themselves of the Special Master's unique skills and expertise to reach amicable resolutions of their disputes over compliance with the Contempt Order, the appointment of the Special Master was not intended as a substitute for the parties' right to bring such matters to the Court's attention.

The Commonwealth contends that Mr. Ferleger and PILCOP have expended hours on duplicative tasks and that Mr. Ferleger's fee request should be reduced accordingly. The Commonwealth's concern about unnecessary duplication of effort appears, however, to be without a significant basis in the record. The record suggests, in fact, that Mr. Ferleger and PILCOP make every effort to coordinate their activities.

Mr. Ferleger appears, for example, to be primarily responsible for the filing of motions and pleadings and attending Court-ordered conferences and hearings related to the defendants' compliance with the Court Decree and the Contempt Order. He and the PILCOP attorneys also appear to take primary responsibility for different compliance areas.

213 *213 With the exception of hours spent in meetings with the Special Master, most of the activities the Commonwealth characterizes as duplicative are insignificant and consist of fractions of hours spent reviewing or analyzing correspondence, orders, comments and reports related to the implementation of the Contempt Order. Counsel for Arc and Halderman Plaintiffs have a responsibility to remain informed about viable issues in this litigation, including those for which they are not directly responsible, through the review of documents and occasional status meetings and phone calls. The Court does not consider such activities to be duplicative.

The most significant area of duplication is the attendance by all parties at regular meetings with the Special Master. As the Court made abundantly clear in its Memorandum and Order of April 18, 1995, it is quite pleased with the progress that has been made toward full implementation of the Contempt Order since the appointment of Tony Records as Special Master on May 12, 1994. The Court is loath, therefore, to interfere with the process the Special Master has set in place.

Ever since his first report to the Court on June 30, 1994, the Special Master has recommended that all parties attend meetings on at least a monthly basis as part of a collaborative process of resolving the many multifaceted compliance issues in this case. He has consistently underscored the importance of such meetings to the achievement of full compliance with the Contempt Order, and there is no question that all counsel should continue to attend these meetings.

There are a few instances where unnecessary duplication appears to have taken place. The Court will disallow the following as duplicative: .3 hours Mr. Ferleger spent drafting a letter to Commonwealth Counsel regarding Northeast Region class members after Judith Gran had already drafted a similar letter; and .15 hours Mr. Ferleger spent drafting a joinder to Arc's motion for contempt regarding the provision of a community living arrangement to a class member.

The Commonwealth also contends that the Court should allocate fees and expenses between the Commonwealth Defendants and the County Defendants in accordance with their obligations under the 1994 Contempt Order, thereby substantially reducing the number of hours in Halderman Plaintiffs' fee petitions for which it would be responsible. This is not the first time the Commonwealth has made this assertion. In 1990, rejecting the Commonwealth's argument that the counties and not the state were responsible for placing mentally retarded individuals in the community, the Third Circuit stated that "[i]t is undisputable that the Commonwealth explicitly agreed in Appendix A [of the Court Decree] to be jointly responsible with the Counties for providing [community living arrangements] to class members as provided for in their individual habilitation plans, as well as community services necessary to provide them with minimally adequate habilitation." Halderman, et al. v. Pennhurst State Sch. and Hosp., 901 F.2d 311, 322 (3d Cir. 1990). The Third Circuit also underscored the Commonwealth's responsibility for monitoring the implementation of Individual Habilitation Plans.

As pointed out above, the Contempt Order flowed from a finding that both the County and the Commonwealth proceeded in blatant disregard of the Court Decree and that both defendants violated nearly every substantive portion of that Decree. Halderman, et al., 154 F.R.D. at 610. It is abundantly clear that the Contempt Order was intended to remedy the defendants' contempt by making "certain that the members of the Pennhurst class receive habilitation in community living arrangements as mandated by the 1985 Court Decree." Id. Each and every paragraph of the Contempt Order was drafted to ensure that the defendants fulfill this joint responsibility to the Plaintiffs.

In May, 1994, just following the Contempt Order, this Court soundly rejected the Commonwealth's argument that PILCOP's fees and expenses should be allocated to reflect the County's greater culpability for the contempt. Emphasizing, once again, the Commonwealth's equal culpability, the Court stated:

214

The Commonwealth was more than a mere passive participant. As found by this *214 Court in the

contempt proceedings, it was a co-equal partner with the County in contempt of an order of this

Court for a period spanning seven years. In recognition of this fact, this Court's Order of March 28,

1994 contains numerous obligations that apply to the Commonwealth ...

Halderman, et al. v. Pennhurst Sch. and Hosp., et al., 855 F.Supp. 733, 746. Therefore, this Court finds that the Commonwealth is responsible for compensating Halderman Plaintiffs for fifty per cent of the hours expended in connection with the implementation and monitoring of the Contempt Order.

Finally, based on several, minor objections by the Commonwealth, the Court will disallow 1.8 hours as follows: .35 hours Mr. Ferleger spent correcting an error he made to an earlier fee petition and drafting a letter requesting that defense counsel remit payment to him by Federal Express or hand delivery and not by regular mail; .15 hours Mr. Ferleger spent reviewing the New Mexico Professional Judgment Standard because the relevance of this document is unclear; .50 hours Mr. Ferleger included in error; and .8 hours Mr. Ferleger spent drafting a letter

to Stephen Miller and researching a potential motion against the defendants pursuant to 28 U.S.C. § 1927 for vexatious increase in the cost of this litigation. This motion was never filed and appears to have been without merit. In summary, based on the foregoing adjustments, the Court concludes that Mr. Ferleger should be reimbursed for 215.50 hours from the Commonwealth, thirty-nine (39) of which were expended on fee related matters.
2. Hourly Rate
Determining the hourly rate at which Halderman Plaintiffs' counsel should be compensated is the second step in computing the lodestar. The fee applicant has the burden to establish a reasonable hourly rate. Rode, 892 F.2d at 1183. Because the type of services rendered by lawyers, as well as their experience, skill and reputation, varies widely, reasonable fees under § 1988 are calculated according to prevailing market rates for lawyers of "comparable skill, experience, and reputation." Blum, 465 U.S. at 895, 104 S.Ct. at 1547 n. 11. Generally, the reasonable value of an attorney's time is reflected in "the price that time normally commands in the marketplace for legal services in which those services are offered." Cunningham v. City of McKeesport, 753 F.2d 262, 267 (3d Cir.1985). "A logical beginning in valuing an attorney's services is to fix a reasonable hourly rate for his time 0907 taking account of the attorney's legal reputation and status (partner, associate)." Lindy I, 487 F.2d at 167.
Mr. Ferleger seeks a rate of $250/hour. Defendants object to this rate as excessive and above the predominant market rate for like work, and contend that Mr. Ferleger has failed to come forward with evidence that $250.00 per hour is his normal billing rate. The Commonwealth also urges the Court to approve a lower hourly rate for work of marginal legal character such as reviewing documents and litigating fees. For the reasons set forth below, the Court will approve an hourly rate of $250.00 for Mr. Ferleger for all work related to the implementation of the Court's Contempt Order and Court Decree, but the Court will approve an hourly rate of $100.00 for all work related to fees.
First, in approving a rate of $250.00, the Court gives great weight to Mr. Ferleger's twenty-three years of experience in the area of complex systemic litigation on behalf of people with disabilities. The Court takes judicial notice of the fact that over the course of his career, Mr. Ferleger has developed a national reputation in his field. Thirteen years ago, this Court acknowledged Mr. Ferleger's outstanding reputation, stating that he has "become recognized nationally as an outstanding trial counsel in legal actions designed to improve the lives of the handicapped. He has represented the plaintiff class in this litigation since its inception." Halderman, et al. v. Pennhurst State School and Hospital, 533 F.Supp. 649, 658 (1982). Mr. Ferleger's reputation in the area of complex systemic litigation on behalf of people with disabilities has only grown since 1982. In 1991, citing Mr. Ferleger's experience, ability and national prominence in the area of mental health law, a court in the Middle 215 District of Alabama, in a case of similar *215 complexity to Pennhurst, awarded him $225.00 per hour, at least $25.00 above the usual market rate. Wyatt et al. v. King, 1991 WL 640065 (M.D.Ala., Dec. 17, 1991) at 9, aff'd 985 F.2d 579 (11th Cir.1993) (table). He has been a court-appointed monitor in a federal class action involving a Florida institution for the mentally ill. Mr. Ferleger has made a significant scholarly contribution in the area of the rights of people with disabilities as well, and has taught this subject at the University of Pennsylvania Law School and New York University Law School.
Over the past twenty-one years of the Pennhurst litigation, Mr. Ferleger has proven himself to be an able and vigorous advocate on behalf of the Pennhurst class. In the last year, Mr. Ferleger has continued to be an effective advocate, bringing to bear the sum total of all of his expertise on what should be the final phase of this case 0907 the monitoring and implementation of the 1994 Contempt Order.
The Court also finds that Mr. Ferleger has produced evidence that his normal billing rate is $250/hour. First, Mr. Ferleger testified that his normal billing rate is $250.00. Second, while the Court recognizes that Mr. Ferleger is most often paid for his work pursuant to fee shifting statutes such that it is difficult for him to demonstrate what clients actually pay him, a retainer agreement shows that $250.00 is currently Mr. Ferleger's normal billing rate. A major impetus, moreover, for enacting § 1988 was a recognition that many victims of civil rights violations do not have the financial resources to employ a lawyer to seek vindication of their rights. See City of Riverside, 477 U.S. at 576-577, 106 S.Ct. at 2695.

The record also shows that on May 9, 1994, the Commonwealth paid a lodestar rate of $243/hour, a mere $7 less than the rate he now requests, to settle Mr. Ferleger's fees for the Contempt Trial. In addition, the record shows that the settlement of his current fee petitions reached with the County of Philadelphia is premised on his requested hourly rate of $250.00. Five years ago, in a case challenging the constitutionality of the civil mental health commitment of one individual, Mr. Ferleger sought and was awarded an hourly rate of $225.00. Lewis v. White, et al., 1990 WL 106591 (E.D.Pa.1990). The fact that the defendants in Lewis did not challenge this rate supports this Court's view that it was Mr. Ferleger's normal billing rate and a reasonable, market rate for the services he performed. A $25 increase over five years for work on Pennhurst, a case that appears to be far more complex than Lewis, is not unreasonable.
Finally, Mr. Ferleger has met his burden of showing that 250.00 per hour is commensurate with rates prevailing in the community for similar services by lawyers of comparable skill, experience and reputation. He produced the affidavit of David Rudovsky, Esq., a prominent civil rights attorney specializing in complex civil litigation, who stated that his usual hourly rate in non-contingent cases is $300 per hour and that, in his view, a rate of $250.00 per hour is not only reasonable given Mr. Ferleger's experience and background, but also in line with rates commensurate work commands in the local market as well as nationally. On May 25, 1994, recognizing his extensive experience and expertise in the field of litigation related to the rights of the mentally retarded, this Court awarded Frank Laski, Esq. of PILCOP an hourly rate of $250.00 for his work since 1987 prosecuting the contempt petition in Pennhurst. Halderman, et al., 855 F.Supp. at 742-743. The Court sees no basis for awarding Mr. Ferleger a lower hourly rate than Mr. Laski.
The fee schedule prepared by Community Legal Services, Inc., which was cited with approval by the Third Circuit Task Force on Court Awarded Attorney Fees, 108 F.R.D. 237, 260 n. 70 (3d Cir.1985), suggests a rate between $175.00 and $230.00 for attorneys with more than 10 years experience and a rate between $150.00 and $250.00 for supervising attorneys, project heads, and managing attorneys. The Court finds that this fee schedule supports Mr. Ferleger's requested rate of $250.00 per hour as he is an attorney with not just more than ten but more than twenty years experience in his specialty and has performed a role in the Pennhurst litigation that is tantamount to 216 that of a supervising or managing attorney. The 1994 edition *216 of the Lawyer's Almanac shows that the average billing rate for a "high partner" in Philadelphia, which, given Mr. Ferleger's years of experience and degree of specialization and expertise, is the appropriate category for comparison, is $293.00.
For the foregoing reasons, the Court will apply a uniform rate of $250.00 per hour to Mr. Ferleger's work implementing the 1994 Contempt Order and the 1985 Court Decree. It is the Court's view that Mr. Ferleger brings his unique expertise to each task he performs on behalf of the Halderman Plaintiffs. However, because fee litigation does not fall within the sphere of Mr. Ferleger's special expertise, the Court will apply a rate of $100.00 per hour to all fee-related activities.
B. Expenses
Halderman Plaintiffs are requesting reimbursement for the following expenses from the Commonwealth:

May 4, 1994 to August 16, 1994: August 17, 1994 to November 27, 1994: November 23, 1994 to March 2, 1995: March 3, 1995 to May 9, 1995:
TOTAL:

$1,113 $1,668 $3,234 $1,203 ______ $7,218

The Court finds that some of these expenses are not reimbursable.

1. Xeroxing Costs
Halderman Plaintiffs seek payment from the Commonwealth of $1,400.90 for their share of the 14,009 in-office copies for which Mr. Ferleger seeks reimbursement at a rate of $.20 per page. The Commonwealth objects to both the rate and the number of copies, but the Court finds both to be reasonable.
2. Faxes
Halderman Plaintiffs seek reimbursement of $734.60 for faxes. The Commonwealth objects to the fax rate of $1.00 Mr. Ferleger used to calculate his charges during the first two quarters of implementation (he subsequently reduced his rate to $.30 per page) as well as to what they perceive to be his excessive use of the fax machine. The Court believes that Mr. Ferleger is entitled to take advantage of late twentieth century technology in running his law practice and need not, as the Commonwealth suggests, conduct a cost benefit analysis of whether it is cheaper to fax or mail each time he wishes to send a letter. The Court will, however, apply the $.30 fax rate retroactively, and will deduct $177.10 from the final award.
3. Miscellaneous Expenses
The Court will deduct the following miscellaneous expenses, totalling $57.10, from Halderman Plaintiffs' final award: $5 for a taxi to and from the Courthouse to pick up an opinion; $10 in courier charges for delivering press releases (pursuant to Halderman, et al., 49 F.3d at 942 (disallowing public relations expenses)); and $42.10 for dinners with the County defendants and his expert consultant. However, the Court finds the federal express charges and the expert fees for which Mr. Ferleger seeks reimbursement to be reasonable.
II. CONCLUSION
For the reasons set forth above, the Court has determined that the Halderman Plaintiffs are entitled to an award of fees and expenses in the amount of $55,008.80 for the period of May 4, 1994 to May 9, 1995. This award reflects a reduction in Halderman Plaintiffs' request for fees from $54,437.50 to $48,025.00 and expenses from $7,218.00 to $6,983.80. Because the Commonwealth has previously paid an interim fee of $26,251.80, the Court will order the Commonwealth to pay the balance of $28,757.00.
ORDER
AND NOW, this 16th day of August, 1995; for the reasons set forth in this Court's Memorandum of August 16, 1995;
IT IS ORDERED: Counsel for Halderman Plaintiffs, David Ferleger, is awarded fees and expenses from Defendant Commonwealth of Pennsylvania for the period of May 4, 1994 to May 9, 1995 in the amount of $55,008.80. Defendant Commonwealth having already paid to David Ferleger an interim fee of $26,251.80 for the 217 period of May 4, 1994 to May 9, 1995, leaving a balance of $28,757.00 for said period, within 30 days of *217 the date of this Order, the Commonwealth shall pay to David Ferleger the balance of $28,757.00.
IT IS FURTHER ORDERED: The Court having awarded fees and expenses to counsel for Halderman Plaintiffs for the period of May 4, 1994 to May 9, 1995, the following motions are DISMISSED AS MOOT: Plaintiffs' Motion to Compel Answers to Interrogatories to Commonwealth Defendants Regarding Hours and Fees; and Defendant's Motion to Compel Answers to the Commonwealth's Interrogatories and Request for Production of Documents to the Halderman Plaintiffs.
Save trees - read court opinions online on Google Scholar.

 
 995 F.Supp. 534 (1998)
Terri Lee HALDERMAN, et al., v.
PENNHURST STATE SCHOOL & HOSPITAL, et al.
No. CIV. A. 74-1345.
United States District Court, E.D. Pennsylvania.
February 9, 1998.
David Ferleger, Philadelphia, PA, for plaintiffs.
Judith A. Gran, Public Interest Law Center of Philadelphia, Philadelphia, PA, for plaintiff-intervenors The ARC-PA (formerly the Pennsylvania Association for Retarded Citizens), et al.
Robert H. Stern, U.S. Dept. of Justice, Civil Rights Div., Washington, DC, for plaintiff-intervenor U.S.
Jerome J. Shestack, Barry M. Klayman, Wolf, Block, Schorr and Solis-Cohen LLP, Philadelphia, PA, for defendant Com. of Pennsylvania.
Stephen C. Miller, Law Dept., Philadelphia, PA, for defendant County of Philadelphia.
MEMORANDUM
BRODERICK, District Judge.
In the Court's Memorandum of April 5, 1985 approving the settlement of this class action and the entry of a consent decree, it was optimistically declared that "The concluding chapter of this litigation is at hand." It was therefore with great regret that on March 28, 1994 the Court was required to find, after a hearing, that defendants Commonwealth of Pennsylvania ("Commonwealth") and the County of Philadelphia ("Philadelphia") were blatantly failing to provide Pennhurst class members from Philadelphia with minimally adequate habilitation and protection from harm in violation of the 1985 Court Decree. Rather than imposing fines, however, the Court 535 ordered the Commonwealth and Philadelphia to use their resources *535 to make certain that each class member received the habilitation and protection mandated by the Decree. The Court also set forth contingent coercive fines of at least $5,000 per day in the event that the Commonwealth and Philadelphia failed to remedy their substantial non-compliance by the deadlines imposed by the Court.
In the spring of 1994, the Court appointed a Special Master to oversee and report to the Court concerning the actions to be taken by the Commonwealth and Philadelphia to remedy their contempt. The Special Master has performed in an outstanding manner by achieving the cooperation of both the Commonwealth and Philadelphia to bring about the changes necessary to provide Philadelphia class members with the habilitation mandated by the Court Decree. The Court has not had to impose any fines or penalties in order to achieve compliance. Indeed, over the past four years the Commonwealth and Philadelphia have made significant strides towards fulfilling their obligations under the 1985 Court Decree and the 1994 Contempt Order. A "Quality Assurance Plan" to assure that class members receive adequate habilitation in the community is now in place. Plans for health care, employment, and investigation of abuse and other incidents are also in place. There is no doubt that Philadelphia class members are better off as a result of these efforts.
After reviewing the Commonwealth's and Philadelphia's record of compliance since 1994 and the Special Master's recent reports to the Court, the Court has determined that the Office of the Special Master should be phased out. At the behest of the Court, the Special Master has submitted a proposed schedule and methodology for terminating his supervision. The Commonwealth and Philadelphia have responded that they are fully committed to working with the Special Master to achieve substantial compliance with the Court's Orders by June

30, 1998. The defendants' recent commitment to their obligations to the Pennhurst class is markedly different from 1994, when the Court found them in contempt. The Court welcomes a speedy conclusion to the participation of the Court and the Special Master in monitoring the Commonwealth's and Philadelphia's efforts to achieve substantial compliance with the 1985 Court Decree.
Although the Court has previously stated that it intended to conclude the Special Master's supervision on December 31, 1997, the Court agrees that a few more months are necessary for the Special Master to conduct a comprehensive individual review of approximately 110 randomly selected class members in order to determine whether the Commonwealth's and Philadelphia's efforts to achieve substantial compliance are actually providing each Philadelphia class member with the habilitation, training, and care mandated by the 1985 Court Decree. By Order dated today, the Court will direct the Special Master to conduct this review and to submit a report of his findings to the Court by June 30, 1998. The Court is hopeful and confident that the Special Master's final review in the upcoming weeks will reveal few, if any, deficiencies. Accordingly, it is the plan of this Court that on about June 30, 1998, the Court will rule that the Commonwealth and Philadelphia are in substantial compliance with the 1985 Court Decree and are purged of all contempt determined in this Court's Order of March 28, 1994.
I. BACKGROUND
This action began in 1974 with the filing of a class action seeking to vindicate the constitutional and federal and state statutory rights of persons with mental retardation at Pennhurst State School and Hospital ("Pennhurst") in Spring City, Pennsylvania, approximately thirty miles northwest of Philadelphia. The members of the Pennhurst class are persons with mental retardation who resided at Pennhurst on or after May 30, 1974. As this Court has stated numerous times over the years, mental retardation is an impairment in learning capacity and adaptive behavior which is wholly distinct from mental illness. Mental retardation is not a violation of the law. Being mentally retarded does not make juveniles or adults dangerous to society. Mental retardation is not a disease. However, with proper habilitation in the community, the level of functioning of every person with mental 536 retardation can be improved. "Habilitation" is a term of art used *536 to refer to the education, training, and care which will help those with mental retardation achieve their maximum development.
The Court has reviewed the history of this litigation in several opinions over the years. See, e.g., 154 F.R.D. 594 (E.D.Pa.1994); 784 F.Supp. 215 (E.D.Pa.1992); 610 F.Supp. 1221 (E.D.Pa.1985); 555 F.Supp. 1144 (E.D.Pa. 1983); 545 F.Supp. 410 (E.D.Pa.1982); 446 F.Supp. 1295 (E.D.Pa.1977). As revealed by these opinions and by the official record, the history of this case can be broken down into five separate periods: (1) the trial, from 1974 to 1978; (2) the appeals and implementation of relief, from 1978 to 1984; (3) the class action settlement and consent decree, from 1984 to 1985; (4) the contempt proceedings, from 1987 to 1994; and (5) compliance with the contempt order, from 1994 to the present. Each period will be reviewed below.
A. The Trial (1974-1978)
On May 30, 1974, the plaintiffs brought a class action on behalf of residents of Pennhurst, a state institution founded in 1908 and dedicated by the Pennsylvania Legislature on June 12, 1913 to the "segregation ... of epileptic, idiotic, imbecile or feeble-minded persons." In 1975, the United States of America intervened as a plaintiff. Also in 1975, the Pennsylvania Association for Retarded Citizens (formerly "PARC" but now "The ARCPA") and additional class representatives intervened as plaintiffs. Named as defendants were Pennhurst; the superintendent and various employees of Pennhurst; the Pennsylvania Department of Public Welfare; and various officials from the state and counties of Bucks, Chester, Delaware, Montgomery, and Philadelphia responsible for supervising the Commonwealth's and the counties' mental retardation programs. On November 26, 1976, the Court certified the case as a class action, the definition of which was later amended to include all persons with mental retardation who resided at Pennhurst on or after May 30, 1974.
Plaintiffs claimed that their institutionalization at Pennhurst violated their constitutional rights under the First, Eighth, Ninth and Fourteenth Amendments to the United States Constitution, as well as their rights under the following federal and state statutes: the Rehabilitation Act of 1973, § 504 (current version at 29 U.S.C. § 794 (1985)); the Developmentally Disabled Assistance and Bill of Rights Act of 1975, § 111 (current version at 42

U.S.C. § 6009 (1995)); and the Pennsylvania Mental Health and Mental Retardation Act of 1966, § 201, 50 P.S. § 4201 (Purdon's 1969). Plaintiffs sought damages and broad equitable relief, including individualized habilitation and the relocation of all class members from Pennhurst into their communities.
At the time of the lawsuit there were approximately 1,230 persons with mental retardation at Pennhurst, reduced from a high of nearly 4,000 in the early 1960s. The average age of Pennhurst residents was thirty-six, and their average stay at the institution was twenty-one years. Staff numbered approximately 1,500. Despite improvements in the 1960s and early 1970s, Pennhurst was typical of large, isolated state residential institutions for persons with mental retardation. Forty-three percent of Pennhurst residents had no family contact within the past three years. Residents slept in large, overcrowded wards, spent their days in large day rooms, and ate in large group settings. There were few programs designed to increase their skills.
On December 23, 1997, after a thirty-two day trial, this Court issued findings of fact and conclusions of law which found that the defendants had violated the constitutional and statutory rights of Pennhurst class members by failing to provide them with minimally adequate habilitation in the least restrictive environment. Halderman v. Pennhurst State School & Hospital, 446 F.Supp. 1295, 1313-1324 (E.D.Pa.1977) (subsequent history omitted). Testimony had revealed that Pennhurst provided such a dangerous, miserable environment for its residents that many of them actually suffered physical deterioration and intellectual regression during their stay at the institution. Id. at 1308 & 1318. Indeed, none of the defendants disputed that Pennhurst as an institution was inappropriate and inadequate for the habilitation of persons with mental retardation, and that its residents should be educated, trained, and cared for in their communities. The defendants insisted, however, that the 537 Commonwealth *537 be permitted to close Pennhurst and place the residents in the community at its own pace. Id. at 1313.
The Court issued five holdings, in effect giving the Court of Appeals several reasons for upholding its decision. First, the Court held that Pennhurst residents had a constitutional right to be provided with minimally adequate habilitation in the least restrictive environment consistent with their habilitative needs, and that the Commonwealth and five county defendants had violated this right. Id. at 1314-20. Second, the Court held that the defendants had violated class members' right to be free from harm, because they had been physically abused, injured, and inadequately supervised. Id. at 1320-21. Third, the Court held that persons with mental retardation have a constitutional right under the equal protection clause of the Fourteenth Amendment to non-discriminatory habilitation, and that Pennhurst residents were being segregated in an institution that was not only separate, but also not equal. Id. at 1321-22. Fourth, the Court held that the defendants had violated class members' state statutory right to minimally adequate habilitation under the Pennsylvania Mental Health and Mental Retardation Act of 1966, § 201, 50 P.S. § 4201 (Purdon's 1969). Id. at 1322-23. Finally, the Court held that the defendants had violated class members' federal statutory right to non-discriminatory habilitation under Section 504 of the Rehabilitation Act of 1973 (current version at 29 U.S.C. § 794 (1985)). Id. at 1323-24.
In fashioning a remedy, the Court determined that there was no basis for awarding money damages because testimony had shown that, for the most part, the people responsible for running Pennhurst were dedicated employees faced with overwhelming staff shortages and institutional inadequacies. On March 17, 1978, the Court issued an injunctive relief order requiring the defendants to provide, inter alia, each class member with minimally adequate habilitation according to an individualized habilitation program. Id. at 1326-29. The Court also appointed a Special Master to monitor compliance and to oversee the orderly transition of class members from Pennhurst into suitable community living arrangements.
B. The Appeals and Implementation of Relief (1978-1984)
A lengthy appeal process followed, a summary of which is provided in this Court's Memorandum of April 5, 1985, Halderman v. Pennhurst State School & Hospital, 610 F.Supp. 1221, 1225-26 (E.D.Pa.1985). Briefly, the defendants appealed to the United States Court of Appeals for the Third Circuit, which substantially affirmed this Court's relief order on the basis of the Developmentally Disabled Assistance and Bill of Rights Act, § 111 (current version at 42 U.S.C. § 6009 (1995)). Halderman v. Pennhurst State School & Hospital, 612 F.2d 84 (3d Cir.1979) (en banc). On the first appeal to the United States Supreme Court, the Supreme Court reversed and remanded

for consideration of the statutory and constitutional issues decided by the trial court. Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981). On remand, the Court of Appeals again affirmed, this time on the basis of the Pennsylvania Mental Health and Mental Retardation Act of 1966, 50 P.S. §§ 4101-4704 (Purdon's 1969). Halderman v. Pennhurst State School & Hospital, 673 F.2d 647 (3d Cir. 1982) (en banc). After hearing argument on two separate occasions, the Supreme Court reversed, ruling five to four that the Eleventh Amendment barred a federal court from ordering prospective injunctive relief against state officials on the basis of violations of state law, even where the state law claims had been properly brought into the federal court under pendent jurisdiction. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). The Supreme Court remanded the case to the Court of Appeals a second time for consideration of the federal statutory and constitutional issues.

It is with fond memory that this Court recalls Justice Stevens' dissent, with whom Justices Brennan, Marshall and Blackmun joined. Justice Stevens wrote:

This case has illuminated the character of an institution. The record demonstrates that the

Pennhurst State School and Hospital has been operated in violation of state law. In 1977, after

538

three years of litigation, *538 the District Court entered detailed findings of fact that abundantly

support that conclusion. In 1981, after four more years of litigation, this Court ordered the United

States Court of Appeals for the Third Circuit to decide whether the law of Pennsylvania provides

an independent and adequate ground which can support the District Court's remedial order. The

Court of Appeals, sitting en banc, unanimously concluded that it did. This Court does not disagree

with that conclusion. Rather, it reverses the Court of Appeals because it did precisely what this

Court ordered it to do; the only error committed by the Court of Appeals was its faithful obedience

to this Court's command.

Pennhurst, 465 U.S. at 126, 104 S.Ct. at 922.

Between this Court's initial decision in 1977 and the Supreme Court's second opinion in 1984, this Court issued twenty-three published opinions and hundreds of orders implementing its original injunctive relief order. The Court denied several motions by the defendants to stay its judgment pending the appeals. See, e.g., 526 F.Supp. 409 (E.D.Pa. 1981); 451 F.Supp. 233 (E.D.Pa.1978). On June 30, 1978, the Court appointed the first Special Master in this case, Robert H. Audette, who served until December 8, 1978 when he was replaced by Carla S. Morgan. Ms. Morgan served until the Office of Special Master was closed on December 31, 1982. Halderman v. Pennhurst State School & Hospital, 545 F.Supp. 410 (E.D.Pa.1982). Pursuant to the Third Circuit's mandate, this Court also appointed an impartial Hearing Master, Michael S. Lottman, to make individual placement determinations for class members or their families who contested their removal from Pennhurst. Mr. Lottman served from April 24, 1980 until the Office of the Hearing Master was closed on April 30, 1985.

The Commonwealth opposed the operation and funding of the masters' offices. Initially, the Commonwealth paid the costs of the masters' officers for fiscal years 1978-79, 1979-80, and 1980-81. However, the Commonwealth deliberately refused to provide full funding for fiscal year 1981-82. On August 25, 1981, after appropriate hearings, the Court found the Commonwealth in contempt for failing to make the required monthly payments for the masters' offices. Halderman v. Pennhurst State School & Hospital, 533 F.Supp. 631 (E.D.Pa.1981). The Court reiterated its finding, previously affirmed by the Court of Appeals, that the masters' offices were needed to monitor compliance with the Court's Orders and to oversee the orderly transfer of class members from Pennhurst into community living arrangements. The Court levied fines of $10,000 per day for each day the Commonwealth refused to comply with the Court's Orders funding the masters' offices. Throughout 1981, the Commonwealth chose to remain in contempt but paid the fine of $10,000 each day. Finally, the Court purged the Commonwealth of contempt in view of the fact that the state had paid fines totaling more than $1.2 million, an amount in excess of what was needed to fund the masters' offices. Halderman v. Pennhurst State School & Hospital, 533 F.Supp. 641 (E.D.Pa.1982).

The county defendants also struggled to comply with the Court's Orders. Placement of class members from Pennhurst into community living arrangements was occurring at a very slow pace. Halderman v. Pennhurst State School & Hospital, 555 F.Supp. 1144, 1145 (E.D.Pa.1983). In the first two years after the Court's judgment, the population of Pennhurst declined by less than 200 residents. Id. at 1153. Thus, on March 2, 1981, almost three

years after the Court had issued its first injunctive relief order, the Court was compelled to enter an order mandating the community placement of sixty-one Pennhurst residents by June 30, 1981 and another 350 residents by June 30, 1982. The Court arrived at these numbers from the defendants' own proposals. Nevertheless, some of the defendants still failed to comply with this most recent order. On September 11, 1981, after appropriate hearings, the Court found defendants Bucks County, Delaware County and Montgomery County in contempt for failing to make their initial placements by June 30, 1981. Halderman v. Pennhurst State School & Hospital, 526 F.Supp. 414 (E.D.Pa.1981). The Court declined to impose fines, however, since the counties had 539 achieved substantial compliance with the March 2nd Order after a flurry of *539 activity immediately following the contempt hearing. Id. at 422.
C. The Settlement and Court Decree (1984-1985)
In 1984, while the case was pending before the Court of Appeals for the third time after the Supreme Court's remand, the parties entered into settlement negotiations. On July 12, 1984, with assistance from the Honorable Max Rosenn of the Third Circuit Court of Appeals, the parties executed a "Final Settlement Agreement." The Court of Appeals remanded the case to this Court for consideration of the class action settlement pursuant to Rule 23(e) of the Federal Rules of Civil Procedure.
This Court reviewed and approved the settlement and entered a consent decree on April 5, 1985. Halderman v. Pennhurst State School & Hospital, 610 F.Supp. 1221 (E.D.Pa.1985) (the "Court Decree"). At that time, there were approximately 435 residents remaining at Pennhurst, compared to 1,154 residents when the Court issued its first injunctive relief order on March 17, 1978. Id. at 1226. Under the terms of the settlement, the Commonwealth agreed that it would close Pennhurst by July 1, 1986. In addition, the Court Decree requires the Commonwealth and county defendants to provide community living arrangements to class members, together with such services as are necessary to provide them with minimally adequate habilitation. The Court Decree also requires the defendants to develop and provide each class member with a written habilitation plan, formulated in accordance with professional standards; to provide each class member with an individualized habilitation program which is reviewed annually; and to permit each class member and his family or guardian to be heard in connection with his or her program. The Court Decree further mandates that the defendants monitor the services and programs provided to class members and take corrective action when necessary.
Two other provisions of the settlement agreement are worthy of note. First, the agreement provided that upon its approval, the functions of the Hearing Master would be discontinued. Id. at 1228. In place of the Hearing Master, the Commonwealth agreed to retain an independent retardation professional, William A. McKendry, to review class members' individual habilitation plans. Second, the settlement provided that the definition of the plaintiff class would be amended to include only persons who had resided at Pennhurst on or after May 30, 1974, when the lawsuit was commenced. Persons who had been on the waiting list for placement at Pennhurst (and who had not received any habilitative services under previous order of the Court), as well as persons who might have been placed at Pennhurst, were no longer included in the plaintiff class, and their claims were dismissed without prejudice pursuant to Rule 41 of the Federal Rules of Civil Procedure.
The Court had no hesitancy in approving the settlement agreement as fair, adequate, and reasonable. Of a total of 6,671 notices provided to class members and their families, only fifty-three objections were submitted prior to the Court's hearing on September 25, 1984. Id. at 1229. There were two broad categories of objections. One group of objections were filed on behalf of persons on the Pennhurst waiting list, who contested the redefinition of the plaintiff class to exclude them. The Court found that, over the course of the litigation, it had become apparent that the waiting list included the names of many persons who were not seeking habilitative care in facilities provided by the defendants. The Court found that the eleven-year-old Pennhurst waiting list had outlived its usefulness. Id. at 1231. The other set of objections, familiar to the Court by that point in time, were from family members of Pennhurst residents who objected to the relocation of their relatives from Pennhurst into the community. These families expressed concern about their loved ones leaving "familiar surroundings." The Court, however, ruled that class members could be transferred with little disruption by employing a system of pretransfer visits so that class members became familiar with their new surroundings.

In approving the parties "Final Settlement Agreement" and entering the consent decree, the Court optimistically 540 declared that "The *540 concluding chapter of this litigation is at hand." Id. at 1222.
D. The Contempt Proceedings (1987-1994)
Pennhurst State School and Hospital finally closed on October 27, 1987. Even before the institution closed, however, the plaintiffs filed a motion for contempt and enforcement of the Court Decree entered just two years earlier. Additional motions followed, culminating in the Court finding in 1989 and again in 1994 that the Commonwealth and three of the five defendant counties were in contempt. During this period, the Court was also required to rebuke three separate attempts by the Commonwealth to avoid its obligations under the 1985 Court Decree.
On August 28, 1989, the Court issued its first contempt ruling, finding that Delaware County, Montgomery County, and the Commonwealth of Pennsylvania were not in substantial compliance with the Court Decree. Halderman v. Pennhurst State School & Hospital, 1989 WL 100207 (E.D.Pa. Aug.28, 1989). Plaintiff-intervenor The ARC-PA had initiated the contempt proceedings with the filing of two motions on March 24, 1989, subsequently joined by the other plaintiffs. After four days of hearings in the summer of 1989, the Court found Delaware County and the Commonwealth in contempt because sixty-eight of the 191 class members from Delaware County were not being provided with the habilitative services mandated by the Court Decree. These class members were being housed in large facilities, did not have individual habilitation plans, or were receiving inadequate habilitation and case management services. The Court also found Montgomery County and the Commonwealth in contempt because six of 200 class members from Montgomery County were not being provided with the required habilitative services.
Recognizing that there had been more than 1,200 class members at Pennhurst when the action was commenced, the Court declined to impose sanctions against any of the defendants. Empirical studies over the years showed that the majority of class members had achieved substantial gains in their life skills as a result of the defendants' actions under the Court's Orders. Thus, the Court determined that the Commonwealth and the two county defendants should be given additional time to achieve substantial compliance with the 1985 Court Decree. The Court ordered the Commonwealth and the counties to remedy their violations by March 1, 1990, and directed them to submit monthly reports on their progress.
The Third Circuit affirmed. Halderman v. Pennhurst State School & Hospital, 901 F.2d 311 (3d Cir.1990). Before the Third Circuit, the Commonwealth argued that this Court's jurisdiction had expired under the terms of the Court Decree before the Court issued its contempt findings. The Commonwealth further argued that the requirements imposed by the Court Decree were only moral rather than legal obligations. Finally, the Commonwealth argued that it was not liable for the counties' non-compliance because the Decree only required it to monitor compliance, and also because state law placed responsibility for community placements on the counties. The Court of Appeals rejected each argument. The Third Circuit agreed with this Court that the jurisdictional terms of the Decree specified only the cessation of "active supervision," after which this Court would "simply resort to the usual continuing jurisdiction that courts routinely exercise over their injunctions." Id. at 320. Furthermore, the Third Circuit determined that the settlement clearly referred to the obligations it imposed as "orders of the Court," not ethical commands. The Court of Appeals also agreed with this Court that the Commonwealth was jointly responsible with the counties for providing community services under the Decree, and that the Commonwealth's monitoring responsibilities included not only keeping track of the counties' compliance but also taking corrective action when necessary. Id. at 322-23.
Soon after the 1989 contempt proceedings, the Commonwealth made another attempt to avoid its obligations under the 1985 Court Decree. On August 19, 1991, the Commonwealth filed a motion to vacate the Court Decree, asserting that developments in constitutional law and federal statutory rights had undermined the legal 541 predicates for the Decree. This Court denied the motion. *541 Halderman v. Pennhurst State School & Hospital, 784 F.Supp. 215 (E.D.Pa.1992). Guided by the then-recent Supreme Court decision in Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992), the Court determined that the Commonwealth, as the party seeking modification of an institutional reform consent decree, had failed to carry its burden of

establishing a significant change in factual conditions or law which warranted revision of the Decree. Halderman, 784 F.Supp. at 224. The Court also found that there was no basis in law or equity for modifying the Decree, since several Pennhurst class members were still not receiving the services mandated by the Decree. The Third Circuit affirmed. Halderman v. Pennhurst State School & Hospital, No. 92-1186 [977 F.2d 568 (Table)] (3d Cir.1992).
Having failed in 1989 and again in 1992 to avoid its obligations under the Decree, the Commonwealth embarked on yet another attempt with the filing of a motion on May 5, 1993. This time, the Commonwealth contended that the Eleventh Amendment required this Court to dismiss all plaintiffs except the United States from the action. This would have removed those parties directly affected by the Commonwealth's actions. The Court denied the motion, noting with dismay that it was just another attempt to delay full compliance with the settlement which the Commonwealth had knowingly and willingly entered eight years earlier. Halderman v. Pennhurst State School & Hospital, 834 F.Supp. 757, 759 (E.D.Pa.1993). The Court found that the Commonwealth had "unequivocally expressed" its consent both to suit and to be bound by the Court Decree. Id. at 763. The Court also rejected the Commonwealth's contention that class members were no longer entitled to care just because Pennhurst had finally been closed. Id. at 766. No appeal was taken.
Finally, on March 28, 1994, the Court issued its most recent contempt order, finding that the Commonwealth and Philadelphia had deliberately violated their obligations under the 1985 Court Decree. Halderman v. Pennhurst State School & Hospital, 154 F.R.D. 594 (E.D.Pa.1994). Plaintiff-intervenors The ARC-PA had initiated the contempt proceedings in November, 1987 against Philadelphia County. Later, the other plaintiffs joined in the motion, and the Commonwealth was added as a defendant upon Philadelphia's request. The Court granted several continuances to allow the parties to work out a settlement. Shortly after the filing of the motion, Philadelphia agreed to the appointment of an expert team, but negotiations failed. Then, in May, 1990, the parties agreed to the appointment of the third Special Master in this case, Dr. Sue Gant, for the purpose of reviewing Philadelphia's mental retardation programs. Dr. Gant filed a report with the Court in February, 1991 detailing numerous instances of noncompliance, and the Court set a hearing date on the contempt motion for June 13, 1991. Id. at 598.
Prior to the hearing, the parties again announced that they wanted time to settle the contempt motion. The parties proposed developing a comprehensive plan that would restructure Philadelphia's mental retardation programs to provide the habilitative services mandated for Pennhurst class members to all Philadelphia residents with mental retardation. Id. at 599. Although this Court's jurisdiction is limited to Pennhurst class members, the Court had no objection to the parties agreeing to extend the services provided to class members to all Philadelphia residents with mental retardation. In June, 1993, after two years of work, the parties advised the Court that they had developed such a plan. However, later that summer their agreement broke down, and the Court set another hearing date. The Court also directed the Special Master to update her February, 1991 report and to testify at the contempt hearing.
The Special Master's updated report concluded that the Commonwealth and Philadelphia were still not in compliance with the 1985 Court Decree. Id. The Court held hearings over a period of approximately nine days between December 1 and December 23, 1993. On the basis of the evidence presented at the hearings, as well as the Special Master's reports, the Court found that the Commonwealth and Philadelphia were not in substantial 542 compliance with the Court Decree. The Court's findings of fact and conclusions *542 of law are detailed in the Memorandum of March 28, 1994. Halderman v. Pennhurst State School & Hospital, 154 F.R.D. 594, 599-610 (E.D.Pa.1994).
In summary, the Court found that the Commonwealth and Philadelphia had violated almost every substantive requirement of the 1985 Court Decree. At least thirty-three and as many as fifty-five Pennhurst class members from Philadelphia still resided in large institutional settings. As many as 25 percent of Philadelphia class members had no individual habilitation plan, and where a plan existed, it was not being properly implemented. The Court also found that the Commonwealth and Philadelphia had failed to adequately monitor class members in violation of the Court Decree. Approximately one-third of Philadelphia class members lacked case managers, and many of those who had been assigned a case manager did not receive regularly scheduled visits. Moreover, the defendants lacked an accurate, up-to-date listing of all class members from Philadelphia. Finally, the Court found that the defendants had failed to provide Philadelphia class members with adequate medical and dental care.

Many class members were still being excessively treated with psychotropic or anti-seizure medications, and few class members had a primary care physician.
In fashioning a remedial order, the Court once again declined to impose fines. The Court issued a contempt order requiring the Commonwealth and Philadelphia to use their resources to ensure that each class member received the habilitation and protection from harm mandated by the 1985 Court Decree. The Court's order set forth fourteen affirmative requirements which the defendants had to meet by stated deadlines, or be subject to fines of at least $5,000 for each day they remained in non-compliance.
Shortly after the Court issued its contempt order, the Court appointed J.A. (Tony) Records of Takoma Park, Maryland to serve as Special Master to oversee compliance and implementation of the affirmative requirements in the Contempt Order. Halderman v. Pennhurst State School & Hospital, 1994 WL 185024 (E.D.Pa. May 12, 1994). The parties jointly proposed that Mr. Records replace the former Special Master, Dr. Sue Gant, who had testified against the Commonwealth and Philadelphia during the contempt proceedings. Appointed as the fourth Special Master in this action, Mr. Records has served from May 12, 1994 until the present. He and his staff have performed exceptionally well.
II. BENEFITS TO PENNHURST CLASS MEMBERS AND ALL PERSONS WITH MENTAL RETARDATION
The Pennhurst case has brought numerous benefits to the plaintiffs in this class action as well as to other persons with mental retardation throughout Pennsylvania and the country. The Pennhurst litigation is widely credited with creating a general awareness that persons with mental retardation do have rights: the right to be free from abuse and mistreatment, the right not to be warehoused in institutions, and the right to receive habilitation and training. In short, the Pennhurst case stands for the principle that persons with mental retardation have the right to minimally adequate habilitation in the least restrictive environment.
Pennhurst has served as a model for deinstitutionalization litigation across the country. Between 1971 and 1996, there were seventy class action civil rights lawsuits filed on behalf of persons with mental retardation or other developmental disabilities. See Mary F. Hayden, "Class-Action, Civil Rights Litigation for Institutionalized Persons with Mental Retardation and Other Developmental Disabilities: A Review," 21 Mental & Physical Disability L. Rept. 411 (May-June 1997). Cases like Pennhurst have involved the right to live in the least restrictive environment; the right to adequate food, shelter, clothing, and medical care; and the right to adequate training and habilitation. Commenced in 1974, Pennhurst was the first such action filed in Pennsylvania and among the first eight cases filed nationwide. Id. at 411 & 421-23.
The deinstitutionalization movement has resulted in the vast relocation of persons with mental retardation out of large, state-operated institutions like Pennhurst into smaller, community facilities. In Pennsylvania, fourteen of the 543 twenty-three large, state-operated institutions for persons with mental *543 retardation have closed since 1976, and two more are scheduled to close in the next two years. See R.W. Prouty & K.C. Lakin, Residential Services for Persons with Developmental Disabilities: Status and Trends Through 1996 30-31 (Table 1.12) (Minneapolis: University of Minnesota Research and Training Center on Community Living, May 1997). Over the past twenty years, the number of Pennsylvania residents receiving services for mental retardation has remained at approximately 16,000, but the number residing in institutions has dropped from 9,870 in 1977 to 3,164 in 1996. Id. at 170. The percentage of children in these institutions has also declined, from 23 percent in 1977 to less than 1 percent in 1996. Id. Over the same period, there has been a remarkable shift to small, residential settings. Today, 9,827 Pennsylvania residents with mental retardation live in homes of one to six persons, compared with only 1,078 in 1977. Id. Pennsylvania ranks fourth in the country in this regard, after California, Michigan, and New York. Id. at 55.
Nationwide, 131 of the 347 large, state-operated institutions for persons with mental retardation have closed as of 1996, and another twenty-one are scheduled to close by the year 2000. Id. at 20 (Table 1.11). The population of persons in these institutions has also declined, from an all-time high of 194,650 persons in 1967, to 151,532 persons in 1977, to 59,936 persons in 1996, or 26 percent of the 1967 total. Id. at 13 & 14 (Table 1.7).

Correspondingly, the number of persons with mental retardation living in small, residential settings of one to six persons has jumped to 172,294 persons in 1996, compared with only 20,400 in 1977. Id. at 70 (Figure 2.5).
In the Pennhurst action, this Court has received empirical evidence that class members are better off in almost every way since leaving Pennhurst and receiving individualized habilitation in the community. In 1985, when the Court approved the parties' settlement agreement, the Court summarized the results of a five-year longitudinal study commissioned by the U.S. Department of Health and Human Services which specifically tracked the progress of Pennhurst residents under this Court's Orders. The study measured Pennhurst class members' relative growth and development in the institution vs. the community, and assessed the impact of deinstitutionalization on their families.
As summarized in the Court's Memorandum of April 5, 1985, the study's findings were truly remarkable:
1. Former Pennhurst residents showed significantly faster developmental growth in community living arrangements ("CLAs") than they did at Pennhurst.
2. Former Pennhurst residents received more services and program time in CLAs than they did at Pennhurst (an average of ten hours/day compared to six at Pennhurst).
3. Prior to transfers from Pennhurst into CLAs, more than 60% of families opposed relocation, with 64% strongly disagreeing with the decision to transfer. Six months after relocation, more than 80% of the same families agreed with the decision (64% strongly agreed), and only 4% still strongly disagreed.
4. Families perceived their relatives to be much happier in CLAs than at Pennhurst.
5. The expenditure of public dollars per resident was less in the CLAs than in Pennhurst.
Halderman, 610 F.Supp. at 1233 (citing J.W. Conroy & V.J. Bradley, The Pennhurst Longitudinal Study; A Report of Five Years of Research and Analysis (Philadelphia: Temple University Developmental Disabilities Center 1985)).
The most remarkable accomplishment of Pennhurst is the fact that so many class members are now employed. A recent telephone survey reveals that more than 50 percent of all Pennhurst class members participate daily in sheltered workshops or other activities for which they receive some compensation for their services. Additionally, there are almost one hundred class members who are employed in jobs where they earn at least the minimum wage. Other class members are regular volunteers in community programs for the elderly and other groups. Just a few days ago, an independent expert told the Court that he has been friendly with a Pennhurst class member 544 whom he considers "the happiest person he knows." He said that this class member was committed to *544 Pennhurst when he was 7 years of age. He is now 66 years old and works every day in the kitchen of a college near Philadelphia.
Other class members have shown great improvement since leaving Pennhurst. For example, in 1977, after thirtytwo days of testimony on the abominable conditions at Pennhurst, this Court wrote: "Terri Lee Halderman, the original plaintiff in this action, was admitted to Pennhurst in 1966 when she was twelve years of age. During her eleven years at Pennhurst, as a result of attacks and accidents, she has lost several teeth and suffered a fractured jaw, fractured fingers, a fractured toe and numerous lacerations, cuts, scratches and bites." Halderman, 446 F.Supp. at 1309. Today, the Court can happily report that Ms. Halderman lives in a one-level, ranch-style home with two roommates in Delaware County. Her home has a deck and a backyard where she enjoys the outdoors. She is in good health. She is provided with one-to-one staffing at all times, which enables her to participate in activities in the community during the day.
The improvement shown by another plaintiff is just as remarkable. In 1977, this Court wrote: "Plaintiff Linda Taub, who is blind in addition to being retarded, was admitted to Pennhurst in 1966 at the age of fifteen. According to her father, during her nine year residency at Pennhurst Linda received only custodial care and she experienced regression rather than growth. Time on the ward was spent sitting and rocking, with few activities. During one of their visits in 1968, Linda's parents found Linda, a person capable of walking, strapped to a wheelchair by a

straightjacket. A staff member explained that by strapping her into the chair, they would know exactly where Linda was. While at the institution, Linda was badly bruised and scarred." Id. at 1310. Today, Ms. Taub lives in a home with five other women in Philadelphia and attends a day program. According to her most recent records, Ms. Taub has developed several independent living skills since moving to her present home. Although she is blind, she is able to move around in her home using trailing techniques. She has learned to dress herself. Ms. Taub has her own bedroom which she helps to maintain. At her day program, she completes some work for which she is paid, and a communication board has been developed to assist her with expressing her choices. In addition, Ms. Taub participates in community trips with staff members from her day program. She likes to attend concerts, swim and have manicures. Moreover, her individual habilitation plan includes goals to teach her to develop additional practical skills, such as making herself a snack.
The parties deserve to be proud of these and the other accomplishments they have achieved on behalf of the Pennhurst class. It must be recognized, however, that Pennsylvania residents with mental retardation who are not members of the Pennhurst class have not all received the same level of services. This is unfortunate. Throughout the entire history of this case, the Court has always encouraged the defendants to provide every person in Pennsylvania who has mental retardation with the minimally adequate habilitative services provided to the Pennhurst class. As this Court noted when it approved the Court Decree in 1985, the Court's orders in no way limit the defendants from providing habilitative and residential services to retarded persons throughout Pennsylvania who are not members of the Pennhurst class.
III. COMPLIANCE WITH THE 1994 CONTEMPT ORDER (1994-present)
The Court has commended the Commonwealth and Philadelphia for their recent efforts in providing the services mandated by the 1985 Court Decree and 1994 Contempt Order. See 1997 WL 700490 (E.D.Pa. Nov.7, 1997); 1997 WL 538924 (Aug. 27, 1997); 1995 WL 605479 (E.D.Pa. Oct.13, 1995); 1995 WL 232509 (E.D.Pa. April 18, 1995). By Order dated March 12, 1997, the Court found that the Commonwealth and Philadelphia had consistently complied with several of the paragraphs of the Contempt Order, and purged them of contempt with respect to those requirements. The most recent reports from the Special Master and the Philadelphia defendants demonstrate how far the Commonwealth and Philadelphia have come since 1994.
There are currently 562 class members from Philadelphia, of whom nineteen are considered "inactive" because 545 they refuse *545 services or cannot be located. The City's Department of Public Health keeps an alphabetical
listing of each class member, along with his or her address and telephone number, residential provider, case manager, and most recent annual review date. In the City's most recent quarterly report (for the period ending December 31, 1997), it noted that seven Philadelphia class members had died since the last reporting period, and listed their names and date of death. Philadelphia's current efforts to keep track of class members stands in marked contrast to 1994, when the Court found that the defendants could not identify all of the members of the class. Halderman, 154 F.R.D. at 602.
The Court is also pleased to report that all but two active class members from Philadelphia now reside in small, community living arrangements ("CLAs"). Of the two individuals who remain in larger facilities, each has medical and/or psychological problems making it inappropriate to move them into CLAs at this time. In contrast, in 1994 the Court found that at least thirty-three and as many as fifty-five Philadelphia class members were residing in large institutional settings. Id. at 600.
Philadelphia class members are also now receiving the required levels of case management and monitoring services. As detailed in the Special Master's letter to the Court on February 21, 1997 and Philadelphia's most recent quarterly report, each class member has an assigned case manager. Moreover, there is currently at least one case manager for each 25 class members, and case managers receive both initial and continuing training. Finally, both the Commonwealth and Philadelphia have consistently monitored the day and residential programs used by class members. In contrast, approximately 32 percent of Philadelphia class members did not have case managers in 1994, and those who did were not visited on a regular basis. Id. at 602. Furthermore, the Court found in 1994 that the defendants' monitoring reports were woefully incomplete and inadequate, and that the defendants had failed to take corrective action when necessary. Id. at 602-04.

Each class member's medical treatment 0907 including the prescription of psychotropic drugs 0907 is now carefully recorded and monitored by his or her treating physician and by an independent physician employed by Philadelphia. The Special Master has advised the Court in his February 21, 1997 report that class members' medical records are consistently legible, complete, and present at their residential facility. Once again, the defendants' efforts stand in stark contrast to 1994, when the Court found that class members' medical records were either incoherent or non-existent, and that class members were being prescribed excessive psychotropic medication in violation of accepted medical standards. Id. at 604-05.
The Commonwealth and Philadelphia have also made significant strides in providing class members with minimally adequate habilitation in accordance with their individual habilitation plan ("IHP"). Philadelphia reports that all active class members in Philadelphia have current IHPs which are updated annually and completed within thirty days after the annual review. When two IHPs were mailed late during the last quarter, the City's Department of Public Health provided a reasonable explanation and identified the class members and length of delay. The Special Master will soon review whether class members are actually receiving the habilitative services specified in their IHPs.
In addition to improving their record of compliance, the Commonwealth and Philadelphia have also developed several comprehensive plans for the benefit of Philadelphia class members, such as an investigation plan, a medical and dental plan, a quality assurance plan, and an employment plan. Each one of these plans has been developed with input from the plaintiffs and the Special Master, and promises to assure that Philadelphia class members will receive continued habilitation after the Special Master completes his supervision.
The parties have developed an investigation plan, entitled the "Plan for the Investigation and Resolution of Incidents," to ensure that unusual incidents affecting the safety and well-being of class members are thoroughly investigated and promptly corrected when necessary. Initially approved by the Special Master on December 1, 546 1994, the investigation plan was revised on July 11, *546 1997 after an independent evaluation of how the plan was working. Under the terms of the plan, Philadelphia has established a new group called the "Pennhurst Investigation Unit," which includes a director, a senior investigator, and trained staff investigators who investigate allegations of abuse, neglect and/or theft of class members' property. These investigations are generally completed within sixty days from the time the incident is reported. Philadelphia has also issued revised policy guidelines to residential service providers governing the reporting and resolution of unusual incidents. The defendants should be commended for their development and consistent implementation of the investigation plan. These accomplishments represent a significant change from 1994, when incidents were usually self-investigated and the Court remarked that the investigative process was "akin to putting the fox in charge of the hen house." Halderman, 154 F.R.D. at 603.
The parties have also worked together to develop a health care plan for Philadelphia class members, entitled the "Comprehensive Health Care Plan for Pennhurst Class Members." This plan was approved by the Special Master on May 15, 1996 and took effect on May 31, 1996. The plan focuses on the smooth transition for class members from previous health care systems to managed care (HMOs, etc.). In addition, the health care plan includes several activities designed to ensure that managed care providers adequately respond to class members' needs in areas such as preventive and dental care, behavioral health, and elderly services. The health care plan also requires each class member's individual planning team to review and make recommendations regarding his or her health care at the annual review meeting.
Although the health care plan has not been fully implemented, it has thus far provided substantial benefits to Philadelphia class members. Each active class member in Philadelphia now has a primary care physician and a dentist. Moreover, as the Special Master has indicated in recent reports, Philadelphia's Health Care Coordinating Agency has assisted class members with enrolling in managed care systems and in training staff from managed care companies on the specific needs of individuals with mental retardation. Class members, their families, case managers, and provider staff have all begun to receive training on health care issues. In an effort to ensure that class members are not being prescribed excessive psychotropic medication, the parties have developed new programs to enhance communication between direct contact staff, behavioral consultants, and psychiatrists. In addition, the Commonwealth and Philadelphia have established a fund to ensure that health care services which are not covered by insurance are made available to class members as needed. In the upcoming months, the

Special Master will review whether Philadelphia class members are receiving the services provided for in the health care plan in a timely and effective manner.
In addition to an investigation and health care plan, the parties have also jointly developed a "Quality Assurance Plan" to establish a mechanism for sustained compliance with the Court's Orders once the Special Master concludes his supervision. This plan was approved by the Court on October 13, 1995. Halderman v. Pennhurst State School & Hospital, 1995 WL 605479 (E.D.Pa. Oct.13, 1995). The stated purposes of the plan are: to set out a vision of quality; to embrace the individual planning process as the foundation for all planning and monitoring efforts; to bolster the role and performance of case management through improvements in training and management of information; to define quality performance in a set of standards; to improve technical assistance to providers; to support coordinators and others through the development of a training institute; to revamp monitoring activities to connect and convey vital information with an emphasis on providing incentives to improve quality; to establish a dispute mediation process; and to evaluate implementation of the Quality Assurance Plan by an independent, outside source.
Although the Quality Assurance Plan is still being implemented, the defendants should be extremely proud of their accomplishments thus far. For example, the individual planning process has been modified to be more 547 person-centered, and Philadelphia has revised its monthly case management *547 process so that relevant questions are asked and answered. Philadelphia has also added several positions to the Pennhurst Management Team, the entity responsible for ensuring the provision of supports and services to class members, such as a director of quality assurance, a director of training and technical assistance, and an assistant to the director. In addition, case managers and their supervisors now receive several days of competency-based training relevant to their positions. Philadelphia has also required each service provider to develop and submit a quality improvement plan. Finally, the Commonwealth has conducted annual compliance reviews under the Quality Assurance Plan and has requested Philadelphia to take corrective action when necessary.
The parties have also developed an employment plan for Philadelphia class members, entitled the "Plan for Increasing Access to Community Integrated Employment for Pennhurst Plaintiff Class Members." Although the parties have struggled with the timely development and implementation of this plan, the Special Master has helped the parties create a plan for person-centered services, training, and supports which gives Pennhurst class members from Philadelphia a real opportunity for employment and training. The employment plan is still in the very initial stages of implementation. There are currently thirty-five Philadelphia class members employed in positions paying at least the minimum wage, the majority of whom became employed within the past few years. Although this number is smaller than the Court would like, it confirms this Court's findings over the past twenty years that many persons with mental retardation can become productive, self-contributing members of society if given proper habilitation and training. Philadelphia class members now work for restaurants, car washes, retail grocery and merchandising stores, drug stores, and gas stations. They serve as clerical aides, baker's assistants, parking lot attendants, stock clerks, custodians, and maintenance workers. They work between three and forty hours each week, and earn from $5 to $10 per hour. This is truly a remarkable achievement compared with twenty-four years ago, when class members were isolated, abused, received no job training, and faced institutionalization for life at Pennhurst.
IV. DISENGAGEMENT: ENDING THE SPECIAL MASTER'S SUPERVISION
More than two years ago the Court expressed its intention to end its supervision of the Commonwealth and Philadelphia, the two remaining active defendants in this action. In approving the Philadelphia Quality Assurance Plan, the Court hoped that proper implementation of the plan would replace the need for continuing supervision by the Court and the Special Master. Halderman v. Pennhurst State School & Hospital, 1995 WL 605479 (E.D.Pa. Oct.13, 1995). The Court agreed at that time, however, that it was premature to set a schedule for phasing out the contempt proceedings.
Last spring, the Court determined that the time had come to conclude its own and the Special Master's monitoring of the Commonwealth and Philadelphia. Upon receiving the Special Master's proposed budget for

1997-1998, the Court directed the attorneys for the plaintiffs, the Commonwealth, and Philadelphia to appear at a conference in chambers on May 7, 1997. At the conference, the Court challenged the parties to focus their efforts on achieving substantial compliance with this Court's Orders so that supervision of the Commonwealth and Philadelphia could be completed. The Commonwealth suggested that the litigation could be concluded in six months if the Special Master worked with the parties and reviewed the Commonwealth's and Philadelphia's current efforts on behalf of Philadelphia class members. Welcoming this suggestion, the Court extended the Special Master's budget for six months, until December 31, 1997.
On August 5, 1997, the Special Master submitted his twenty-fourth report to the Court on the Commonwealth's and Philadelphia's record of compliance with the 1994 Contempt Order and 1985 Court Decree. In accepting the Special Master's report, the Court noted that his findings presented convincing evidence that substantial 548 compliance was being achieved, and that the Court's goal of terminating the Special Master's supervision *548 by December 31, 1997 was attainable. Halderman v. Pennhurst State School & Hospital, 1997 WL 538924 (E.D.Pa. Aug.27, 1997).
During the fall of 1997, the Special Master worked with the parties to develop a proposed schedule and methodology for reviewing whether the Commonwealth and Philadelphia were in substantial compliance with the 1985 Court Decree. On November 4, 1997, the Special Master submitted his proposal to the Court, and the Court directed the parties to file any comments they might have concerning the Special Master's proposed review. Halderman v. Pennhurst State School & Hospital, 1997 WL 700490 (E.D.Pa. Nov.7, 1997). Comments were received from the Commonwealth, Philadelphia, and each of the plaintiffs except the United States.
As heretofore discussed, it appears that the Commonwealth and Philadelphia have made great progress in complying with the 1985 Court Decree and 1994 Contempt Order. However, after reviewing the Special Master's proposal and the parties' comments, the Court has determined that a few more months are necessary for the Special Master to conduct a comprehensive review of individual Philadelphia class members for the purpose of determining whether they are actually receiving the services mandated by the Court Decree. Accordingly, by Order dated today, the Court will direct the Special Master to conduct this review and to submit a report of his findings to the Court by June 30, 1998.
In conducting his review, the Special Master will select a random sample of 20 percent of the Philadelphia class, approximately 110 class members. The Special Master will visit these class members at their homes and day programs and review their case files. He will interview these class members, their families, case managers, advocates, and direct care staff. The Special Master will also consult with each of the parties to discuss any deficiencies he may find and methods to correct them.
In order to devote the necessary time and attention to his review of approximately 110 Philadelphia class members, the Special Master may cease his ongoing, routine monitoring, including the submission of quarterly reports. The Court will direct the Special Master, however, to address any urgent issues regarding individual class members and to continue acting in his capacities under the various Court-approved plans. The Court will also extend the Special Master's budget, which expired on December 31, 1997, until June 30, 1998 at the same monthly level as last year. The Court anticipates that this will be the final budget approved for the Office of the Special Master.
CONCLUSION
The past twenty years has seen a vast relocation of persons with mental retardation out of large, state-operated institutions like Pennhurst into small, community living environments. The Pennhurst case helped usher in this deinstitutionalization movement, and has brought a general awareness that persons with mental retardation have the right to minimally adequate habilitation in the least restrictive environment. Study after study has demonstrated that Pennhurst class members have been better off in almost every way since this Court ordered the defendants to provide them with care, training, and habilitation in smaller residential settings. Today, many class members are employed in paying jobs helping contribute to society. Others are acquiring new skills and learning to reach their maximum potential development.

Since 1994, the Commonwealth and Philadelphia 0907 the two remaining active defendants in this action 0907 have made significant improvements in providing Pennhurst class members from Philadelphia with the services mandated by the 1985 Court Decree and the 1994 Contempt Order. The Court has never imposed any fines or sanctions. After reviewing the Commonwealth's and Philadelphia's record of compliance and the Special Master's recent reports, the Court has determined that it is time to end the Court's and the Special Master's active supervision in this case. Accordingly, by Order dated today, the Court will direct the Special Master to conduct a comprehensive individual review of approximately 110 class members from Philadelphia for the purpose of 549 determining whether they are actually receiving the services *549 required by the 1985 Court Decree. The Special Master will issue a report of his findings to the Court by June 30, 1998, and his budget will be extended through that date.
The Court sincerely hopes that the Special Master's report will not reveal any areas of substantial noncompliance. It is the Court's plan that the Special Master's office will be closed on June 30, 1998, and that the Court will then rule that the Commonwealth and Philadelphia are purged of all contempt found by this Court on March 28, 1994.
An appropriate Order follows.
ORDER
AND NOW, this 9th day of February, 1998; the Court desiring to conclude the participation of the Court and the Special Master in monitoring the efforts of the Commonwealth of Pennsylvania ("Commonwealth") and County of Philadelphia ("Philadelphia") to achieve substantial compliance with this Court's Orders of April 5, 1985 (the "1985 Court Decree") and March 28, 1994 (the "1994 Contempt Order"); and for the reasons set forth in the Court's Memorandum of this date;
IT IS ORDERED:
1. The Special Master shall conduct a comprehensive individual review of approximately 110 randomly selected Philadelphia class members (20 percent) in order to determine whether the Commonwealth's and Philadelphia's efforts to achieve substantial compliance are actually providing each Philadelphia class member with the habilitation, training, and care mandated by the 1985 Court Decree. The Special Master shall file a report of his findings and recommendations with the Court by June 30, 1998.
2. In order to devote the necessary time and attention to his review of substantial compliance, the Special Master may cease his ongoing, routine monitoring, including the submission of quarterly reports required by this Court's May 12, 1994 Order, as amended January 3, 1996. The Special Master, however, shall continue, as necessary, to address urgent issues regarding individual class members and shall continue to act in the capacities which have been set forth for him in the various Court-approved plans.
3. The Special Master's budget, which this Court previously approved by Order dated May 8, 1997 and which expired on December 31, 1997, is extended through June 30, 1998 in the same monthly amount. On or before March 1, 1998, the Commonwealth and Philadelphia shall each submit a sum to the Clerk of the Court in the amount of $27,915.00 to cover the period of January 1, 1998 through March 31, 1998. Beginning on April 1, 1998, and on or before the first day of each succeeding month thereafter, up to an including, June 1, 1998, the Commonwealth and Philadelphia shall each deposit with the Clerk of the Court a sum in the amount of $9,305.00. In the event the Court determines that the Special Master's duties are completed as of June 30, 1998, any surplus funds on deposit with the Clerk's office will be refunded pro rata to the Commonwealth and Philadelphia; however, if the Court determines at any time that the Special Master will require supplemental funds, the Court may order the Commonwealth and Philadelphia to make additional deposits. To the extent not superseded by this Order, the Court's Order of May 12, 1994 SHALL REMAIN IN FULL FORCE AND EFFECT.
Save trees - read court opinions online on Google Scholar.

 
 9 F.Supp.2d 544 (1998)
Terri Lee HALDERMAN, et al. v.
PENNHURST STATE SCHOOL & HOSPITAL, et al.
No. CIV. A. 74-1345.
United States District Court, E.D. Pennsylvania.
July 21, 1998.
David Ferleger, Philadelphia, PA, for plaintiffs.
Judith A. Gran, Public Interest Law Center of Philadelphia, Philadelphia, PA, for plaintiff-intervenors The ARC-PA (formerly the Pennsylvania Association for Retarded Citizens), et al.
Robert H. Stern, U.S. Dept. of Justice, Civ. Rights Div., Washington, DC, for plaintiff-intervenor U.S.
Jerome J. Shestack, Barry M. Klayman, Wolf, Block, Schorr and Solis-Cohen LLP, Philadelphia, PA, for defendant Com. of Pa.
Stephen C. Miller, Law Dept., Philadelphia, PA, for defendant County of Philadelphia.
MEMORANDUM
BRODERICK, District Judge.
In 1977, after a thirty-two day trial, this Court held that the constitutional and statutory rights of the members of the Pennhurst class had been violated. In 1985, after several years on appeal, including three arguments before the United States Supreme Court, this Court approved a settlement agreement and entered it as a consent decree (the "1985 Decree"). The settlement was greeted throughout the nation as recognition that persons with mental retardation have the right to habilitation in the community.
In 1987, the plaintiffs filed a motion to hold two defendants, the Commonwealth of Pennsylvania ("Commonwealth") and County of Philadelphia ("Philadelphia"), in contempt for violating the 1985 Decree. Pursuant to a stipulation of the parties, the Court appointed a team of experts to review and analyze the level of habilitation being provided to Philadelphia members of the Pennhurst class. Unable to agree on a settlement, a contempt hearing commenced, and in March 1994, the Court held the Commonwealth and Philadelphia in contempt for deliberately violating their obligations under the 1985 Decree. The Court also appointed a Special 545 Master, Mr. Tony Records, to oversee compliance *545 with the contempt order and the 1985 Decree.
Over the past four years, the Commonwealth and Philadelphia have developed numerous programs and plans to rectify their substantial non-compliance with the 1985 Decree. On February 9, 1998, the Court issued a Memorandum and Order reviewing the history of this case and expressing the Court's intention to conclude its active supervision over Philadelphia members of the Pennhurst class. Halderman v. Pennhurst State School and Hospital, 995 F.Supp. 534, 535-47 (E.D.Pa.1998). As a final precaution, however, the Court ordered the Special Master to conduct a comprehensive review of Philadelphia class members to determine whether they are receiving the habilitation, training, and care mandated by the 1985 Decree.
The Special Master's report, filed June 30, 1998, confirms the remarkable accomplishments which have been achieved since 1994. The Special Master's findings reveal that the defendants are now substantially fulfilling their obligations under the 1985 Decree and that their efforts are providing Philadelphia class members with the level of habilitation, care, and protection from harm required by the Decree. As the report states, "[t]here are few similarities between the support system which existed at the time the Contempt Order was issued and the one currently in existence." Special Master's Report, June 30, 1998, at 7-8. Accordingly, by Order dated today, the

Court will: (1) adopt the Special Master's findings; (2) purge the Commonwealth and Philadelphia of all contempt found in 1994; and (3) end the Court's and the Special Master's active supervision over the Philadelphia members of the Pennhurst class.
There are, of course, some areas where the defendants need to make further efforts to comply with the 1985 Decree. The Special Master's findings reveal that the Commonwealth and Philadelphia have not achieved substantial compliance with respect to the following requirements of the 1985 Decree:
1. Development of individual habilitation plans in accordance with professional standards
Although every Philadelphia class member surveyed now has a current individual habilitation plan or individual support plan (IHP/ISP), about one-half of IHP/ISPs were not developed in accordance with professional standards. The Special Master found that many IHP/ISPs lack measurable objectives and adequate descriptions of the types of services that are to be provided. The plans also need to be updated more frequently when significant changes in the class member's life warrant. Finally, every member of the class member's interdisciplinary team must be present at the annual review meeting, and the IHP/ISP must identify the specific individuals responsible for implementing the plan's objectives. The defendants are aware of these problems and have provided the Special Master with an outline of additional steps which are being taken to ensure that IHP/ ISPs are developed in accordance with professional standards. See Special Master's Report, June 30, 1998, at Appendix E. The Court is confident that the defendants are committed to achieving substantial compliance with this portion of the 1985 Decree without continued supervision by the Court and the Special Master.
2. Provision of therapy, day program, vocational, and transportation services
Compared to four years ago, class members now receive many more services and supports as part of the Decree's requirement that they be provided with minimally adequate habilitation. The vast majority of class members surveyed are receiving the required level of residential supports and other supports to enable them to participate in the community. However, the Special Master's findings indicate that further therapy, day program, vocational, and transportation services are needed to comply with the Decree's requirement of minimally adequate habilitation. The defendants have recognized these concerns and have outlined plans to address them. See Special Master's Report, June 30, 1998, at Appendix E. The Court shares the Special Master's confidence 546 that the defendants are dedicated to achieving substantial compliance with respect to these portions of *546 the 1985 Decree, so that continued supervision by the Court and the Special Master is not necessary.
3. Investigation of allegations of abuse and neglect
Four years ago, the Court found that the Commonwealth of Pennsylvania and County of Philadelphia failed to actively investigate most incidents of abuse, neglect, death and injury of class members. In 1995, the defendants implemented a plan for investigating and resolving such incidents. The Special Master's recent review, however, uncovered several incidents of alleged abuse of class members by their housemates and/or co-workers which were not adequately investigated. Abuse of class members by fellow class members, housemates, or co-workers must be taken just as seriously as abuse of class members by professional staff. Fortunately, the defendants appear to realize this and have assured the Special Master that they will take action to ensure that all allegations of abuse, neglect, and injury are promptly reported and investigated. Accordingly, the Court believes that the defendants' commitment to achieving substantial compliance with this portion of the 1985 Decree obviates continued supervision by the Court and the Special Master.

4. Provision of adequate dental services
The defendants have made vast improvements in the provision of medical services. The Special Master reports that the "Comprehensive Health Care Plan for Pennhurst Class Members," adopted two years ago, is being timely and effectively implemented. However, the Special Master found that class members are not being provided with adequate dental services as required by the 1985 Decree. There are too few dentists available, lengthy delays in receiving services, and difficulty in finding dentists who will serve class members who require general anesthesia. The defendants are well aware of these problems and have outlined corrective actions currently underway. See Special Master's Report, June 30, 1998, at Appendix G. Accordingly, the Court believes that the defendants are committed to achieving substantial compliance with the Decree's requirement of providing adequate dental services, and further supervision by the Court and the Special Master is not necessary.
The defendants' efforts to comply with the 1985 Decree represent a total transformation from just four years ago. As the Special Master's report states:
[T]here is a new attitude demonstrated by both the County and the Commonwealth with regard to their quality assurance roles. Unlike the system in existence at the time the Contempt Order was issued, the improved system has processes in place to identify problems and take corrective action, when necessary. In many cases, the defendants already were aware of the problems identified by the Special Master during the course of the review on both an individual class member and systemic level. As a result, for many of these issues, corrective action already was in the process of being implemented and/or was being planned.
Special Master's Report, June 30, 1998, at 8. The Special Master's findings reveal that implementation of the Philadelphia Quality Assurance Plan and other plans has, as the Court predicted three years ago, "replace[d] the need for continuing supervision by the Court and the Special Master," and provided "a happy conclusion to more than twenty years of litigation." Halderman v. Pennhurst State School and Hospital, 1995 WL 605479 (E.D.Pa. Oct.13, 1995); Halderman v. Pennhurst State School and Hospital, 1995 WL 232509 (E.D.Pa. April 18, 1995).
Accordingly, the Court will adopt the factual findings in the Special Master's Report. They are not disputed. The Court will also adopt the Special Master's first two recommendations: The Court will purge the Commonwealth of Pennsylvania and County of Philadelphia of all contempt with regard to the March 1994 contempt order. The Court will also order the Office of the Special Master to be closed by August 31, 1998. This extension, supported by the defendants, is necessary to enable the parties to wind up final business and to revise current programs and plans to eliminate oversight by the Court and the Special Master.
547 *547 The Court, however, will not adopt the Special Master's final recommendation to conduct another review in two years to ensure that the defendants have taken corrective action in the few areas where they have not yet achieved substantial compliance with the 1985 Decree. As discussed above, the defendants have submitted plans to improve services in each one of these areas, and the Court will not interfere with the defendants' efforts so long as they continue to work in good faith to comply with the 1985 Decree.
The Commonwealth's and Philadelphia's dedication and determination to achieving substantial compliance with the 1985 Decree not only warrant their being purged of contempt, but also merit commendation from this Court. Nancy Thaler, the Commonwealth's deputy secretary for mental retardation; and Vicki Stillman-Toomey, the Commonwealth's southeast regional director for mental retardation, were most cooperative. On behalf of Philadelphia, Estelle Richman, the health commissioner; Susan Pingree; and Larry Pace were also most cooperative. Together with all counsel of record, these individuals have achieved dramatic improvements over the past four years and have established a system of programs and services which provide each Philadelphia class member with the opportunity to develop his or her potential pursuant to the 1985 Decree. The Court would also like to commend the Special Master, Tony Records, as well as his assistant Maria Laurence and the rest of the Special Master's staff, for guiding the parties toward cooperation and compromise. They have served the Court, the parties, and Philadelphia class members extraordinarily well.

The years of this litigation have vindicated the opinions of the mental retardation experts that institutionalization at Pennhurst was not providing adequate habilitation to its residents. Transferring persons with mental retardation from Pennhurst to the community has enabled them to develop their capabilities, enjoy a fuller life, and in some instances, become self-supporting members of the community. When the consent decree was approved in 1985, this Court optimistically declared: "The concluding chapter of this litigation is at hand." Today, the Court makes the same prediction and sincerely hopes that it will never again be necessary for the Court to find one of the defendants in contempt of the 1985 Decree.
Save trees - read court opinions online on Google Scholar.

 
 Halderman v. Pennhurst State School and Hosp., 154 F.R.D. 594 (1994)

154 F.R.D. 594 United States District Court,
E.D. Pennsylvania.
Terri Lee HALDERMAN, et al. v.
PENNHURST STATE SCHOOL AND HOSPITAL, et al.
Civ. A. No. 74–1345. | March 28, 1994.
Attorneys and Law Firms
*595 Judy Gran, PILCOP, Philadelphia, PA.
Charlotte Nichols, Claudia Huot, Law Department, Philadelphia, PA, for City of Philadelphia.
David Ferleger, Philadelphia, PA, for plaintiffs.
Jerome J. Shestack, Zachary Grayson, Barry M. Klayman, Wolf, Block, Schorr & Solis–Cohen, Philadelphia, PA, for Commonwealth.
Doris Leisch, Office of DPW, Philadelphia, PA.
Robert Stern, U.S. Dept. of Justice, Sp. Litigation, Washington, DC, for United States.
Opinion
MEMORANDUM
RAYMOND J. BRODERICK, District Judge.
Presently before the Court is a motion filed by the plaintiffs Halderman, et al. in November 1987 to hold the Commonwealth of Pennsylvania and County of Philadelphia in contempt of this Court’s Order of April 5, 1985. For the reasons that follow, this Court finds that both defendants are in contempt of the Order.
I. BACKGROUND The Pennhurst litigation has been credited widely for creating a general awareness that retarded persons do have rights—the right to minimally adequate habilitation—the right not to be abused and mistreated— the right to care and training that will enable retarded persons to develop their capabilities and the right not to be warehoused behind institutional walls. Thus, this Court was saddened to learn in the hearing on this contempt

motion that the Commonwealth and County have apparently deliberately denied such rights to Pennhurst class members in violation of the obligations that they agreed to undertake—obligations specifically mandated by the Court Decree of April 5, 1985. Plainly, the Commonwealth and the County have closed their eyes to the studies that have shown that Pennhurst class members who are now living in the community and receiving adequate habilitation are developing their capabilities and becoming self-sufficient to the extent that some are now working in jobs in private industry.
The litigation surrounding this case has spanned no less than two decades. The case has spawned over 500 court orders, approximately forty-three published opinions, including eleven appeals to the Third Circuit, and three arguments before the United States Supreme Court. After eleven years of active litigation, the parties entered into a final settlement agreement (“FSA”), which was approved and entered by the Court as a consent decree and Order of this Court on April 5, 1985 (“Court Decree”). Since that time, as a result of the defendant’s actions, the plaintiffs have been forced to file numerous motions to enforce the Court Decree.
The long history of this litigation is summarized in the Court’s 1992 published opinion, Halderman, et al. v. Pennhurst State School and Hospital, et al., 784 F.Supp. 215 (E.D.Pa.), aff’d, 977 F.2d 568 (3d Cir.1992), which also contains the text of the FSA and the Court Decree. The record will not be repeated here except as required to set a foundation for the motion presently before the Court.
In May of 1974, the plaintiffs brought a class action suit on behalf of residents of the Pennhurst State School and Hospital, a state institution for mentally retarded persons located in Spring City, Pennsylvania. The suit was brought against various officials of the Commonwealth of Pennsylvania including those of the Pennhurst State School and Hospital and the Department of Public Welfare. In 1975, the Pennsylvania Association for Retarded Citizens (ARC–PA), intervened as plaintiffs, adding as defendants the Mental *596 Health/Mental Retardation Administrators of Bucks, Chester, Delaware, Montgomery and Philadelphia Counties. Also in 1975, the United States of America intervened as a plaintiff. The class was certified in November 1976, and the definition of the class was amended by the Court in 1985 to include only those residents who resided at Pennhurst on or after May 30, 1974.
In 1977, after a thirty-two day trial, this Court determined that certain constitutional and statutory rights of the Pennhurst class had been and continued to be violated by the defendants. Halderman, et al. v. Pennhurst State School and Hospital, et al., 446 F.Supp. 1295 (E.D.Pa.1977). A lengthy appeal process ensued, a
1

Halderman v. Pennhurst State School and Hosp., 154 F.R.D. 594 (1994)

summary of which can be found in this Court’s 1985 Opinion, Halderman, et al. v. Pennhurst State School and Hospital, et al., 610 F.Supp. 1221, 1225–26 (E.D.Pa.1985). Briefly, the defendants appealed to the Third Circuit Court of Appeals and then to the United States Supreme Court. On remand from the Supreme Court, the Third Circuit affirmed on different grounds. On appeal, the Supreme Court heard two oral arguments and remanded once again. It should be emphasized, however, that the Court’s findings of fact made in 1977 have never been challenged by either the Third Circuit or the Supreme Court. Those findings are directly pertinent to the current motion before the Court, and therefore they will be summarized here.
In 1977, this Court concluded that Pennhurst was overcrowded, understaffed and lacking the programs that experts considered necessary for minimally adequate habilitation of the mentally retarded. “Habilitation” is the term of art used to refer to that education, training and care required by retarded individuals to reach their maximum development. The evidence showed that, in many instances, life skills possessed by residents at the time of their admission to Pennhurst had been destroyed over the years of their institutionalization.
In particular, the evidence demonstrated that Pennhurst residents were regularly subjected to a number of dehumanizing practices, including the use of physical restraints and psychotropic drugs to control the residents in place of adequate staffing and behavioral programs. Residents were not kept in safe conditions: Hundreds of residents sustained both major and minor injuries while at Pennhurst; some reports detailed beatings and rapes of the residents by staff members. As a result of physical abuse, many residents suffered loss of teeth, broken bones and other physical deterioration. Moreover, the Court found that Pennhurst was an isolated, segregated facility. Accordingly, few of its retarded residents were capable of protecting or helping their fellow residents or of registering complaints about their own treatment.
The evidence further showed that routine housekeeping services were not provided to the residents on weekends or in the evenings. Consequently, it was common to find urine and feces on ward floors during these periods. Finally, the average age of a Pennhurst resident was thirty-six years, and the average stay at Pennhurst was twenty-one years.
At the time of the Court Decree, there were 435 retarded individuals living at Pennhurst, and 719 had been previously transferred to community living arrangements pursuant to orders of this Court.
At the time of the trial, none of the parties disputed the testimony of mental health professionals that “normalization” (the antithesis of institutionalization) is

now universally accepted as the only successful method of habilitating a retarded person. Normalization requires that a retarded person must be cared for, trained and educated in a normal community living environment. The Court Decree incorporated the “normalization” concept, and the settlement was lauded nationally as recognition that the mentally retarded have the right to minimally adequate habilitation in the least restrictive environment.
Pursuant to the Court Decree, the Commonwealth and County defendants agreed to provide community living arrangements to those members of the plaintiff class for whom such placement was called for by the individual planning process, together with such community services as are necessary to provide each person with minimally adequate habilitation, until such time as the retarded *597 individual no longer was in need of such living arrangements and/or community services. The Court Decree required the defendants to provide residential and habilitative services to all persons who had been furnished with such services pursuant to prior orders of this Court. The Court Decree also directed the defendants to develop and provide a written habilitation plan, formulated in accordance with professional standards, to each member of the plaintiff class; provide an individualized habilitation program to each member of the plaintiff class; and permit each class member and his family or guardian to be heard in connection with his or her program. The defendants further agreed to provide an annual review of each person’s individualized habilitation program, and to monitor the services and programs provided to the class members in accordance with a detailed, professionallyestablished monitoring and visitation procedure. The Court Decree further mandated that all persons provided with services under the terms of the agreement shall be afforded:
(1) protection from harm;
(2) safe conditions;
(3) adequate shelter and clothing;
(4) medical, health-related, and dental care;
(5) protection from physical and psychological abuse, neglect, or mistreatment;
(6) protection from unreasonable restraints and the use of seclusion; and
(7) protection from the administration of excessive or unnecessary medication.
The Court Decree also mandated that the definition of the plaintiff class would be amended to provide that persons who were on the waiting list for placement at Pennhurst (and who had not received any habilitative services under
2

Halderman v. Pennhurst State School and Hosp., 154 F.R.D. 594 (1994)

any prior orders of this Court), as well as those persons who “may be placed” at Pennhurst, would no longer be considered members of the plaintiff class and that their claims would be dismissed pursuant to Fed.R.Civ.P. 41 without prejudice to their asserting any claims that they may have had in any court of competent jurisdiction.
Finally, the Court Decree provided that this Court was to retain jurisdiction in this matter until July 1, 1989, and that as of that date this case should be marked closed, provided, of course, that at that time all defendants were in compliance with the agreement.
In the years since the Court Decree was entered, empirical evidence has vindicated the opinions of the mental health professionals. That is, many of the Pennhurst residents who were transferred to community living arrangements have progressed to the extent that they enjoy a fuller life and in many instances have become self-supporting members of the community. The Court’s opinion that accompanies the 1985 Court Decree discusses numerous studies conducted in the late 1970s and early 1980s that concluded that the retarded residents of Pennhurst have made significant behavioral strides while in the community. Halderman, et al. v. Pennhurst State School and Hospital, et al., 610 F.Supp. 1221, 1232–33 (E.D.Pa.1985). Briefly, the 1981–82 era studies showed that Pennhurst residents who had moved to community living arrangements improved their habilitative skills and that they also had made significant gains in their adaptive behavior scores. These surveys also indicated that Pennhurst residents had exhibited significant gains in life skills as measured by tests generally accepted by the scientific community. In addition, “family attitudes toward community habilitation ‘changed sharply to more positive attitudes’ toward community habilitation after these families had seen the progress made by their own children in community facilities.” Halderman, 610 F.Supp. at 1232. Moreover, these changes of attitude have had a salutary effect on the family life of the retarded. See id.
More recent studies confirm the progress noted by the earlier studies. A 1992 study conducted by Temple University for the Commonwealth of Pennsylvania concluded “Philadelphia County citizens benefitted strongly from deinstitutionalization in [the] behavioral areas [studied]. People are more independent in many life skill areas and they have also sharply reduced challenging behaviors, since leaving Pennhurst.... In the *598 area of social presence, ... contact with people who do not have disabilities has doubled since 1989.” Celia Feinstein, et al., Evaluation of the Well–Being of Pennhurst Class Members Living in the Community in 1992; The Results of Temple Monitoring in Philadelphia County, 7, 22 (1992) (Draft Report 92–3 submitted by Temple University to Pennsylvania Office of Mental Retardation). Moreover, the longer a mentally retarded person resides

in the community, the more life skills they gain. James A. Lemanowicz, et al., Pennhurst Class Members in CLAs: Philadelphia County # 87–4 6 (1987) (Temple University Study submitted to the Pennsylvania Office of Mental Retardation). These findings stand in marked contrast to this Court’s findings in 1977 that Pennhurst residents had regressed in skills while in residence at that institution. Halderman, 446 F.Supp. at 1308.
As previously noted, the original defendants included Delaware, Montgomery, Chester, Bucks, and Philadelphia Counties as well as the Commonwealth of Pennsylvania. In 1989, the plaintiffs filed a contempt motion against Delaware and Montgomery Counties and the Commonwealth. At that time, Delaware County had obligations with respect to approximately 191 Pennhurst residents, and Montgomery County was responsible for 200 residents. This Court found that Delaware and Montgomery Counties and the Commonwealth were not in compliance with the Court Decree on August 28, 1989. Halderman, et al. v. Pennhurst State School and Hospital, et al., 1989 WL 100207, 1989 U.S.Dist.LEXIS 10147 (August 28, 1989 E.D.Pa.), aff’d, 901 F.2d 311 (3d Cir.), cert. denied, 498 U.S. 850, 111 S.Ct. 140, 112 L.Ed.2d 107 (1990). In particular, the Court found that sixty-eight Delaware County residents were not receiving the habilitation mandated by the Court Decree. Montgomery County was found in noncompliance with respect to six of its residents. The defendants were ordered to comply fully with the Court Decree by March 1, 1990, which was later extended to July 1, 1990 in the case of Montgomery County and May 10, 1990 in the case of Delaware County. Both Counties implemented community residential programs in compliance with the Court’s Order. Chester County’s obligations under the Court Decree were terminated when all Pennhurst residents were relocated to community living arrangements. Bucks County’s obligations terminated pursuant to the automatic lapse provision of the Court Decree and because the County was not found to be in noncompliance on or before July 1, 1989.
The current motion before the Court was filed in November 1987 by plaintiff ARC–PA. ARC’s motion seeks to hold the Philadelphia defendants in contempt of the Court Decree. Among other things, ARC’s motion requests the Court to appoint a team of experts to review the services being provided to the approximately 500 class members living in Philadelphia and to identify obstacles to the effective delivery of services and to make recommendations for improvement in the delivery of services. The Halderman plaintiffs later joined the ARC motion and, on motion of the Philadelphia defendants, the Commonwealth defendants were joined as defendants in the contempt motion.
Shortly after the filing of ARC’s motion, the Philadelphia defendants agreed to appointment of an expert team. The
3

Halderman v. Pennhurst State School and Hosp., 154 F.R.D. 594 (1994)

experts submitted a draft report and, after receiving comments from the parties and other interested persons, a final report was filed with the Court in July, 1988. Shortly after the final report was filed, the parties entered into negotiations to settle the dispute. These negotiations, which continued through late 1989, failed, and a settlement agreement never materialized. In May 1990, the parties agreed to the appointment of a Special Master, Dr. Sue Gant, for purposes of reviewing and analyzing the Philadelphia mental retardation program and to determine whether the defendants were in compliance with the Court Decree.
Dr. Gant’s report was filed with the Court in February 1991. The report detailed numerous instances of noncompliance with the Court Decree by the defendants. The Court set a hearing date on the plaintiffs’ contempt motion for June 13, 1991.
Shortly before the hearing date, the parties agreed to attempt to settle the contempt motion by cooperatively developing a comprehensive *599 plan that would restructure the Philadelphia mental health retardation system (“Collaborative Plan”). The goal of the Collaborative Plan was apparently to ensure that all Philadelphia mentally retarded residents, including the Pennhurst class members, would receive the habilitation ordered by the Court Decree. It should be emphasized, however, that while the Court certainly has no objection to all mentally retarded Philadelphia citizens receiving habilitation services mandated for the Pennhurst class members, this Court’s jurisdiction under the Court Decree, is specifically limited to those Philadelphia residents who were Pennhurst residents on or after May 30, 1974. In any event, the parties stipulated to a continuance of the contempt hearing and proceeded to work on the Collaborative Plan.
Pursuant to the stipulation, the parties have attempted over the past two years to develop a mutually agreeable plan to comply with the Court Decree of April 5, 1985. In June 1993, the Court was advised that such a plan had been developed. Accordingly, on June 22, 1993, the Court ordered the County and Commonwealth defendants to file the plan within ten days of the date of this Court’s order. The June 22nd Order also directed all parties to the stipulation to advise the Court on the nature of the order the Court might enter with regard to the plan and to advise the Court on whether they believe the plan should be reviewed by the Special Master. The defendants filed the plan with the Court on July 8, 1993. The plaintiffs responded with a Memorandum on July 7 and 26, 1993 regarding a proposed order pertaining to the Collaborative Plan. The defendants responded with a proposed order on August 25, 1993.
The Court held a hearing on September 7, 1993 regarding the status of settlement of the contempt motion. At the

hearing, the parties advised the Court that they were at an impasse regarding settlement. Accordingly, the Court issued an order setting a hearing date of November 16, 1993 (later rescheduled upon request of the defendants to December 1, 1993) on the plaintiffs’ 1987 contempt motion. The Order also directed the Court’s Special Master, Dr. Sue Gant, to testify at the contempt hearing. In the meantime, the Court also requested that Dr. Gant update her February 1991 report. Dr. Gant sent her update to the Court on November 26, 1993 with copies to all parties. The November update concluded that the defendants still were not in compliance with the Court Decree of April 5, 1985.
II. FINDINGS OF FACT This Court held hearings over a period of approximately nine days between December 1 and December 23, 1993 in connection with the plaintiffs’ motion for contempt against the defendants. On the basis of the evidence presented at that hearing as well as the Special Master’s Reports, the Court finds that the County and the Commonwealth are not in substantial compliance with the provisions of the Court Decree. Specifically, the Court finds that the Commonwealth and the County are not in compliance in that:
Defendants’ Obligations Under the Court Decree
1. Paragraph A2 of the Court Decree requires the County and Commonwealth defendants to provide community living arrangements (“CLAs”) to plaintiff class members, together with community services as are necessary to provide them with minimally adequate habilitation.
2. Paragraph A4 provides that the defendants shall develop and provide written individualized habilitation plans (“IHPs”), formulated in accordance with professional standards, for all class members and that such IHPs shall be implemented and reviewed annually.
3. Paragraph A5(b) provides that the County shall monitor the programs and services being received by each individual class member in accordance with the member’s IHP. Paragraph A5(e) requires the Commonwealth to monitor the County’s performance under subsection b and to monitor annually 20% of class members’ residential and day programs.
4. Paragraph A5(c) provides that the Commonwealth shall measure annually the progress of each class member and the characteristics of the person’s environment and *600 report its findings promptly to the County who shall distribute the findings to case managers and care
4

Halderman v. Pennhurst State School and Hosp., 154 F.R.D. 594 (1994)

providers.
5. Paragraph A5(d) provides that each class member shall have a county case manager and that caseloads for county case managers shall not exceed the ratios established by the Title 19 waiver agreement between the County and Commonwealth (twenty-five (25) class members per case manager). Paragraph A5(d) also states that the Commonwealth shall provide at least three days training to newly hired case managers assigned to Pennhurst class members and continuing annual training to all such case managers.
6. Paragraphs A6(a), (b), and (e) provide that the County and Commonwealth shall take adequate actions and require providers of residential or habilitative services to take adequate actions to provide class members with protection from harm, safe conditions, and prohibit physical and psychological abuse, neglect or mistreatment.
7. Paragraph A6(d) requires that the Commonwealth and County defendants take adequate actions and require care providers to take adequate actions to ensure that class members have medical, health-related and dental care.
8. Paragraph A6(g) requires the Commonwealth and County defendants to take adequate actions and require care providers to take adequate actions to prohibit the administration of excessive or unnecessary medication.
9. Paragraph A7 requires the Commonwealth and County to maintain written rules and procedures requiring prompt review/investigation of any complaints in connection with Paragraph A6 and to adopt the necessary corrective action in response to its reviews and investigations.
Community Living Arrangements
10. The Commonwealth and County have violated the Court Decree in that at least thirty-three (33) and perhaps as many as fifty-five (55) class members still reside in large institutional settings, nursing homes and boarding facilities despite professional recommendations that they be moved to community living arrangements. Some class members were recommended for placement over a decade ago, but the County and Commonwealth have failed to take any action to move them to the community. The Commonwealth notified the County in both 1990 and 1991 that the County was not in compliance with the Court Decree because of its failure to provide class members with CLAs. Even though the Commonwealth is required to comply with the Court Decree, it failed to take any corrective action to enforce the Court Decree.

11. Of the class members still residing in institutions, approximately eighteen (18) class members from Philadelphia County reside at Embreeville Center, a Commonwealth institution that houses about 300 individuals. These class members do not have IHPs or case managers; nor have they been provided with community living arrangements mandated by the Court Decree. The class members residing at Embreeville are being unnecessarily segregated from the community and denied minimally adequate habilitation. All class members residing at Embreeville should be transferred to CLAs. The County and Commonwealth have knowingly and deliberately violated the Court Decree by maintaining Pennhurst class members at Embreeville Center.
12. The Deputy Secretary of the Commonwealth’s Office of Mental Retardation, Nancy Thaler, previously has notified the County of Philadelphia that class members residing at Embreeville Center are at risk for neglect and that the institution should be closed and its residents moved into the community.
13. Approximately eleven (11) class members from Philadelphia County reside at Woodhaven, a 250–bed intermediate care facility. None of these class members has been provided with an IHP, case manager, or community living arrangements as mandated by the Court decree. Woodhaven class members are being unnecessarily segregated from society and denied minimally adequate habilitation. All class members residing at Woodhaven should be transferred to CLAs. The County and Commonwealth have knowingly *601 and deliberately violated the Court Decree by maintaining Pennhurst class members at Woodhaven.
14. Approximately five (5) class members live at Allegheny Valley School (“AVS”), also a non-CLA facility. None of these class members has been provided with an IHP, case manager, or community living arrangements. Class members living at AVS are being unnecessarily segregated from the community and denied minimally adequate habilitation. All class members living at AVS should be transferred to CLAs. The Commonwealth and the County have knowingly and deliberately violated the Court Decree by maintaining Pennhurst class members at AVS.
15. Approximately twenty-one (21) other class members are living in other institutional type facilities in violation of Paragraph A2 of the Court Decree. These class members are being unnecessarily segregated from the community and denied minimally adequate habilitation. Class members living at these institutions should be transferred to CLAs. The Commonwealth and the County have knowingly and deliberately violated the Court Decree by maintaining Pennhurst class members in these institutions.

5

Halderman v. Pennhurst State School and Hosp., 154 F.R.D. 594 (1994)

Individual Habilitation Plans
16. The defendants have knowingly and deliberately violated the Court Decree by failing to provide all class members with IHPs. The County and Commonwealth did not provide at least 103 class members with an IHP in 1992; at least eighty-two (82) class members had no IHP in 1993; at least twenty-eight (28) class members living in CLAs had no IHP in both years. None of the class members living in institutional living arrangements have IHPs.
17. Where IHPs have been written for class members, the County and Commonwealth have either 1) failed to implement the IHP, or 2) delayed implementation of the plan, or 3) not provided services consistent with the IHP’s objectives, or 4) developed IHPs that are not in accordance with accepted professional standards of practice as mandated by the Court Decree.
For example, many class members have severe physical disabilities that require adaptive and assistive equipment and/or specialized therapies. Many IHPs call for these particular individualized therapies or services. The County and Commonwealth, however, have failed to provide class members with such services as occupational, physical, speech and behavior therapies, nutrition services, and adaptive equipment such as wheelchairs and eyeglasses.

18. The defendants have knowingly and deliberately failed to review and update IHPs as required by the Court Decree. Individual Habilitation Plans were not reviewed annually for approximately 76% of the class members in 1990 as required by Paragraph A4 of the Court Decree. In 1991, approximately 67% of the class had IHPs that were out of date; 56% of class members’ IHPs were out of date during 1993. In addition, approximately 45% of class members living in *602 CLAs do not have a current IHP. The purpose of IHPs is to memorialize in writing the habilitation goals for each individual class member as determined by qualified professionals and to provide class members with individualized training, goals and programs. In the absence of an IHP, a class member likely will receive generic or pro forma habilitation that is unsuitable to that class member or no habilitation at all. An IHP must be current and implemented to be effective. Thus, an out of date IHP is tantamount to having no IHP.
Moreover, accepted professional standards mandate that IHP goals must be measurable and objective. In contrast, many of the class members’ IHPs are too subjective and generalized to provide these individuals with the minimally adequate habilitation to which they are entitled under the Court Decree.
19. Immediately prior to the contempt hearing, the County made hurried efforts to update class members’ IHPs in order to conceal its noncompliance.

In addition, a large proportion of IHPs call for class members to be employed in the community rather than in sheltered workshops. In the workshop setting, class members earn a fraction of what is available through community employment and they have very little opportunity to interact with nondisabled persons. Accordingly, these mentally retarded plaintiffs are being unnecessarily segregated from the community. The Commonwealth has a written policy that provides that community integrated employment for the mentally retarded is a priority service. See 55 Pa.Code § 6000.171 et seq. (1991) (“Counties are encouraged to redirect existing resources from traditional adult day services, such as ... sheltered workshops, to community-integrated employment opportunities for persons with mental retardation.”). Yet, neither the Commonwealth nor the County has undertaken to enforce this policy. As a result, many Pennhurst class members sit idle in either institutions or community living arrangements or work in sheltered workshops. Accordingly, these members are being harmed because they are not being given the opportunity to develop life skills and in some cases they are losing skills and/or learning to engage in counterproductive behavior.

Case Management of Class Members
20. The defendants have knowingly and deliberately failed to provide case managers to all Pennhurst class members in violation of the Court Decree. Approximately 32% of the Philadelphia class members presently do not have case managers; due to staff shortages, as of November 1993, seventy-six to eighty (76–80) Philadelphia class members did not have case managers. As of October 1993, approximately twenty-two (22) other class members residing with various private provider agencies did not have case managers. There have been chronic staff shortages in case management services at the County level. The County has not responded promptly to alleviate these shortages to ensure that all class members are represented by case managers.
21. In an attempt to conceal its noncompliance, the County assigned case managers to all but thirty-eight (38) class members just prior to the hearing in this matter. Many of these placements took place during the contempt hearings.
22. The County does not regularly provide case management visits to those class members who are
6

Halderman v. Pennhurst State School and Hosp., 154 F.R.D. 594 (1994)

assigned case managers. Of those class members living in CLAs, thirty-one (31) members have never had a case manager visit them; twenty (20) other members have not been visited by a case manager for the past one to four years; forty-three members (43) have not had a case manager visit them on a monthly basis during the past year.
23. Caseloads for County case managers exceed the maximum requirement of twenty-five class members per case manager, as mandated by the Court Decree.
24. Several case managers who have attempted to identify and report noncompliance with the Court Decree have been criticized for their efforts by supervisory personnel in the County Office of Mental Health/Mental Retardation.
Monitoring of Class Members
25. The defendants have knowingly and deliberately failed to monitor Pennhurst class members in violation of the Court Decree. The Commonwealth and County have several monitoring functions under Paragraph A5 of the Court Decree, but the defendants cannot adequately perform such monitoring, because they are uncertain as to who comprises the class. The Commonwealth lists 619 class members; the County identifies between 443 and 536 depending on the list provided. There are as many as 103 to 176 class members who are currently unaccounted for in the system. It is not possible for the Commonwealth and County to meet their obligations under the Court Decrees unless there is a full accounting of all class members and their whereabouts.
26. The Commonwealth is not monitoring those class members who are not in community living arrangements. Furthermore, the Commonwealth’s annual monitoring report, which is prepared by a subcontractor, compiles data in summary, rather than individualized form. Thus, the report does not provide information on which class members are experiencing problems adapting or otherwise suffering harm in their respective environments. As a result of this generic format, recipients of the Commonwealth’s reports, including the County and/or provider agencies, *603 are unable to respond adequately to correct any deficiencies. Moreover, the County Office of Mental Health/Mental Retardation does not furnish the Commonwealth reports to care providers as required by the Court Decree.
27. The Special Management Unit of the Commonwealth Department of Public Welfare has failed to annually monitor 20% of class members’ day and residential programs, as mandated by the Court Decree.

28. The County does not have in place a policy for responding to the monitoring reports it receives from outside contractors.
29. The County subcontracts its monitoring responsibilities to Community Monitoring Project (“CMP”), a monitoring service. CMP’s contract with the County provides that it shall annually monitor those class members living in community living arrangements— approximately 400 members. Thus, despite a provision in the Court Decree that mandates that the County monitor all class members, there are at least 100, and possibly in excess of 200 class members who are not monitored by CMP under its contract with the County. Moreover, even though CMP’s contract requires it to monitor approximately 400 class members, it has never met its contract requirement in any given year. CMP reports that in 1991, it only monitored 271 class members; in 1992, 305 class members were monitored; as of October 1993, 201 class members had been monitored. County records show that CMP monitored 34 class members in 1990; 179 class members in 1991; 233 class members in 1992; and 155 class members in 1993 through October. Regardless of the discrepancy, there is no question that the County failed to monitor all class members as mandated by the Court Decree.
30. The County and Commonwealth are allowing care providers to investigate incidents of abuse, neglect, death, serious injury and other unusual incidents among class members. Thus, in effect the care providers are investigating themselves. This arrangement violates Paragraph A5(b), which provides that the “County” shall monitor the programs and services being received by each class member. The Court Decree does not authorize the County to delegate this monitoring function to care providers. Permitting care providers to monitor alleged incidents of death, abuse, neglect and other injury is a violation of the Court Decree. It is akin to putting the fox in charge of the hen house.
31. There is insufficient follow up or monitoring by the County and Commonwealth of incidents of abuse, neglect, injury and death of class members. As of October 1993, over ninety (90) incidents of death, abuse, neglect, and other serious injury had not been reported to either the County or the Commonwealth as required by the contracts between the care providers and the County and Commonwealth licensing regulations. In several instances, the County received reports of physical injury of class members and failed to obtain updated information on the injuries for more than a year. In particular, the County received a report in 1992 that six class members had been sexually abused by a staff member of a care provider. The event occurred on July 20, 1992. No written update was requested by the county employee responsible for supervising the investigations by care providers until
7

Halderman v. Pennhurst State School and Hosp., 154 F.R.D. 594 (1994)

October 18, 1993—just one month before the scheduled contempt hearing. The medical reports received by the county in 1992 did not indicate whether or not the abuse reported had, in fact, occurred; the only information contained in the medical report was a cursory notation that the class members who had been sexually abused tested free of venereal disease. The County employee responsible for receiving unusual incident reports never requested information as to whether these class members were abused and as to what type of abuse they suffered. Moreover, the County did not actively investigate the matter; rather, it referred the complaint to the police for investigation and never conducted any follow up investigation. Such inaction is a clear violation of Paragraphs A6 and A7 of the Court Decree, which require prompt investigation of such incidents and corrective action.
There were numerous other instances of abuse, neglect and deaths of class members in which the County and Commonwealth *604 failed to obtain adequate medical and incident reports or to follow up in any meaningful way to provide training, ensure that disciplinary measures were taken, or take other corrective action to prevent the problem from recurring.
32. The County does not have a system to ensure that staff members of care providers who abuse or neglect class members at one site are not re-employed at another class member site. Unusual incident reports from provider agencies consistently do not identify employees involved in abuse or neglect; the County does not request this information. The County employee who is responsible for receiving unusual incident reports does not think it is appropriate for the County to keep track of individuals who abuse and/or neglect class members. The County’s and Commonwealth’s inaction puts class members at serious risk of harm and therefore is a clear violation of Paragraphs A6 and A7 of the Court Decree.
Medical and Dental Care
33. Some class members are being inappropriately medicated with psychotropic drugs rather than being treated with a behavioral program. Psychotropic drugs have a sedative effect thereby impairing cognitive abilities and making learning more difficult. According to accepted medical standards of practice, psychotropic medication is inappropriate where the cause of the behavior is learned; that is, where an individual acts out when he or she is attempting to communicate. The appropriate treatment in such cases is to teach the individual an acceptable form of communication. Behavioral plans should be used in place of psychotropic medication wherever possible. Most of the class members

currently taking psychotropic medication do not have a current individualized and implemented behavioral plan based on functional assessments as part of their IHP.
34. Psychotropic medication practices at Embreeville and Woodhaven institutions do not comport with accepted standards of medical practice. Ten of seventeen (58%) class members living at the Embreeville facility are being medicated; nine of eleven (81%) class members living at Woodhaven are medicated. The percentage of people medicated at Embreeville and Woodhaven far exceeds the national average of 20% or less for those people living in institutions. Furthermore, medical personnel at these facilities have not performed the appropriate medical and psychological testing necessary to determine whether medication is appropriate. In addition, Woodhaven and Embreeville personnel do not systematically monitor class members for side effects of these medications. Accordingly, learning has become more difficult for many of these class members and/or they have regressed in skills already learned. As a result of this over-sedation, class members are at risk of harm.
35. Care providers are inadequately monitoring antiseizure medication given to class members; for example, class members are not given regular blood level tests for toxicity.
36. The County does not have any formal policy for systematic review and monitoring of psychotropic and anti-seizure medication prescribed for class members. There is no monitoring by the County or Commonwealth of psychotropic or anti-seizure prescriptions despite a history of overuse of these types of medications in connection with class members. The County’s and Commonwealth’s failure to prohibit excessive medication of class members clearly violates Paragraph A6 of the Court Decree.
37. The County and Commonwealth have failed to take adequate action to ensure that class members have access to adequate dental services. The County Office of Mental Health/Mental Retardation has received numerous reports from care providers that a crisis situation exists with respect to dental care for class members; preventive care is almost nonexistent. Class members wait inordinate periods of time (i.e., six months or more) for procedures such as root canals and the filling of cavities.
38. The defendants have failed to take corrective action to ensure that class members have access to adequate medical care. Medical care is largely provided by hospital emergency rooms rather than by primary care physicians. In addition, two large care providers, JEVS and UCPA, have no doctors *605 or nurses employed on staff; at JEVS, medical needs are supervised by a medical coordinator who is not a doctor or registered nurse. Many class members’ medical records are either illegible,
8

Halderman v. Pennhurst State School and Hosp., 154 F.R.D. 594 (1994)

unintelligible, incomplete or not present at the facility at which the particular class member resides. As a result of incoherent or nonexistent medical records, class members are receiving inadequate and/or no medical or dental services. The County’s and Commonwealth’s failure to provide class members with access to adequate dental and medical services is a violation of Paragraph A6 of the Court Decree.
Funding
39. The County has failed to request adequate funding from the Commonwealth to meet its obligations to the Pennhurst class under the Court Decree. The Commonwealth has failed to allocate funds to the County to comply with the Court Decree, despite the Commonwealth’s knowledge that the County did not have the necessary funding. It is most unfortunate that as the Deputy Secretary Thaler testified, the Commonwealth allocates funding for Pennhurst class members only when threatened with a contempt action such as this.
III. CONCLUSIONS OF LAW [1] This Court finds on the basis of the foregoing facts, that Philadelphia County and the Commonwealth of Pennsylvania have been proceeding in total disregard of the terms of the Court Decree. Defendants failure to provide community living arrangements for at least thirtythree, and perhaps as many as fifty-five, class members is a violation of Paragraph A2 of the Court Decree. The Court was astonished to learn that despite a court order that is nearly nine years old, the County and Commonwealth have left a large group of class members to languish in institutions where they are subject to abuse, neglect and over-medication. The dangers of institutionalization of the mentally retarded are well known to the defendants; experts testified at trial in this matter over a decade ago that the vast majority of mentally retarded do not receive adequate habilitation in these types of environments and that they actually tend to lose life skills in institutions. It was because of these dangers that community living arrangements became the focal point of the April 1985 Order. By failing so pervasively to meet their obligations under Paragraph A2, the defendants have committed a fundamental and egregious violation of the Court Decree.
In addition to community living arrangements, the Court Decree mandated that the defendants provide written, individualized IHPs to all class members. The importance of these IHPs has been stressed often enough in this case, including in the Findings of Fact portion of this opinion, and will not be repeated here. Suffice it to say that

without an IHP, class members have virtually no opportunity to achieve the minimally adequate habilitation to which they are entitled under the Court Decree. The evidence shows that defendants have failed to provide each class member with an IHP in every year since the Court Decree was entered. Moreover, the evidence also shows that even where IHPs are in place, they are either out of date, not implemented or insufficient to meet individual needs. Class members are not receiving such prescribed items as occupational, physical, speech and behavior therapies, nutrition services, and equipment such as wheelchairs and eyeglasses. They do not have access to community employment; rather, they remain in sheltered workshops where they earn a fraction of what they could earn in the community. Moreover, as testified to by several experts, many class members are not being taught life skills that are useful to them in their particular environments. These findings indicate that the defendants are clearly in violation of Paragraph A4 of the Court Decree.
The defendants have also violated Paragraph A5(d) of the Court Decree in that they have not provided class members with case management services as required by this provision. The evidence shows that approximately 32% of the class do not have case managers as of the date of the hearing in this matter. The County has a long history of tolerating staff shortages in case management services such that many class members either have not had a case manager or have *606 not received the required monthly visit from a County case manager. As a result of these staff shortages, the County has not been able to adequately supervise the services received by class members from provider agencies; nor has it been able to correct deficiencies in class members’ treatment programs.
Apart from staff shortages in case management services, the County generally appears to be ill-equipped to provide adequate case management services to class members. The County and the Commonwealth rarely share CMP and other Pennhurst monitoring reports with case managers so that problems with class members’ treatment programs can be identified and resolved. Furthermore, those case managers who identify and report noncompliance with the Court Decree are often labeled “whistleblowers” and criticized for their attempts to comply with the Court Decree. On balance, supervisory personnel of both the Commonwealth and the County appear to have been united in their efforts to avoid compliance with the Pennhurst Court Decree.
Both defendants have also failed to comply with the various monitoring obligations imposed by the Court Decree. It appears that the defendants are uncertain as to the present whereabouts of many Philadelphia Pennhurst class members. Despite the fact that both defendants have lost track of large numbers of class members in the last
9

Halderman v. Pennhurst State School and Hosp., 154 F.R.D. 594 (1994)

nine years, neither party has made any attempt to locate them and provide them with the services to which they are entitled under the Court Decree. Moreover, while the Commonwealth is monitoring those class members living in CLAs, it is has ignored those individuals who are still in institutions. Furthermore, the Commonwealth’s monitoring is compiled in summary fashion; that is, the monitoring reports fail to identify individual class members who are not receiving habilitation services in compliance with the Court Decree. Rather, the reports track data on class members as a whole. This type of monitoring, while useful in some respects, is not what was intended by the parties when they entered into the consent agreement in 1985. The language of the agreement is clear: “The Commonwealth Defendants shall continue, either by themselves or by qualified contractor, to measure annually by suitable instruments the progress of each class member and the characteristics of the person’s environment.” Court Decree, Para. A5(c). The words “each class member” and “the person’s environment” demonstrate an intent by the parties that the Commonwealth’s monitoring was to be conducted on an individualized basis.
Furthermore, while the Commonwealth distributes copies of its monitoring reports to the County, the County consistently fails to disseminate the reports to County case managers and provider agencies as required by Paragraph A5(c) of the Court Decree. In addition, the County has failed overall to respond to the Commonwealth’s monitoring reports. With full knowledge of the County’s unresponsiveness, the Commonwealth in turn has failed to take any follow up action to require the County to comply with this provision of the Court Decree. Accordingly, by their inaction, both the Commonwealth and the County are in violation of Paragraph A5(c).
Additionally, in failing to monitor each individual class member, the County is in violation of Paragraph A5(b). The County admitted in hearing testimony that it had failed to meet its obligations under this subsection. The director of CMP testified that CMP’s contract with the County has never included all class members; nor has CMP ever monitored all of those class members who are covered by the contract. Even in 1992, its best year, CMP only monitored 305 class members—roughly half of the class members on the Commonwealth’s class member list. Yet, the County has taken no action to correct CMP’s deficient monitoring.
Paragraph A5(b) also requires that the County “follow up and ... require corrective action and the implementation of [CMP’s] recommendations.” Court Decree, Para. A5(b). Yet, case managers testified that they often do not see CMP’s monitoring reports; accordingly, they do have the information necessary to correct problems. The Commonwealth is responsible for monitoring the

County’s compliance with Paragraph A5(b) according to Paragraph A5(e) of the *607 Court Decree. Despite full knowledge that the County has not complied with Paragraph A5(b), the Commonwealth has never undertaken to ensure that the County complies with this subsection of the Court Decree. Accordingly, both the Commonwealth and County are in violation of their monitoring functions under the Court Decree.

Closely related to the monitoring functions, are those

obligations imposed upon the County and Commonwealth

in Paragraphs A6 and A7 of the Court Decree. Paragraph

A6 of the Court Decree requires that the County and

Commonwealth “take adequate actions and shall require

providers of residential or habilitative services to take

adequate actions to provide individuals ... with....

[p]rotection from harm ... [s]afe conditions ... [and

protection from] physical and psychological abuse,

neglect or mistreatment.” Court Decree, Para. A6.

Paragraph A7 requires that the Commonwealth and

County shall “maintain written rules pertaining to

implementation of the provisions of Paragraph A6 ...,

including

procedures

requiring

prompt

review/investigation of any complaints pertaining thereto,

and adoption of necessary corrective actions in response

to such reviews/investigations.” Court Decree, Para. A7.

In violation of these provisions, the County and

Commonwealth do not actively investigate most incidents

of abuse, neglect, death or injury of class members. In

1993, over ninety (90) such incidents of abuse had not

been reported to the defendants by providers as required

by County and Commonwealth policies and regulations.

Moreover, when the County does receive incident reports,

it does not respond in a prompt fashion. As evidenced by

the incident report in which six class members were

allegedly sexually assaulted in July 1992, there was no

follow up until shortly before the contempt hearing.

Equally disturbing is the fact that provider agencies are allowed to investigate themselves, and the fact that their reports are accepted by the County at face value with little or no follow up or independent investigation by the County. The County employee responsible for receiving unusual incident reports admitted in her hearing testimony that these practices do pose conflicts of interest and a potential risk of harm to class members. As a result, the Court concludes that the defendants have put class members at serious risk of harm in violation of the Court Decree.

Class members are also put at risk by the County’s practice of permitting care providers to employ individuals who have been found to have abused or neglected class members. Provider agencies rarely, if ever, identify to the County those employees who have been found to have abused or neglected class members. The County does not request this information from the agencies, apparently because it is under the impression
10

Halderman v. Pennhurst State School and Hosp., 154 F.R.D. 594 (1994)

that it should not be concerned with a list of such provider employees. Thus, individuals who abuse class members can be retained by provider agencies or rehired by other care providers without the knowledge of the County. As a result, class members are frequently abused and neglected. Accordingly, the Court finds that the Commonwealth and County have blatantly disregarded their obligations under Paragraphs A6 and A7 of the Court Decree.
Paragraphs A6 and A7 also impose upon the County and Commonwealth the obligation to ensure that class members have adequate access to medical and dental care and that they not be excessively or unnecessarily medicated. The evidence shows that many class members are being inappropriately medicated with psychotropic and/or anti-seizure drugs. The earliest published opinions in this case cited abuse of class members through the use of such medication in place of behavioral therapies. In spite of their longstanding knowledge of this danger, the County and Commonwealth have failed to monitor class members for over-medication and to correct such abuse. As a result, class members have been harmed in that they have lost life skills and adopted counter-productive behavior.
In addition, the County and Commonwealth have failed to provide class members with access to adequate medical and dental care. The evidence shows that a crisis exists with respect to dental care; some members have waited months or years for appointments *608 for serious dental problems. Moreover, hospital emergency rooms are used in place of a primary care physician in many cases. Finally, class members’ medical records are either nonexistent or so completely unintelligible that physicians are unable to properly treat class members. As a result, class members are not receiving the medical and dental care promised to them in Paragraph A6 of the Court Decree. Consequently, these are additional violations by the County and Commonwealth of Paragraphs A6 and A7 of the Court Decree.
The foregoing findings and conclusions of law indicate that the Commonwealth and County have violated nearly every substantive provision of the Court Decree. “Courts have the inherent power to enforce compliance with their lawful orders through civil contempt.” Spallone v. United States, 493 U.S. 265, 276, 110 S.Ct. 625, 632, 107 L.Ed.2d 644 (1990) (quoting Shillitani v. United States, 384 U.S. 364, 370, 86 S.Ct. 1531, 1535, 16 L.Ed.2d 622 (1966)); see generally Halderman, et al. v. Pennhurst State Sch. & Hosp. et al., 901 F.2d 311, 317 (3d Cir.) (court has jurisdiction to use contempt sanctions to enforce agreement incorporated into court order), cert. denied, 498 U.S. 850, 111 S.Ct. 140, 112 L.Ed.2d 107 (1990). The purpose of the contempt sanction is to either coerce a defendant into complying with a court order or to compensate injured parties. Sheet Metal Workers v.

EEOC, 478 U.S. 421, 443–44, 106 S.Ct. 3019, 3033, 92 L.Ed.2d 344 (1986); Elkin v. Fauver, 969 F.2d 48, 52 n. 2 (3d Cir.1992); Roe, et al. v. Operation Rescue, et al., 919 F.2d 857, 868 (3d Cir.1990) (citing Gregory v. Depte, 896 F.2d 31, 34 (3d Cir.1990)); see also Hicks v. Feiock, 485 U.S. 624, 632–33, 108 S.Ct. 1423, 1430, 99 L.Ed.2d 721 (1988) (contempt sanctions primarily remedial). “A person is liable for civil contempt if he violates a court order with actual notice that the order has been issued.” Quinter v. Volkswagen of America, 676 F.2d 969, 973 (3d Cir.1982) (citations omitted). Contempt must be shown by “clear and convincing” proof. Id. at 974.
[2] Generally, good faith is not a defense to civil contempt. Roe, 919 F.2d at 870; (citing United States v. Romano, 849 F.2d 812, 816 n. 7 (3d Cir.1988); United States v. Malinowski, 472 F.2d 850, 856–57 (3d Cir.), cert. denied, 411 U.S. 970, 93 S.Ct. 2164, 36 L.Ed.2d 693 (1973)); Halderman, et al. v. Pennhurst State Sch. & Hosp. et al., 533 F.Supp. 631, 636 (E.D.Pa.1981), aff’d, 673 F.2d 628 (3d Cir.1982). As the United States Supreme Court stated in McComb v. Jacksonville Paper Co., 336 U.S. 187, 190–91, 69 S.Ct. 497, 499, 93 L.Ed. 599 (1949):
The absence of wilfulness does not relieve [a party] from civil contempt. Civil as distinguished from criminal contempt is a sanction to enforce compliance with an order of the court or to compensate for losses or damages sustained by reason of noncompliance.... Since the purpose is remedial, it matters not with what intent the defendant did the prohibited act. The decree was not fashioned so as to grant or withhold its benefits dependent on the state of mind of respondents. It laid on them a duty to obey specified provisions.... An act does not cease to be a violation of ... a decree merely because it may have been done innocently.
See also Thompson v. Johnson, 410 F.Supp. 633, 640 (E.D.Pa.1976) (fact that prohibited acts committed inadvertently or in good faith does not preclude finding of civil contempt), aff’d, 556 F.2d 568 (3d Cir.1977).
[3] In contrast to good faith, substantial compliance is a defense to civil contempt. Merchant & Evans, Inc. v. Roosevelt Bldg. Prods. Co., No. 90–7973, 1991 WL 261654 at *1, 1991 U.S.Dist.LEXIS 17755, at *2 (E.D.Pa. Dec. 6, 1991) (citing General Signal Corp. v. Donallco, Inc., 787 F.2d 1376, 1379 (9th Cir.1986)); see also Washington Metro. Transit Auth. v. Amalgamated Transit
11

Halderman v. Pennhurst State School and Hosp., 154 F.R.D. 594 (1994)

Union, 531 F.2d 617, 621 (D.C.Cir.1976). In order to show substantial compliance, a defendant must demonstrate “reasonable diligence and energy in attempting to accomplish what was ordered.” Merchant & Evans, 1991 WL 26165 at *1, 1991 U.S.Dist. 17755, at *2.
[4] Neither defendant in this case can meet the standard of substantial compliance. The defendants violations of the Court Decree are both pervasive and profound. Neither party has demonstrated diligence and *609 energy in fulfilling the Court Decree. Instead, the evidence shows that the defendants have engaged in sustained and deliberate avoidance of their obligations under the Court Decree. Moreover, the evidence also shows that the County attempted to cover up its noncompliance through a flurry of activity in October, November and December 1993 just prior to and during the hearings in this matter. During this time period, the County moved with unprecedented alacrity to write, update and revise numerous IHPs, and assign case managers to previously unrepresented class members. In addition, the County employee responsible for receiving reports of unusual incidents updated files in which no action or follow up had been taken for over a year. All of these actions were designed to conceal or minimize massive noncompliance by both defendants. Moreover, the Deputy Secretary of the Commonwealth’s Department of Mental Health and Retardation admitted in open court that the Commonwealth allocates money to comply with the Court Decree only when threatened with a contempt action. For these reasons, the Commonwealth’s and County’s arguments regarding substantial compliance are insincere, self-serving and utterly without merit.
[5] The defendants have argued that this Court should find that they are in substantial compliance because they have met their obligations under the Court Decree with respect to most class members. First, this Court rejects defendants’ premise that they have met their court ordered obligations as to most class members. The evidence clearly indicates that the defendants have violated nearly every provision of the Court Decree and that many of these violations have affected the well being of nearly every class member. More importantly, it is no defense to a class action involving the individual rights and needs of mentally retarded people that the defendants have complied with the Court Decree as to some class members. As the Court stated in previous opinions, where the obligations imposed by a court order run to class members as individuals, compliance is measured with respect to each individual class member and not the class as a whole. Halderman v. Pennhurst State Hospital & School, No. 74–1345, 1989 WL 100207, *2–3, 1989 U.S.Dist. LEXIS 10147, *7 (E.D.Pa. Aug. 28, 1989), aff’d, 901 F.2d 311, 324 (3d Cir.1990) (contempt action against Commonwealth and suburban Counties of Montgomery and Delaware). The defendants undertook in

the Court Decree to fulfill certain obligations with respect to the class members. These are mandated legal obligations that run from both defendants to each individual class member. The defendants cannot obviate their obligations to each individual class member by meeting their obligations to some class members.
This Court also rejects the Commonwealth’s argument that it is somehow helpless to enforce the County’s obligations under the Court Decree. The Commonwealth has advised the County on numerous occasions of problems with care providers as well as other types of noncompliance. With the full knowledge of the Commonwealth, however, the County repeatedly has failed to correct its noncompliance. Thus, the evidence in this case requires this Court to conclude that the Commonwealth and the County have joined hands in their determination to ignore the legal obligations imposed upon them by the Court Decree.
[6] [7] The plaintiffs have requested the Court to order the defendants to pay a compensatory fine of $5,000,000 to be allocated to a compensation fund for distribution to class members in addition to other equitable relief and coercive fines. The Court agrees with the plaintiffs that it certainly has the power to award compensation to plaintiffs for defendants’ contempt. Sheet Metal Workers, 478 U.S. at 443–44, 106 S.Ct. at 3033. Clearly, those members of the Pennhurst class who have been secreted in institutions since the Court Decree have not only suffered indignities but damage to their habilitation. This Court would be presented with an insurmountable challenge, however, in ascertaining the amount of compensation to which each member of the class would be entitled as a result of the County’s and Commonwealth’s intentional withholding of habilitation. Any such award of monetary damages might well require the Court to engage in *610 speculation. Furthermore, this Court is convinced that Pennhurst class members would be best compensated through a court order that requires the County and Commonwealth to use their resources to make certain the each class member receives the habilitation and services mandated by the Court Decree. Accordingly, the Court will provide appropriate equitable relief as outlined in a separate Order, including a provision for contingent coercive fines against both defendants.
IV. CONCLUSION It has been approximately seventeen years since this Court determined that the members of the Pennhurst class had the right to a community living arrangement and to receive minimally adequate habilitation. This Court concluded at that time that the mentally retarded plaintiffs had the right to receive a level of care and training that would enable them to develop their individual potential.
12

Halderman v. Pennhurst State School and Hosp., 154 F.R.D. 594 (1994)

The 1977 Pennhurst decision was in fact one of the first cases to recognize that the mentally retarded had such rights. When this decision was rendered in 1977, it brought an end to an era of seclusion, segregation and sedation for the residents of Pennhurst. The 1985 Court Decree offered these mentally retarded citizens the prospects of full access to community living and community services—and with those prospects, the promise of a better, more productive and self-sufficient life. That promise has been realized by many of the plaintiff class members over the past seventeen years. During the hearings in this matter, several mentally retarded plaintiffs testified that the services provided to them under the Court Decree have enabled them to enjoy a fuller life and to achieve some measure of independence. Moreover, a multitude of studies done by mental retardation experts throughout the 1970s and 1980s have documented the extraordinary progress made by Pennhurst plaintiffs once they were removed from Pennhurst and received habilitation services in community living arrangements.
It is particularly disappointing therefore that the County and Commonwealth have shown such utter disregard for the Court Decree. The evidence is overwhelming that both defendants have violated nearly every substantive portion of the order. They have failed to provide community living arrangements to at least thirty-three members of the class; those members remain institutionalized to this day. They have failed to provide many members of the class with an individualized IHP. Other members of the class have IHPs that are either out of date, not implemented, inappropriate and/or inadequate. The defendants have also failed to provide the case management services mandated by the Court Decree. Moreover, the County and Commonwealth have virtually abdicated any meaningful supervision over contract care providers. As a result of their disregard and contempt of the Court Decree, class members have suffered substantial harm. They have lost life skills and have been denied the right to develop their capabilities. The defendants have not been merely complacent; they have proceeded in blatant disregard of the Court Decree.
The defendants’ actions demonstrate a clear need for judicial oversight. During the last two decades, the members of the Pennhurst class have fought long and hard in this Court to obtain their right to minimally adequate habilitation. This Opinion together with the accompanying Order are intended to make certain that the members of the Pennhurst class receive habilitation in community living arrangements as mandated by the 1985 Court Decree.
ORDER

AND NOW, this 28th day of March, 1994, in consideration of the reasons set forth in the Court’s Memorandum of March 28, 1994 and this Court having found that the County of Philadelphia (“County”) and Commonwealth of Pennsylvania (“Commonwealth”) defendants are in contempt of this Court’s Order of April 5, 1985 (“Court Decree”);
IT IS ORDERED:
1. Within sixty (60) days of the date of this Order, the plaintiffs, plaintiff-intervenor and defendants shall agree upon any additions or deletions to the list of Philadelphia plaintiff class members contained in Exhibit A to this Order. The parties shall submit the final list of Philadelphia class members *611 (“Philadelphia Class Members”) to the Special Master for the Special Master’s review and approval. If the parties are unable to resolve disputes concerning the identity of Philadelphia Class Members within the sixty-day time frame, the parties shall so notify the Special Master. The Special Master shall resolve any disputes regarding the composition of Philadelphia class members and develop a final list of Philadelphia class members in the event that the parties are unable to agree on such a list.
2. Within twelve (12) months of the date of this Order, the County and Commonwealth shall provide community living arrangements to all Philadelphia Class Members. In the event that the County and Commonwealth fail to provide community living arrangements to all Philadelphia Class Members within twelve (12) months of the date of this Order, the County and Commonwealth each shall be subject to a fine of not less than $5,000 per day for each class member who has not received community living arrangements.
3. Within sixty (60) days of the date of this Order, every Philadelphia class member shall be assigned a county case manager in accordance with Paragraph A5(d) of the Court Decree. The County shall provide the Commonwealth and Special Master with revised case manager lists within thirty (30) days of a change in case manager assignment. In the event that the Philadelphia class members have not been provided with case managers within sixty (60) days of this Order, the County and Commonwealth each shall be subject to a fine of not less than $5,000 per day for each class member who has not been provided with a case manager.
4. The County shall bring its case management levels into compliance with Paragraph A5(d) of the Court Decree within thirty (30) days of the date of this Order. The County and Commonwealth each shall be subject to a fine of not less than $5,000 per day for each day that the County’s case manager levels are not in compliance with Paragraph A5(d) of the Court Decree and this paragraph of the Court’s Order.
13

Halderman v. Pennhurst State School and Hosp., 154 F.R.D. 594 (1994)

5. The County shall require each of its case managers who has not received the three (3) day training required by Paragraph A(5)(d) of the Court Decree to complete such training within sixty (60) days of the date of this Order. Any new case manager shall complete such training promptly upon assuming responsibilities for Philadelphia class members. The County shall provide the Commonwealth with thirty (30) days advance notice of all training requests; the Commonwealth shall provide all training requested by the County in connection with Paragraph A(5)(d) of the Court Decree. The County and Commonwealth each shall be subject to a fine of not less than $5,000 per day for each day that a county case manager assigned to Philadelphia Class Members has not received training pursuant to the terms of Paragraph A5(d) of the Court Decree and this paragraph of the Court’s Order.
6. The County shall require all County case managers responsible for Philadelphia class members who have not received at least one (1) day of continuing annual training in 1993, as required by Paragraph A5(d), to complete such training within ninety (90) days of the date of this Order. The County and Commonwealth each shall be subject to a fine of not less than $5,000 per day for each day that county case managers have not received training pursuant to the terms of Paragraph A5(d) of the Court Decree and this paragraph of the Court’s Order.
7. The County shall provide every Philadelphia class member with a current individual habilitation plan (“IHP”) within one-hundred twenty (120) days from the date of this Order. Such IHP shall be developed in accordance with Paragraph A4 of the Court Decree. All services and therapies prescribed by each individual IHP shall be implemented within sixty (60) days of the completion of each IHP. The County and Commonwealth each shall be subject to a fine of not less than $5,000 per day for each class member who has not received an IHP or the services and therapies prescribed by the IHP in accordance with the terms of Paragraph A4 of the Court Decree and this paragraph of the Court’s Order.
8. Within thirty (30) days of this Order, the County shall require that any treating *612 physician who prescribes psychotropic and/or anti-seizure medication to a Philadelphia class member shall certify at least every ninety (90) days that the continued use of such medication is not excessive or unnecessary according to accepted standards of medical practice and that the prescription otherwise is in accordance with accepted standards of medical practice. Within ninety (90) days of the date of this Order, the County shall retain an independent physician, qualified in the use of psychotropic and antiseizure medication, to review and evaluate the medical records of each Philadelphia class member for whom psychotropic and/or anti-seizure medication is prescribed.

Prior to retaining the independent physician, the County shall submit the name of the independent physician to the Special Master for review and approval. Not later than one-hundred eighty (180) days from the date of this Order, the independent physician shall make an initial determination as to whether the administration of psychotropic and/or anti-seizure medication to Philadelphia Class Members is excessive or unnecessary according to accepted standards of medical practice. The independent physician shall certify in writing 1) the reasons for the medication, and 2) that each prescription is in accordance with accepted standards of medical practice. After this initial evaluation, the independent physician shall monitor treating physicians’ prescriptions of psychotropic and anti-seizure medication for Philadelphia Class Members on a semi-annual basis. The independent physician shall certify in writing 1) the reasons for psychotropic and/or anti-seizure medication, and 2) that each prescription is in accordance with accepted standards of medical practice. A copy of the certifications described in this paragraph of the Court’s Order shall be maintained in the affected class member’s medical records file and shall be reviewed as part of the annual monitoring process described in the Court Decree and this Order. The County shall be subject to a fine of not less than $5,000 per day for each class member who is administered psychotropic and/or anti-seizure medication in violation of the terms of Paragraph A6(g) of the Court Decree and this paragraph of the Court’s Order.
9. Within sixty (60) days of the date of this Order, the County shall take such steps as are necessary to ensure that every Philadelphia class member will receive annual on-site monitoring as required by Paragraph A5(b) of the Court Decree. The County shall be subject to a fine of not less than $5,000 per day for each Philadelphia class member who has not received annual monitoring within one year of the date of this Order in compliance with Paragraph A5(b) of the Court Decree and this paragraph of the Court’s Order.
10. Within sixty (60) days of the date of this Order, the Commonwealth shall take such steps as are necessary to ensure that Philadelphia class members are monitored by the Commonwealth as required by Paragraphs A5(a), (c) and (e) of the Court Decree. The Commonwealth shall be subject to a fine of not less than $5,000 per day for each Philadelphia class member who has not received within one year of the date of this Order on-site monitoring pursuant to Paragraphs A5(a), (c) and (e) of the Court Decree and this paragraph of the Court’s Order.
11. Within ninety (90) days of the date of this Order, the County shall submit to the Commonwealth and the Special Master, for the Special Master’s review and approval, a plan under which the County shall assume the responsibility for investigation and resolution of all reported incidents involving abuse, neglect, injury and
14

Halderman v. Pennhurst State School and Hosp., 154 F.R.D. 594 (1994)

death of class members. The County shall implement the plan as approved by the Special Master within thirty (30) days of such approval. The County shall be subject to a fine of not less than $5,000 per day for each instance in which the County fails to promptly investigate and resolve reported cases of abuse, neglect, injury or death of Philadelphia class members in compliance with Paragraph A6 of the Court Decree and this paragraph of the Court’s Order.
12. Within ninety (90) days from the date of this Order, the County shall develop, and submit to the Special Master for review and approval, a plan to ensure that Philadelphia class members have access to adequate dental and medical services as mandated by *613 Paragraph A6(d) of the Court Decree. The County shall implement the plan as approved by the Special Master within thirty (30) days of such approval. The County shall be subject to a fine of not less than $5,000 per day for each day that it is not in compliance with Paragraph A6(d) of the Court Decree and this paragraph of the Court’s Order.
13. Within one-hundred twenty (120) days of the date of this Order, the County shall require a physician, other than a class member’s treating physician, to review each class member’s medical records for the purpose of making certain that such records are legible, intelligible, complete and present at the facility at which each class member resides. The County shall be subject to a fine of not less than $5,000 per day for each class member whose medical records are not in compliance with this paragraph of the Court’s Order.
14. Within sixty (60) days of the date of this Order, the County shall commence submitting monthly status reports to the Commonwealth detailing the County’s compliance with all terms of the Court Decree and this Order. In addition, within sixty (60) days of the date of this Order, the Commonwealth and County each shall commence submitting monthly reports to the Special Master, in a form acceptable to the Special Master, detailing their compliance with the terms of the Court Decree and this Order.

*615

15. The Court shall hold a hearing on Monday, April 4, 1994 at 10:00 a.m. in Courtroom 10B, United States Courthouse, 601 Market Street, Philadelphia, PA, for the purpose of hearing from all parties concerning the appointment of the Special Master.
16. The Court will retain jurisdiction of this matter for purposes of enforcing the Court Decree and this Order.

*614 EXHIBIT A 15

Halderman v. Pennhurst State School and Hosp., 154 F.R.D. 594 (1994)

*616

*617

16

Halderman v. Pennhurst State School and Hosp., 154 F.R.D. 594 (1994)

*618

*619

17

Halderman v. Pennhurst State School and Hosp., 154 F.R.D. 594 (1994)

*620

*621

18

Halderman v. Pennhurst State School and Hosp., 154 F.R.D. 594 (1994)

*622

*623

19

Halderman v. Pennhurst State School and Hosp., 154 F.R.D. 594 (1994)

*624

*625

20

Halderman v. Pennhurst State School and Hosp., 154 F.R.D. 594 (1994)

*626

*627

21

Halderman v. Pennhurst State School and Hosp., 154 F.R.D. 594 (1994)

*628

*629

22

Halderman v. Pennhurst State School and Hosp., 154 F.R.D. 594 (1994)

*630

*631

23

Halderman v. Pennhurst State School and Hosp., 154 F.R.D. 594 (1994)

*632

*633

24

Halderman v. Pennhurst State School and Hosp., 154 F.R.D. 594 (1994)

*634

*635

25

Halderman v. Pennhurst State School and Hosp., 154 F.R.D. 594 (1994)

*636

*637

26

Halderman v. Pennhurst State School and Hosp., 154 F.R.D. 594 (1994)
	  
*638
27

 
 Halderman v. Pennhurst State School and Hosp., 96 F.R.D. 60 (1982)

96 F.R.D. 60 United States District Court,
E.D. Pennsylvania.
Terri Lee HALDERMAN et al., Plaintiffs, v.
PENNHURST STATE SCHOOL AND HOSPITAL et al., Defendants,
United States of America, Plaintiff-Intervenor, Pennsylvania Association for Retarded Citizens et
al., Plaintiffs-Intervenors.
Civ. A. No. 74–1345. | Nov. 22, 1982.
Attorneys and Law Firms
*61 David Ferleger, Herbert B. Newberg, Philadelphia, Pa., for Terri Lee Halderman.
Thomas M. Kittredge, Philadelphia, Pa., for Bucks, Chester and Delaware Counties.
Robert B. Hoffman, Deputy Atty. Gen., Harrisburg, Pa., for the Commonwealth of Pa.
Thomas Gilhool, Philadelphia, Pa., for Pennsylvania Ass’n for Retarded Citizens.
Pamela P. Cohen, Philadelphia, Pa., for Pennhurst Parents Ass’n.
Terissa Chaw, Civil Rights Div., Dept. of Justice, Washington, D.C., R. Stephen Barrett, Asst. County Sol., Norristown, Pa., for Montgomery County.
Marc H. Myers, Asst. City Sol., Philadelphia, Pa., for Philadelphia County.
Opinion
MEMORANDUM
RAYMOND J. BRODERICK, District Judge.
Currently before this Court is a motion filed by defendants the Commonwealth of Pennsylvania Department of Public Welfare (“DPW”) and its Secretary, the Honorable Helen O’Bannon (hereinafter “Commonwealth Defendants”) to stay a hearing before the Hearing Master in this case which is scheduled for Tuesday, November 23, 1982, and to quash subpoenas compelling the attendance of certain Commonwealth defendant officials at that hearing. For the reasons

hereinafter set forth, the Court will deny the motion to stay the Hearing Master’s hearing and will deny the motion to quash the subpoenas as to all subpoenaed witnesses except DPW Secretary O’Bannon.
As is now well-known to the litigants, this Court, in an opinion filed December 23, 1977, made findings of fact and conclusions of law holding that defendants were violating the constitutional and statutory rights of members of the plaintiff class by failing to provide them with minimally adequate habilitation in the least restrictive environment. As the trial record in this case reveals, all parties to this litigation admitted that the residents of Pennhurst were not receiving minimally adequate habilitation. The Court found that Pennhurst as an institution is inappropriate and inadequate to habilitate the retarded. At trial, the Commonwealth represented that it intended to close Pennhurst in the early 1980’s. This it has not done.
On January 6, 1978, this Court held a hearing to determine the injunctive remedy necessary. The parties were asked to attempt to agree on the terms of the Court’s Order, but no agreement was forthcoming. The Court requested that they submit separate proposed orders. On March 17, 1978, the Court issued an injunction which, among other things, required the defendants to provide the retarded residents of Pennhurst with minimally adequate habilitation *62 in the least restrictive environment and setting forth the procedures for planning, effectuating, and monitoring those transfers.
On December 13, 1979, the Court of Appeals approved the Court’s Order and its “determination that, for the retarded class members as a whole, Pennhurst cannot be an appropriate setting in which to provide habilitation.” (612 F.2d 84 at 114). However, in remanding to this Court, the Court of Appeals directed that an individual hearing should be held for any Pennhurst resident who contends that the living arrangements and services available at Pennhurst are more beneficial to his or her habilitation than those made available in the community.
In light of the Third Circuit’s opinion, this Court established an impartial hearing procedure and appointed a Hearing Master who was directed to provide an individual hearing for any Pennhurst resident who contended that his or her habilitation at Pennhurst would be more beneficial than that proposed in the community living arrangement. (Order of April 24, 1980). Whenever a Pennhurst resident or plaintiff class member objects to being transferred to a community living arrangement, the Hearing Master conducts a hearing for such Pennhurst resident or class member for whom a community living arrangement has been prepared for the purpose of determining whether the proposed transfer will be more beneficial to his or her habilitation than would continued
1

Halderman v. Pennhurst State School and Hosp., 96 F.R.D. 60 (1982)

residence at Pennhurst. One such hearing is that of L.P., a 50-year-old retarded man who has been residing at Pennhurst.
On October 25, 1982, the Hearing Master, pursuant to this Court’s Order of April 24, 1980, held a hearing to assess the merits of L.P.’s proposed transfer to the community. At that hearing, it became apparent that many issues concerning L.P.’s care and habilitation in the community were being made uncertain by a dispute between the Commonwealth defendants, Montgomery County and the County’s residential and day program providers of L.P.’s care (Shiloh, Inc. and Prospectus Associates, Inc.). The dispute between the Commonwealth defendants and the providers concerns the rate of reimbursement to be paid by the Commonwealth, which funds the community placements conducted pursuant to this Court’s Order to the providers who would operate L.P.’s community living arrangement. The Commonwealth defendants have approved a rate which the County and the providers claim is far too low to allow the program to continue to operate while serving L.P.’s habilitation needs.

relating to establishment or approval of a medical assistance reimbursement rate for the ICF/MR facility planned for L.P. and operated by Shiloh, Inc. at 650 Keeler Road, Lansdale, Pennsylvania.
To compel the attendance of these witnesses and the production of the aforesaid documents at the November 23 hearing, the Hearing Master requested that the Special Master issue and serve upon the Commonwealth officials subpoenas duces tecum requiring them to be present at the commencement of the hearing and to produce the requested documents. The Special Master began to effectuate service of these subpoenas on November 18, 1982. Apparently in anticipation of the service of the subpoenas, the Commonwealth defendants filed with this Court on November 18, 1982 a motion to Stay the Hearing of November 23 and to Quash the Subpoenas.
[1] This Court’s Order of April 24, 1980, which created the Office of the Hearing Master and established procedures for the conduct of his hearings, specifically states that the Hearing Master

At the hearing, the Hearing Master attempted to ascertain the factors that had created this wide divergence of opinion between the defendants and to seek at least interim resolution of the problem so that L.P. could receive the care and habilitation to which both this Court and the Third Circuit have found him entitled. However, the Hearing Master was unable to obtain sufficient information from those present at the hearing, including the representatives of the Commonwealth defendants. The Hearing Master also encountered a similar lack of information in the matters of T.M. and A.B., also members of the Pennhurst plaintiff class whose community habilitation is threatened by the Commonwealth-County Provider dispute over the proper reimbursement rate. For this reason, the Hearing Master concluded, in a subsequent Report regarding L.P. (see Hearing Master’s Report of November 12, 1982, Dkt. No. 1662) that certain Commonwealth officials “hold the key to this continuing dilemma” of reimbursement rates for small Interim Care Facilities for the Mentally Retarded (ICF/MRs) (a type of community habilitation facility) such as that planned for L.P.
The Hearing Master therefore set another hearing date of Tuesday, November 23, 1982, for further inquiry into the matter of L.P. and arranged for the subpoena of the following persons as witnesses at the aforesaid hearing: Helen B. O’Bannon, Secretary of the Department of Public Welfare; Jennifer L. Howse, DPW Deputy Secretary for Mental Retardation; Gerald Radke, DPW *63 Deputy Secretary for Medical Assistance; and David Smith of the DPW Office of Mental Retardation. These witnesses were also required to bring with them to the hearing all correspondence, memoranda, records, or other documents or writings in their possession or control

may require the production of evidence and rule upon the admissibility of evidence, and shall have the power to put witnesses under oath, and may examine witnesses .... Attendance of witnesses at the hearing may be procured by the issuance and service of subpoenas as provided in Rule 45 of the Federal Rules of Civil Procedure.
(Order of April 24, 1980, at 65–66). The Order creating the Hearing Master was never appealed by any party to this litigation. The subpoenas served upon the four Commonwealth officials fall squarely within the terms of this Court’s mandate to the Hearing Master, as each of the four is a defendant in this case or an agent of a defendant.
The subpoenas issued also comport with the terms of Fed.R.Civ.P. 53, which provides in relevant part:
Subject to the specifications and limitations stated in [the Court’s] order, the master has and shall exercise the power to regulate all proceedings in every hearing before him and to do all acts and take all measures necessary or proper for the efficient performance of his duties under the order. He may require the production before him of evidence upon all matters in the reference and has the authority to put witnesses on oath and may himself examine them and may call the parties to the action and examine them upon oath.
2

Halderman v. Pennhurst State School and Hosp., 96 F.R.D. 60 (1982)

The parties may procure the attendance of witnesses before the master by the issuance and service of subpoenas as provided in Rule 45. If without adequate excuse a witness fails to appear or give evidence, he may be punished as for a contempt and be subjected to the consequences, penalties, and remedies provided in Rules 37 and 45.
Therefore, the Hearing Master in this case has two adequate grounds for requiring the attendance of the Commonwealth defendant officials at the November 23 hearing—their status as parties or agents of parties and the Master’s power to compel the attendance of witnesses through subpoena. Although the Master may not have been required to issue subpoenas because of the party status of the witnesses, subpoenas were issued and served, however, presumably so that the four individuals would have more definite notice of the November 23 hearing and their required participation in it.
The Hearing Master’s actions were thus clearly within the scope of his authority pursuant to Fed.R.Civ.P. 53 and this Court’s Order of April 24, 1980. See C. Wright and A. Miller, 9 Federal Practice and Procedure, §§ 2609, 2610. The subpoenas also comport with the standards for a subpoenas duces tecum as required by Fed.R.Civ.P. 45. See *64 C. Wright and A. Miller, supra, §§ 2452–2454. Of particular relevance in this instance is the following observation:
A motion to quash a subpoena duces tecum will lie if the subpoena is thought to be unreasonable or oppressive.... A witness may be compelled to produce a document that he controls though he does not have possession of it.
Id. at § 2454, p. 425.
Professors Wright and Miller also note that
The burden to establish that a

subpoena duces tecum is unreasonable or oppressive is on the person who seeks to have it quashed. He cannot rely on a mere assertion that compliance would be burdensome and onerous without showing the manner and extent of the burden and the injurious consequences of compliance.
Id. at § 2457, at 435. See also Goodman v. United States, 369 F.2d 166 (9th Cir.1966); Westinghouse Elec. Corp. v. City of Burlington, 351 F.2d 762 (D.C.Cir.1965). The burden is a heavy one, Horizons Titanium Corp. v. Norton Co., 290 F.2d 421 (1st Cir.1961); Ghandi v. City of Detroit, 74 F.R.D. 115, 124 (E.D.Mich.1977). The Commonwealth defendants have not made such a sufficient showing, particularly in light of the Hearing Master’s previous and repeated efforts to obtain the required information without compelling the attendance of more highly ranked DPW officials.
[2] However, this Court recognizes that Department heads and similarly high-ranking officials should not ordinarily be compelled to testify unless it has been established that the testimony to be elicited is necessary and relevant and unavailable from a lesser ranking officer. See Sneaker Circus, Inc. v. Carter, 457 F.Supp. 771, 794 n. 33 (E.D.N.Y.1978); United States v. Northside Realty Assoc., 324 F.Supp. 287, 293 (N.D.Ga.1971). For that reason, the Court will at this time grant the motion to quash as to defendant DPW Secretary Helen O’Bannon. The Hearing Master will still be able to obtain testimony from Jennifer Howse, Gerald Radke and David Smith, all of the Department of Public Welfare. If their testimony and accompanying documents do not provide sufficient information to the Hearing Master, he may seek to again subpoena Secretary O’Bannon so long as he first certifies to this Court that the Secretary’s testimony is necessary and relevant to the matter before him and that this information is not equally available from a lesser ranking government official. An appropriate order will be accordingly entered.
	  

3

 
 Halderman v. Pennhurst State School and Hosp., 97 F.R.D. 522 (1983)

97 F.R.D. 522 United States District Court,
E.D. Pennsylvania.
Terri Lee HALDERMAN et al. v.
PENNHURST STATE SCHOOL AND HOSPITAL et al.
Civ. A. No. 74–1345. | April 7, 1983.
Attorneys and Law Firms
*523 David Ferleger, Philadelphia, Pa., for Terri Lee Halderman.
Thomas M. Kittredge, Philadelphia, Pa., for Bucks, Chester and Delaware Counties.
Robert B. Hoffman, Deputy Atty. Gen., Harrisburg, Pa., for the Com. of Pa.
Thomas Gilhool, Philadelphia, Pa., for Pa. Ass’n for Retarded Citizens.
Herbert B. Newberg, Philadelphia, Pa., for David Ferleger, Esq.
Pamela P. Cohen, Philadelphia, Pa., for Pennhurst Parents Ass’n.
Terissa Chaw, Civ. Rights Div., Dept. of Justice, Washington, D.C., for the U.S.
R. Stephen Barrett, Asst. County Sol., Norristown, Pa., for Montgomery County.
Marc H. Myers, Asst. City Sol., Philadelphia, Pa., for Philadelphia County.
Opinion
MEMORANDUM
RAYMOND J. BRODERICK, District Judge.
Jerry Haas, an individual who is not a party to this litigation nor a member of any organizational party to this action, has filed a motion, pursuant to Fed.R.Civ.P. 24, to intervene in this action for the purpose of correcting an alleged “factual error” contained in the appendix to the Report of the Special Master on Habilitation of Plaintiff Class Members Who Reside in Private Licensed Facilities (Dkt. No. 1738). For the reasons hereinafter set forth, the

Court will deny Mr. Haas’s Motion to Intervene.
Factual Background As is well-known to the litigants, this case involves a class action by retarded persons and their representatives seeking relief from conditions at Pennhurst State School and Hospital, which the plaintiffs alleged violated their civil rights under the Constitution, federal statutes and the Pennsylvania Mental Health/Mental Retardation Act of 1966, 50 P.S. § 4101 et seq. On December 23, 1977, this Court made findings of fact and conclusions of law in favor of the plaintiffs. On March 17, 1978, the Court entered an injunctive Order designed to provide the plaintiff class with the type of habilitation and treatment minimally required by state law and the Fourteenth Amendment. See 446 F.Supp. 1295. A major portion of this relief provides for the habilitation of class members in institutions other than Pennhurst when the planning assessment team of mental retardation professionals which drafts a habilitation plan for each class member determines, subject to appeal to the Hearing Master established by this Court pursuant to the Third Circuit’s first en banc affirmance of this Court (612 F.2d 84), that such placement is necessary to provide the class member with minimally *524 adequate habilitation in the least restrictive environment.
During the summer of 1982, questions arose as to the quality of care being received by class members residing in private licensed facilities for the mentally retarded. See Report of the Hearing Master re K.K. (July 29, 1982, Dkt. No. 1526). Based on the Hearing Master’s Report and upon consideration of the plaintiffs’ request for an investigation, the Court, in its letter of August 17, 1982, directed the Special Master to prepare “a report on the status of habilitation for class members in private licenses facilities.” In its Memorandum and Order of August 12, 1982, 545 F.Supp. 410 (E.D.Pa.1982), the Court had directed the Special Master to phase out operations on or before December 31, 1982. The Special Master ceased operating on December 31, but completed the Report on Private Licensed Facilities and submitted it to the Court on December 29, 1982.
The Special Master’s Report contained an appendix of some 27 pages, containing a listing of the state’s private licensed facilities, their addresses, directors, license status, and inspection status. The information contained in this portion of the appendix was supplied to the Special Master by the Commonwealth and was included in the Appendix verbatim by the Special Master. The state-provided information listed Mr. Jerry Haas as the Director of Pleasant Manor, Inc., a private licensed facility. The Special Master’s Report discussed several aspects of Pleasant Manor. Mr. Haas alleges that he was
1

Halderman v. Pennhurst State School and Hosp., 97 F.R.D. 522 (1983)

subsequently contacted by the Philadelphia Inquirer and asked for his response to the Report, and that he informed the reporter that he was no longer Director of Pleasant Manor, and had not been Director during the time period addressed by the Special Master’s Report. Mr. Haas subsequently filed the instant motion seeking leave to intervene to have his name deleted from the Appendix.
No party to this action has questioned Mr. Haas’s representation that he was not connected with Pleasant Manor at the time of the Special Master’s inspection. Mr. Haas states that he has been wronged by the error contained in the Appendix to the Report. However, any equities in his favor do not, under the circumstances of this protracted litigation, justify his intervention in the proceedings.
Intervention Under Federal Rule 24 Federal Rule of Civil Procedure 24 provides, in pertinent part,
(a) Intervention of Right. Upon timely application, anyone shall be permitted to intervene in an action: (1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.
(b) Permissive Intervention. Upon timely application anyone may be permitted to intervene in an action: (1) when a statute of the United States confers a conditional right to intervene; or (2) when an applicant’s claim or defense and the main action have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any statute or executive order administered by a federal or state government officer or agency or upon any regulation, order, requirement or agreement issued or made pursuant to the statute or executive order, the officer or agency upon timely application may be permitted to intervene in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.
[1] Mr. Haas has not directed this Court’s attention to any U.S. statute that confers either an unconditional or a conditional right for him to intervene. Furthermore, the Court, upon investigation, has found no such applicable federal statute. In his petition, Mr. Haas has not averred that he has a property or transactional interest *525 in the subject matter of this case that he will be unable to protect if he is not permitted to intervene in this action. Thus, Mr.

Haas is clearly not entitled to intervention as a matter of right.
[2] Even under the more liberal standards of Fed.R.Civ.P. 24(b), authorizing the Court to exercise its discretion to grant permissive intervention, Mr. Haas has not set forth a sufficient reason for such intervention. His claim—that his name was erroneously included in the state-provided Appendix to the Special Master’s Report—has nothing legally or factually in common with the main action in this case—the deprivation of the civil rights of the plaintiff class. Mr. Haas is not affiliated with the government, so the portion of Rule 24(b) permitting intervention for government officials and agencies does not apply to him. Therefore, Mr. Haas has not brought forth any basis upon which this Court should permit his intervention.
Intervention by Mr. Haas would create issues which bear no relevancy to claims of the parties in this complex litigation. This Court, if it permitted Mr. Haas to intervene, would be required to let anyone upset with the content of any pleading, transcript, or report in this case intervene and seek amendment of such documents. Nearly two thousand documents have been docketed thus far in this case. Intervention of the type sought by Mr. Haas would, if permitted, undoubtedly lead to substantial delay. Though the basic merits of this case were adjudicated more than five years ago, the case remains an active one since the Court must continue to enforce its injunctive orders in this case. Since September, 1981, there have been nearly 800 docket entries in this litigation.
Furthermore, allowing intervention to accommodate the personal grievances of individuals not parties to the action would serve only to delay the further and continuing adjudication of the rights of the parties. The parties are entitled to expeditious Court consideration of the matters that they bring to the Court’s attention regarding the continuing enforcement of the Court’s injunctive orders. Their rights as litigants in the action would be severely compromised if this Court were to devote its attention to the personal grievances of those who object to a segment of one of the many documents filed in connection with this litigation.
[3] A district court has wide discretion in determining whether to grant permissive intervention pursuant to Fed.R.Civ.P. 24(b). See 7A C. Wright and A. Miller, Federal Practice and Procedure, § 1913, at 511 (“[E]ven though there is a common question of law or fact, or the requirements of Rule 24(b) are otherwise satisfied, the court may refuse to allow intervention.”). Here, where the movant has not met even the threshold standards of Rule 24, it would be an abuse of this Court’s discretion to permit intervention.
It would appear that Mr. Haas is not without a remedy.
2

Halderman v. Pennhurst State School and Hosp., 97 F.R.D. 522 (1983)

According to his petition, the allegedly erroneous information concerning the current management of Pleasant Manor was provided to the Special Master by the Commonwealth. Apparently, the state’s records list Mr. Haas as the Director of Pleasant Manor. It would therefore appear that Mr. Haas could have this matter corrected by requesting the Commonwealth to correct its records. An appropriate Order will be accordingly entered.

Parallel Citations
37 Fed.R.Serv.2d 773
	  

3

 
 Halderman v. Pennhurst State School and Hosp., 723 F.2d 897 (Table) (1983)

723 F.2d 897 (Table) (The decision of the Court is referenced in a “Table of Decisions Without Reported Opinions” appearing in the Federal Reporter. The Third Circuit provides
by rule for the reporting of opinions having “precedential or institutional value. An opinion which appears to have value only to the trial court or the parties is ordinarily not published.” The Federal Reporter tables are prepared from lists of cases terminated by judgment orders, unpublished per curiam opinions and unpublished signed opinions, indicating the disposition of each case, transmitted by the Court. Third Circuit Rules, App. 1, Internal Operating Procedures, Ch. 5, sec. 5.1, 28 U.S.C.A.)
United States Court of Appeals, third Circuit.

Halderman (Terri Lee) v.
Pennhurst State School & Hospital NO. 83-1065 | SEP 20, 1983
Appeal From: E.D.Pa., 567 F.Supp. 1504, Broderick, J.
Opinion
AFFIRMED.
	  

1

 
 Halderman v. Pennhurst State School and Hosp., Not Reported in F.Supp. (1987)

1987 WL 25235 Only the Westlaw citation is currently available. United States District Court, E.D. Pennsylvania.
Terri Lee HALDERMAN, et al. v.
PENNHURST STATE SCHOOL AND HOSPITAL, et al.
Civ. A. No. 74–1345. | Nov. 25, 1987.
Opinion
MEMORANDUM
RAYMOND J. BRODERICK, Senior District Judge.
*1 Counsel for the plaintiff-class seeks an award of attorneys’ fees and costs for the period July 1, 1986 through July 27, 1987 for services rendered in the monitoring and enforcement of the settlement agreement pursuant to 42 U.S.C. § 1988, and this Court’s equitable powers. The total fees and costs originally sought in the petition were $37,534.44.
Defendants Commonwealth of Pennsylvania and the City of Philadelphia have voluntarily paid a portion of the fees and costs originally sought in this petition with the understanding that counsel for the plaintiff-class would not seek any further compensation for the services rendered during the relevant period from these defendants. Similarly, counsel for the plaintiff-class has also settled the claim for fees and costs relating to the community placement of R.H., a former Pennhurst resident, with the understanding that no further compensation for the services rendered would be sought from any other defendant. However, this Court must now make a determination under § 1988 with regard to the balance of fees and costs sought in this petition ($6,763.00) with respect to defendants Bucks, Chester, Delaware and Montgomery Counties. After having reviewed the plaintiffs’ petition for fees and costs, along with counsels’ affidavits, this Court is unable to make the

determination under § 1988 as to the amount of fees and costs to be paid by each of the county defendants.
Counsel for the plaintiff-class must provide this Court with additional detailed information. For each county defendant from which fees and costs are sought, counsel should provide: (1) a detailed description of the services rendered to the members of the plaintiff-class from that county which services were reasonably necessary for those members; (2) the date the services were rendered; (3) the time expended in performing the services; and (4) the total amount of fees and costs demanded from each county.
With regard to Chester County, counsel for the plaintiff-class must address the contention of Chester County that the jurisdiction of this Court terminated prior to July 1, 1986 pursuant to the terms of the settlement agreement on the ground that the last resident of that county left Pennhurst two years prior to that date.
Accordingly, this Court will dismiss plaintiffs’ petition for attorneys’ fees and costs for the period July 1, 1986 to July 27, 1987 without prejudice to filing an amended petition including the information detailed in this Memorandum.
ORDER
AND NOW, this 24 day of November, 1987, upon consideration of plaintiffs’ petition for attorneys’ fees and costs for the period July 1, 1986 through July 27, 1987; and the responses of Bucks, Chester, Delaware and Montgomery Counties thereto; for the reasons set forth in this Court’s Memorandum of November 24, 1987,
IT IS ORDERED: Plaintiffs’ petition for attorneys’ fees and costs for the period July 1, 1986 to July 27, 1987 is DISMISSED without prejudice to the filing of an amended petition containing the information detailed in this Court’s Memorandum of November 24, 1987.
	  

1

 
 Halderman v. Pennhurst State School and Hosp., Not Reported in F.Supp. (1989)

1989 WL 100207 Only the Westlaw citation is currently available. United States District Court, E.D. Pennsylvania.
Terri Lee HALDERMAN, et al. v.
PENNHURST STATE SCHOOL AND HOSPITAL, et al.
CIV. A. No. 74–1345. | Aug. 28, 1989.
Opinion
MEMORANDUM
RAYMOND J. BRODERICK, Senior District Judge.
*1 Once again there is litigation in the Pennhurst case. Motions have been filed to enforce the settlement approved by this Court on April 5, 1985.
This case was actively litigated for eleven years. It produced 28 published opinions and three arguments before the United States Supreme Court. On April 5, 1985, this Court approved a Settlement Agreement and entered a consent decree. In approving the settlement it was pointed out that when the action was tried in 1977, all parties were in agreement that Pennhurst as an institution was inappropriate and inadequate for the habilitation of the retarded. No one took issue with the many professionals who testified that “normalization” (the antithesis of institutionalization) is now universally accepted as the only successful method of habilitating a retarded person. Normalization requires that a retarded person must be cared for, trained and educated in a normal community environment. The settlement of the Pennhurst case was more than just the termination of eleven years of litigation. The settlement was hailed throughout the nation as recognition that the retarded have a right to minimally adequate habilitation in the least restrictive environment.
The empirical evidence has vindicated the opinions of the retardation experts that institutionalization at Pennhurst was not providing adequate habilitation. The transfers from Pennhurst to community living arrangements have enabled the retarded to develop their capabilities, enjoy a fuller life and in some instances become self-supporting residents in the community.
When the settlement was approved in April of 1985, 435 retarded individuals remained at Pennhurst, 719 having

been previously transferred to Community Living Arrangements pursuant to this Court’s orders.
Pursuant to the Settlement Agreement, the Commonwealth and County defendants agreed to provide community living arrangements to those members of the plaintiff class for whom such placement is deemed appropriate by the individual planning process, together with such community services as are necessary to provide each person with minimally adequate habilitation, until such time as the retarded individual no longer is in need of such living arrangements and/or community services. The defendants agreed to provide residential and habilitative services to all persons who have been furnished with such services pursuant to prior orders of this Court. The defendants also agreed to develop and provide a written habilitation plan, formulated in accordance with professional standards, to each member of the plaintiff class; provide an individualized habilitation program to each member of the plaintiff class; and permit each class member and his family or guardian to be heard in connection with his or her program. The defendants further agreed to provide an annual review of each person’s individualized habilitation program, and to monitor the services and programs provided to the class members in accordance with a detailed, professionally-established monitoring and visitation procedure. It was further agreed that all persons provided with services under the terms of the agreement shall be afforded: (1) protection from harm; (2) safe conditions; (3) adequate shelter and clothing; (4) medical, health-related, and dental care; (5) protection from physical and psychological abuse, neglect, or mistreatment; (6) protection from unreasonable restraints and the use of seclusion; and (7) protection from the administration of excessive or unnecessary medication. The agreement mandated that no retarded person shall be transferred from Pennhurst solely to meet a timetable.
*2 The functions of the Hearing Master were to be discontinued upon approval of the settlement and in place of the Hearing Master, an independent neutral retardation professional, agreed upon by the parties was to be retained by the Commonwealth.
The Settlement Agreement also provided that the definition of the plaintiff class would be amended to provide that persons who were on the waiting list for placement at Pennhurst (and who had not received any habilitative services under any prior orders of this Court), as well as those persons who “may be placed” at Pennhurst, would no longer be considered members of the plaintiff class, and that their claims would be dismissed pursuant to Fed.R.Civ.P. 41 without prejudice to their asserting any claims which they may have had in any court of competent jurisdiction.
1

Halderman v. Pennhurst State School and Hosp., Not Reported in F.Supp. (1989)

Finally, the settlement agreement specifically provides that this Court shall retain active jurisdiction until July 1, 1989, and that as of that date this action shall be marked closed, provided, of course, that at that time all defendants are in compliance with the agreement. On December 2, 1986, this court approved an agreement by the plaintiffs and the Philadelphia and Commonwealth defendants to amend the Settlement Agreement by extending the date for the closing of Pennhurst until October 31, 1986. (A stipulation was filed on October 1, 1987, to extend the closing date until October 26. Pennhurst was finally closed on October 27, 1987.) This amendment also extended the time for this Court’s active supervision of the terms of the agreement as to the Commonwealth and Philadelphia County defendants from July 1, 1989, to a date in 1990.
Plaintiff Association for Retarded Citizens/Pennsylvania filed motions which were joined in by plaintiffs Halderman et al. for “Enforcement, Further Orders and Extension of the Final Settlement Agreement” as to the Delaware County, Montgomery County and Commonwealth defendants.
It should be noted that a motion was filed to enforce the settlement against Philadelphia County defendants. The Court on April 6, 1988, pursuant to a stipulation of the parties, appointed a team of experts to review and make recommendations concerning the retardation services to class members in Philadelphia. The Expert Team filed its report on July 29, 1988. The Philadelphia County defendants on June 20, 1989, moved to have the Commonwealth defendants held in contempt and to enforce the Final Settlement Agreement with respect to Philadelphia class members. The Court has scheduled a hearing to determine whether the Commonwealth and Philadelphia County defendants are in compliance with the settlement.
This Court held hearings over a period of four days between June 21st and July 6, 1989 in connection with the motions to enforce the Settlement Agreement as to the Delaware County defendants, the Montgomery County defendants and the Commonwealth defendants. On the basis of the evidence presented at these hearings, the Court finds that the Delaware and Montgomery County defendants and Commonwealth defendants are not in substantial compliance with the provisions of the Settlement Agreement and the judgments entered by the Court pursuant to Appendix A of the Settlement Agreement. The Court finds that the Delaware County defendants and the Commonwealth defendants are not in substantial compliance in that:
*3 1. Ten class members from Delaware County reside at Embreeville Center, a commonwealth institution which houses about 300 individuals. These ten class members do

not have Individual Habilitation Plans and have not been provided the community living arrangements mandated by the Settlement.
2. Eleven class members from Delaware County reside at Woodhaven, a 250 bed, Intermediate Care Facility. Not one of the eleven has an Individual Habilitation Plan and they have not been provided with the community living arrangements mandated by the Settlement.
3. Seventeen members of the class from Delaware County reside at Elwyn Institute, a large institutional type facility. Two of the 17 do not have Individual Habilitation Plans. These seventeen members of the class have not been provided with the community living arrangements mandated by the Settlement.
4. Two members of the class from Delaware County are presently residing at Pine Hill, an institutional type facility with a capacity of 158 beds which has been described by the Special Management Unit of the Commonwealth as a facility with inadequate staffing, no active treatment, no recreational, social or religious opportunities and an unreliable fire alarm system. These two members of the class have not been provided with the community living arrangements mandated by the Settlement.
5. Twelve class members from Delaware County reside in a 12 bed facility located on the main campus of Elwyn. This facility is inadequate for the habilitation of more than eight residents. These twelve members of the class have not been provided with the community living arrangements mandated by the Settlement.
6. Sixteen members of the class from Delaware County reside in two eight bed facilities in Aston. These facilities do not provide adequate habilitation in that there have been unexplained injuries to class members and the class members are receiving inadequate occupational and speech therapy, inadequate medical care and improper administration of psychotropic drugs. These sixteen members of the class have not been provided with the community living arrangements mandated by the Settlement.
7. Nine county case managers are handling 570 retarded individuals in Delaware County. This is an average of 63 persons for each case manager. This is in violation of the Settlement Agreement and the court decree entered under Appendix A which mandate that the caseloads shall not exceed about 30 persons for each case manager.
As the Court has found, 68 members of the Pennhurst class from Delaware County are not receiving the habilitation mandated by the Settlement Agreement and the decrees of this Court. It is regrettable that in Delaware County where there are only 191 residents in the
2

Halderman v. Pennhurst State School and Hosp., Not Reported in F.Supp. (1989)

Pennhurst class, more than one third of them (68) have been denied the habilitative services mandated by the Settlement. It would appear that the Delaware County Defendants and the Commonwealth Defendants have been proceeding in total disregard of the terms of the Settlement Agreement.
*4 The Court also finds that the Commonwealth Defendants and Montgomery County Defendants are not in substantial compliance with the Settlement Agreement and/or the judgment orders of this Court as set forth in Appendix A as follows:
1. Two class members from Montgomery County are in Woodhaven although placements in community living arrangements have been recommended. These two members of the class have not been provided with the community living arrangements mandated by the Settlement.
2. Three class members reside at Pine Hill which as heretofore found by the Court is an institutional type facility with 158 beds which has been described by the Special Management Unit of the Commonwealth as having inadequate staffing, no active treatment, no recreational, social or religious opportunities and an unreliable fire alarm system. These three members of the class have not been provided with the community living arrangements mandated by the Settlement.
3. One member of the class is residing at a Comfort Home which is a private licensed facility with 30 to 40 beds. This person is not receiving the community living arrangements mandated by the Settlement.
The Court finds that Montgomery County defendants and the Commonwealth defendants have been providing the habilitation mandated for all the members of the class from Montgomery County with the exception of the two class members at Woodhaven, the three class members at Pine Hill and the one class member in a Comfort Home. This means that only six of the 200 class members from Montgomery County are being denied the habilitative services mandated by the Settlement. This is indeed commendable. However, although 97% of the Pennhurst class members from Montgomery County are receiving the habilitation ordered by the Court pursuant to the Settlement Agreement, the Court must find that Montgomery County is not in “substantial compliance.” As long as one member of the class is being denied the habilitative services to which he or she is entitled pursuant to the Settlement, there is not substantial compliance.
On the final day of the hearings, the Commonwealth defendants filed a motion to dismiss all outstanding motions against them on the ground that since there had been no finding prior to July 1, 1989, that they were not in

compliance with the Settlement Agreement, this Court lacked jurisdiction to proceed against them. As heretofore pointed out, the date of July 1, 1989, set forth in paragraph 16 of the Settlement Agreement was extended to a date in 1990 pursuant to the parties’ amendment to the Agreement on December 2, 1986. Furthermore, even assuming July 1, 1989, was a crucial date, the Commonwealth defendants completely ignore the fact that the plaintiffs’ motions claiming violations of the Settlement were filed in March, 1989. In addition, paragraph 14 of the Settlement Agreement specifically provides that the Court’s orders as provided in Appendix A “shall remain in effect permanently.”
*5 The injunctive decree in Appendix A requires that both the Commonwealth and the County defendants shall provide each class member with individual plans and services as provided in the Final Settlement Agreement. As found by the Court, this has not been done by the Delaware County defendants, the Montgomery County defendants and the Commonwealth defendants.
Paragraph A2 of the Court decree requires that the Commonwealth and the County defendants provide the class members community living arrangements as called for by the individual’s habilitation plan. This has not been done by the Delaware and Montgomery County defendants and the Commonwealth defendants as found by the Court.
Paragraph A4 of the decree requires both the Commonwealth and the County defendants to develop and provide each member of the class with an individual habilitation plan. This has not been done by the Delaware and Montgomery County defendants and the Commonwealth defendants as found by the Court.
Paragraph A5 of the injunctive decree mandates that the Commonwealth and County defendants “monitor” the services and programs received by the class members.
A Special Management Unit was created by the Commonwealth defendants. Its function is defined in the Settlement Agreement as:
A unit of Commonwealth employees whose responsibilities include but are not limited to review and approval of plaintiff class member’s Transitional Individual Habilitation Plans and the monitoring of the provision of services to mentally retarded individuals.
Its staff consists of a director, three monitors, three advocates and support staff.
The three monitors conduct about 120 on-site inspections each per year, in addition to visits conducted concerning incidents of death, abuse or harm. In performing its monitoring mission, the Special Management Unit
3

Halderman v. Pennhurst State School and Hosp., Not Reported in F.Supp. (1989)

regularly discovers deficiencies in the services planned for or provided to individual class members. “Jawboning,” however, is the only technique employed to obtain compliance by the County defendants with settlement. When deficiencies are identified, the unit notifies the involved County officials, attempts to persuade them to take corrective action, and follows up to determine if corrections are made. When “jawboning” fails, the Unit perceives itself as powerless to obtain compliance. The Special Management Unit has apparently never undertaken any other measures to correct a county’s failure to supply the habilitation to which a class member is entitled pursuant to the Settlement.
Although negotiated by the parties, a consent decree is a judgment of the court the violation of which is punishable by contempt sanctions. Interdynamics, Inc. v. Firma Wolf, 653 F.2d 93, 96–7 (3d Cir.1981). The Court has the power to enforce consent decrees as it does any other judgments.
As stated in Williams v. Vukovich, 720 F.2d 909 (6th Cir.1983):
The terms of the decree, unlike those of a simple contract, have unique properties. A consent decree has attributes of both a contract and of a judicial act. United States v. ITT Continental Baking Co., 420 U.S. 233, 236 n. 10, 95 S.Ct. 926, 934 n. 10, 43 L.Ed.2d 148 (1975); Stotts [v. Memphis Fire Department], 679 F.2d [541] at 556 [6th Cir.1982]. On the one hand, a consent decree is a voluntary settlement agreement which could be fully effective without judicial intervention. See [United States v.] City of Miami, 664 F.2d [435,] 439–40 [ (5th Cir.1981) (en banc) ]. In this sense the decree merely memorializes the bargained for position of the parties. See United States v. Armour & Co., 402 U.S. 673, 681, 91 S.Ct. 1752, 1757, 29 L.Ed.2d 256 (1971).... A consent decree, therefore, should by strictly construed to preserve the bargained for position of the parties....
*6 A consent decree, however, is also a final judicial order. See Carson [v. American Brands ], 450 U.S. [79,] 84, 101 S.Ct. [993,] 996 [1981]; United States v. Kellum, 523 F.2d 1284, 1287 (5th Cir.1975); Stotts, 679 F.2d at 557. Judicial approval of a settlement agreement places the power and prestige of the court behind the compromise struck by the parties. See Stotts, 679 F.2d at 557; City of Miami, 664 F.2d at 441.
720 F.2d at 920. As heretofore pointed out, this Settlement Agreement and the consent decree were approved by this court in a 31 page Memorandum which concludes:
This settlement is more than just a termination of litigation; it is the beginning of a new era for retarded

persons. It is a confirmation that all parties to this litigation are now in complete agreement that the retarded citizens of this Commonwealth have a right to care, education and training in the community. It is a recognition by the Commonwealth and its counties that retarded persons are not subjects to be warehoused in institutions, but that they are individuals, the great majority of whom have a potential to become productive members of society.
610 F.Supp. at 1233–34. The Court’s order of April 5, 1985, provides:
IT IS HEREBY ORDERED that the Final Settlement Agreement is APPROVED, and IT IS FURTHER ORDERED that the provisions of the Final Settlement Agreement executed on July 12, 1984 heretofore made a part of the record in this case shall have the full force and effect of an Order of this Court.
The Settlement of this litigation in 1985 propelled the Commonwealth of Pennsylvania into recognition as a leader in habilitation for its retarded citizens. However, it appears that in the past few years there has been a loss of momentum in this Commonwealth for achieving community living arrangements for the retarded. Although the experts in mental retardation agree that adequate habilitation for the retarded cannot be achieved in an institutional setting, the evidence presented at the hearing shows that some members of the Pennhurst class remain institutionalized. It is also difficult to understand why the Commonwealth defendants contended at this hearing that they have no legal obligation to the members of the Pennhurst class and that this Court is without jurisdiction to enforce the Settlement. For the reasons heretofore pointed out, such contentions by the Commonwealth defendants are not only lacking in merit, they border on the frivolous. The Commonwealth defendants, as well as the County defendants are legally bound by the Settlement which, after approval by this Court on April 5, 1985, became a court order together with the Court’s decrees pursuant to Appendix A of the Settlement Agreement.
The Court’s initial reaction in this matter was to find that the defendants, having violated the Settlement as well as the decrees of this Court, should be held in contempt and that sanctions should be imposed. However, after considering that there were more than 1200 residents in Pennhurst when this action was initiated and having been convinced by the empirical studies that the majority of these former Pennhurst residents have achieved substantial gains in their life skills as a result of the defendants’ efforts, the Court has determined that the Commonwealth, Delaware and Montgomery County defendants should be given additional time to achieve substantial compliance.
4

Halderman v. Pennhurst State School and Hosp., Not Reported in F.Supp. (1989)

ORDER
*7 AND NOW, this 28th day of August, 1989,
IT IS ORDERED: The motion of the Commonwealth defendants to dismiss all outstanding motions is DENIED;
IT IS FURTHER ORDERED: The Court having found that the Delaware County defendants, the Montgomery County defendants and the Commonwealth defendants are not in substantial compliance with the provisions of the Final Settlement Agreement and the decrees of this Court entered pursuant to the Settlement Agreement, it is ORDERED that the Delaware County defendants, the Montgomery County defendants and the Commonwealth defendants shall on or before March 1, 1990 comply with all provisions of the Final Settlement Agreement approved by this Court on April 5, 1985, and the decrees of this Court entered on April 5, 1985, in every and all matters wherein this Court found in its Memorandum of August 28th, 1989, said defendants were not in substantial compliance with the Final Settlement Agreement approved by this Court on April 5, 1985, and the decrees of this Court entered on April 5, 1985;
IT IS FURTHER ORDERED: The following provisions of the Final Settlement Agreement approved by this Court on April 5, 1985, including the Appendices and amendments thereto and the decrees of this Court entered on April 5, 1985, shall remain in full force and effect

notwithstanding any language contained therein calling for earlier expiration: Paragraphs 10, 12–16, 18, 21, A5(b), A5(c), A5(e), and A8 until such time as the Court finds that the Delaware County defendants, the Montgomery County defendants and the Commonwealth defendants are in substantial compliance with all applicable provisions of the said agreement and decrees.
IT IS FURTHER ORDERED: The following reports shall be provided to the Court on or before the 5th day of each month. The first of said reports shall be due on October 5, 1989 and the final reports shall be due on March 5, 1990.
1) A report from the Delaware County defendants and the Commonwealth defendants setting forth the progress being achieved to comply with the Final Settlement Agreement and the decrees of this Court as to the 68 members of the class concerning whom the Court found that the Delaware County defendants and the Commonwealth defendants are not in compliance and, in addition, the report shall set forth the progress in reducing the caseloads of the Delaware County case managers.
2) A report from the Montgomery County defendants and the Commonwealth defendants setting forth the progress being achieved to comply with the Final Settlement Agreement and the decrees of this Court as to the six members of the class concerning whom the Court found that the Montgomery County defendants and the Commonwealth defendants are not in compliance.
	  

5

 
 Halderman v. Pennhurst State School and Hosp., Not Reported in F.Supp. (1994)

1994 WL 185024 Only the Westlaw citation is currently available. United States District Court, E.D. Pennsylvania.
Terri Lee HALDERMAN, et al. v.
PENNHURST STATE SCHOOL AND HOSPITAL, et al.
No. CIV. A. 74–1345. | May 12, 1994.
Opinion
BRODERICK.
*1 Presently before the Court is the issue of appointment of a Special Master to oversee the implementation of this Court’s Order of March 28, 1994 (“March Order”). On March 28, 1994, this Court issued a Memorandum and Order finding that two of the defendants in this case, the Commonwealth of Pennsylvania (“Commonwealth”) and the County of Philadelphia (“County”), were in contempt of this Court’s Order of April 5, 1985 (“Court Decree”). That Memorandum and Order detailed massive noncompliance on the part of both of the defendants in that they had failed to provide minimally adequate habilitation to Philadelphia Pennhurst class members as ordered in the Court Decree. The March Order requires the defendants to comply with the Court Decree and specifies various timelines for compliance. Among other things, the Order mandates that the defendants provide community living arrangements to all presently institutionalized Philadelphia class members within twelve (12) months of the date of the Order. The Order also mandates that all Philadelphia class members will receive current individualized habilitation plans, including all services and therapies prescribed therein and that the defendants will take steps necessary to ensure that all Philadelphia class members are protected from harm and have access to adequate medical and dental services. The Order also provides that each defendant is to report monthly to the Court’s Special Master on its compliance with the Court Decree and the March Order.
On April 4, 1994, the Court held a hearing to give the parties an opportunity to present their views on appointment of a Special Master in this case. At that hearing, the Court asked the parties to submit names of possible candidates for Special Master. The plaintiffs asked the Court to retain Dr. Sue Gant as Special Master. The defendants, on the other hand, submitted to the Court the names of approximately eleven candidates. The Court commenced interviewing candidates, but shortly thereafter the parties suggested to the Court that they

believed that they could agree on a candidate to submit to the Court for its approval. The Court acceded to their request and granted the parties extra time to arrive at an agreement. Approximately one week later, the parties proposed to the Court that J.A. (Tony) Records of Takoma Park, Maryland, should be appointed Special Master for purposes of monitoring the March Order. Indeed, this Court was gratified that after twenty years of often contentious litigation involving numerous contempt hearings, the parties finally were able to reach agreement on something.
Shortly after the parties proposed Mr. Records, the Court interviewed him and found that he has the experience and knowledge of the background of this litigation to enable him to serve as Special Master. Accordingly, the Court announced to the parties in open court on May 6, 1994 that Mr. Records was appointed Special Master in this matter.
*2 To enable Mr. Records to carry out his duties, the Court deems it in the best interests of all parties that he have an office in Philadelphia and that his office space should be independently located from any of the parties in this case. Therefore, with the approval of the Court, Mr. Records has located and rented office space at 1420 Walnut St., Suite 1102, Philadelphia, PA.
Furthermore, the Court has requested that Mr. Records submit an estimated annual budget for his activities as Special Master during the next twelve months. Mr. Records total annual budget for the period commencing May 6, 1994 through and including May 5, 1995 is $173,715.00, which includes the following items: fees to Mr. Records in the amount of $700 per day (Mr. Records estimates that he will spend approximately two to three days per week on matters related to the March Order); rental of office space in the amount of $645.00 per month; funds for hiring an administrative assistant/secretary and consultants, where necessary; as well as other reasonable and necessary expenses for such items as office equipment and supplies, printing and duplicating, telephone, fax, postage, travel and an annual financial review of management of funds designated for use by the Special Master.
The Court has determined that the County and Commonwealth each shall be responsible for one-half of the Special Master’s budget and that the defendants shall make monthly payments to the Clerk of Court, United States District Court for the Eastern District of Pennsylvania as detailed in the accompanying Order. Deposits made by the defendants will be placed by the Clerk in an interest-bearing account. The Special Master will submit a monthly voucher for his fees and expenses to the Court for its review and approval. Any unspent
1

Halderman v. Pennhurst State School and Hosp., Not Reported in F.Supp. (1994)

money in a given month will be carried over and applied to the Special Master’s fees and expenses of the following month. In the event that the Court determines that the Special Master’s duties are completed as of May 5, 1995, any surplus funds on deposit with the Clerk’s Office will be refunded pro rata to the County and Commonwealth. Conversely, if the Court determines at any time that the Special Master will require supplemental funds, the Court may so order the County and Commonwealth to make additional deposits. The Court believes that this financial arrangement will facilitate the work of the Special Master and is the best way to ensure that Philadelphia Pennhurst class members receive habilitation in community living arrangements as quickly as possible.
ORDER OF REFERENCE
AND NOW, this 12th day of May, 1994 and for the reasons stated in the Court’s Memorandum in this matter of May 12, 1994;
IT IS ORDERED:
1. Pursuant to Federal Rule of Civil Procedure 53, J.A. (Tony) Records is APPOINTED as a Special Master in the above-captioned action to evaluate whether the Commonwealth of Pennsylvania (“Commonwealth”) and the County of Philadelphia (“County”) are in compliance with the Court’s Order of March 28, 1994 (“1994 Court Order”), a copy of which is attached hereto as Exhibit A and made a part of this Order;
*3 2. The Special Master shall have the power to supervise and monitor implementation of and compliance with the 1994 Court Decree; the Special Master shall file with this Court, with a copy to all parties, monthly reports addressing such compliance;
3. All parties shall cooperate fully with the Special Master and shall provide him with such information as he might request, either orally or in writing, and shall ensure that the Special Master has full access to all Philadelphia Pennhurst class members and Commonwealth and County officials, staff, facilities, records, and documents relating to Philadelphia Pennhurst class members;
4. The Special Master shall have access, with or without advance notice, to any part of any Pennhurst class member site, including but not limited to any and all provider agency sites, for purposes of inspection and/or conducting interviews with staff and class members to investigate and monitor compliance with the 1994 Court Order; at the request of the Special Master, the parties shall cooperate to facilitate such inspections and/or interviews;

5. The Special Master may provide information, assistance, and advice to all parties and conduct informal consultations and working sessions with any of the parties as he deems necessary to achieve compliance with the 1994 Court Order;
IT IS FURTHER ORDERED:
6. The estimated annual budget submitted by the Special Master to the Court in the amount of $173,715.00 is hereby APPROVED, and the Commonwealth and County shall each be responsible for funding one-half of the annual budget;
7. Within seven (7) days of the date of this Order, the Commonwealth and County each shall deposit with the Clerk of Court, United States District Court for the Eastern District of Pennsylvania, a sum in the amount of $7,238.13, representing each party’s share of one-twelfth of the Special Master’s annual budget;
8. On or before June 1, 1994, and on or before the first day of each succeeding month thereafter, up through and including April 1, 1995, the Commonwealth and the County each shall submit a sum in the amount of $7,238.13 to the Clerk, representing their share of one-twelfth of the annual budget of the Special Master; all deposits made by the Commonwealth and County shall be placed by the Clerk of Courts in an interest-bearing account;
9. On or about the thirtieth day of each month, the Special Master shall submit a voucher for his fees and expenses for that month to the Court for its review and approval; such voucher shall contain a signature line for the Court accompanied by the statement, “Approved for Disbursement”;
10. Any monies on deposit with the Clerk of Court that are unspent in a given month shall be carried over and applied to pay for future fees and expenses of the Special Master;
11. In the event that the Court determines that the Special Master’s duties are completed as of May 5, 1995, any surplus funds on deposit with the Clerk’s Office will be refunded pro rata to the defendants; however, if the Court determines at any time that the Special Master will require supplemental funds, the Court may so order the County and Commonwealth to make additional deposits;
*4 12. The Special Master shall keep a complete accounting of all of his fees and expenses, which shall be made available at the Court’s request for its inspection.
	  
2

Halderman v. Pennhurst State School and Hosp., Not Reported in F.Supp. (1994) 3

 
 Halderman v. Pennhurst State School and Hosp., Not Reported in F.Supp. (1995)

1995 WL 232509 Only the Westlaw citation is currently available.
United States District Court, E.D. Pennsylvania.
Terri Lee HALDERMAN, et al. v.
PENNHURST STATE SCHOOL and HOSPITAL, et al.
CIV. A. 74-1345. | April 18, 1995.
Opinion
MEMORANDUM
BRODERICK
*1 Presently before this Court are several documents resulting from non-compliance by the Commonwealth and County defendants (the “defendants”) with provisions of ¶ 7 of the Court’s March 28, 1994 Contempt Order (“1994 Contempt Order”) and ¶ A4 of the Final Settlement Agreement, which was approved and entered by the Court as a Consent Decree and Order of this Court on April 5, 1985 (“1985 Court Decree”). Specifically before this Court are the following: (1) The “Special Report from the Special Master” (“Special Report”), submitted on November 28, 1994, in which the Special Master presents findings and recommendations regarding the defendants’ non-compliance; (2) the Plaintiffs’ “Motion for Assessment of Fines For Contempt of Paragraph 7 of March 28, 1994 Order”; (3) the plaintiffs’ “Renewed Motion for Assessment of Fines and Motion for Acceptance of the Master’s Report”; (4) the plaintiffs’ “Motion for Sanctions Against Defendants for Providing Incorrect Information to the Special Master”; and (5) Comments from the parties concerning the Special Report of the Special Master.
The Court is now ruling on all of the motions listed above. For the reasons hereinafter set forth, the Court will adopt certain of the Special Master’s findings and recommendations as provided in the Special Report and will deny plaintiffs’ motion and renewed motion for assessment of fines and motion for sanctions for providing incorrect information to the Special Master.
The history of the Pennhurst litigation is summarized in this Court’s 1992 published opinion, Halderman, et al. v.

Pennhurst State School and Hospital, et al., 784 F.Supp. 215 (E.D. Pa.), aff’d, 977 F.2d 568 (3d Cir.1992). This opinion also contains the text of the 1985 Court Decree. Only a brief overview of the recent history of the case is necessary as background to the issue presently before this Court.
On March 28, 1994, after approximately nine days of testimony, the Court found the County of Philadelphia and the Commonwealth of Pennsylvania in contempt of the 1985 Court Decree. The Court issued a Memorandum and Order setting forth fourteen requirements and establishing fines that may be imposed in the event the defendants failed to comply with the terms of the Contempt Order. On May 12, 1994, the Court appointed a Special Master to monitor and facilitate compliance with the terms of the 1985 Court Decree and the 1994 Contempt Order. In accordance with the 1994 Contempt Order, the Commonwealth and the County are required to submit monthly reports to the Special Master detailing their compliance with the terms of the Court’s Orders. The Special Master provides the Court with monthly compliance reports and other status reports as needed to alert the Court to specific issues requiring its attention.
To date, the Special Master has submitted nine monthly reports. These reports have convinced this Court that the defendants have made substantial strides towards achieving full compliance with the 1994 Contempt Order and the 1985 Court Decree since March 28, 1994.
*2 Indeed, in just over a year, the defendants have accomplished several important goals. The parties have determined that the Philadelphia class presently consists of 593 members. At long last, the defendants are close to fulfilling their obligation of providing all members of the class who are Philadelphia residents with adequate community living arrangements. Only a few members of the Philadelphia class remain institutionalized, and it appears that the defendants will complete the process of placing these few in adequate community living arrangements by June 30, 1995. Twenty years of Pennhurst litigation has highlighted the obligation of our government to provide adequate habilitation in the community to every member of the Pennhurst class. Providing community living arrangements to all members of the Pennhurst class has always been the prime objective of the 1985 Court Decree.
Another significant accomplishment since the 1994 Contempt Order was the Special Master’s approval and initial implementation of Philadelphia County’s plan to investigate and resolve incidents of abuse, neglect, injury and death. Some of the most troubling testimony at the Contempt Hearings stemmed from the County’s failure to adequately address incidents of abuse and neglect.
1

Halderman v. Pennhurst State School and Hosp., Not Reported in F.Supp. (1995)

Philadelphia County appears to be in the process of working diligently to institute procedures to monitor and rectify incidents of abuse and neglect.
Although it presently appears that the defendants are committed to fulfilling their obligations under the 1994 Contempt Order and 1985 Court Decree, there are a few remaining areas requiring their immediate attention. For instance, the Court is not satisfied that Philadelphia County has made sufficient progress in providing a plan which will assure that Philadelphia class members have access to adequate dental and medical services.
In October, 1994, the Special Master informed the Court that the defendants had failed to fully comply with ¶ 7 of the 1994 Contempt Order and ¶ A4 of the 1985 Court Decree. The Special Master followed up with a detailed report on this issue on November 28, 1994. On December 2, 1994, the Court issued an Order giving all parties an opportunity to comment on the Special Report and received responses from the plaintiff class, ARC, the United States, and the County and Commonwealth defendants. Plaintiffs’ response was in the form of a “Renewed Motion for Assessment of Fines and Motion for Acceptance of the Master’s Report.”
The Special Master’s report points out that the defendants have failed to provide ninety-nine (99) class members with revised IHPs within forty-five days of the IHP annual review meeting. The days late ranged from one to eighty-eight, and the total days late was 1,338. The Special Master considered a delay of more than forty-five days between the IHP review meeting and mailing of the revised IHP to the class member to be a violation of the Court’s 1994 Contempt Order and 1985 Court Decree. To reach his findings, the Special Master reviewed the records of all active members of the Philadelphia Class to determine the scope of the problem of delayed production and dissemination of IHPs to class members following the IHP annual review meeting.
*3 The Court finds and concludes that the defendants failed to fully comply with ¶ 7 of the 1994 Contempt Order and ¶ A4 of the 1985 Court Decree in that there were considerable delays in the production and dissemination of revised IHPs to the members of the Philadelphia class following the IHP annual review meeting. Paragraph 7 of the Contempt Order requires that IHPs “shall be developed in accordance with Paragraph A4 of the Court decree.” The 1985 Court Decree requires that a copy of the IHP shall be timely delivered to each member of the plaintiff class and each service provider charged with the implementation of the revised IHP.
Some progress has been made, however, toward assuring that each member of the class receives a program of individualized care and services. Since the 1994 Contempt Order, each member of the Philadelphia class

has received a timely IHP review. While, as pointed out above, some members of the class were delayed in receiving a copy of their revised IHP, changes are already being made to assure that a copy of the revised IHP will be delivered to each class member and his or her service provider within thirty days after the meeting.
IHPs should be mailed or delivered to service providers and class members within thirty days after the IHP annual review meeting because this time frame is in accordance with professional standards. The production and dissemination of revised IHPs is critical to assuring that the class members receive appropriate supports and services commensurate with the needs and goals identified by those professionals responsible for their care.
The Special Master has not as yet completed his study concerning the timely implementation of the habilitation plan adopted at the annual review meeting. However, ¶ 7 of the 1994 Contempt Order requires that the revised habilitation plan be implemented as soon as is practicable after the IHP annual review meeting, but in no event shall implementation be delayed more than sixty days from the date of the IHP annual review meeting.
Although the Court considers the defendants’ delay in providing a revised IHP to ninety-nine (99) members of the Philadelphia class and their service provider to be a clear violation of ¶ 7 of the 1994 Contempt Order and ¶ A4 of the 1985 Court Decree, the Court will not impose fines for this violation. The Special Master, who has been working closely with the parties for almost a year, and in whom the Court has great confidence, does not believe that fines are appropriate at this time.
While the Court has decided not to impose fines, the Special Master has convinced the Court that it is imperative that the defendants develop and implement an effective quality assurance system to guarantee future compliance with the Court’s Orders and to eliminate the need for ongoing supervision by the Special Master and the Court. Such a quality assurance system must not only address the non-compliance with ¶ 7 of the 1994 Contempt Order and ¶ A4 of the 1985 Court decree, but must be designed to facilitate compliance with all provisions of the Court’s Orders. The non-compliance at issue here has made the Court acutely aware of the need for a system that will enable the defendants to independently and accurately monitor compliance before a failure erupts into a crisis requiring the Court’s intervention.
*4 The Court is optimistic that after twenty years, this litigation is finally nearing a satisfactory conclusion and believes that the climate is now right for the development of a quality assurance system. The Court is aware that a productive dialogue is emerging among the parties which
2

Halderman v. Pennhurst State School and Hosp., Not Reported in F.Supp. (1995)

will facilitate the formation of this plan. The Court is of the belief that the implementation of an effective quality assurance system will provide a happy conclusion to more than twenty years of litigation.
Accordingly, the Court will deny the Plaintiffs’ Motion and Renewed Motion for Assessment of Fines For Contempt of Paragraph 7 of March 28, 1994 Order, and Motion for Sanctions Against Defendants for Providing Incorrect Information to the Special Master. Consistent with this memorandum, the Court will grant the Plaintiffs’ motion for acceptance of the Master’s Report and will (1) order that IHPs be mailed or delivered within thirty (30) days of the annual IHP review meeting to each member of the Philadelphia class and his or her service provider; (2) order that implementation of the services and therapies prescribed by each revised IHP begin as soon as is practicable after the IHP annual review meeting but in no event shall implementation be delayed more than sixty (60) days after the IHP annual review meeting; and (3) order the County of Philadelphia and the Commonwealth of Pennsylvania to submit a quality assurance plan which sets forth a system of accountability to assure sustained compliance with all provisions of the 1994 Contempt Order and the 1985 Court Decree.
ORDER
AND NOW, on this 18th day of April, 1995, for the reasons set forth in this Court’s Memorandum of this date;
IT IS ORDERED: Plaintiffs’ Motion and Renewed Motion for Assessment of Fines For Contempt of Paragraph 7 of the March 28, 1994 Order are DENIED.
IT IS FURTHER ORDERED: Plaintiffs’ Motion for Sanctions against defendants for providing incorrect information to the Special Master is DENIED.
IT IS FURTHER ORDERED: To the extent consistent with this Court’s Memorandum of this date, Plaintiff’s Motion for Acceptance of the Master’s Report is GRANTED.
IT IS FURTHER ORDERED: For the purpose of clarification and implementation, ¶ 7 of the Court’s Contempt Order of March 28, 1994 is amended to become effective on or before May 15, 1995 as follows:

The County shall provide every Philadelphia class member with a current individual habilitation plan (“IHP”) within one-hundred twenty (120) days from the date of this Order. Such IHP shall be developed in accordance with Paragraph A4 of the Court Decree. The County shall mail or deliver to each member of the Philadelphia class, his or her next friend, and his or her service provider a revised IHP within thirty (30) days following the Philadelphia class member’s IHP annual review meeting. Implementation of the services and therapies prescribed by each revised IHP shall begin as soon as is practicable after the IHP annual review meeting, but in no event shall implementation be delayed more than sixty (60) days from the date of the IHP annual review meeting. The County and Commonwealth each shall be subject to a fine of not less than $5,000 per day for each class member who has not received an IHP or the services and therapies prescribed by the IHP in accordance with the terms of Paragraph 4 of the Court Decree and this paragraph of the Court’s Order.
*5 IT IS FURTHER ORDERED: In an effort to eliminate the need for ongoing supervision and intervention by the Special Master and the Court, within sixty (60) days of the date of this Order, the County and the Commonwealth shall submit to the Special Master, for the his review and approval, a Quality Assurance Plan which sets forth a system of accountability to assure sustained compliance with all provisions of the Court’s Contempt Order of March 28, 1994 and the Consent Decree of April 5, 1985. Within one-hundred twenty (120) days of the date of this Order, the Special Master, after reviewing the plan and after further consultation with the County and the Commonwealth, shall submit the Quality Assurance Plan to the Court for the Court’s approval.
	  

3

 
 Halderman v. Pennhurst State School and Hosp., Not Reported in F.Supp. (1995)

1995 WL 605479 Only the Westlaw citation is currently available. United States District Court, E.D. Pennsylvania.
Terri Lee HALDERMAN, et al. v.
PENNHURST STATE SCHOOL and HOSPITAL, et al.
No. CIV. A. 74–1345. | Oct. 13, 1995.
Opinion
MEMORANDUM%
BRODERICK, J.
*1 On September 18, 1995, the Special Master submitted a “Philadelphia Quality Assurance Plan” as required by the Court’s Order of April 18, 1995. Submitted with the Plan is an Agreement executed by the Halderman Plaintiffs, plaintiff-intervenor ARC/PA, the United States, defendant Commonwealth of Pennsylvania and defendant Philadelphia County. In this Agreement all parties have consented to the adoption and implementation of the Quality Assurance Plan.
The Court has reviewed both the Quality Assurance Plan and the Agreement and will enter an Order approving both documents. The Court is delighted to herald the adoption of the Quality Assurance Plan particularly because it has the approval not only of the Special Master but also of all the parties and promises to establish a system which will assure that all members of the Philadelphia Pennhurst class receive adequate habilitation in the community. Moreover, the parties’ ability, with the guidance of the Special Master, to produce the Plan and the Agreement through a process of collaboration, negotiation and compromise reassures the Court that this twenty-one year old litigation may, at long last, be reaching a meritorious conclusion.
Twenty-one years of Pennhurst litigation has highlighted the obligation of the Commonwealth of Pennsylvania and Philadelphia County to provide adequate habilitation in the community to every member of the Pennhurst class. Providing adequate habilitation to all members of the Pennhurst class has always been the prime objective of the 1985 Court Decree.

I. Background
After approximately nine days of testimony, the Court found the County of Philadelphia and the Commonwealth of Pennsylvania in contempt of the 1985 Court Decree. Halderman, et al. v. Pennhurst State Sch. & Hosp., 154 F.R.D. 594 (E.D.Pa. March 28, 1994) (“Contempt Order”). (The text of the Court Decree is set forth in this Court’s 1992 opinion, Halderman, et al. v. Pennhurst State Sch. Hosp. et al., 784 F.Supp. 215 (E.D.Pa.1992)). The Contempt Order set forth fourteen requirements to insure adequate habilitation for the members of the Pennhurst class and established fines that may be imposed on the defendants in the event they failed to comply.
On May 12, 1994, the Court appointed Tony Records as Special Master to monitor and facilitate compliance with the terms of the Court Decree. He has done an excellent job in all respects. Most notably, he has built an understanding among all the parties that now is the time to channel their efforts into enabling members of the Pennhurst class to achieve their fullest potential.
In accordance with the Contempt Order, the Commonwealth of Pennsylvania and Philadelphia County are required to submit monthly reports to the Special Master detailing their compliance with the terms of the Court’s Orders. The Special Master has been providing the Court with monthly compliance reports and other reports to alert the Court to specific issues requiring the Court’s attention.
*2 On April 18, 1995, the Court issued a Memorandum and Order in response to a “Special Report by the Special Master”. Terri Lee Halderman, et al. v. Pennhurst State School and Hospital, 1995 U.S. Dist. Lexis 5129 (E.D. Pa. April 18, 1995). The Special Report documented the Philadelphia County and Commonwealth defendants’ delay in providing ninety-nine (99) class members with revised Individual Habilitation Plans (“IHP”) following the annual IHP review meeting. Although the Court found this delay to be a violation of the Court Decree, the Court also recognized that since the appointment of the Special Master, the Defendants had made significant progress toward assuring that each member of the Philadelphia Pennhurst class receives a program of individualized care and services in the community.
The defendants’ progress toward full compliance with the Court Decree has continued. Over the past eighteen months, the defendants have accomplished several important goals. The parties have determined that the Philadelphia class presently consists of 587 members, and the defendants are close to fulfilling their obligation to
1

Halderman v. Pennhurst State School and Hosp., Not Reported in F.Supp. (1995)

provide every member of the class who is a Philadelphia resident with an adequate community living arrangement. Only four members of the Philadelphia class presently remain in large facilities. It appears, however, that the defendants are now in the process of securing adequate community living arrangements for these four members of the class. The Defendants have also improved the process for producing and disseminating updated IHPs to class members.
Persuaded by the Special Master’s position that fines should be a remedy of last resort for the defendants’ non-compliance with the Court Decree, the Court ordered the defendants to produce a quality assurance plan. In ordering a quality assurance plan, the Court’s objective was to guarantee future compliance with the provisions of the Court Decree and to eliminate the need for continuing supervision and intervention by the Special Master and the Court.
On July 10, 1995, after meeting with the parties, the Court granted the defendants’ request for a thirty day extension to submit their proposed quality assurance plan to the Special Master for his review and approval. The Court also amended its April 18, 1995 Order to make clear that during the sixty days following the submission of the defendants’ proposed quality assurance plan to the Special Master, the Plaintiffs were to have an active role in the formulation of the final plan. The Special Master subsequently reported to the Court that during that sixty day period, the parties participated in a series of meetings during which the plaintiffs had an opportunity to comment and propose changes to the defendants’ draft quality assurance plan as part of a collaborative effort to develop a final version for submission to the Court.
II. The Philadelphia Quality Assurance Plan and the Agreement for the Adoption of the Quality Assurance Plan *3 The Quality Assurance Plan signals the parties’ commitment to assuring that each member of the Pennhurst class will receive adequate habilitation in the community. The Plan fulfills the Court’s three primary expectations: (1) It is a realistic, practical and workable plan; (2) It is driven by the core principle the Pennhurst litigation established—that it is the right of members of the Pennhurst class to receive adequate habilitation in the community through a system of individualized planning and care; and (3) It concentrates on building systems necessary to prevent non-compliance and to assure compliance with the Court Decree without continuing supervision by the Court and the Special Master.
The Quality Assurance Plan will insure that the Commonwealth and Philadelphia County fulfill their obligation to provide the members of the Pennhurst class

with adequate habilitation in the community. The Plan sets in place the structures necessary to provide each member of the Pennhurst class with high quality supports and services. Put another way, in order to assure sustained compliance with the specific provisions of the Court Decree, the Quality Assurance Plan strengthens and reforms the system in which individualized planning and care takes place.
As set forth in the preface to the Plan, the Plan is divided into ten (10) substantive sections. The substantive sections are then divided into “Desired Outcomes” followed by a list of activities tailored to achieve those outcomes. For each activity, the Quality Assurance Plan sets forth a deadline for implementation, the person or persons responsible for the activity, and measures of success. As the Court understands it, the “Implementation Milestones” listed in Appendix G to the Quality Assurance Plan are those activities the Special Master and the parties consider essential to meeting the requirements of the Court Decree.
The Agreement sets forth terms and conditions for the implementation of the Quality Assurance Plan and delineates an appropriately limited role for the Court in the resolution of compliance problems that may arise during the Plan’s implementation phase. By agreement of the parties, timely implementation will be measured from the date of entry of the Court’s Order approving the Quality Assurance Plan and Agreement. While implementation of the milestones will not be complete for approximately two years, most milestones will be implemented within one year of the Court’s approval of the Quality Assurance Plan.
Because the parties and the Special Master anticipate that modifications to the milestones may be needed from time to time during the Plan’s implementation phase, the Quality Assurance Plan sets forth a process for making such changes. The role of the Court is appropriately limited to resolution of appeals from the Special Master’s determinations regarding such modifications.
If properly implemented, the Quality Assurance Plan will hopefully replace the need for continuing supervision by the Court and the Special Master. However, the Parties did not set forth in the Plan a calendar for the phasing out of this litigation, and it would be premature for the Court to do so at this time.
*4 Accordingly, the Court will approve the Philadelphia Quality Assurance Plan and the Agreement for the Adoption of the Quality Assurance Plan as submitted and approved by the Special Master and the parties.
2

Halderman v. Pennhurst State School and Hosp., Not Reported in F.Supp. (1995)

O R D E R
AND NOW, this 13th day of October, 1995; for the reasons set forth in this Court’s Memorandum of October 13, 1995;
IT IS ORDERED:
1. The Philadelphia Quality Assurance Plan satisfies the

requirements of the Court’s April 18, 1995 Order and is hereby Approved.
2. The Agreement for Adoption of the Philadelphia Quality Assurance Plan is hereby Accepted.
	  

3

 
 Halderman v. Pennhurst State School and Hosp., Not Reported in F.Supp. (1997)

1997 WL 538924 Only the Westlaw citation is currently available. United States District Court, E.D. Pennsylvania.
Terri Lee HALDERMAN v.
PENNHURST STATE SCHOOL AND HOSPITAL, et al.
No. CIV. A. 74–1345. | Aug. 27, 1997.
Opinion
MEMORANDUM
BRODERICK, Senior District J.
*1 On March 28, 1994, this Court issued a Memorandum and Order finding that the Commonwealth of Pennsylvania and Philadelphia County were in contempt for having violated the Court’s Consent Decree of 1985. 154 F.R.D. 594 (E.D.Pa.1994) The Court made specific findings of fact concerning each violation and set forth a series of fines to be imposed in the event of a failure to

comply with the Consent Decree. Upon the recommendation of the parties, a Special Master was appointed on May 12, 1994.
On August 5, 1997, the Special Master submitted his 24th Status Report. This Report presents convincing evidence that substantial compliance is being achieved.
At a conference with the Court on May 7, 1997, attended by counsel for the parties and the Special Master, the Court announced its intention to terminate its intervention by having the defendants achieve substantial compliance with the Court’s Orders on or before December 31, 1997. The Special Master’s Report clearly indicates that the Court’s goal is achievable.
The Court does not hesitate to point out that substantial compliance is being achieved, without the Court having to resort to the imposition of fines or other sanctions. The Court would be remiss, however, if it failed to state that the work of the Special Master, Mr. Tony Records, has been outstanding. He has been aided in his endeavors by the determination and desires of all the parties in this litigation to enable every member of the Pennhurst class to fully achieve his or her full potential.
	  

1

 
 Halderman v. Pennhurst State School and Hosp., Not Reported in F.Supp. (1997)

1997 WL 700490 Only the Westlaw citation is currently available. United States District Court, E.D. Pennsylvania.
Terri Lee HALDERMAN, et al., v.
PENNHURST STATE SCHOOL AND HOSPITAL, et al.
No. CIV. A. 74–1345. | Nov. 7, 1997.
Opinion
MEMORANDUM
BRODERICK, J.
*1 The Special Master has filed a proposed schedule and methodology to measure substantial compliance with the Court’s Orders in this action, marking what the Court truly hopes will be the final chapter in this litigation.
The Court has summarized the history of the Pennhurst litigation in previous opinions, and will not do so here. Suffice is to say that the Court initially believed that this case had been resolved in 1985, when it approved a consent decree setting forth the “Final Settlement Agreement.” 610 F.Supp. 1221 (E.D.Pa.1985). On March 28, 1994, however, violations of the 1985 consent decree required the Court to hold the Commonwealth of Pennsylvania and County of Philadelphia in contempt. 154 F.R.D. 594 (E.D.Pa.1994). The Court’s 1994 Contempt Order set forth fourteen violations which the Commonwealth of Pennsylvania and/or County of Philadelphia were directed to correct. The Court also appointed a Special Master to monitor compliance with the 1985 consent decree and the Contempt Order of March 28, 1994.
The Court has on numerous occasions expressed its intention to conclude its own and the Special Master’s active supervision in this case. In its 1995 opinion on developing a quality assurance system, the Court stated:
The Court is optimistic that after twenty years, this litigation is finally nearing a satisfactory conclusion and believes that the climate is now right for the development of a quality assurance system. The Court is aware that a productive dialogue is emerging

among the parties which will facilitate the formation of this plan. The Court is of the belief that the implementation of an effective quality assurance system will provide a happy conclusion to more than twenty years of litigation.
1995 WL 232509 (E.D.Pa. April 18, 1995). And, in adopting the Philadelphia Quality Assurance Plan later that year, the Court stated:
If properly implemented, the Quality Assurance Plan will hopefully replace the need for continuing supervision by the Court and the Special Master. However, the Parties did not set forth in the Plan a calendar for the phasing out of this litigation, and it would be premature for the Court to do so at this time.
1995 WL 605479 (E.D.Pa. Oct.13, 1995).
At a conference attended by the Special Master and counsel for all of the parties on May 7, 1997, the Court announced its intention to terminate its intervention by having the defendants achieve substantial compliance with the Court’s Orders on or before December 31, 1997. The Special Master has worked diligently with the parties to meet the Court’s goal of achieving substantial compliance. For example, on March 12, 1997, the Court signed an Order submitted by the Special Master after working with the parties, which found the defendants in substantial compliance with ¶¶ 1, 3, 4, 5, 6, 9, 10 and 13 of the 1994 Contempt Order.
*2 The Special Master has met with the parties in developing the proposed schedule and methodology for terminating his and the Court’s active supervision in this case. It is the Court’s hope that the parties will continue their cooperation and make every effort to achieve substantial compliance by the schedule that will soon be adopted by the Court.
In today’s Order, the Court directs that the parties file any comments they may have concerning the Special Master’s proposed Order and schedule on or before November 14, 1997.
ORDER
1

Halderman v. Pennhurst State School and Hosp., Not Reported in F.Supp. (1997)

AND NOW, this 7th day of November, 1997; the Special Master having filed a proposed schedule and methodology for review of substantial compliance, dated November 4, 1997, in which the Special Master has submitted a proposed Order for this Court’s approval; for the reasons set forth in the Court’s Memorandum of this date, the Court wanting to make certain that the parties have an opportunity to comment on the proposed schedule and methodology, if they desire to do so, before the Court

signs the proposed Order;
IT IS ORDERED: The Court will consider all comments filed by the parties on or before November 14, 1997 on the Special Master’s proposed Order and schedule and methodology to determine substantial compliance.
	  

2

 
 Halderman v. Pennhurst State School and Hosp., Not Reported in F.Supp. (1997)

1997 WL 835412 Only the Westlaw citation is currently available. United States District Court, E.D. Pennsylvania.
Terri Lee HALDERMAN, et al., v.
Pennhurst State School and Hospital, et al.
No. CIV. A. 74–1345. | Dec. 23, 1997.
Attorneys and Law Firms
David Ferleger, Esq., Mental Patient Civil Liberties Project, Phila., for plaintiff.
Norman J. Watkins, Esq., Deputy Attorney General, Harrisburg, for defendant.
David W. Marston, Esq., U.S. Attorney & Walter Batty, Esq., J. Stanley Pottinger, Asst. Att’y General %61Civil Rights Div, U.S. Dept, of Justice/ Arthur Peabody, Esq., Washn, D.C., for U.S.A.
Frank, Margolis, Edelstein & Scherlis, Joseph Goldberg, Esq., Phila., for Margaret Green, Betty Uphold, Alice Barton, P.E. Klick, Dr. Parocca, Helen Francis.
Thomas Kittredge, Esq. (co-counsel), Patricia H. Jenkins, Esq., Media, for Faith Whittlesey, Char. Keeler, Wm. Spingler Comm. of Delaware Cty., P.P. Burrichter–Del. Cty.
Joseph M. Davidson, Asst. City Solicitor, Marc H. Myers, Asst. City Solicitor, Howland W. Abramson, Asst. City solicitor, (Additional counsel), for Mayor Frank L. Rizzo.
Stephen A. Sheller, P.C., Phila., for Eric Cohen, et al.
Thomas F. Schilpp, Esq., Luchsinger, Schilpp, Murphy & Noel, Media, for Commissioners of County of Delware & Paul Surrionter, Admi?? istrator.
Paul Sacks, Asst. City Solicitor, Phila., for Mayor Frank L. Rizzo, City Counsel of Phila., Leon Soffer.
Roger M. Reynolds, Mont. County Solicitor Ward A. Cotton, Joseph A. Smyth, Asst. Mont County S?? Solicitor–Mont. Montgomery County Courthouse, Norristown, for A. Russell Parkhouse, Frank W. J?? Lawrence H. Curry, Mont. County Comm. Hermann A. Roether.
Jeffrey Cooper, Deputy Attorney General Harrisburg, for Pennhurst State School & Hospital Dept. of Public Welfare, Frank S. Bea?? Stanley Meyers, Aldo Colautti, Wilbur?? Hobbs, Russell Rice, Jr., & C. Duane??

Youngberg.
Joseph M. Davidson, Asst. City Sol., Marc H. Myers, Asst. City Sol., Phila., Additional Counsel for Mayor F.L. Rizzo, City Council of Phila. & Leon Soffer.
Applicants for Intervention Pennhurst Parents–Staff Association, by Pamela P. Cohen, Esq., Sandra Swenson, Esq., Phila.
Applicant for Intervention, Council 13, American Federation of State, County & Municipal Employees, AFL–CIO, by Pichard Kirschner, Esq., Kirschner, Walters & Willig, Phila.
United States of America Plff.-Intervenor, by Adjoa A. Burrow, Esq., U.S. Dept. of Justice, Washington, D.C.
Dr. Robert Audette, King of Prussia, Special Master.
Wilbur E. Hobbs, Deputy Secretary, Department of Public Welfare, Phila.
Mr. & Mrs. R.M., Parents of D.M., by James C. Ev7rett, Esq., Phila. Association for Retar?? Citizens, Phila.
W.P. and R.G., by Joseph P. Green, Jr., Esq., Montgomery County Legal Aid, Norristown.
Patricia Jenkins, Esq., by John Rogers Carroll, Esq., Phila.
Montgomery County and Bucks County Deft’s, by Thomas M. Kittredge, Esq., Phila.
W.M. and B.M. (Parents of P.M., by Steven M. Coren, Esq., Phila.
Parents of J.B.N., by Edward Blumstein, Esq., Phila.
Dorothy Klock, John Klock and Sall Klock–Ward, by Robert O. Baldi, Esq., New Hope.
Cynthia J. Colona, and Her Parents Mr. & Mrs. William Colona, by John F. Stoviak, Esq., Phila.
C.C., by Ilene W. Shane, Esq., Phila.
United States of America Plff’s–Intervenors, by Alan Held, Esq., Washington, D.C.
Plff’s Parents and Family Assoc. of Pennhurst, et al, by Herbert B. Newberg, Esq., Phila.
United States of America, by Larry J. Goldberg, Esq., Washington, D.C.
Mrs. R.S. Parent and Court–Appointed Guardian of D.S., by Dennis E. Haggerty, Esq., Phila.
1

Halderman v. Pennhurst State School and Hosp., Not Reported in F.Supp. (1997)

Kimberly Carol Lentz and Nancy Ann Macbeth, By Robert W. Lentz, Esq., Paoli.
Daniel B., By Edmund A. Tiryak, Esq., Andrew F. Erba, Esq., Community Legal Services, Inc., Juniper & Locust Sts., Phila.
Catherine Devitt, by Peter A. Galante, Esq., Phila.
Commonwealth of Pa. Defts., Jerome J. Shestack, Esq., Zachary L. Grayson, Esq., Carol A.C. VanPorrtvliet, Esq. and Barry M. Klayman, Esq., Wofl, Block, Schorr & Solis–Cohen, Philadelphia.
United States of America, Tawana E. Davis, Esquire, U.S. Department of Justice, Civil Nights Division, Washington, DC.
Stephen C. Miller, Esq., Senior Attorney, Philadelphia.
Opinion
MEMORANDUM
BRODERICK, J.
*1 At the direction of the Court, the Special Master has filed a report on health care decisionmaking for Philadelphia Pennhurst class members. Difficulties have occurred in the past when a class member was terminally ill and had no family, guardian, or next of kin available to authorize the provision or withholding of health care, including life-sustaining treatment. The legal, medical, and ethical issues involved in end-of-life decisionmaking have garnered increased attention across the country in recent years. These decisions, as well as decisions on everyday medical treatment, pose special problems for people with mental retardation, many of whom lack the ability to make decisions for themselves. The Special Master should be commended for his comprehensive report on this difficult issue.
For the reasons set forth below, the Court will request the Commonwealth of Pennsylvania to continue its current efforts to clarify its mental retardation bulletin on substitute decisionmaking for medical treatment. In the meantime, the Commonwealth of Pennsylvania and Philadelphia County should identify each Philadelphia Pennhurst class member who is capable of making his or her own health care decisions. These individuals should be advised of currently available resources to assist them with everyday health care decisions and should be provided with the opportunity to make advance directives, such as executing a declaration in the nature of a living will and naming a surrogate decisionmaker. Finally, as part of the annual IHP/ISP planning process of each

Philadelphia Pennhurst class member who has not made an advance directive, or sooner if necessary, the Commonwealth of Pennsylvania and Philadelphia County shall require the interdisciplinary team to designate an involved family member or other individual, as set forth below, pgs. 19–20, to authorize end-of-life decisions.
I. BACKGROUND On March 25, 1996, counsel for the Halderman plaintiffs filed a motion for a preliminary injunction. Although this motion cited the circumstances of a particular class member, the relief sought was designed to remedy an alleged systemic issue in relation to health care decisionmaking for Pennhurst class members. Specifically, the plaintiffs requested the Court
to grant a Preliminary Injunction requiring: the Commonwealth and Philadelphia Defendants to immediately develop and implement a policy regarding “Do Not Resuscitate Orders” (DNR Orders) and the roles, if any, of the IHP, case managers and Interdisciplinary Teams in such medical decision-making for class members, and to present such a policy within ten (10) days to the Special Master for review and approval. A Preliminary Injunction is also requested to require said Defendants to provide education to Class Members and their families and guardians on the issues surrounding DNR Orders, and to initiate that effort within thirty (30) days. It is also requested that Defendants be required to ensure that their contractor provider agencies notify Defendants of any consideration or proposals for use of DNR Orders in advance of the entry of such orders.
*2 Plaintiffs’ Motion for Preliminary Injunction and Memorandum, March 25, 1996, at 6.
On April 10, 1996, defendant Commonwealth of Pennsylvania filed an answer opposing the plaintiffs’ motion. In addition to addressing the allegations regarding the specific class member’s situation, the Commonwealth also indicated that,
questions concerning termination of life-sustaining treatment are left
2

Halderman v. Pennhurst State School and Hosp., Not Reported in F.Supp. (1997)

to individual class members and

their next of kin, or in the absence

of next of kin, to a court appointed

guardian ad litem. Case managers

and the interdisciplinary team

(‘IDT’) have no authority to make

such decisions for class members.

Representatives of the County and

Commonwealth have been meeting

to develop policies to address

issues concerning advance

directives

(i.e.

voluntary

declarations governing the

initiation,

continuation,

withholding or withdrawal of

life-sustaining treatment) and

health care decisionmaking. In

September, 1995, the County’s

Morbidity & Mortality Committee

circulated a questionnaire on

advance directives to the provider

community. Beginning in February,

1996, an ad-hoc Health Care

Decision Making Work Group has

been meeting. The long term goals

of the Group are to develop policies

and procedures on the use of

advance directives.

Commonwealth Defendants’ Answer in Opposition to Halderman Plaintiffs’ Motion for a Preliminary Injunction Regarding DNR Orders, April 10, 1996, at 1 and 2.

Defendant Philadelphia County also opposed the plaintiffs’ motion. The County incorporated the Commonwealth’s response and emphasized that the Commonwealth and County were working on the development of a policy regarding health care decisionmaking for persons with mental retardation who are not capable of making their own health care decisions.

Throughout the summer and fall of 1996, the Special Master raised the issue of health care decisionmaking at meetings with the parties to this action. The defendants believed that regulatory and/or legislative reform might be necessary but that such reform was unlikely to occur in the near future. After consultation with the Special Master, the Court issued an order on February 11, 1997 directing the Special Master to prepare a report and recommendations concerning a proposed process for health care decisionmaking for Pennhurst class members. This Order also dismissed the plaintiffs’ March 25, 1996 motion without prejudice.

During the spring and summer of 1997, the Special Master and Maria Laurence, Senior Research Analyst

with the Office of the Special Master, conducted a comprehensive review of health care decisionmaking for Philadelphia Pennhurst class members. The Special Master submitted a draft copy of his report to the parties for comment. After receiving comments from all of the parties, the Special Master submitted his final report to the Court on September 3, 1997.
In late September, 1997, counsel for the plaintiffs filed a response to the Special Master’s report urging that the Special Master’s recommendations be adopted. The Commonwealth of Pennsylvania and Philadelphia County filed comments agreeing that state policy on substitute health care decisionmaking for persons with mental retardation needed to be further developed, but opposing the Special Master’s specific recommendations.
II. SPECIAL MASTER’S FINDINGS AND RECOMMENDATIONS *3 The Special Master’s report addresses surrogate health care decisionmaking in connection with elective medical procedures and end-of-life treatment for Philadelphia members of the Pennhurst class. Many class members are capable of making their own health care decisions. However, class members who are not capable of making such decisions sometimes face delays in receiving timely and effective medical treatment. In addition, there are currently no organized mechanisms or procedures to ensure that class members who can make their own health care decisions have made advance directives to guide decisions during end-of-life care, such as executing a declaration in the nature of a living will and designating a surrogate decisionmaker. There are also no guidelines on end-of-life decisionmaking for class members who are not capable of making advance directives and do not have actively involved family members to authorize treatment. The Court will review each of the Special Master’s findings and recommendations.
A. Special Master’s Findings on Decisionmaking for Elective Medical Treatment The Special Master reports that decisions on elective health care for Philadelphia Pennhurst class members are generally made by the class member, by the class member’s family, or by the director of the facility where the class member resides.
Class members who are capable of making their own medical decisions often do so. The Special Master reports that, although health care providers generally respect these decisions, providers will sometimes question a class member’s judgment because of his or her diagnosis of mental retardation. In addition, the Special Master reports that more class members could make their own health
3

Halderman v. Pennhurst State School and Hosp., Not Reported in F.Supp. (1997)

care decisions if they were offered the types of supports available to individuals without mental retardation, such as resources or organizations which explain medical terms in easy to understand language.
Many class members who are not capable of making their own health care decisions are fortunate enough to have close family members to authorize treatment for them. The Special Master reports that health care providers usually respect surrogate decisions by family members, although some family members have chosen to be appointed as guardians to ensure that their decisions are honored. The active involvement of family members provides the best support for class members who cannot make their own decisions. However, the Special Master reports that some families are concerned about what will happen when they are no longer available to make decisions for their loved ones.
Moreover, some class members have no family members or other authorized individuals to act on their behalf. For these class members, Pennsylvania law permits the director of the facility where persons with mental retardation reside to authorize medical treatment in limited situations. Section 417 of the Mental Health and Mental Retardation Act of 1966 provides:
*4 The director of any facility may in his discretion by and with the advice of two physicians not employed by the facility, determine when elective surgery should be performed upon any mentally disabled person admitted or committed to such facility where such person does not have a living parent, spouse, issue, next of kin or legal guardian as fully and to the same effect as if said director had been appointed guardian and had applied to and received the approval of an appropriate court therefor.
50 P.S. § 4417(c) (Purdon’s 1969). This law is supplemented by a Commonwealth advisory on decisionmaking for persons with mental retardation, entitled “Mental Retardation Bulletin # 00–90–02, Substitute Decision Making for Medical Treatment.” Nevertheless, the Special Master reports that medical treatment for Pennhurst class members is sometimes delayed by uncertainty over the interpretation of this state law and policy. The Special Master also reports that directors of facilities will frequently seek advice from additional physicians because of the fear of liability.

B. Special Master’s Findings on Decisionmaking for End-of-life Treatment The Special Master reports that there are currently no policies or procedures which ensure that Pennhurst class members who are capable of making their own health care decisions have made advance directives for end-of-life decisionmaking. As heretofore stated, the Special Master’s report was prompted by the plaintiffs’ motion to require the defendants to immediately develop a policy regarding “do not resuscitate” orders. The Commonwealth recognized in response to the plaintiffs’ motion that questions concerning termination of life support treatment are currently left to individual class members and their next of kin. In other words, there is currently no policy or mechanism to guide health care providers on end-of-life treatment for Philadelphia members of the Pennhurst class. Decisions are now made on an ad hoc basis for each class member whenever a medical emergency arises.
Class members who are capable of making their own health care decisions may execute advance directives which authorize the provision or withholding of medical treatment and name a surrogate decisionmaker. Under Pennsylvania’s Advance Directive for Health Care Act, for example, “an individual of sound mind who is 18 years of age or older ... may execute at any time a declaration governing the initiation, continuation, withholding, or withdrawal of life-sustaining treatment.” 20 Pa.C.S.A. § 5404(a) (Purdon’s 1997 Supp.). However, neither the Commonwealth nor the County currently keep track of those class members, if any, who have made advance directives.
Other class members cannot make advance directives because the severity of their mental retardation prevents them from being able to make health care decisions. According to the Special Master, the annual IHP/ISP planning process does not currently include specific recommendations regarding class members’ needs for supports in the area of health care decisionmaking.
*5 In the absence of written advance directives, the Special Master reports that health care providers generally seek close family members to authorize end-of-life treatment. This procedure works well for class members who are fortunate to have family members actively involved in their lives. As heretofore stated, the active involvement of family members provides the best support for class members who are not capable of making their own health care decisions. Unfortunately, not every class member enjoys active support from family members, and class members who do are likely to lose those supports as they get older and family members pass away.
The Special Master also reports that several people he interviewed expressed concern that health care professionals rely on family members, no matter how
4

Halderman v. Pennhurst State School and Hosp., Not Reported in F.Supp. (1997)

distant, to make medical decisions. Health care providers will generally accept the closest blood relative to authorize end-of-life treatment. Relatives who have had little or no contact with a class member for many years cannot offer the same level of support as people on a class member’s interdisciplinary team. Interdisciplinary teams generally consist of family members, if available, advocates, social workers, clinicians, the case manager, and staff from the class member’s day program and residential facility. These individuals are better situated than distant relatives to oversee end-of-life decisionmaking for class members who cannot make their own health care decisions.
C. Special Master’s Recommendations The Special Master recommends that Philadelphia Pennhurst class members be provided with support mechanisms to assist them with health care decisions and/or authorize medical treatment. The Special Master’s report includes five recommendations:
First, the Special Master recommends that the Commonwealth of Pennsylvania should review and revise its Mental Retardation Bulletin # 00–90–02 on substitute decisionmaking for medical treatment. The Special Master also recommends that Philadelphia County develop its own policies and/or guidelines on health care decisionmaking for Philadelphia Pennhurst class members. Any County policies or guidelines should be reviewed by the Commonwealth to ensure that they comply with state law and policy.
Second, the Special Master recommends that Philadelphia County provide training to class members and their interdisciplinary teams on the various supports available for health care decisionmaking. The Special Master recommends that “[a]lternatives for both assisting people in decision-making as well as communicating their decisions need to be utilized whenever possible. Teams need to be trained to determine a person’s decisionmaking capacity, and then identify and provide the supports the person requires.” Special Master’s Report, Sept. 3, 1997, at 28.
Third, the Special Master recommends that each class member’s team should consider the need for health care decisionmaking supports on an annual basis as part of the IHP/ISP planning process.
*6 Fourth, the Special Master recommends that Philadelphia County immediately identify class members who do not have the ability to make health care decisions for themselves, who do not have involved family members, and who currently have serious medical conditions which might require end-of-life treatment in the immediate future. The Special Master also

recommends that the County identify class members who have had trouble receiving medical treatment because of questions about proper authorization. Once these class members are identified, the Special Master recommends that the County enlist surrogate decisionmakers and/or other supports for them as appropriate.
Finally, the Special Master recommends that both the Commonwealth of Pennsylvania and Philadelphia County ensure that each class member has a family member, next of kin, or other authorized individual or group to assist with or authorize medical treatment. Many class members are able to make health care decisions on their own or with limited assistance from others. These class members can authorize their own elective treatment and can make advance directives, such as executing a declaration in the nature of a living will and naming a surrogate decisionmaker for end-of-life care. Other class members, however, are not able to make their own health care decisions. Active family members can serve as surrogate decisionmakers for some class members who fall into this category. For others, the director of the facility where the class member resides can authorize elective treatment with the consent of two independent physicians. However, the Special Master suggests that guardians must be appointed for class members who lack other supports. The Special Master has identified several organizations in Philadelphia and other counties which currently provide guardianship services and could serve as models for a guardianship program for Pennhurst class members.
In concluding his report, the Special Master states: “It can be anticipated that as class members age, the need for surrogate health care decision-making will become more pronounced. There is no need at this time for the Federal Court to become involved in individual health care decision-making for class members. Pennsylvania laws and regulations provide options to address the issues which have been identified. However, these issues need to be addressed in a proactive manner by the defendants.” Special Master’s Report, Sept. 3, 1997, at 43.
III. DISCUSSION The Special Master’s report offers a comprehensive review of health care decisionmaking options for Philadelphia members of the Pennhurst class. The Special Master and his staff should be highly commended for providing the Court with valuable insight into this difficult subject. After thoroughly reviewing the report, the Court agrees that the Commonwealth of Pennsylvania and Philadelphia County should develop clear guidelines on surrogate health care decisionmaking for Philadelphia Pennhurst class members. However, the Court believes that the Commonwealth and County should first make every effort to better utilize the current options available under state law and policy before implementing new
5

Halderman v. Pennhurst State School and Hosp., Not Reported in F.Supp. (1997)

requirements.
*7 The Special Master has advised the Court that many Pennhurst class members in Philadelphia County are capable of making their own health care decisions. It is the Court’s understanding that these individuals could utilize the health care supports which are currently available to all individuals who can make their own health care decisions, whether or not they are members of the Pennhurst class. Accordingly, the Court will direct the Commonwealth of Pennsylvania and Philadelphia County to identify members of the Philadelphia Pennhurst class who are capable of making their own health care decisions and to take affirmative steps to advise these individuals and members of their interdisciplinary team on any health care decisionmaking supports which are currently available. These efforts should occur as part of the annual IHP/ISP planning process mandated by the 1985 Final Settlement Agreement, 610 F.Supp. 1221 (E.D.Pa.1985).
The Special Master has also reported that more class members could make their own health care decisions if they were offered limited assistance from outside resources, such as persons or organizations who explain medical terms and procedures in easy to understand language. These class members should be given every opportunity to make their own health care decisions. The Commonwealth and County should identify and provide training to these class members and their interdisciplinary teams on any resources which would allow them to make their own health care decisions.
The Court will also direct the Commonwealth of Pennsylvania and Philadelphia County to advise class members who are capable of making their own health care decisions on the use of advance directives for end-of-life decisionmaking. These class members should be provided with every opportunity to make advance directives, such as executing a declaration in the nature of a living will and designating a surrogate decisionmaker in accordance with the Pennsylvania Advance Directive for Health Care Act, 20 Pa.C.S.A. § 5401 et seq. (Purdon’s 1997 Supp.), and any other applicable state law. The Commonwealth and the County should provide these class members and their interdisciplinary teams with training on the use of advance directives and other support options currently available for health care decisionmaking.
Unlike class members who can make their own health care decisions, for whom supports are currently available but underutilized, class members who cannot make their own health care decisions face greater challenges. The Pennsylvania Mental Health and Mental Retardation Act of 1966 permits directors of facilities where persons with mental retardation reside to authorize medical treatment in limited situations. 50 P.S. § 4417(c) (Purdon’s 1969).

This law is supplemented by a 1990 Commonwealth advisory on decisionmaking for persons with mental retardation, entitled “Mental Retardation Bulletin # 00–90–02, Substitute Decision Making for Medical Treatment.” According to the Special Master, however, many directors of facilities strictly construe these rules for fear of liability, and treatment is sometimes delayed or withheld.
*8 The Commonwealth of Pennsylvania has agreed to review, clarify, and revise its current policy on substitute decisionmaking for persons with mental retardation. In response to the Special Master’s report, the Commonwealth has stated that it wants to develop a statewide policy for all persons with mental retardation living in residential facilities whether or not they are members of the Pennhurst class. The Commonwealth has advised the Court that it is currently preparing a draft of a revised health care policy which clarifies the authority of directors of facilities to make health care decisions. The Commonwealth has also indicated that it would like to provide a mechanism whereby directors of facilities are authorized, subject to review by the appropriate officials, to make decisions regarding emergency medical treatment. These changes will require administrative efforts.
Because the Court’s jurisdiction is limited to members of the Pennhurst class, the Court will request the Commonwealth of Pennsylvania to make every effort to see that a revised statewide policy on substitute decisionmaking is approved and promulgated as expediently as possible. In doing so, the Commonwealth should endeavor to establish mechanisms permitting interdisciplinary team members to designate surrogate decisionmakers for class members who cannot make their own health care decisions. Philadelphia County should ensure that any statewide policy on substitute decisionmaking for people with mental retardation is implemented on behalf of the Philadelphia Pennhurst class.
However, the Court believes that the Commonwealth of Pennsylvania and Philadelphia County should not wait until the Commonwealth revises state policy to provide decisionmaking supports to Pennhurst class members who have not made advance directives. The absence of competent decisionmakers who have been identified in advance often delays or contravenes effective health care for these class members. This is contrary to the medical needs of the Pennhurst class and contrary to the public policy of the Commonwealth. The Pennsylvania Legislature has found that “[t]he application of some procedures to an individual suffering a difficult and uncomfortable process of dying may cause loss of patient dignity and secure only continuation of a precarious and burdensome prolongation of life.” 20 Pa C.S.A. § 5402(a).
6

Halderman v. Pennhurst State School and Hosp., Not Reported in F.Supp. (1997)

A recent decision of the Pennsylvania Supreme Court permits close relatives of persons who have not made advance directives to act as surrogate decisionmakers. In Re Fiori, 543 Pa. 592, 673 A.2d 905 (Pa.1996). The Supreme Court held that a close family member, with the written consent of two physicians but without court approval, could authorize the termination of life-sustaining treatment for a person who was not capable of making medical decisions and had not made advance directives pertaining to life sustaining measures.
In re Fiori provides a valuable framework for creating a decisionmaking process for Pennhurst class members who are not capable of making their own health care decisions or have not made advance directives. First, the Pennsylvania Supreme Court ruled in In re Fiori that close family members are well-suited to serve as substitute decisionmakers. The Supreme Court wrote: “Close family members are usually the most knowledgeable about the patient’s preferences, goals, and values; they have an understanding of the nuances of our personality that set us apart as individuals.” Id. at 912. The Special Master has advised the Court that health care providers generally permit a family member to authorize termination of life sustaining treatment for Pennhurst class members.
*9 Nevertheless, the Special Master’s report also reveals that health care providers will often accept authorization from a family member, no matter how distant, rather than from the class member’s interdisciplinary team. This practice appears to be contrary to the Supreme Court’s ruling in In re Fiori. Members of the class member’s interdisciplinary team will usually be more knowledgeable about the class member’s preferences and more concerned with the class member’s interests than a distant relative. This Court predicts that the Pennsylvania Supreme Court would permit interdisciplinary team members to designate a suitable individual to authorize the termination of life-sustaining treatment for persons with mental retardation who have not made advance directives and who lack involved family members to serve as surrogate decisionmakers. It would appear that no one is better qualified than the interdisciplinary team to designate a surrogate decisionmaker for class members who have not made advance directives. The role of a surrogate is to determine the intent and desire of the class member as to whether life-sustaining treatment should be continued or withdrawn.
Second, the Supreme Court in In re Fiori specifically rejected the Attorney General’s contention that the judiciary must always be involved in decisions to terminate life-sustaining treatment for individuals who have not made advance directives. The Supreme Court stated that court approval or appointment of a guardian ad litem is not always required. In re Fiori, 673 A.2d at 913

& n. 14. Quoting from Judge Beck’s opinion in the Superior Court, the Supreme Court stated that the judiciary has no role to play:
where there is a loving family, willing and able to assess what the patient would have decided as to his or her treatment, all necessary medical confirmations are in hand, and no one rightfully interested in the patient’s treatment disputes the family decision. (Citations omitted.) Those who disagree with this view and who favor court intervention in every case often cite the need for the court to protect the patient. Underlying this rationale is the philosophy that only courts can provide the necessary safeguards to assure protection of life. This is a narrow and unhealthy view. It violates the essential and traditional respect for family. It is yet another expansion of the idea that courts in our society are the repository of wisdom and the only institution available to protect human life and dignity.
Id. (quoting 438 Pa.Super. 610, 652 A.2d 1350, 1358 (Pa.Super.1995)).
The Court agrees with the Pennsylvania Supreme Court’s reluctance for appointing guardians to authorize end-of-life treatment. Appointing a guardian can be a lengthy and expensive process, and may not always be in the best interests of Pennhurst class members. The Court will refrain from mandating a policy that requires the appointment of guardians.
As part of the annual IHP/ISP planning process of each Philadelphia Pennhurst class member who has not made an advance directive concerning the provision or withholding of life-sustaining treatment, or sooner if necessary, the Commonwealth of Pennsylvania and Philadelphia County shall require the interdisciplinary team to designate an involved family member to authorize end-of-life decisions. In the event an involved family member is not available, the interdisciplinary team may designate a person, not a member of the provider’s staff, who has had a close personal relationship with the class member. In the event neither an involved family member nor an individual who has had a close personal relationship with the class member is available, the interdisciplinary team may request a non-profit association such as the Pennsylvania ARC (Association for Retarded Citizens) to recommend one of its members
7

Halderman v. Pennhurst State School and Hosp., Not Reported in F.Supp. (1997)

to be designated.
CONCLUSION *10 The Special Master and his staff should be commended for their comprehensive report highlighting the difficulties confronting Philadelphia Pennhurst class members in the area of health care decisionmaking. The Court has reviewed the Special Master’s findings and recommendations and the parties responses thereto. For the foregoing reasons, the Court will request the Commonwealth of Pennsylvania to review and revise current state policy on substitute decisionmaking for persons with mental retardation. The Commonwealth should seek to provide a mechanism whereby interdisciplinary teams are permitted to designate surrogate decisionmakers to authorize medical treatment for persons who are not able to make their own health care decisions.
The Court will order the Commonwealth of Pennsylvania and Philadelphia County to identify each Pennhurst class member in Philadelphia who is capable of making his or her own health care decisions. These individuals should be advised of currently available resources to assist them with everyday health care decisions. They should also be provided with the opportunity to make advance directives, such as executing a declaration in the nature of a living will and designating a surrogate decisionmaker for end-of-life treatment.
Finally, as part of the annual IHP/ISP planning process of each Philadelphia Pennhurst class member who has not made an advance directive concerning the provision or withholding of life-sustaining treatment, or sooner if necessary, the Commonwealth of Pennsylvania and Philadelphia County shall require the interdisciplinary team to designate an involved family member or other individual, as set forth above, to authorize end-of-life decisions.
An appropriate Order follows.
ORDER
AND NOW, this 23rd day of December, 1997; for the reasons set forth in the Court’s Memorandum of this date;

the Court requests the Commonwealth of Pennsylvania to continue its efforts to clarify Mental Retardation Bulletin # 00–90–02 on “Substitute Decision Making for Medical Treatment,” and circulate any changes for comment and promulgation as expediently as possible; and
IT IS ORDERED: The Commonwealth of Pennsylvania and Philadelphia County shall identify members of the Philadelphia Pennhurst class who are capable of making health care decisions on their own or with limited assistance from other resources. As part of the annual IHP/ISP planning process, the Commonwealth of Pennsylvania and Philadelphia County shall take affirmative steps to:
1. advise and train these class members and members of their interdisciplinary teams on any resources which are currently available to provide assistance with health care decisions, such as explaining medical terms and procedures in easy to understand language.
2. advise and train these class members and members of their interdisciplinary teams on the use of advance directives for end-of-life decisionmaking, including executing a declaration in the nature of a living will and designating a surrogate decisionmaker in accordance with the Pennsylvania Advance Directive for Health Care Act, 20 Pa.C.S.A. § 5401 et seq. (Purdon’s 1997 Supp.).
*11 IT IS FURTHER ORDERED: As part of the annual IHP/ISP planning process of each Philadelphia Pennhurst class member who has not made an advance directive concerning the provision or withholding of life-sustaining treatment, or sooner if necessary, the Commonwealth of Pennsylvania and Philadelphia County shall require the interdisciplinary team to designate an involved family member to authorize end-of-life decisions. In the event an involved family member is not available, the interdisciplinary team may designate a person, not a member of the provider’s staff, who has had a close personal relationship with the class member. In the event neither an involved family member nor an individual who has had a close personal relationship with the class member is available, the interdisciplinary team may request a non-profit association such as the Pennsylvania ARC (Association for Retarded Citizens) to recommend one of its members to be designated.
	  

8

 
 Pennhurst State School & Hospital v. Halderman, 447 U.S. 904 (1980)

100 S.Ct. 2984
PENNHURST STATE SCHOOL AND HOSPITAL et al., petitioners, v.
Terri Lee HALDERMAN et al
MAYOR OF CITY OF PHILADELPHIA et al., petitioners, v.
Terri Lee HALDERMAN et al
PENNSYLVANIA ASSOCIATION FOR RETARDED CITIZENS et al., petitioners,
v. PENNHURST STATE SCHOOL AND HOSPITAL
et al
COMMISSIONERS AND MENTAL HEALTH/MENTAL RETARDATION ADMINISTRATORS FOR BUCKS COUNTY et al.,
petitioners, v.
Terri Lee HALDERMAN et al
Supreme Court of the United States

PENNHURST PARENTS-STAFF ASSOCIATION, petitioner, v.
Terri Lee HALDERMAN et al
No. 79-1404No. 79-1408No. 79-1414No. 79-1415No. 79-1489 | June 9, 1980
Facts and opinion, D.C., 446 F.Supp. 1295; 612 F.2d 84.
Opinion
Petitions for writs of certiorari to the United States Court of Appeals for the Third Circuit granted, except as to Question 3, presented in petitions Nos. 79-1404 and 79-1489. Counsel are also requested to brief and argue the following question: Does 42 U.S.C. § 1983 provide a private remedy to enforce the provisions of the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. § 6001 et seq.? The cases are consolidated and a total of two hours is allotted for oral argument.
Parallel Citations
100 S.Ct. 2984 (Mem), 64 L.Ed.2d 853
	  

1

 
 Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 (1981)

101 S.Ct. 1531 Supreme Court of the United States
PENNHURST STATE SCHOOL AND HOSPITAL et al., Petitioners, v.
Terri Lee HALDERMAN et al. MAYOR OF CITY OF PHILADELPHIA et al.,
Petitioners, v.
Terri Lee HALDERMAN et al. PENNSYLVANIA ASSOCIATION FOR RETARDED CITIZENS et al., Petitioners,
v. PENNHURST STATE SCHOOL AND HOSPITAL
et al. COMMISSIONERS AND MENTAL HEALTH/MENTAL RETARDATION ADMINISTRATORS FOR BUCKS COUNTY et al.,
Petitioners, v.
Terri Lee HALDERMAN et al. PENNHURST PARENTS-STAFF ASSOCIATION,
Petitioner, v.
Terri Lee HALDERMAN et al.
Nos. 79-1404, 79-1408, 79-1414, 79-1415 and 79-1489. | Argued Dec. 8, 1980. | Decided April 20,
1981.
Retarded resident of Pennsylvania hospital for the care and treatment of the mentally retarded brought suit challenging conditions of confinement. The United States District Court for the Eastern District of Pennsylvania, 446 F.Supp. 1295, rendered judgment for the resident and ordered the hospital closed. The United States Court of Appeals for the Third Circuit, 612 F.2d 84, substantially affirmed, but reversed the order of closure. Certiorari was granted. The Supreme Court, Justice Rehnquist, held that the “bill of rights” provision of the Developmentally Disabled Assistance and Bill of Rights Act did not create in favor of the mentally retarded any substantive rights to “appropriate treatment” in the “least restrictive” environment.
Reversed and remanded.
Justice Blackmun filed an opinion concurring in part and concurring in the judgment.
Justice White filed an opinion dissenting in part, in which Justice Brennan and Justice Marshall joined.

West Headnotes (4)

[1]

States

Powers of United States and Infringement on

State Powers

Because legislation to enforce guarantees of Fourteenth Amendment imposes congressional policy on state involuntarily, and because it often intrudes on traditional state authority, court should not quickly attribute to Congress an unstated intent to act under its authority to enforce Fourteenth Amendment; case for inferring intent is at its weakest where rights asserted impose affirmative obligations on states to fund certain services, since it may be assumed the Congress will not implicitly attempt to impose massive financial obligations on states. U.S.C.A.Const. Amend. 14, § 5.

195 Cases that cite this headnote

[2]

United States

Aid to state and local agencies in general

Legislation enacted pursuant to spending power is much in nature of contract; in return for federal funds, states agree to comply with federally imposed conditions and legitimacy of Congress’ power to legislate under spending power thus rests on whether state voluntarily and knowingly accepts terms of “contract.” U.S.C.A.Const. Art. 1, § 8, cl. 1.

342 Cases that cite this headnote

[3]

United States

Aid to state and local agencies in general

If Congress intends to impose condition on grant of federal monies pursuant to spending power, it must do so unambiguously, especially where state’s potential obligations are largely indeterminate. U.S.C.A.Const. Art. 1, § 8, cl. 1.

176 Cases that cite this headnote 1

Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 (1981)

[4]

Mental Health

Treatment or medication;   training or

habilitation

United States

Aid to state and local agencies in general

“Bill of rights” provision of Developmentally Disabled Assistance and Bill and Rights Act did not create in favor of mentally retarded any substantive rights to “appropriate treatment” in the “least restrictive” environment; Congress did not impose such obligation pursuant to its power to enforce Fourteenth Amendment, nor did it act pursuant to spending power to condition states’ receipt of monies under the Act on such right to treatment. U.S.C.A.Const. Art. 1, § 8, cl. 1; Amend. 14, § 5; Developmental Disabilities Assistance and Bill of Rights Act, § 111 as amended 42 U.S.C.A. § 6010.

399 Cases that cite this headnote

**1532 Syllabus*

*

The syllabus constitutes no part of the opinion of the

Court but has been prepared by the Reporter of

Decisions for the convenience of the reader. See United

States v. Detroit Lumber Co., 200 U.S. 321, 337, 26

S.Ct. 282, 288, 50 L.Ed. 499.

*1 The Developmentally Disabled Assistance and Bill of Rights Act (Act) established a federal-state grant program whereby the Federal Government provides financial assistance to participating States to aid them in creating programs to care for and treat the developmentally disabled. The Act is voluntary, and the States are given the choice of complying with the conditions set forth in the Act or forgoing the benefits of federal funding. The “bill if rights” provision of the Act, 42 U.S.C. §§ 6010(1) and (2), states that mentally retarded persons “have a right to appropriate treatment, services, and habilitation” in “the setting that is least restrictive of ... personal liberity.” Pennsylvania, a participating State, owns and operates Pennhurst State School and Hospital, a facility for the care, and treatment of the mentally retarded. Respondent *2 Halderman, a retarded resident of Pennhurst, brought a class action in Federal District Court on behalf of herself

and all other Pennhurst residents against Pennhurst and various officials responsible for its operation. It was alleged, inter alia, that conditions at Pennhurst were unsanitary, inhumane, and dangerous, and that such conditions denied the class members various specified constitutional and statutory rights, including rights under the Act, and, in addition to seeking injunctive and monetary relief, it was urged that Pennhurst be closed and that “community living arrangements” be established for its residents. The District Court found that certain of the claimed rights were violated, and granted the relief sought. The Court of Appeals substantially affirmed, but avoided the constitutional claims and instead held that § 6010 created substantive rights in favor of the mentally retarded, that mentally retarded persons have an implied cause of action to enforce those rights, and that the conditions at Pennhurst violated those rights.
The court further found that Congress enacted the Act pursuant to both § 5 of the Fourteenth Amendment and the spending power.
Held: Section 6010 does not create in favor of the mentally retarded any substantive rights to “appropriate treatment” in the “least restrictive” environment. Pp. 1536-1547.
(a) The case for inferring congressional intent to create, pursuant to Congress’ enacting power under § 5 of the Fourteenth Amendment, enforceable rights and obligations is at its weakest where, as here, the rights asserted imposed affirmative obligations on the States to fund certain services, since it may be assumed that Congress will not implicitly attempt to impose massive financial obligations on the States. Unlike legislation enacted under § 5, however, legislation enacted pursuant to the spending power is much in the nature of a contract; in return for federal funds, the States agree to comply with federally imposed conditions. The legitimacy of Congress’ power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the “contract,” but if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously. Pp. 1538-1540.
**1533 (b) applying the above principles to these cases, This court fInds nothing in the Act or its legislative history to suggest that Congress intended to require the States to assume the high cost of providing “appropriate treatment” in the “least restrictive” environment to their mentally retarded citizens. There is virtually no support for the Court of Appeals’ conclusion that Congress created rights and obligations pursuant to its power to enforce the Fourteenth Amendment. The Act nowhere states that that is its purpose, but to the contrary the *3 Act’s language and structure demonstrate that it is a mere federal-state funding statute. Section 6010, when read in the context of other more specific provisions of the Act,
2

Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 (1981)

does no more than express a congressional preference for certain kinds of treatment. Far from requiring the States to fund newly declared individual rights, the Act has a systematic focus, seeking to improve care to individuals by encouraging better state planning, coordination, and demonstration projects. Pp. 1540-1542.
(c) There is no merit to the contention that Congress, acting pursuant to its spending power, conditioned the grant of federal funds on the State’s agreeing to underwrite the obligations the Court of Appeals read into § 6010. As noted, the “findings” of § 6010, when viewed in the context of the more specific provisions of the Act, represent general statements of federal policy, not newly created legal duties. Moreover, the “plain language” of § 6010, as well as the administrative interpretation of the provision, also refutes such contention. Section 6010, in contrast to other provisions of the Act that clearly impose conditions, in no way suggests that the grant of federal funds is “conditioned” on a State’s funding the rights described therein. Pp. 1542-1543.
(d) The rule of statutory construction that Congress must express clearly its intent to impose conditions on the grant of federal funds so that the States can knowingly decide whether or not to accept those funds, applies with greatest force where, as here, a State’s potential obligations under the Act are largely indeterminate. The crucial inquiry here is not whether a State would knowingly undertake the obligation to provide “appropriate treatment” in the “least restrictive” setting, but whether Congress spoke so clearly that it can fairly be said that the State could make an informed choice. In this case, Congress fell well short of providing clear notice to the States that by accepting funds under the Act they would be obligated to comply with § 6010. Pp. 1543-1544.
(e) A comparison of the general language of § 6010 with the conditions Congress explicitly imposed on the States under the Act demonstrates that Congress did not intend to place either absolute or conditional obligations on the States under § 6010. Pp. 1543-1545.
(f) Questions not addressed by the Court of Appeals-as to whether individual mentally retarded persons may bring suit to compel compliance with those conditions that are contained in the Act, the federal constitutional claims, and claims under another federal statute-and issues as to whether state law imposed an obligation on Pennsylvania to provide treatment, are remanded for consideration or reconsideration, respectively, in light of the instant decision. Pp. 1544-1547. 612 F.2d 84, reversed and remanded.
Attorneys and Law Firms
*4 Allen C. Warshaw, Harrisburg, Pa., for petitioners in

No. 79-1404.
Thomas M. Kittredge, Philadelphia, Pa., for petitioners in Nos. 79-1408 and 79-1415.
Joel I. Klein, Washington, D. C., for petitioners in No. 79-1489.
David Ferleger, Philadelphia, Pa., for respondents Halderman et al.
Drew S. Days, III, Washington, D. C., for respondent United States.
Thomas K. Gilhool, Philadelphia, Pa., for respondent Pennsylvania Association for Retarded Citizens.
Opinion
*5 **1534 Justice REHNQUIST delivered the opinion of the Court.
At issue in these cases is the scope and meaning of the Developmentally Disabled Assistance and Bill of Rights Act of 1975, 89 Stat. 486, is amended, 42 U.S.C. § 6000 et seq. (1976 ed. and Supp.III). The Court of Appeals for the Third Circuit held that the Act created substantive rights in favor of the mentally retarded, that those rights were judicially enforceable, and that conditions at the Pennhurst State School and Hospital (Pennhurst), a facility for the care and treatment of the mentally retarded, violated those rights. For the reasons stated below, we reverse the decision of the Court of Appeals and remand the cases for further proceedings.
I
The Commonwealth of Pennsylvania owns and operates Pennhurst. Pennhurst is a large institution, housing approximately 1,200 residents. Seventy-five percent of the residents are either “severely” or “profoundly” retarded-that is, with an IQ of less than 35-and a number of the residents *6 are also physically handicapped. About half of its residents were committed there by court order and half by a parent or other guardian.
In 1974, respondent Terri Lee Halderman, a minor retarded resident of Pennhurst, filed suit in the District Court for the Eastern District of Pennsylvania on behalf of herself and all other Pennhurst residents against Pennhurst, its superintendent, and various officials of the Commonwealth of Pennsylvania responsible for the operation of Pennhurst (hereafter petitioners). The additional respondents (hereinafter with respondent Halderman, referred to as respondents) in these
3

Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 (1981)

cases-other mentally retarded persons, the United States, and the Pennsylvania Association for Retarded Citizens (PARC)-subsequently intervened as plaintiffs. PARC added several surrounding counties as defendants, alleging that they were responsible for the commitment of persons to Pennhurst.
As amended in 1975, the complaint alleged, inter alia, that conditions at Pennhurst were unsanitary, inhumane, and dangerous. Specifically, the complaint averred that these conditions denied the class members due process and equal protection of the law in violation of the Fourteenth Amendment, inflicted on them cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments, and denied them certain rights conferred by the Rehabilitation Act of 1973, 87 Stat. 355, as amended, 29 U.S.C. § 701 et seq. (1976 ed. and Supp.III), the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. §§ 6001 et seq. (1976 ed. and Supp.III), and the Pennsylvania Mental Health and Mental Retardation Act of 1966, Pa.Stat.Ann., Tit. 50, §§ 4101-4704 (Purdon 1969). In addition to seeking injunctive and monetary relief, the complaint urged that Pennhurst be closed and that “community living arrangements”1 be established for its residents.

1

“Community living arrangements” are smaller, less

isolated residences where retarded persons are treated

as much as possible like nonretarded persons.

*7 The District Court certified a class consisting of all persons who have been or may become residents of Pennhurst. After a 32 day trial, it issued an opinion, reported at 446 F.Supp. 1295 (1977), making findings of fact and conclusions of law with respect to the conditions at Pennhurst. Its findings of fact are undisputed: Conditions at Pennhurst are not only dangerous, with the residents often physically abused or drugged by staff members, but also inadequate for the “habilitation” of the retarded.2 Indeed, the court found that the physical, intellectual, and emotional skills of some residents have **1535 deteriorated at Pennhurst. Id., at 1308-1310.

2

There is a technical difference between “treatment,”

which applies to curable mental illness, and

“habilitation,” which consists of education and training

for those, such as the mentally retarded, who are not ill.

This opinion, like the opinions of the courts below, will

use the terms interchangeably.

The court also held that there existed a constitutional right to “be free from harm” under the Eighth Amendment, and to be provided with “nondiscriminatory habilitation” under the Equal Protection Clause, Id., at 1320-1322. In addition, it found that § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and § 201 of the Pennsylvania Mental Health and Mental Retardation Act of 1966, Pa.Stat.Ann., Tit. 50, § 4201 (Purdon 1969), provided a right to minimally adequate habilitation in the least restrictive environment.
Each of these rights was found to have been violated by the conditions existing at Pennhurst. Indeed, the court held that a large institution such as Pennhurst could not provide adequate habilitation. 446 F.Supp., at 1318. It thus ordered *8 that Pennhurst eventually be closed, that suitable “community living arrangements” be provided for all Pennhurst residents, that plans for the removal of residents from Pennhurst be submitted to the court, that individual treatment plans be developed for each resident with the participation of his or her family, and that conditions at Pennhurst be improved in the interim. The court appointed a Special Master to supervise the implementation of this order. Id., at 1326-1329.
The Court of Appeals for the Third Circuit substantially affirmed the District Court’s remedial order. 612 F.2d 84 (1979) (en banc). Unlike the District Court, however, the Court of Appeals sought to avoid the constitutional claims raised by respondents and instead rested its order on a construction of the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. § 6000 et seq. (1976 ed. and Supp.III).3 It found that §§ 111(1) and (2) of the Act, the 89 Stat. 502, 42 U.S.C. §§ 6010(1) and (2), “bill of rights” provision, grant to mentally retarded persons a right to “appropriate treatment, services, and habilitation” in “the setting that is least restrictive of ... personal liberty.” The *9 court further held that under the test articulated in Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26 (1975), mentally retarded persons have an implied cause of action to enforce that right. 612 F.2d, at 97. Because the court found that Congress enacted the statute pursuant to both § 5 of the Fourteenth Amendment4 and the spending power,5 it declined to consider whether a statute enacted pursuant to the spending power alone “could ever provide the predicate for private substantive rights.” Id., at 98. As an alternative ground, the court **1536 affirmed the District Court’s holding that Pennhurst residents have a state statutory right to adequate “habilitation.”

The District Court went on to hold that the mentally retarded have a federal constitutional right to be provided with “minimally adequate habilitation” in the “least restrictive environment,” regardless of whether they were voluntarily or involuntarily committed. Id., at 1314-1320.

3

As originally enacted in 1975, the definition of

“developmentally disabled” included mental

retardation. § 6001(7)(A)(i). As amended in 1978,

however, a mentally retarded individual is considered

developmentally disabled only if he satisfies various

criteria set forth in the Act.

4

Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 (1981)

It is perhaps suggestive of the novelty of the Court of Appeals’ decision that none of the respondents briefed the Act before the District Court, nor raised it in the Court of Appeals. Rather, the court itself suggested the applicability of the Act and requested supplemental briefs on the issue for the purpose of rehearing en banc. Even then the United States, which raised only constitutional claims before the District Court, contended merely that the “most significant implication of the Developmentally Disabled Act is the important light which it sheds upon congressional intent about the nature of the rights of institutionalized mentally retarded persons, and the guidance which it may give in discerning a violation of Section 504 [of the Rehabilitation Act].” Supplemental Brief for United States in No. 78-1490 (CA3), p. 2.

4

Section 5 of the Fourteenth Amendment provides that

“[t]he Congress shall have power to enforce, by

appropriate legislation, the provisions of this article.”

5

The spending power is encompassed in Art. I, § 8, cl. 1,

of the Constitution, which states that “Congress shall

have the Power To ... provide for the ... general Welfare

of the United States.”

the majority was correct in holding that Pennhurst residents have a right to treatment under the Act and an implied cause of action under the Act to enforce that right, they disagreed that the Act imposed a duty on the defendants to provide the “least restrictive treatment” possible. The dissent stated that “the language and structure of the Act, the relevant regulations, and the legislative history all indicate that the States may consider their own resources in providing less restrictive treatment.” Id., at 119. It did not believe that the general findings and declarations contained in a funding statute designed to encourage a course of conduct could be used by the federal courts to create absolute obligations on the States.7

7

The dissent went on to conclude that neither the Federal

Constitution, § 504 of the Rehabilitation Act of 1973,

nor state law required a State to provide treatment in

the “least restrictive setting.” The dissent would have

thus reversed those portions of the District Court’s

order that contemplated a court order closing Pennhurst

and the creation of new less restrictive facilities. It

would also have remanded the case to the District Court

for it to decide “how best to bring Pennhurst in

compliance with statutory and constitutional

requirements” and left open “the possibility that certain

individuals in the future may be able to show that their

particular mode of treatment is not rationally related to

the State’s purpose in confining them.” 612 F.2d, at

131.

The court concluded that the conditions at Pennhurst violated these federal and state statutory rights. As to relief, it affirmed the order of the District Court except insofar as it ordered Pennhurst to be closed. Although the court concluded that “deinstitutionalization is the favored approach to habilitation” in the least restrictive environment, it did not construe the Act to require the closing of large institutions like Pennhurst. Id., at 115. The court thus remanded the case to the District Court for “individual determinations by the court, or by the Special Master, as to the appropriateness of an improved Pennhurst for each such patient” and instructed the District Court or the Master to “engage in a presumption in favor of placing individuals in [community living arrangements].” Id., at 114-115.6

6

The decisions below are somewhat unclear concerning

to whom petitioners owe this right of treatment. The

District Court certified a class of all persons who may

become residents of Pennhurst, and the Court of

Appeals directed relief for all plaintiffs in the case,

including those on Pennhurst’s waiting list. Thus, the

decisions arguably entitle even those mentally retarded

citizens who are not institutionalized or currently

receiving services to a “right to treatment.”

We granted certiorari to consider petitioners’ several challenges to the decision below. 447 U.S. 904, 100 S.Ct. 2984, 64 L.Ed.2d 853. Petitioners first contend that 42 U.S.C. § 6010 does not create in favor of the mentally retarded any substantive rights to “appropriate treatment” in the “least restrictive” environment. Assuming that Congress did intend to create such a right, petitioners question the authority of Congress to impose these affirmative obligations on the States under either its spending power or § 5 of the Fourteenth Amendment. Petitioners next assert that any rights created by the Act are enforceable in federal court only by the Federal Government, not by private parties. *11 Finally, petitioners argue that the court below read the scope of any rights created by the Act too broadly and far exceeded its remedial powers in requiring the Commonwealth to move its residents to less restrictive environments and create individual habilitation plans for the mentally retarded. Because we agree with petitioners’ first contention-that § 6010 simply does not create substantive rights-we find it unnecessary to address the remaining issues.

*10 Three judges dissented. Although they assumed that

II 5

Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 (1981)

We turn first to a brief review of the general structure of the Act. It is a federal-state grant program whereby the Federal **1537 Government provides financial assistance to participating States to aid them in creating programs to care for and treat the developmentally disabled. Like other federal-state cooperative programs, the Act is voluntary and the States are given the choice of complying with the conditions set forth in the Act or forgoing the benefits of federal funding. See generally King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968); Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970); Harris v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980). The Commonwealth of Pennsylvania has elected to participate in the program. The Secretary of the Department of Health and Human Services (HHS), the agency responsible for administering the Act, has approved Pennsylvania’s state plan and in 1976 disbursed to Pennsylvania approximately $1.6 million. Pennhurst itself receives no federal funds from Pennsylvania’s allotment under the Act, though it does receive approximately $6 million per year in Medicaid funds.
The Act begins with an exhaustive statement of purposes. 42 U.S.C. § 6000(b)(1) (1976 ed., Supp.III). The “overall purpose” of the Act, as amended in 1978 is:

“[T]o assist the states to assure that

persons with developmental

disabilities receive the care,

treatment, and other services

necessary to enable them to achieve

their *12 maximum potential

through a system which

coordinates, monitors, plans, and

evaluates those services and which

ensures the protection of the legal

and human rights of persons with

developmental

disabilities.”

(Emphasis supplied.)

As set forth in the margin, the “specific purposes” of the Act are to “assist” and financially “support” various activities necessary to the provision of comprehensive services to the developmentally disabled. § 6000(b)(2) (1976 ed., Supp.III).8

8

Section 6000(b)(2) provides:

“The specific purposes of this chapter are-

“(A) to assist in the provision of comprehensive

services to persons with developmental disabilities,

with priority to those persons whose needs cannot be

covered or otherwise met under the Education for All

Handicapped Children Act, the Rehabilitation Act of

1973 ..., or other health, education, or welfare

programs;

“(B) to assist States in appropriate planning

activities;

“(C) to make grants to States and public and private, nonprofit agencies to establish model programs, to demonstrate innovative habilitation techniques, and to train professional and paraprofessional personnel with respect to providing services to persons with developmental disabilities; “(D) to make grants to university affiliated facilities to assist them in administering and operating demonstration facilities for the provision of services to persons with developmental disabilities, and interdisciplinary training programs for personnel needed to provide specialized services for these persons; and “(E) to make grants to support a system in each State to protect the legal and human rights of all persons with developmental disabilities.”
The Act next lists a variety of conditions for the receipt of federal funds. Under § 6005, for example, the Secretary “as a condition of providing assistance” shall require that “each recipient of such assistance take affirmative action” to hire qualified handicapped individuals. Each State, in turn, shall “as a condition” of receiving assistance submit to the Secretary a plan to evaluate the services provided under the Act. § 6009. Each State shall also “as a condition” of receiving assistance “provide the Secretary satisfactory assurances *13 that each program ... which receives funds from the State’s allotment ... has in effect for each developmentally disabled person who receives services from or under the program a habilitation plan.” § 6011(a) (1976 ed., Supp.III). And § 6012(a) (1976 ed., Supp.III) conditions aid on a State’s promise to “have in effect a system to protect and advocate the rights of persons with developmental disabilities.”
At issue here, of course, is § 6010, the “bill of rights” provision. It states in relevant part:
“Congress makes the following findings respecting the rights of persons with developmental disabilities:
**1538 “(1) Persons with developmental disabilities have a right to appropriate treatment, services, and habilitation for such disabilities.
“(2) The treatment, services, and habilitation for a person with developmental disabilities should be designed to maximize the developmental potential of the person and should be provided in the setting that is least restrictive of the person’s personal liberty.
“(3) The Federal Government and the States both have an obligation to assure that public funds are not provided to any institutio[n] ... that-(A) does not provide treatment, services, and habilitation which is appropriate to the needs of such person; or (B) does not meet the following minimum standards ....”
6

Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 (1981)

Noticeably absent from § 6010 is any language suggesting that § 6010 is a “condition” for the receipt of federal funding under the Act. Section 6010 thus stands in sharp contrast to §§ 6005, 6009, 6011, and 6012.
The enabling parts of the Act are the funding sections. 42 U.S.C. §§ 6061-6063 (1976 ed. and Supp.III).9 Those sections describe how funds are to be allotted to the States, require *14 that any State desiring financial assistance submit an overall plan satisfactory to the Secretary of HHS, and require that funds disbursed under the Act be used in accordance with the approved state plan. To be approved by the Secretary, the state plan must comply with several specific conditions set forth in § 6063. It, inter alia, must provide for the establishment of a State Planning Council, § 6063(b)(1), and set out specific objectives to be achieved under the plan, § 6063(b)(2)(A) (1976 ed., Supp.III). Services furnished under the plan must be consistent with standards prescribed by the Secretary, § 6063(b)(5)(A)(i) (1976 ed., Supp.III), and be provided in an individual manner consistent with § 6011, § 6063(b)(5)(B) (1976 ed., Supp.III). The plan must also be supported by assurances that any program receiving assistance is protecting the human rights of the disabled consistent with § 6010, § 6063(b)(5)(C) (1976 ed., Supp.III).10 Each State must also require its State Planning Council to serve as an advocate of persons with developmental disabilities. § 6067 (1976 ed., Supp.III).

9

Sections 6031-6043 authorize separate funding to

university-affiliated facilities for the operation of

demonstration and training programs and are not

pertinent here.

10

The provisions of § 6063 were reworded and recodified

in 1978. Section 6063(b)(5)(C) (1976 ed., Supp.III)

replaced § 133(b)(24) of the Act, as added and

renumbered, 89 Stat. 491, 506, 42 U.S.C. §

6063(b)(24), which required a somewhat similar

“assurance.” The only significant difference between

the two provisions is that § 6063(b)(5)(C) contains a

specific reference to § 6010.

The Act further provides procedures and sanctions to ensure state compliance with its requirements. The Secretary may, of course, disapprove a state plan, § 6063(c). If a State fails to satisfy the requirements of § 6063, the Secretary may terminate or reduce the federal grant. § 6065 (1976 ed., Supp.III). Any State dissatisfied with the Secretary’s disapproval of the plan, or his decision to terminate funding, may appeal to the federal courts of appeals. § 6068. No other cause of action is recognized in the Act.

*15 III
As support for its broad remedial order, the Court of Appeals found that 42 U.S.C. § 6010 created substantive rights in favor of the disabled and imposed an obligation on the States to provide, at their own expense, certain kinds of treatment. The initial question before us, then, is one of statutory construction: Did Congress intend in § 6010 to create enforceable rights and obligations?

A
In discerning congressional intent, we necessarily turn to the possible sources of Congress’ power to legislate, namely, Congress’ power to enforce the Fourteenth **1539 Amendment and its power under the Spending Clause to place conditions on the grant of federal funds. Although the court below held that Congress acted under both powers, the respondents themselves disagree on this point. The Halderman respondents argue that § 6010 was enacted pursuant to § 5 of the Fourteenth Amendment. Accordingly, they assert that § 6010 is mandatory on the States, regardless of their receipt of federal funds. The Solicitor General, in contrast, concedes that Congress acted pursuant to its spending power alone. Tr. of Oral Arg. 54. Thus, in his view, § 6010 only applies to those States which accept federal funds.11

11

The PARC respondents take a somewhat different

view. Although they argue that Congress enacted §

6010 under both § 5 and the spending power, they

suggest that § 6010 applies only to programs which

receive federal money. The PARC respondents are also

cross-petitioners in this litigation, arguing that the Act

requires Pennhurst to be closed. In their view, the

individual placement decisions required by the court

below are not authorized by the Act and, in any event,

are an improper exercise of judicial authority.

[1] Although this Court has previously addressed issues going to Congress’ power to secure the guarantees of the Fourteenth Amendment, Katzenbach v. Morgan, 384 U.S. 641, 651, 86 S.Ct. 1717, 1723-1724, 16 L.Ed.2d 828 (1966); Oregon v. Mitchell, 400 U.S. 112, 91 S.Ct. 260, 27 L.Ed.2d 272 (1970); *16 Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1975),12 we have had little occasion to consider the appropriate test for determining when Congress intends to enforce those guarantees. Because such legislation imposes congressional policy on a State involuntarily, and because it often intrudes on traditional state authority, we should not quickly attribute to Congress an unstated intent to act
7

Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 (1981)

under its authority to enforce the Fourteenth Amendment. Our previous cases are wholly consistent with that view, since Congress in those cases expressly articulated its intent to legislate pursuant to § 5. See Katzenbach v. Morgan, supra (intent expressly stated in the Voting Rights Act of 1965); Oregon v. Mitchell, supra (intent expressly stated in the Voting Rights Act Amendments of 1970); Fitzpatrick v. Bitzer, supra (intent expressly stated in both the House and Senate Reports of the 1972 Amendments to the Civil Rights Act of 1964); cf. South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966) (intent to enforce the Fifteenth Amendment expressly stated in the Voting Rights Act of 1965). Those cases, moreover, involved statutes which simply prohibited certain kinds of state conduct. The case for inferring intent is at its weakest where, as here, the rights asserted impose affirmative obligations on the States to fund certain *17 services, since we may assume that Congress will not implicitly attempt to impose massive financial obligations on the States.

12

There is of course a question whether Congress would

have the power to create the rights and obligations

found by the court below. Although the court below

held that “section 6010 does not go beyond what has

been judicially declared to be the limits of the

[F]ourteenth [A]mendment,” 612 F.2d, at 98, this Court

has never found that the involuntarily committed have a

constitutional “right to treatment,” much less the

voluntarily committed. See Sanchez v. New Mexico,

396 U.S. 276, 90 S.Ct. 588, 24 L.Ed.2d 469 (1970),

dismissing for want of substantial federal question, 80

N.M. 438, 457 P.2d 370 (1968); O’Connor v.

Donaldson, 422 U.S. 563, 587-589, 95 S.Ct. 2486,

2499-2500, 45 L.Ed.2d 396 (1975) (BURGER, C. J.,

concurring). Thus, the Pennhurst petitioners and several

amici argue that legislation which purports to create

against the States not only a right to treatment, but one

in the least restrictive setting, is not “appropriate”

legislation within the meaning of § 5. Because we

conclude that § 6010 creates no rights whatsoever, we

find it unnecessary to consider that question.

[2] [3] Turning to Congress’ power to legislate pursuant to the spending power, our cases have long recognized that Congress may fix the terms on which it shall disburse federal money to the States. See, e. g., Oklahoma v. CSC, 330 U.S. 127, 67 S.Ct. 544, 91 L.Ed. 794 (1947); King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968); **1540 Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970). Unlike legislation enacted under § 5, however, legislation enacted pursuant to the spending power is much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions. The legitimacy of Congress’ power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the “contract.” See Steward Machine

Co. v. Davis, 301 U.S. 548, 585-598, 57 S.Ct. 883, 890-896, 81 L.Ed.2d 1279 (1937); Harris v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980). There can, of course, be no knowing acceptance if a State is unaware of the conditions or is unable to ascertain what is expected of it. Accordingly, if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously.13 Cf. Employees v. Department of Public Health and Welfare, 411 U.S. 279, 285, 93 S.Ct. 1614, 1618, 36 L.Ed.2d 251 (1973); Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). By insisting that Congress speak with a clear voice, we enable the States to exercise their choice knowingly, cognizant of the consequences of their participation.

13

There are limits on the power of Congress to impose

conditions on the States pursuant to its spending power,

Steward Machine Co. v. Davis, 301 U.S., at 585, 57

S.Ct., at 890; Lau v. Nichols, 414 U.S. 563, 569, 94

S.Ct. 786, 789, 39 L.Ed.2d 1 (1974); Fullilove v.

Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d

902 (1980) (BURGER, C. J.); see National League of

Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49

L.Ed.2d 245 (1976). Even the Halderman respondents,

like the court below, recognize the “constitutional

difficulties” with imposing affirmative obligations on

the States pursuant to the spending power, Tr. of Oral

Arg. 45. That issue, however, is not now before us.

Indeed, in those instances where Congress has intended the States to fund certain entitlements as a condition of receiving *18 federal funds, it has proved capable of saying so explicitly. See, e. g., King v. Smith, supra, at 333, 88 S.Ct., at 2141 (Social Security Act creates a “federally imposed obligation [on the States] to furnish ‘aid to families with dependent children ... with reasonable promptness to all eligible individuals’,” quoting the Act). We must carefully inquire, then, whether Congress in § 6010 imposed an obligation on the States to spend state money to fund certain rights as a condition of receiving federal moneys under the Act or whether it spoke merely in precatory terms.

B
[4] Applying those principles to these cases, we find nothing in the Act or its legislative history to suggest that Congress intended to require the States to assume the high cost of providing “appropriate treatment” in the “least restrictive environment” to their mentally retarded citizens.
There is virtually no support for the lower court’s conclusion that Congress created rights and obligations pursuant to its power to enforce the Fourteenth
8

Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 (1981)

Amendment. The Act nowhere states that that is its purpose. Quite the contrary, the Act’s language and structure demonstrate that it is a mere federal-state funding statute. The explicit purposes of the Act are simply “to assist” the States through the use of federal grants to improve the care and treatment of the mentally retarded. § 6000(b) (1976 ed., Supp.III). Nothing in either the “overall” or “specific” purposes of the Act reveals an intent to require the States to fund new, substantive rights. Surely Congress would not have established such elaborate funding incentives had it simply intended to impose absolute obligations on the States.
Respondents nonetheless insist that the fact that § 6010 speaks in terms of “rights” supports their view. Their reliance is misplaced. “ ‘In expounding a statute, we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.’ ” Philbrook v. Glodgett, 421 U.S. 707, 713, 95 S.Ct. 1893, 1898, 44 L.Ed.2d 525 (1975), *19 quoting United States v. Heirs of Boisdoré, 8 How. 113, 122, 12 L.Ed. 1009 (1849). See **1541 District of Columbia v. Carter, 409 U.S. 418, 420, 93 S.Ct. 602, 604, 34 L.Ed.2d 613 (1973). Contrary to respondents’ assertion, the specific language and the legislative history of § 6010 are ambiguous. We are persuaded that § 6010, when read in the context of other more specific provisions of the Act, does no more than express a congressional preference for certain kinds of treatment. It is simply a general statement of “findings” and, as such, is too thin a reed to support the rights and obligations read into it by the court below. The closest one can come in giving § 6010 meaning is that it justifies and supports Congress’ appropriation of money under the Act and guides the Secretary in his review of state applications for federal funds. See United States v. Carolene Products Co., 304 U.S. 144, 152, 58 S.Ct. 778, 783, 82 L.Ed. 1234 (1938).14 As this Court recognized in Rosado v. Wyman, supra, at 413, 90 S.Ct., at 1218, “Congress sometimes legislates by innuendo, making declarations of policy and indicating a preference while requiring measures that, though falling short of legislating its goals, serve as a nudge in the preferred directions.” This is such a case.

14

Respondents also contend that the title of the Act as

passed, rather than as codified, reveals an intent to

create rights in favor of the disabled. Pub.L. 94-103, 89

Stat. 486. As passed, the Act contained three Titles.

Title I provided for services and facilities to the

developmentally disabled and Title II, entitled “The

Establishment and Protection of the Rights of Persons

with Developmental Disabilities,” contained § 6010.

Respondents’ reliance on this title is misplaced. It has

long been established that the title of an Act “cannot

enlarge or confer powers.” United States v. Oregon &

California R. Co., 164 U.S. 526, 541, 17 S.Ct. 165,

170, 41 L.Ed. 541 (1896); Cornell v. Coyne, 192 U.S.

418, 430, 24 S.Ct. 383, 385-386, 48 L.Ed. 504 (1904). See United States v. Fisher, 2 Cranch 358, 386, 2 L.Ed. 304 (1805); Yazoo & Mississippi Valley R. Co. v. Thomas, 132 U.S. 174, 188, 10 S.Ct. 68, 73, 33 L.Ed. 302 (1889). In addition, the location of § 6010 in the Act as passed confirms § 6010’s limited meaning. Section 6010 was the preamble of Title II followed by provisions later codified as §§ 6009, 6011, 6012. The congressional findings in § 6010 thus seem to have been designed simply to serve as the rationale for the conditions imposed in the remaining sections of Title II.
*20 The legislative history buttresses our conclusion that Congress intended to encourage, rather than mandate, the provision of better services to the developmentally disabled. The House Committee believed the purpose of the Act was simply to continue an existing federal grant program, designed to promote “effective planning by the states of their programs, initiation of new, needed programs, and filling of gaps among existing efforts.” H.R.Rep.No.94-58, pp. 6, 8-9 (1975), U.S.Code Cong. & Admin.News, 1975, pp. 919, 924. Indeed, as passed by the House, the Act contained no “bill of rights” provision whatsoever. The Committee instead merely “applauded” the efforts of others to secure rights for the developmentally disabled. Id., at 7. Respondents, however, argue vigorously that the legislative history of the bill as passed by the Senate evinces Congress’ intent to impose absolute obligations on the States to fund certain levels of treatment. Respondents rely most heavily on Title II of the Senate bill which adopted a “Bill of Rights” for the mentally retarded and contained over 400 pages of detailed standards “designed to assist in the protection of the human rights guaranteed under the Constitution.” S.Rep.No.94-160, p. 34 (1975). The Report also noted that the “Federal Government has a responsibility to provide equal protection under the law to all citizens.” Id., at 32. And Senator Stafford stated on the Senate floor that “Title II was added to the bill to assist in the protection of the rights guaranteed under our Constitution for those individuals that will require institutionalization.” 121 Cong.Rec. 16516 (1975).
Respondents read too much into these scattered bits of legislative history. In the first place, it is by no means clear that even the Senate bill created new substantive rights in favor of the disabled.15 Despite **1542 the general discussion of *21 equal protection guarantees in the Senate Report, the Committee’s view of the Act was quite modest. It explained that the purpose of Title II was simply “to stimulate the States to develop alternative programs of care for mentally retarded.” S.Rep.No.94-160, supra, at 1. It viewed Title II as satisfying the “need for a clear exposition of the purposes
9

Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 (1981)

for which support should be provided under the authorities of the Act.” Id., at 3. Nor are the remarks of various Senators to the contrary. Senator Stafford spoke merely in terms of “assisting” the States. Senator Randolph, in introducing the bill on the floor of the Senate, confirmed the Senate’s limited purpose. He said:

15

As originally passed by the Senate, for example, the bill

provided that a State which failed to comply with the

detailed standards of care enumerated in Title II would

lose all federal funding, including that provided under

such programs as Medicaid. S. 462, Tit. II, § 206. See

S.Rep.No.94-160, p. 35 (1975). The fact that the Senate

would include a funding sanction is, of course, wholly

inconsistent with respondents’ argument that Congress

was acting pursuant to § 5 of the Fourteenth

Amendment.

“[W]e have developed a bill whose thrust, like the 1970 act, is to assist States in developing a comprehensive plan to bring together available resources in a coordinated way so developmentally disabled individuals are appropriately served. Our goal is more thorough and careful planning and more effective evaluation.” 121 Cong.Rec. 16514 (1975) (emphasis supplied). Even Senator Javits, the principal proponent of Title II, did not read the Act as establishing new substantive rights to enforce those guaranteed by the Constitution. He explained that Title II, “represents a reaffirmation of the basic human and civil rights of all citizens. It offers the direction to provide a valid and realistic framework for improving the overall situation of his country’s mentally retarded and other developmentally disabled individuals.” Id., at 16519 (emphasis supplied). In any event, whatever the Senate’s view of its bill, Congress declined to adopt it. The Conference Committee rejected the explicit standards of Title II and instead compromised *22 on the more general statement of “findings” in what later became § 6010. H.R.Conf.Rep.No.94-473, pp. 41, 43 (1975). As Senator Javits noted with respect to the compromise, “Title II of the Conference agreement establishes a clear Federal policy that the mentally retarded have a right to appropriate treatment, services, and habilitation.” 121 Cong.Rec. 29820 (1975) (emphasis supplied).
In sum, nothing suggests that Congress intended the Act to be something other than a typical funding statute.16 Far from requiring the States to fund newly declared individual rights, the Act has a systematic focus, seeking to improve care to individuals by encouraging better state planning, coordination, and demonstration projects. Much like the Medicaid statute considered in Harris v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980), the

Act at issue here “was designed as a cooperative program of shared responsibilit[ies], not as a device for the Federal Government to compel a State to provide services that Congress itself is unwilling to fund.” Id., at 309, 100 S.Ct., at 2684.

16

Nor is the contrary proved by a 1978 amendment to §

6010 which provides:

“The rights of persons with developmental

disabilities described in findings made in this section

are in addition to any constitutional or other rights

otherwise afforded to all persons.” 92 Stat. 3007.

This provision, adopted in Conference Committee

without any legislative history, merely expresses

Congress’ view that persons with developmental

disabilities have rights in addition to those generally

available to “all persons.” The section recognizes

that Congress only “described” rights, not created

them. Nothing in the language supports an inference

of substantive duties from a statement of

congressional policy.

There remains the contention of the Solicitor General that Congress, acting pursuant to its spending power, conditioned the grant of federal money on the State’s agreeing to underwrite the obligations the Court of Appeals read into § 6010. We find that contention wholly without merit. As amply demonstrated above, the “findings” in § 6010, when viewed *23 in the context of **1543 the more specific provisions of the Act, represent general statements of federal policy, not newly created legal duties.
The “plain language” of § 6010 also refutes the Solicitor General’s contention. When Congress intended to impose conditions on the grant of federal funds, as in §§ 6005, 6009, 6011, 6012, 6063, and 6067, it proved capable of doing so in clear terms. Section 6010, in marked contrast, in no way suggests that the grant of federal funds is “conditioned” on a State’s funding the rights described therein. The existence of explicit conditions throughout the Act, and the absence of conditional language in § 6010, manifest the limited meaning of § 6010.
Equally telling is the fact that the Secretary has specifically rejected the position of the Solicitor General. The purpose of the Act, according to the Secretary, is merely “to improve and coordinate the provision of services to persons with developmental disabilities.” 45 CFR § 1385.1 (1979). The Secretary acknowledges that “[n]o authority was included in [the 1975] Act to allow the Department to withhold funds from States on the basis of failure to meet the findings [of § 6010].” 45 Fed.Reg. 31006 (1980). If funds cannot be terminated for a State’s failure to comply with § 6010, § 6010 can hardly be considered a “condition” of the grant of federal funds.17 The Secretary’s interpretation of § 6010, moreover, is
10

Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 (1981)

well supported by the legislative history. In reaching *24 the compromise on § 6010, the Conference Committee rejected the Senate’s proposal to terminate federal funding of States which failed to comply with the standards enumerated in Title II of the Senate’s bill, see n. 15, supra. By eliminating that sanction, Congress made clear that the provisions of § 6010 were intended to be hortatory, not mandatory.18

17

To be sure, the Secretary has read the 1978

recodification of § 6063(b)(5)(C) (1976 ed., Supp.III)

to require a participating State to assure the Secretary

that services in funded programs are being provided

consistent with § 6010. 45 Fed.Reg. 31006 (1980). But,

as will be discussed infra, even if the Secretary’s

interpretation of the 1978 recodification is correct, a

participating State’s obligations under § 6063(b)(5)(C)

are far more modest than the obligations read into §

6010 by the court below and urged by the Solicitor

General here. It is also important to note that the

Secretary, despite his apparent authority to do so, has

not terminated funds to Pennsylvania for

noncompliance with § 6063(b)(5)(C).

18

The Solicitor General also relies heavily on § 6010(3),

quoted supra, at 13. He apparently contends that

Congress in § 6010(3) conditioned the grant of all

federal funds, including Medicaid, on the participating

State’s agreement to provide adequate treatment to

individuals. Although § 6010(3), unlike §§ 6010(1) and

(2), at least speaks in terms of “obligations,” we find

the Solicitor General’s argument ultimately without

merit. First, like the other “findings” in § 6010, §

6010(3) is merely an expression of federal policy. As

even the Secretary concedes, Congress did not give the

Secretary authority to withdraw federal funds on the

basis of a State’s failure to comply with § 6010(3).

Second, by its terms, § 6010(3) states that both the

Federal Government and the States should not spend

public money for substandard institutions. Nothing

reveals an intent to condition the grant of federal funds

under the Act on the State’s promise to provide

appropriate habilitation to individuals.

The fact that Congress granted to Pennsylvania only $1.6 million in 1976, a sum woefully inadequate to meet the enormous financial burden of providing “appropriate” treatment in the “least restrictive” setting, confirms that Congress must have had a limited purpose in enacting § 6010. When Congress does impose affirmative obligations on the States, it usually makes a far more substantial contribution to defray costs. Harris v. McRae, supra. It defies common sense, in short, to suppose that Congress implicitly imposed this massive obligation on participating States.
Our conclusion is also buttressed by the rule of statutory

construction established above, that Congress must express clearly its intent to impose conditions on the grant of federal funds so that the States can knowingly decide whether or not to accept those funds. That canon applies with greatest force where, as here, a State’s potential obligations under the Act are largely indeterminate. It is difficult to know what *25 **1544 is meant bY providing “appropriate treatment” in the “least restrictive” setting, and it is unlikely that a State would have accepted federal funds had it known it would be bound to provide such treatment. The crucial inquiry, however, is not whether a State would knowingly undertake that obligation, but whether Congress spoke so clearly that we can fairly say that the State could make an informed choice. In this case, Congress fell well short of providing clear notice to the States that they, by accepting funds under the Act, would indeed be obligated to comply with § 6010. Not only does § 6010 lack conditional language, but is strains credulity to argue that participating States should have known of their “obligations” under § 6010 when the Secretary of HHS, the governmental agency responsible for the administration of the Act and the agency with which the participating States have the most contact, has never understood § 6010 to impose conditions on participating States. Though Congress’ power to legislate under the spending power is broad, it does not include surprising participating States with post acceptance or “retroactive” conditions.
Finally, a brief comparison of the general language of § 6010 with the conditions Congress explicitly imposed on the States demonstrates that Congress did not intend to place either absolute or conditional obligations on the States. The Court of Appeals, for example, read § 6010 to impose an obligation to provide habilitation plans for all developmentally disabled persons. But Congress required habilitation plans under § 6011 “only when the Federal assistance under the Act contributes a portion of the cost of the habilitation services to the developmentally disabled person.” H.R.Conf.Rep.No. 94-473, p. 43, U.S.Code Cong. & Admin.News 1975, p. 963 (1975). If the Court of Appeals were correct, of course, there would be no purpose for Congress to have required habilitation plans at all, or to have limited the requirement to certain programs, since such plans automatically would have been mandated in all programs by the more inclusive requirements of § 6010.
*26 Second, the specific condition imposed in § 6063(b)(5)(C) (1976 ed., Supp.III) requires each state plan to
“contain or be supported by assurances satisfactory to the Secretary that the human rights of all persons with developmental disabilities ... who are receiving
11

Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 (1981)

treatment, services, or habilitation, under programs assisted under this chapter will be protected consistent with section 6010 of this title (relating to rights of the developmentally disabled).”

Once again, these limitations-both as to programs assisted under the Act and as to affording protection in a manner that is “consistent with § 6010”-would be unnecessary if, as the court below ruled, all state programs were required to fund the rights described in § 6010. And third, the court below held that § 6010 mandated deinstitutionalization for most, if not all, mentally retarded persons. As originally enacted in 1975, however, the Act required only that each State use not less than 30 percent of its allotment “for the purpose of assisting it in developing and implementing plans designed to eliminate inappropriate placement in institutions of persons with developmental disabilities.” § 6062(a)(4).19 Three years later, Congress relieved the States of even that modest duty. Instead of requiring the States to use a certain portion of their allotment to support deinstitutionalization, Congress required the States to concentrate their efforts in at least one of four areas, only one of which was “community living arrangements.” § 6063(b)(4)(A)(ii) (1976 ed., Supp.III). Had § 6010 created a right to deinstitutionalization, the policy choices contemplated *27 by both the 1975 and 1978 provisions would be meaningless.

19

The House Report, for example, explained that States

were required only to plan “for as much

deinstitutionalization as is feasible,” recognizing that

this requirement would “prompt some movement of

patients from State institutions back into their

communities.” H.R.Rep.No. 94-58, p. 10 (1975),

U.S.Code Cong. & Admin.News 1975, p. 928.

**1545 In sum, the court below failed to recognize the well-settled distinction between congressional “encouragement” of state programs and the imposition of binding obligations on the States. Harris v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980). Relying on that distinction, this Court insoutheastern community coLlege v. dAvis, 442 u.s. 397, 99 S.CT. 2361, 60 L.Ed.2d 980 (1979), rejected a claim that § 504 of the Rehabilitation Act of 1973, which bars discrimination against handicapped persons in federally funded programs, obligates schools to take affirmative steps to eliminate problems raised by an applicant’s hearing disability. Finding that “state agencies such as Southeastern are only ‘encourage[d] ... to adopt and implement such policies and procedures.’ ” Id., at 410, 99 S.Ct. at 2369 (quoting the Act), we stressed that “Congress understood [that] accommodation of the needs

of handicapped individuals may require affirmative action and knew how to provide for it in those instances where it wished to do so.” Id., at 411, 99 S.Ct., at 2369. Likewise in this case, Congress was aware of the need of developmentally disabled persons and plainly understood the difference, financial and otherwise, between encouraging a specified type of treatment and mandating it.

IV
Respondents also suggest that they may bring suit to compel compliance with those conditions which are contained in the Act. Of particular relevance to these cases are § 6011(a) (1976 ed., Supp.III) and § 6063(b)(5)(C) (1976 ed., Supp.III), which are quoted supra, at 1537, 1544.20

20

The Court of Appeals was apparently aware of these

conditions since it referred expressly to § 6063(b)(5)(C)

in concluding that § 6010 creates a right to treatment.

Its error was in bypassing these specific conditions and

resting its decision on the more general language of §

6010.

That claim raises several issues. First, it must be determined whether respondents have a private cause of action *28 to compel state compliance with those conditions.21 In legislation enacted pursuant to the spending power, the typical remedy for state noncompliance with federally imposed conditions is not a private cause of action for noncompliance but rather action by the Federal Government to terminate funds to the State. See § 6065 (1976 ed., Supp.III). Just last Term, however, in Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), we held that 42 U.S.C. § 1983 provides a cause of action for state deprivations of “rights secured” by “the laws” of the United States. See 448 U.S., at 4, 100 S.Ct. at 2504. Whether Thiboutot controls these cases depends on two factors. First, respondents here, unlike the plaintiffs in Thiboutot, who alleged that state law prevented him from receiving federal funds to which he was entitled, can only claim that the state plan has not provided adequate “assurances” to the Secretary. It is at least an open question whether an individual’s interest in having a State provide those “assurances” is a “right secured” by the laws of the United States within the meaning of § 1983. Second, Justice POWELL in dissent in Thiboutot suggested that § 1983 would not be available where the “governing statute provides an exclusive remedy for violations of its terms.” Id., at 22, n. 11, 100 S.Ct., at 2513. It is unclear whether the express remedy contained in this Act is exclusive.

12

Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 (1981)

21

Because we conclude that § 6010 confers no

substantive rights, we need not reach the question

whether there is a private cause of action under that

section or under 42 U.S.C. § 1983 to enforce those

rights. See Southeastern Community College v. Davis,

442 U.S. 397, 404, n. 5, 99 S.Ct. 2361, 2366, n. 5, 60

L.Ed.2d 980 (1979).

Second, it is not at all clear that the Pennhurst petitioners have violated § 6011 and § 6063(b)(5)(C) (1976 ed. and Supp.III). Those sections, by their terms, only refer to “programs assisted” under the Act. Because Pennhurst does not receive federal funds under the Act, it is arguably not a “program assisted.” Thus, there may be no obligation on the State under § 6011 to assure the Secretary that each resident of **1546 Pennhurst have a habilitation plan, or assure the Secretary *29 under § 6063(b)(5)(C) that Pennhurst residents are being provided services consistent with § 6010.22

22

Justice WHITE concedes that Pennsylvania may not

have violated § 6011, since Pennhurst may not be a

“program assisted” under the Act. Post, at 1552.

Curiously, however, he simultaneously assumes that §

6063(b)(5)(C) applies to Pennhurst. Post, at 1551-1552.

Because both § 6011 and § 6063(b)(5)(C) apply only to

“programs assisted,” I do not understand why §

6063(b)(5)(C), but not § 6011, is applicable.

Third, there is the question of remedy. Respondents’ relief may well be limited to enjoining the Federal Government from providing funds to the Commonwealth. As we stated in Rosado v. Wyman, 397 U.S., at 420, 90 S.Ct., at 1222, welfare claimants were “entitled to declaratory relief and an appropriate injunction by the District Court against the payment of federal monies ... should the State not develop a conforming plan within a reasonable period of time.” (Emphasis in original.) There, we rejected the suggestion that the courts could require the State to pay the additional sums demanded by compliance with federal standards. Relying on King v. Smith, 392 U.S. 309, 88 S.Ct. 2128, 20 L.Ed.2d 1118 (1968), we explained that “the State had alternative choices of assuming the additional cost” of complying with the federal standard “or not using federal funds.” 397 U.S., at 420-421, 90 S.Ct., at 1222. Accordingly, we remanded the case so that the State could exercise that choice.
In other instances, however, we have implicitly departed from that rule and have affirmed lower court decisions enjoining a State from enforcing any provisions which conflict with federal law in violation of the Supremacy Clause, e. g., Carleson v. Remillard, 406 U.S. 598, 92 S.Ct. 1932, 32 L.Ed.2d 352 (1972). In still other cases, we have struck down state laws without addressing the form of relief, e. g., Townsend v. Swank, 404 U.S. 282, 92 S.Ct.

502, 30 L.Ed.2d 448 (1971). In no case, however, have we required a State to provide money to plaintiffs much less required a State to take on such open-ended and potentially burdensome obligations as providing “appropriate” treatment in the “least restrictive” environment. And because this is a suit in federal court, anything *30 but prospective relief would pose serious questions under the Eleventh Amendment. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974).23

23

We do not significantly differ with our Brother WHITE

on the remedy for failure to comply with federally

imposed conditions. Relying on Rosado v. Wyman, he

argues that Pennsylvania should be given the option of

rejecting federal funds under the Act or complying with

§ 6010. If we agreed that § 6010 was a condition on the

grant of federal funds, we would have little difficulty

subscribing to that view. We differ only in that he

believes that § 6010 imposes conditions on

participating States while we believe that the relevant

conditions to these cases are §§ 6011 and

6063(b)(5)(C). If the court on remand determines that

there has been a violation of those conditions, it may

well be appropriate to apply the principles announced

in Rosado, as Justice WHITE suggests.

These are all difficult questions. Because the Court of Appeals has not addressed these issues, however, we remand the issues for consideration in light of our decision here.

V
After finding that federal law imposed an obligation on the States to provide treatment, the court below examined state law and found that it too imposed such a requirement. 612 F.2d, at 100-103. The court looked to § 4201 of the Pennsylvania Mental Health and Mental Retardation Act of 1966, which provides in pertinent part:
“The department of [Public Welfare] shall have power, and its duty shall be:
“(1) To assure within the State the availability and equitable provision of adequate mental health and mental retardation services for all persons who need them, regardless of religion, race, color, national origin, settlement, residence, or economic or social status.” Pa.Stat.Ann., Tit. 50, § 4201 (Purdon 1969).
**1547 Respondents contend that, even if we conclude that relief is unavailable under federal law, state law adequately supports the relief ordered by the Court of Appeals. There are, *31 however, two difficulties with
13

Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 (1981)

that argument. First, the lower court’s finding that state law provides a right to treatment may well have been colored by its holding with respect to § 6010. Second, the court held only that there is a right to “treatment,” not that there is a state right to treatment in the “least restrictive” environment. As such, it is unclear whether state law provides an independent and adequate ground which can support the court’s remedial order. Accordingly, we remand the state-law issue for reconsideration in light of our decision here.24

24

Respondents have submitted to the Court 10

photocopies of a recent decision of the Pennsylvania

Supreme Court which they characterize as holding that

Pennsylvania state law provides a right to “state-funded

individualized habilitation services.” In re Schmidt, 494

Pa. 86, 429 A.2d 631 (1981). The late submission not

only fails to comply with Supreme Court Rule 35.5, it

does not affect our decision here. On remand following

our reversal, the Court of Appeals will be in a position

to consider the state-law issues in light of the

Pennsylvania’s Supreme Court’s recent decision.

For similar reasons, we also remand to the Court of Appeals those issues it did not address, namely, respondents’ federal constitutional claims and their claims under § 504 of the Rehabilitation Act.

VI
Congress in recent years has enacted several laws designed to improve the way in which this Nation treats the mentally retarded.25 The Developmentally Disabled Assistance and Bill of Rights Act is one such law. It establishes a national policy to provide better care and treatment to the retarded and creates funding incentives to induce the States to do so. But the Act does no more than that. We would be attributing *32 far too much to Congress if we held that it required the States, at their own expense, to provide certain kinds of treatment. Accordingly, we reverse the principal holding of the Court of Appeals and remand for further proceedings consistent with this opinion.

25

E. g., The Rehabilitation Act of 1973, as amended in

1974 and 1978, 29 U.S.C. § 701 et seq. (1976 ed. and

Supp.III); The Education for All Handicapped Children

Act of 1975, 20 U.S.C. §§ 1401-1420; Social Security

Amendments of 1974, 42 U.S.C. §§ 1396d(d) and

1397; Community Mental Health Centers Act, 42

U.S.C. § 2689 et seq.

Reversed and remanded.

Justice BLACKMUN, concurring in part and concurring in the judgment.
Although I agree that the judgment of the Court of Appeals must be reversed, and although I am in accord with much of what the Court says about the meaning of this confused and confusing legislation, see ante, at 1536-1545, I do not join the Court’s advisory discussion in Part IV of its opinion. In that Part, the Court properly and correctly notes, ante, at 1546, that it leaves open for consideration on remand whether, and in what form, §§ 6011 and 6063 create rights that are enforceable by private parties like those that make up these plaintiff classes. The Court, however, seems to me strongly to intimate that it will not view kindly any future positive holding in that direction. I agree that this specific question was not presented and is not today decided, but I decline to join what appears to be a negative attitude on the part of the Court to what is a possible construction of the Act.
It seems plain to me that Congress, in enacting § 6010, intended to do more than merely set out politically self-serving but essentially meaningless language about what the developmentally disabled deserve at the hands of state and federal authorities. A perfectly reasonable judicial interpretation of § 6010, which would avoid the odd and perhaps dangerous precedent of ascribing no meaning to a congressional enactment, would observe and give effect to the linkage between § 6010 and § 6063. As **1548 the Court points out, ante, at 1537, a State that accepts funds under the Act becomes legally obligated to submit a state plan containing “assurances *33 satisfactory to the Secretary that the human rights of all persons with developmental disabilities ... who are receiving treatment, services, or habilitation under programs assisted under this chapter will be protected consistent with section 6010 ....” 42 U.S.C. § 6063(b)(5)(C) (1976 ed., Supp. III).
That private parties, the intended beneficiaries of the Act, should have the power to enforce the modest legal content of § 6063 would not be an unusual application of our precedents, even for a legislative scheme that involves federal regulatory supervision of state operations. See, e. g., Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979); Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970). See also Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980).
Finally, I have difficulty with the Court’s suggestion, ante, at 1545-1546, that Pennhurst should be free of the Act’s requirements because it does not directly receive funds under the Act. The Commonwealth’s program for the institutionalized developmentally disabled is unified in one administration. To restrict the definition of
14

Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 (1981)

“program assisted” in § 6063 to specific institutions within a unified program would allow a State to insulate substandard institutions from federal requirements merely by allocating federal funds to acceptable premises and state funds to substandard ones.

Justice WHITE, with whom Justice BRENNAN and Justice MARSHALL join, dissenting in part.
Pennhurst is a residential institution for the retarded operated by the Commonwealth of Pennsylvania and serving a five county area. Roughly half of its 1,200 residents were admitted upon application of their parents or guardians while the remainder were committed pursuant to court order. After extensive discovery and a lengthy trial, the District Court held that the conditions of confinement at Pennhurst violated the rights of its residents under the Eighth and Fourteenth Amendments of the United States Constitution, state *34 law,1 and the Rehabilitation Act of 1973, 29 U.S.C. § 794, and entered a detailed remedial order requiring the eventual closing of Pennhurst in favor of community living arrangements for Pennhurst’s displaced residents. 446 F.Supp. 1295 (ED Pa.1978). On appeal, the Court of Appeals for the Third Circuit determined that the result reached by the District Court was proper under the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. § 6000 et seq. (1976 ed. and Supp.III) (Act), although relief under that statute had not initially been raised in that court. 612 F.2d 84 (1979) (en banc). The Court of Appeals determined that the Act created judicially cognizable rights to treatment and to receipt of care in the least restrictive environment, and that the right to treatment was also supported by state law. The court essentially affirmed the remedial order entered by the District Court with one significant exception.2 Finding that the legislative history did not require the abandonment of large institutional facilities, the Court of Appeals held that the District Court erred in ordering Pennhurst to be closed. Rather, the Court of Appeals required that each resident of Pennhurst be afforded an individual hearing before a Special Master to determine the appropriate level of institutionalization with a presumption established that community-based living arrangements were proper.

1

See Pa.Stat.Ann., Tit. 50, § 4201 et seq. (Purdon 1969).

2

The Court of Appeals also overturned the District

Court’s decision to require the State to find suitable

alternative employment for those Pennhurst employees

displaced by the order. This order is not an issue before

this Court.

Rights” section of the Act, **1549 42 U.S.C. § 6010, merely serves to establish guidelines which States should endeavor to fulfill, but which have no real effect except to the extent that the Secretary of Health and Human Services chooses to use the criteria established by § 6010 in determining funding under the Act. In my view, this reading misconceives the important *35 purposes Congress intended § 6010 to serve. That section, as confirmed by its legislative history, was intended by Congress to establish requirements which participating States had to meet in providing care to the developmentally disabled. The fact that Congress spoke in generalized terms rather than the language of regulatory minutia cannot make nugatory actions so carefully undertaken.

I
As an initial matter, I agree that § 6010 was enacted pursuant to Congress’ spending power, and not pursuant to its power under § 5 of the Fourteenth Amendment. Accordingly, I agree that the Act was not intended to place duties on States independent of their participation in the program established by the Act. The Court of Appeals, in the section of its opinion concerning the exercise of a private cause of action, determined that § 6010 was passed pursuant to § 5, reasoning that since the Fourteenth Amendment included a right “ ‘to be free from, and to obtain judicial relief for, unjustified intrusions on personal security,’ ” 612 F.2d, at 98, quoting Ingraham v. Wright, 430 U.S. 651, 673, 97 S.Ct. 1401, 1413, 51 L.Ed.2d 711 (1977), congressional passage of § 6010 indicated its desire to enforce this interest.3 Congressional action under the Enforcement Clause of the Fourteenth Amendment, however, has very significant consequences, see Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976), and given these ramifications, it should not be lightly assumed that Congress acted pursuant to its power under § 5 in passing the Act.

3

Respondents Halderman and PARC suggest a number

of other Fourteenth Amendment “interests” allegedly

served by § 6010. See, e. g., San Antonio Independent

School Dist. v. Rodriguez, 411 U.S. 1, 93 S.Ct. 1278,

36 L.Ed.2d 16 (1973) (right to receive something more

than no education); Jackson v. Indiana, 406 U.S. 715,

92 S.Ct. 1845, 32 L.Ed.2d 435 (1972) (right to be

institutionalized only when the nature and duration of

such treatment bears a reasonable relation to its

purpose); O’Connor v. Donaldson, 422 U.S. 563, 95

S.Ct. 2486, 45 L.Ed.2d 396 (1975) (right of

nondangerous persons capable of living without

institutionalization to be free).

In essence, the Court concludes that the so-called “Bill of 15

Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 (1981)

*36 Here, there is no conclusive basis for determining that Congress acted pursuant to § 5. Nothing in the statutory language refers to the Fourteenth Amendment. Section 6010 was but one part of a bill whose underlying purpose was to extend and modify an existing federal-state grant program. The initial program was unquestionably passed pursuant to Congress’ spending power. Moreover, § 6010(3) is by its express terms a limitation on federal and state spending. The rights articulated in § 6010 are also cross-referenced in § 6063 (1976 ed. and Supp.III), which details the operation of the grant program.4 Thus, all objective considerations connected with § 6010 and its operation suggest that Congress enacted it pursuant to its Spending Clause powers.

4

The Act as passed in 1975 required that the state plan

“contain or be supported by assurances satisfactory to

the Secretary that the human rights of all persons with

developmental disabilities ... be protected.” §

6063(b)(24). This measure was amended in 1978 to

make it explicit that a State’s plan must provide

assurances of its compliance with § 6010. See text,

infra.

Of course, resolution of the § 5 issue does not determine the issue whether § 6010 was intended by Congress to have substantive consequences as part of a statute enacted under Art. I, § 8, cl. 1, and in my view, the majority makes far too much of the fact that § 6010 was not passed pursuant to the Fourteenth Amendment. While this conclusion has significant ramifications for the appropriate remedy for violations of the Act, it does not follow that § 6010 was to have no impact or effect besides the mere “encouragement” of state action and created **1550 no obligations on participating States and no rights in those being served by programs maintained by a State in cooperation with the Federal Government.

II
The language and scheme of the Act make it plain enough to me that Congress intended § 6010, although couched in *37 terms of rights, to serve as requirements that the participating States must observe in receiving federal funds under the provisions of the Act. That Congress was deadly serious in stating that the developmentally disabled had entitlements which a State must respect if it were to participate in a program can hardly be doubted.
Federal involvement in state provision of health care to those persons with developmental disabilities began in 1963 with the passage of the Mental Retardation Facilities Construction Act, Pub.L. 88-164, 77 Stat. 282. That statute provided funds for the construction of health care facilities and specifically encouraged the development of

community-based programs.5 The Developmentally Disabled Act, technically an amendment to the Mental Retardation and Facilities Construction Act, was passed in light of Congress’ continued concern about the quality of health care being provided to the developmentally disabled and that federal support for improved care should be increased. A central expression of this concern was § 6010, which declares by way of four congressional “findings” that:

5

An amendment was passed in 1967 which added a

program to train professionals in community programs,

as well as providing funds to support institutions,

Pub.L. 90-170, 81 Stat. 527. In 1970, Congress passed

a second amendment adopting a formula grant system

essentially similar to the present system. The 1970

amendment also broadened the number of potential

beneficiaries to include persons afflicted with various

disabilities not previously covered. Pub.L. 91-517, 84

Stat. 1316.

1. Persons with developmental disabilities have a “right to appropriate treatment, services, and habilitation.”
2. Treatment should be designed to maximize an individual’s potential and should be provided “in the setting that is least restrictive of the person’s personal liberty.”
3. The State and Federal Governments have an obligation to assure that public funds are not provided to institutions or programs that do not provide “appropriate treatment, *38 services and habilitation” or do not meet minimum standards of care in six specific respects such as diet, dental care, and the use of force or chemical restraints.
4. Rehabilitative programs should meet standards designed to assure the most favorable possible outcome for patients, and these standards should be appropriate to the needs of those being served, depending on the type of institution involved.6

6

The pertinent text of § 6010 provides:

“Congress makes the following findings respecting

the rights of persons with developmental disabilities:

“(1) Persons with developmental disabilities have a

right to appropriate treatment, services, and

habilitation for such disabilities.

“(2) The treatment, services, and habilitation for a

person with developmental disabilities should be

designed to maximize the developmental potential of

the person and should be provided in the setting that

is least restrictive of the person’s personal liberty.

“(3) The Federal Government and the States both

have an obligation to assure that public funds are not

provided to any institutional or other residential

program for persons with developmental disabilities

that-

16

Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 (1981)

“(A) does not provide treatment, services, and habilitation which is appropriate to the needs of such persons; or “(B) does not meet the following minimum standards: “(i) Provision of a nourishing, well-balanced daily diet to the persons with developmental disabilities being served by the program. “(ii) Provision to such persons of appropriate and sufficient medical and dental services. “(iii) Prohibition of the use of physical restraint on such persons unless absolutely necessary and prohibition of the use of such restraint as a punishment or as a substitute for a habilitation program. “(iv) Prohibition on the excessive use of chemical restraints on such persons and the use of such restraints as punishment or as a substitute for a habilitation program or in quantities that interfere with services, treatment, or habilitation for such persons. “(v) Permission for close relatives of such persons to visit them at reasonable hours without prior notice. “(vi) Compliance with adequate fire and safety standards as may be promulgated by the Secretary. “(4) All programs for persons with developmental disabilities should meet standards which are designed to assure the most favorable possible outcome for those served, and“(A) in the case of residential programs serving persons in need of comprehensive health-related, habilitative, or rehabilitative services, which are at least equivalent to those standards applicable to intermediate care facilities for the mentally retarded promulgated in regulations of the Secretary ... as appropriate when taking into account the size of the institutions and the service delivery arrangements of the facilities of the programs; “(B) in the case of other residential programs for persons with developmental disabilities, which assure that care is appropriate to the needs of the persons being served by such programs, assure that the persons admitted to facilities of such programs are persons whose needs can be met through services provided by such facilities, and assure that the facilities under such programs provide for the humane care of the residents of the facilities, are sanitary, and protect their rights; and “(C) in the case of nonresidential programs, which assure the care provided by such programs is appropriate to the persons served by the programs.” Section 6010 was amended in 1978 to add the following concluding paragraph: “The rights of persons with developmental disabilities described in findings made in this section are in addition to any constitutional or other rights otherwise afforded to all persons.” Pub.L. 95-602, § 507, 92 Stat. 3007.
*39 **1551 As clearly as words can, § 6010(1) declares that the developmentally disabled have the right to

appropriate treatment, services, and habilitation. The ensuing parts of § 6010 implement this basic declaration. Section 6010(3), for example, obligates the Federal and State Governments not to spend the public funds on programs that do not carry out the basic requirement of § 6010(1) and, more specifically, do not meet minimum standards with respect to certain aspects of treatment and custody. Sections 6010(2) and (4) are phrased in less mandatory terms, but the former unmistakably states a preference for treatment in the least restrictive environment and the latter for establishing standards for assuring the appropriate care of the developmentally disabled in relation to the type of institution involved. Both sections, by delineating in some respects the meaning of “appropriate” *40 treatment, services, and habilitation, implement the basic rights that the developmentally disabled must be afforded for the purpose of the programs envisioned by the Act. Hence, neither section could be ignored by the Secretary in carrying out his duties under the statute. Standing on its own bottom, therefore, § 6010 cannot be treated as only wishful thinking on the part of Congress or as playing some fanciful role in the implementation of the Act. The section clearly states rights which the developmentally disabled are to be provided as against a participating State. But § 6010 does not stand in isolation. Other provisions of the Act confirm the view that participating States must take account of § 6010 and that the section is an integral part of an Act cast in the pattern of extending aid conditioned on state compliance with specified conditions. Section 6063(a) requires that for a State to take advantage of the Act, it must have a “plan submitted to and approved by the Secretary....” Section 6063(b) (1976 ed., Supp.III), which is entitled “Conditions for Approval,” states that “[i]n order to be approved by the Secretary under this section, a State plan for the provision of services and facilities for persons with developmental disabilities must” be filed; and in its original form, § 6063 required the plan to satisfy the conditions stated in some 30 numbered paragraphs. The 24th specification was that the plan must “contain or be supported by assurances satisfactory to the Secretary that the human rights of all persons with developmental disabilities ... who are receiving treatment, services, or habilitation under programs assisted under this chapter will be protected.” Any doubts that the human rights referred to in § 6063(b)(24) corresponded to those specified in § 6010 were removed in 1978 when **1552 § 6063(b) WAS amended to restate the conditions which a plan must satisfy. Section 6063(b)(5)(C) (1976 ed., Supp.III) now provides:
“The plan must contain or be supported by assurances satisfactory to the Secretary that the human rights of *41 all persons with developmental disabilities
17

Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 (1981)

(especially those persons without familial protection) who are receiving treatment, services, or habilitation under programs assisted under this chapter will be protected consistent with section 6010 of this title (relating to the rights of the developmentally disabled).”

Pennsylvania has submitted a plan under § 6063, that is, a plan providing services for the developmentally disabled in Pennsylvania. The Court states that the plan has been approved and that funds have been allocated to the State. These funds will necessarily be supporting Pennsylvania’s “programs” for providing treatment, services, or habilitation within the meaning of § 6063(b)(5)(C); and under the express terms of that section, Pennsylvania is required to respect the § 6010 rights of the developmentally disabled in its state institutions, including Pennhurst, and to give the Secretary adequate assurances in this respect. This is true whether or not Pennhurst itself directly receives any share of the State’s allocation. It should also be noted that § 6063(b)(3)(A) (1976 ed., Supp.III) provides that “the funds paid to the state under § 6062 of this title will be used to make a significant contribution toward strengthening services for persons with developmental disabilities through agencies in the various political subdivisions of the State.” Thus, funds received under the Act were intended to result in the improvement of care at institutions like Pennhurst.7

7

There is nothing “curious” as the Court suggests about

coming to a different conclusion about the applicability

of § 6011 to Pennhurst. Section 6063(b)(5)(B) requires

that the plan must provide that services are provided in

an individualized manner consistent with the

requirements of § 6011 relating to habilitation plans.

Section 6011 requires that when any specific program

in a State, including any program of an agency, facility

or project, receives funds from the State’s allotment, it

will have in effect individualized plans for habilitation

for each individual receiving services under that

program. The section goes on to specify in detail how

such individualized plans shall be formulated and how

they are to be carried out and monitored. The Court

asserts that Pennhurst has not been receiving federal

funds under the Act, which means, I take it, that

Pennhurst has not received funds from the State’s

allocation under the Act. In that event, I would not

think that § 6011 would apply to Pennhurst residents.

But Pennhurst is part of the State’s overall program,

and the State has presented a plan and received federal

funds to support its developmentally disabled program

throughout the State. It must, therefore, observe the §

6010 rights of the developmentally disabled in state

institutions, including Pennhurst.

*42 III
The legislative history of § 6010 confirms the view that Congress intended § 6010 to have substantive significance. Both the initial House of Representatives and Senate versions of the Act contained provisions indicating congressional concern with the character and quality of care for the developmentally disabled. The House bill, H.R. 4005, 94th Cong., 1st Sess. (1975), did not have a bill of rights section akin to § 6010. It did, however, have a provision that required States to spend at least 10% of their respective allotments “for the purpose of assisting ... in developing and implementing plans designed to eliminate inappropriate placement in institutions of persons with developmental disabilities.” § 5(b)(4). Debate in the House of Representatives indicated that the spending restriction was designed to promote community-based facilities to counteract the unfortunate practice of widespread institutionalization of developmentally disabled persons.8

8

See, e. g., 121 Cong.Rec. 9976 (1975) (remarks of

Cong. Rogers) (percentage requirement would assist in

overcoming misuse of facilities caused by tendency of

States to resort to institutionalization); ibid. (remarks of

Cong. Carter) (treatment “should be conducted in that

person’s community without unnecessarily

institutionalizing him”).

It is clear that the House was concerned with many

of the same factors which informed the Senate’s

detailed provision which ultimately lead to the

genesis of § 6010. The Court’s narrow reading of the

House bill is not convincing. To the extent that the

House bill did not have an analogue to § 6010,

comments on the bill are necessarily irrelevant to the

question of the intended effect of § 6010.

*43 **1553 The Senate version of the Act, S. 462, 94th Cong., 1st Sess. (1975), contained a separate Title II, called the “Bill of Rights for Mentally Retarded and Other Persons with Developmental Disabilities,” setting forth in extensive detail specific standards which state programs and facilities were required to meet. The impetus behind the Senate’s “Bill of Rights” was the recognition by several Senators of the tragic conditions of confinement faced by many residents of large institutions.9 An often repeated purpose of the Bill of Rights was to foster the development of community-based facilities as well as to encourage overall better care and treatment for the mentally disabled.10 At the same time, there was the realization *44 that institutions still had a significant role to play in the treatment of the mentally disabled.11

9

See, e. g., 121 Cong.Rec. 16518 (1975) (remarks of

Sen. Javits) (“The shocking conditions at Willowbrook

18

Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 (1981)

in New York, and many other institutions for the mentally retarded throughout the Nation which inspired the bill of rights have not ended”); id., at 16521 (remarks of Sen. Schweiker) (“The last 5 years have seen a dramatic increase in public awareness of the needs of institutionalized mentally retarded and developmentally disabled persons. This has been highlighted by scandals in many institutions, by court cases, and by the efforts of the communications media”); id., at 16516 (remarks of Sen. Williams) (“Over the past few years, the horrifying conditions which exist in most of the public residential institutions for the mentally retarded ... have provided shocking testimony to the inhuman way we care for such persons. The conditions at ... [the] institutions have shown beyond a shadow of a doubt that the treatment of these individuals is worse then (sic ) all of us would like to admit”).

10

For example, Senator Javits stated that the Bill of

Rights section, an integral part of the legislation, would

“establish minimum standards for residential and

community facilities and agencies for the protection of

the rights of those individuals needing services, while

at the same time, encouraging deinstitutionalization and

normalization.” Id., at 16518. In conclusion, Senator

Javits identified a number of concerns shared by many

of the legislators speaking on the Senate bill:

“Progress toward recognition of the basic human and

civil rights of the mentally retarded and other

developmentally disabled persons has been slow.

The Federal Government has largely abrogated its

responsibility in this regard and recently the greatest

initiatives have come from our courts....

“Congress should reaffirm its belief in equal rights

for all citizens-including the developmentally

disabled. Congress should provide the leadership to

change the tragic warehousing of human beings that

has been the product of insensitive Federal support of

facilities providing inhumane care and treatment of

the mentally retarded. The bill of rights of S. 462

represents this new direction, and begins this

reaffirmation.” Id., at 16519.

See id., at 16520 (remarks of Sen. Cranston) (Senate

bill enunciated basic goal of moving away from

“long-term institutionalization of individuals with

developmental disabilities to the development of

community-based programs utilizing all community

resources related to treatment or habilitation of such

individuals to provide comprehensive services in the

home community”).

11

See, e. g., id., at 16522 (remarks of Sen. Schweiker)

(“It is now time to provide alternatives to locking

persons up in institutions”); id., at 16520 (remarks of

Sen. Cranston) (“[I]n encouraging the movement to

community-based programs, I recognize that the need

for some long-term residential programs will remain.

The bill specifically provides that where institutional

programs are appropriate, adequate support should be planned for them so that necessary treatment and habilitation programs can be given residential patients to develop their full potential”); id., at 16516 (remarks of Sen. Stafford) (the Bill of Rights will “assist in the protection of the rights guaranteed under our Constitution for those individuals that will require institutionalization ...”).
The Senate’s version of Title II provided two methods for the States to comply with the requirements of the Act. First, a State wishing to participate could opt to follow guidelines to be established by the Secretary under Part B of Title II, § 210(a). Alternatively, a State could decide to meet the extensive standards specified in Parts C and D relating to residential and community facilities respectively. Under the Senate bill, it was clear that the standards encompassed **1554 by the alternative procedures were not merely hortatory. That bill provided that within one year after the enactment, a State desiring funding must provide assurances to the Secretary that “each such facility or agency has established a plan for achieving compliance no later than 5 years after the date of enactment ....” § 203(a). After the 5-year *45 period, “no residential facility or program of community care for individuals with developmental disabilities shall be eligible to receive payments either directly or indirectly under any Federal law, unless such residential facility meets the standards promulgated under parts C or D of this title or has demonstrated to the Secretary for a reasonable period of time that it has actively implemented the requirements of part B.” § 206(a).
Following Senate and House passage, the different bills came to a Conference Committee. The resulting compromise kept the House 10% spending restriction which the Conference Report noted was “designed to eliminate inappropriate placement in institutions of persons with developmental disabilities ....” H.R.Conf.Rep.No.94-473, p. 33 (1975), U.S.Code Cong. & Admin.News 1975, p. 952. The Senate’s detailed Bill of Rights was replaced by § 6010, a comparatively brief statement of the developmentally disabled’s rights expressed in general terms. The specific mechanism of alternative compliance standards was omitted. The Conference Report set forth the following as the statement of purpose of the Conference version of the Senate’s Title II.
“The conference substitute contains a compromise which enumerates Congressional findings respecting the rights of persons with developmental disabilities. These include findings that the developmentally disabled have a right to appropriate treatment, services and habilitation; that such treatment, services and habilitation should be designed to maximize the developmental potential of the person and be provided
19

Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 (1981)

in the setting that is least restrictive to his personal liberty; that the Federal government and the States have an obligation to assure that public funds are not provided in programs which do not provide appropriate treatment, services and habilitation or do not meet minimum standards respecting diet, medical and dental services, use of restraints, visiting hours and compliance with fire and safety codes; *46 and that programs for the developmentally disabled should meet appropriate standards including standards adjusted for the size of the institutions ....
“These rights are generally included in the conference substitute in recognition by the conferees that the developmentally disabled, particularly those who have the misfortune to require institutionalization, have a right to receive appropriate treatment for the conditions for which they are institutionalized, and that this right should be protected and assured by the Congress and the courts.” H.R.Conf.Rep.No.94-473, supra, at 41-42 U.S.Code Cong. & Admin.News 1975, p. 961.
Following the Conference Report, the Act was passed with minimal debate.12

12

Prior to final passage, Congressman Rogers stated that

the revised Title II included a “brief statement of the

rights of the developmentally disabled to appropriate

treatment and care,” which constituted “modest

requirements.” Id., at 29309 (emphasis added). Senator

Javits was more dramatic in announcing the purpose of

Title II as creating a clear federal policy in favor of a

right to treatment. “This ‘Bill of Rights’ explicitly

recognizes that the Federal Government and the States

have an obligation to assure that public funds are not

provided to institutions or other residential programs”

that do not provide adequate treatment. Id., at 29820.

See also id., at 29818 (remarks of Sen. Randolph)

(compromise reorganized title II of the Senate bill “in

order to reflect the essential elements which are

necessary for continued improvement in the quality of

care and habilitation of developmentally disabled

persons in residential and community facilities”); id., at

29821 (remarks of Sen. Williams) (the compromise

establishes for the first time in federal law a “basic

statement” of the rights of the developmentally disabled

and the Act “will assure that funds under the act will be

used by the States to assist them in the

deinstitutionalization process”).

**1555 The Senate’s version of the Bill of Rights was hundreds of pages long and constituted an attempt to define the standards and conditions of state participation with precision and in great detail. The Conference Report makes clear that the detailed version was rejected, not to substitute a merely advisory section for an extended statement of conditions, but *47 rather to substitute a generalized statement of entitlements that a participating State must respect and that would adequately meet

congressional concerns without encountering the inflexibility of legislatively prescribed conditions of treatment and care. There is no basis for considering the shortened statement as intended to play a qualitatively lesser role in the scheme of the Act. Rather, the compromise is best understood as a rejection of either the need or the ability of Congress to specify the required standards in a manner resembling administrative regulations.13

13

The Act also required the Secretary to review and

evaluate the quality standards under various statutes

and to report to the Congress on any proposed changes.

See Pub.L. 94-103, § 204, 89 Stat. 504. When the

Secretary’s recommendations were presented, the

House took no steps to enact them into law, again

demonstrating legislative unwillingness to adopt

detailed uniform standards. See Developmental

Disabilities Act Amendments of 1978: Hearings on

H.R. 11764 before the House Committee on Interstate

and Foreign Commerce, 95th Cong., 2d Sess., 471-475

(1978). Congress did determine, however, to amend §

6063 to expressly require a State to provide assurance

to the Secretary of its plan to comply with § 6010. See

42 U.S.C. § 6063(b)(5)(C) (1976 ed., Supp. III).

IV
As previously stated, § 6010 should be understood to require a State receiving funds under the Act to observe the rights established by the provision. None of the concerns expressed by the Court present sufficient reason to avoid or overcome the statutory mandate.
It is true that the terms “treatment, services and habilitation” to which § 6010 declares an entitlement are not self-defining. But it does not follow that the participating States are free to ignore them. Under § 6010(3)(A), as already indicated, the State has an “obligation” not to spend public funds on any institutional or other residential facility that “does not provide treatment, services and habilitation which is appropriate to the needs of such persons.” If federal *48 funds are to be used to support a program, the program must (1) provide for the § 6010 rights to appropriate treatment, services, and habilitation; (2) observe the direction in § 6010(2) that treatment, services, and habilitation be furnished in the least restrictive setting; (3) satisfy the minimum standards referred to in § 6010(3)(B); and (4) follow the provisions of § 6010(4), which offers further guidance for the participating State in furnishing the treatment, services, and habilitation to which the developmentally disabled are entitled.
Furthermore, before approving a state plan, the Secretary
20

Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 (1981)

must assure himself that the rights identified under § 6010 will be adequately protected by the participating State. Why the language of an express “condition,” which § 6010 lacks, should be the only touchstone for identifying a State’s obligation is difficult to fathom.14 Indeed, **1556 identifying “rights” and requiring the participating State to observe them seems a far stronger indicia of congressional intent than a mere statement of “conditions.”

14

None of the cases cited by the Court suggest, much less

hold, that Congress is required to condition its grant of

funds with contract-like exactitude. In Harris v. McRae,

448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980),

the Court held that there was no evidence in the statute

or in the legislative history, that Congress intended the

States to assume the full costs of funding abortions

once the federal funds were withheld under the Hyde

Amendment. Here, there is explicit recognition in the

statute and in the legislative history that Congress

intended the States to provide the developmentally

disabled with adequate treatment in the least restrictive

environment consistent with their medical needs. The

other cases cited by the Court involved situations where

the Court held that Congress must indicate that it

intended the States to have waived fundamental

constitutional rights merely by participating in a federal

program. See Edelman v. Jordan, 415 U.S. 651, 94

S.Ct. 1347, 39 L.Ed.2d 662 (1974) (Eleventh

Amendment sovereign immunity); Employees v.

Department of Public Health, 411 U.S. 279, 285, 93

S.Ct. 1614, 1618, 36 L.Ed.2d 251 (1973) (same). The

Eleventh Amendment concerns are not implicated in

these cases, and the citation of Edelman and Employees

is thus unpersuasive.

To argue that Congress could not have intended to obligate the States under § 6010 because those obligations would *49 be large and for the most part unknown is also unpersuasive. Section 6010 calls for appropriate treatment, services, and habilitation; and, as already detailed, the remaining sections spell out, some in more detail than others, the scope of that requirement. Beyond this, however, the content and reach of the federal requirements will, as a practical matter, emerge from the process of preparing a state plan and securing its approval by the Secretary. The state plan must undertake to provide services and facilities pursuant to “standards” prescribed by the Secretary; and, as will become evident, the State’s option to terminate its statutory duties must be respected by the courts. In any event, there is no indication in the record before us that the cost of compliance with § 6010 would be “massive.” The District Court found that noninstitutional facilities located in the communities would be significantly less expensive to operate than facilities like Pennhurst. 446 F.Supp., at 1312. At best, the cost of compliance with § 6010 is indeterminate.

It is apparently suggested that § 6010 is reduced to a mere statement of hope by the absence of an express provision requiring the Secretary to cut off funds in the event he determines that a State is not observing the rights set out in § 6010. But it is clear that the Secretary may not approve a plan in the first place without being assured that those rights will be protected, and it is difficult to believe that the Secretary must continue to fund a program that is failing to live up to the assurances that the State has given the Secretary.

It is also a matter of substantial moment that § 6012 (1976 ed., Supp. III) expressly conditions the approval of a plan on the State’s providing “a system to protect and advocate the rights of persons with developmental disabilities,” and that the system must “have the authority to pursue legal, administrative, and other appropriate remedies to insure the protection of rights of such persons.” § 6012(a)(2)(A). Section 6012 goes on to provide federal aid in establishing such systems *50 and it seems rather plain that the Act contemplates not only ongoing oversight by the Secretary but also enforcement of the rights of persons receiving treatment through judicial action or otherwise.

It is thus not of determinative significance that the Secretary was once of the view that noncompliance with § 6010 did not provide sufficient reason to cut off funds under the Act. As the Court recognizes, the 1978 amendments have convinced him that § 6010 rights must be respected;15 but if the Secretary’s original view was correct, and I do not think it was, this would not foreclose judicial remedies **1557 sought by or on behalf of developmentally disabled persons injured by the State’s failure to observe § 6010 rights. Moreover, the Solicitor General, who is the legal representative of the United States, is of the view that the Act does create enforceable rights. In any event, this Court, as it is permitted to do, has disagreed on occasion with the administrative determination of the Secretary. See, e. g., *51 Philbrook v. Glodgett, 421 U.S. 707, 715, and n.11, 95 S.Ct. 1893, 1899, and n.11, 44 L.Ed.2d 525 (1975); Carleson v. Remillard, 406 U.S. 598, 602, 92 S.Ct. 1932, 1935, 32 L.Ed.2d 352 (1972); Townsend v. Swank, 404 U.S. 282, 286, and n.3, 92 S.Ct. 502, 505, and n.3, 30 L.Ed.2d 448 (1971). See also General Electric Co. v. Gilbert, 429 U.S. 125, 140-146, 97 S.Ct. 401, 410-413, 50 L.Ed.2d 343 (1976).

15

The Secretary has recently announced the Department’s

view that the rights enunciated by § 6010 must now be

addressed by participating state plans as a result of the

1978 amendments. The explanation of the proposed

rulemaking provided as follows:

“No authority was included in that Act to allow the

Department to withhold funds from States on the

basis of failure to meet the findings.

“The 1978 amendments, however, added a

requirement to the basic State grant program that the

21

Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 (1981)

State assure the Secretary that the rights of developmentally disabled people are to be protected consistent with [§ 6010]. The Department has decided to require that all programs authorized under the Act, except for the protection and advocacy systems, comply with [§ 6010] of the Act. The protection and advocacy systems are exempted because they are an extension of the ‘Rights’ provisions and the systems do not provide services, treatment or habilitation. The Department believes that applying this policy to the other programs is within the intent of Congress. Recipients of funds under the Act are to assure the State and the Commissioner that they will provide services which comply with the requirements of [§ 6010]. Failure to comply with the assurance may result in the loss of Federal funds.” 45 Fed.Reg. 31006 (1980).
V
Given my view that Congress intended § 6010 to do more than suggest that the States act in a particular manner, I find it necessary to reach the question whether these rights can be enforced in federal courts in a suit brought by the developmentally disabled. This action was brought under 42 U.S.C. § 1983, and directly under the Developmentally Disabled Act. The Court of Appeals determined that under the factors enunciated in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), an implied private cause of action existed under the Act. Subsequently, however, we held that “the § 1983 remedy broadly encompasses violations of federal statutory as well as constitutional law.” Maine v. Thiboutot, 448 U.S. 1, 4, 100 S.Ct. 2502, 2504, 65 L.Ed.2d 555 (1980). It is acknowledged by all parties that it is appropriate to consider the cause-of-action question in light of the intervening decision in Thiboutot.
We have often found federal-court jurisdiction to enforce statutory safeguards in grant programs in suits brought by injured recipients. See, e. g., Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970); Shea v. Vialpando, 416 U.S. 251, 94 S.Ct. 1746, 40 L.Ed.2d 120 (1974); Carleson v. Remillard, supra. In essence, Thiboutot creates a presumption that a federal statute creating federal rights may be enforced in a § 1983 action. To be sure, Congress may explicitly direct otherwise, such as if the “governing statute provides an exclusive remedy for violations of its terms.” Thiboutot, supra, at 22, n. 11, 100 S.Ct., at 2513, n. 11 (POWELL, J., dissenting). See generally Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 672, 99 S.Ct. 1905, 1944, 60 L.Ed.2d 508 (1979) (§ 1983 protections apply to all rights secured by federal statutes “unless there is clear indication in a particular statute that its remedial

provisions are exclusive or that for various other reasons a § 1983 action is *52 inconsistent with congressional intention”) (WHITE, J., concurring in judgment). Thus, in Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), we held that § 1983 did not provide a basis for relief since federal habeas corpus proceedings constituted the sole remedy for challenging the fact or duration of confinement. See Adickes v. S. H. Kress & Co., 398 U.S. 144, 150, n. 5, 90 S.Ct. 1598, 1604, n. 5, 26 L.Ed.2d 142 (1970). Attempting to fit within the exception, the Pennhurst petitioners suggest that Congress intended the sole remedy for violations of the terms of the Act to be the power of the Secretary to disapprove a State’s plan. See 42 U.S.C. § 6063(c). According to these petitioners, imposition of a private remedy would be incompatible with the overall scheme of the Act, especially given the amorphous quality of the asserted rights.
As a general matter, it is clear that the fact that a federal administrative agency has the power to oversee a cooperative state-federal venture does not mean that Congress intended such oversight to be the exclusive remedy for enforcing statutory rights. This Court is “most reluctant to assume Congress has closed the avenue of effective judicial review to those individuals most directly affected by the administration of its program[s]” even if the agency has the statutory power to cut off federal funds for noncompliance. Rosado v. Wyman, supra,,i, at 420, 90 S.Ct., at 1222. **1558 In part, this reluctance is founded on the perception that a funds cutoff is a drastic remedy with injurious consequences to the supposed beneficiaries of the Act. Cf. Cannon v. University of Chicago, 441 U.S. 677, 708, n. 42, 99 S.Ct. 1946, 1963, n. 42, 60 L.Ed.2d 560 (1979). In this litigation, there is no indication that Congress intended the funds cutoff, which, as the Court notes, the Secretary believed was not within the power of the agency, to be the sole remedy for correcting violations of § 6010. Indeed, § 6012 and the legislative history of the Act reveal that Congress intended judicial enforcement of § 6010. See supra, at p. 1554; H.R.Conf.Rep.No.94-473, p. 42 (1975) (the statutory rights established by § 6010 “should be protected and assured by the Congress and the courts”). Accordingly *53 , I would hold that jurisdiction under § 1983 was properly invoked in these cases under Thiboutot.
VI
I would vacate the judgment of the Court of Appeals and remand the cases for further proceedings. This litigation does not involve the exercise of congressional power to enforce the Fourteenth Amendment as the Court of Appeals held, but is an exercise of the spending power. What an appropriate remedy might be where state
22

Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 (1981)

officials fail to observe the limits of their power under the United States Constitution or fail to perform an ongoing statutory duty imposed by a federal statute enacted under the commerce power or the Fourteenth Amendment is not necessarily the measure of a federal court’s authority where it is found that a State has failed to perform its obligations undertaken pursuant to a statute enacted under the spending power. The State’s duties in the latter situation do not arise until and unless the State chooses to receive federal funds. Furthermore, the State may terminate such statutory obligations, except those already accrued, by withdrawing from the program and terminating its receipt of federal funds. It is settled that administrative oversight and termination of federal funding in the event of a State’s failure to perform its statutory duties is not the sole remedy in Spending Clause cases. “It is ... peculiarly part of the duty of this tribunal, no less in the welfare field that in other areas of the law, to resolve disputes as to whether federal funds allocated to the States are being expended in consonance with the conditions that Congress has attached to their use.” Rosado v. Wyman, supra, 422-423, 90 S.Ct., at 1222-1223. It is equally clear, however, that the courts in such cases must take account of the State’s privilege to withdraw and terminate its duties under the federal law. Although the court may enjoin the enforcement of a discrete state statutory provision or regulation or may order state officials prospectively to perform their duties incident to the *54 receipt of federal funds, the prospective force of such injunctions cannot survive the State’s decision to terminate its participation in the program. Furthermore, there are cases in which there is no identifiable statutory provision whose enforcement can be prohibited. Rosado v. Wyman, was such a case, and there, after finding that the State was not complying with the provisions of the Social Security Act, we remanded the case to the District Court to “afford [the State] an opportunity to revise its program in accordance with [federal requirements]” as we had construed them to be, but to retain jurisdiction “to review ... any revised program adopted by the State, or, should [the State] choose not to submit a revamped program by the determined date, issue its order restraining the further use of federal monies ....” 397 U.S., at 421-422, 90 S.Ct., at 1222-1223; See Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974).
It is my view that the Court of Appeals should have adopted the Rosado approach in these cases. It found the

State to be in noncompliance with the federal statute in major respects and proceeded to impose a far-reaching remedy, approving the appointment of a Special Master to decide which of the Pennhurst inmates should remain and which should be moved to community-based **1559 facilities. More properly, the court should have announced what it thought was necessary to comply with the Act and then permitted an appropriate period for the State to decide whether it preferred to give up federal funds and go its own route. If it did not, it should propose a plan for achieving compliance, in which event, if it satisfied the court, a decree incorporating the plan could be entered and if the plan was unsatisfactory, the further use of federal funds could be enjoined. In any event, however, the court should not have assumed the task of managing Pennhurst or deciding in the first instance which patients should remain and which should be removed. As we recently recognized in Parham v. J. R., 442 U.S. 584, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979): “The mode and procedure of medical diagnostic procedures is not the business of judges. What is best for a *55 child is an individual medical decision that must be left to the judgment of physicians in each case. We do no more than emphasize that the decision should represent an independent judgment of what the child requires and that all sources of information that are traditionally relied on by physicians and behavorial specialists should be consulted.” Id., at 607-608, 99 S.Ct., at 2506. Cf. Addington v. Texas, 441 U.S. 418, 429, 99 S.Ct. 1804, 1811, 60 L.Ed.2d 323 (1979) (commitment depends “on the meaning of the facts which must be interpreted by expert psychiatrists and psychologists”). In enacting § 6010, Congress eschewed creating any specific guidelines on the proper level of institutionalization, leaving the question to the States to determine in the first instance. A court-appointed Special Master is inconsistent with this approach.
Accordingly, I would vacate the judgment of the Court of Appeals and remand the cases for further proceedings.
Parallel Citations
101 S.Ct. 1531, 67 L.Ed.2d 694
	  

23

 
 Pennhurst State School and Hospital v. Halderman, 457 U.S. 1131 (1982)

102 S.Ct. 2956 Supreme Court of the United States
PENNHURST STATE SCHOOL AND HOSPITAL, et al., petitioners, v.
Terri Lee HALDERMAN, et al
No. 81-2101 | June 21, 1982
Former decision, 451 U.S. 1, 101 S.Ct. 1531.
Facts and opinion, 446 F.Supp. 1295; 612 F.2d 84; 673 F.2d 647.

Opinion
The motion of respondent Terri Lee Halderman, et al. for leave to *2957 proceed in forma pauperis is granted. Petition for writ of certiorari to the United States Court of Appeals for the Third Circuit granted.
Parallel Citations 102 S.Ct. 2956 (Mem), 73 L.Ed.2d 1348
	  

1

 
 Pennhurst State School & Hospital v. Halderman, 463 U.S. 1251 (1983)

104 S.Ct. 45 Supreme Court of the United States
PENNHURST STATE SCHOOL AND HOSPITAL, et al., petitioners, v.
Terri Lee HALDERMAN, et al
No. 81-2101 | September 27, 1983
Former decision, 447 U.S. 904, 100 S.Ct. 2984; 451 U.S. 1, 101 S.Ct. 1531; 457 U.S. 1131, 102 S.Ct. 2956; 103 S.Ct. 203; 103 S.Ct. 780; 103 S.Ct. 3568.

Case below, 446 F.Supp. 1295; 3 Cir., 612 F.2d 84.
Opinion *1251 The motion of respondents to dismiss the writ of certiorari as improvidently granted is denied.
Parallel Citations 104 S.Ct. 45 (Mem), 77 L.Ed.2d 1458
	  

1

 
 Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984)

104 S.Ct. 900 Supreme Court of the United States
PENNHURST STATE SCHOOL & HOSPITAL et al., Petitioners v.
Terri Lee HALDERMAN et al.
No. 81–2101. | Argued Feb. 22, 1983. | Reargued Oct. 3, 1983. | Decided Jan. 23, 1984.
Class action was brought by mentally retarded citizens challenging the fact and condition of confinement in a state institution for the mentally retarded. The United States District Court for the Eastern District of Pennsylvania, Raymond J. Broderick, J., 446 F.Supp. 1295, rendered judgment for plaintiffs, and defendants, various state and local officials and institutions, appealed. The Court of Appeals for the Third Circuit, 612 F.2d 84, substantially affirmed, and certiorari was granted. The Supreme Court, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694, reversed and remanded. On remand, the Court of Appeals, 673 F.2d 647, affirmed its prior judgment in its entirety. Certiorari was granted. The Supreme Court, Justice Powell, held that: (1) Eleventh Amendment prohibited federal district court from ordering state officials to conform their conduct to state law with respect to conditions of confinement at institution, since state was real, substantial party in interest; (2) Eleventh Amendment barred state law claims brought in district court under pendent jurisdiction; and (3) judgment could not be upheld against county officials on basis of their state law obligations where any relief granted against county officials alone on basis of state statute would be partial and incomplete at best.
Reversed and remanded.
Justice Brennan filed a dissenting opinion.
Justice Stevens filed a dissenting opinion in which Justice Brennan, Justice Marshall, and Justice Blackmun joined.

**902 *89 Syllabus*

*

The syllabus constitutes no part of the opinion of the

Court but has been prepared by the Reporter of

Decisions for the convenience of the reader. See United

States v. Detroit Lumber Co., 200 U.S. 321, 337, 26

S.Ct. 282, 287, 50 L.Ed. 499.

Respondent Halderman, a resident of petitioner Pennhurst

State School and Hospital, a Pennsylvania institution for the care of the mentally retarded, brought a class action in Federal District Court against Pennhurst and various state and county officials (also petitioners). It was alleged that conditions at Pennhurst violated various federal constitutional and statutory rights of the class members as well as their rights under the Pennsylvania Mental Health and Mental Retardation Act of 1966 (MH/MR Act). Ultimately, the District Court awarded injunctive relief based in part on the MH/MR Act, which was held to provide a right to adequate habilitation. The Court of Appeals affirmed, holding that the MH/MR Act required the State to adopt the “least restrictive environment” approach for the care of the mentally retarded, and rejecting petitioners’ argument that the Eleventh Amendment barred a federal court from considering this pendent state-law claim. The court reasoned that since that Amendment did not bar a federal court from granting prospective injunctive relief against state officials on the basis of federal claims, citing Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 the same result obtained with respect to a pendent state-law claim.
Held: The Eleventh Amendment prohibited the District Court from ordering state officials to conform their conduct to state law. Pp. 906 – 921.
(a) The principle of sovereign immunity is a constitutional limitation on the federal judicial power established in Art. III of the Constitution. The Eleventh Amendment bars a suit against state officials when the State is the real, substantial party in interest, regardless of whether the suit seeks damages or injunctive relief. The Court in Ex parte Young, supra, recognized an important exception to this general rule: a suit challenging the federal constitutionality of a state official’s action is not one against the State. Pp. 906 – 909.
(b) In Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662, this Court recognized that the need to promote the supremacy of federal law that is the basis of Young must be accommodated to the constitutional immunity of the States. Thus, the Court declined to extend the Young doctrine to *90 encompass retroactive relief, for to do so would effectively eliminate the States’ constitutional immunity. Edelman’s distinction between prospective and retroactive relief fulfilled Young’ s underlying purpose of vindicating the supreme authority of federal law while at the same time preserving to an important degree the States’ constitutional immunity. But this need to reconcile competing interests is wholly absent when a plaintiff alleges that a state official has violated state law. In such a case the entire basis for the doctrine of Young and Edelman disappears. A federal court’s grant of relief against state officials on the basis of state law, whether prospective or retroactive, does not vindicate the
1

Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984)

supreme authority of federal law. When a federal court instructs state officials on how to conform **903 their conduct to state law, this conflicts directly with the principles of federalism that underlie the Eleventh Amendment. Pp. 909 – 911.
(c) The dissenters’ view is that an allegation that official conduct is contrary to a state statute would suffice to override the State’s protection from injunctive relief under the Eleventh Amendment because such conduct is ultra vires the official’s authority. This view rests on fiction, is wrong on the law, and would emasculate the Eleventh Amendment. At least insofar as injunctive relief is sought, an error of law by state officers acting in their official capacity will not suffice to override the sovereign immunity of the State where the relief effectively is against it. Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628. Under the dissenters’ view, the ultra vires doctrine, a narrow and questionable exception, would swallow the general rule that a suit is against the State if the relief will run against it. Pp. 911 – 917.
(d) The principle 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 applies as well to state-law claims brought into federal court under pendent jurisdiction. Pp. 917 – 919.
(e) While it may be that applying the Eleventh Amendment to pendent state-law claims results in federal claims being brought in state court or in bifurcation of claims, such considerations of policy cannot override the constitutional limitation on the authority of the federal judiciary to adjudicate suits against a State. Pp. 919 – 920.
(f) The judgment below cannot be sustained on the basis of the state-law obligation of petitioner county officials, since any relief granted against these officials on the basis of the MH/MR Act would be partial and incomplete at best. Such an ineffective enforcement of state law would not appear to serve the purposes of efficiency, convenience, and fairness that must inform the exercise of pendent jurisdiction. Pp. 920 – 921.
673 F.2d 647, reversed and remanded.
Attorneys and Law Firms
*91 H. Bartow Farr III and Allen C. Warshaw reargued the cause for petitioners. With them on the briefs were Thomas M. Kittredge, Joel I. Klein, LeRoy S. Zimmerman, Robert B. Hoffman, Debra K. Wallet, Alan J. Davis, and Mark A. Aronchick.
David Ferleger reargued the cause and filed a brief for

respondents Halderman et al. Thomas K. Gilhool reargued the cause for respondents Pennsylvania Association for Retarded Citizens et al. With him on the brief were Frank J. Laski and Michael Churchill. Solicitor General Lee, Assistant Attorney General Reynolds, Deputy Assistant Attorneys General Cooper and Wilkinson, Brian K. Landsberg, and Frank Allen filed a brief for the United States.*
* A brief of amici curiae was filed for the State of Alabama et al. by Francis X. Bellotti, Attorney General of Massachusetts, Thomas R. Kiley, First Assistant Attorney General, and Carl Valvo, William L. Pardee, and Judith S. Yogman, Assistant Attorneys General, joined by the Attorneys General for their respective jurisdictions as follows: Charles A. Graddick of Alabama, Robert K. Corbin of Arizona (by Anthony Ching, Solicitor General), J.D. MacFarlane of Colorado, Carl R. Ajello of Connecticut, Richard S. Gebelein of Delaware, Michael J. Bowers of Georgia, Tyrone C. Fahner of Illinois, Linley E. Pearson of Indiana, Thomas J. Miller of Iowa, Steven L. Beshear of Kentucky, Frank J. Kelley of Michigan, John D. Ashcroft of Missouri, Paul L. Douglas of Nebraska, Richard H. Bryan of Nevada, Gregory H. Smith of New Hampshire, Irwin I. Kimmelman of New Jersey, Rufus L. Edmisten of North Carolina, Robert O. Wefald of North Dakota, Hector Reichard of Puerto Rico, David L. Wilkinson of Utah, Bronson C. La Follette of Wisconsin, Steven Freudenthal of Wyoming, and Aviata F. Fa’Aleveo of American Samoa.
Opinion
Justice POWELL delivered the opinion of the Court.
This case presents the question whether a federal court may award injunctive relief against state officials on the basis of state law.
*92 I
This litigation, here for the second time, concerns the conditions of care at petitioner Pennhurst State School and Hospital, a Pennsylvania institution for the care of the mentally retarded. See Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981). Although the litigation’s history is set forth in detail in our prior opinion, see id., at 5–10, 101 S.Ct., at 1534–1536, it is necessary for purposes of this decision to review that history.
This suit originally was brought in 1974 by respondent Terri Lee Halderman, a resident of Pennhurst, in the District Court for the Eastern District of Pennsylvania.
2

Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984)

Ultimately, plaintiffs included a class consisting of all persons who were or might become residents of Pennhurst; the Pennsylvania Association for Retarded Citizens (PARC); and the United States. Defendants were Pennhurst and various Pennhurst officials; the Pennsylvania Department of Public Welfare and several of its officials; and various county commissioners, county mental retardation administrators, and other officials of five Pennsylvania counties surrounding Pennhurst. Respondents’ amended complaint charged that conditions at Pennhurst violated the class members’ rights under the Eighth and Fourteenth Amendments; § 504 of the Rehabilitation Act of 1973, 87 Stat. 394, as amended, **904 29 U.S.C. § 794 (1976 ed. and Supp. V); the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. §§ 6001–6081 (1976 ed. and Supp. V); and the Pennsylvania Mental Health and Mental Retardation Act of 1966 (the “MH/MR Act”), Pa.Stat.Ann., Tit. 50, §§ 4101–4704 (Purdon 1969 and Supp.1982). Both damages and injunctive relief were sought.

In 1977, following a lengthy trial, the District Court rendered its decision. 446 F.Supp. 1295 (1977). As noted in our prior opinion, the court’s findings were undisputed: “Conditions at Pennhurst are not only dangerous, with the residents often physically abused or drugged by staff members, but also inadequate *93 for the ‘habilitation’ of the retarded. Indeed, the court found that the physical, intellectual, and emotional skills of some residents have deteriorated at Pennhurst.” 451 U.S., at 7, 101 S.Ct., at 1534–1535 (footnote omitted). The District Court held that these conditions violated each resident’s right to “minimally adequate habilitation” under the Due Process Clause and the MH/MR Act, see 446 F.Supp., at 1314–1318, 1322–1323; “freedom from harm” under the Eighth and Fourteenth Amendments, see id., at 1320–1321; and “nondiscriminatory habilitation” under the Equal Protection Clause and § 504 of the Rehabilitation Act, see id., at 1321–1324. Furthermore, the court found that “due process demands that if a state undertakes the habilitation of a retarded person, it must do so in the least restrictive setting consistent with that individual’s habilitative needs.” Id., at 1319 (emphasis added). After concluding that the large size of Pennhurst prevented it from providing the necessary habilitation in the least restrictive environment, the court ordered “that immediate steps be taken to remove the retarded residents from Pennhurst.” Id., at 1325. Petitioners were ordered “to provide suitable community living arrangements” for the class members, id., at 1326, and the court appointed a Special Master “with the power and duty to plan, organize, direct, supervise and monitor the implementation of this and any further Orders of the Court.” Ibid.1

1

The District Court determined that the individual

defendants had acted in good faith and therefore were immune from the damage claims. 446 F.Supp., at 1324.

The Court of Appeals for the Third Circuit affirmed most of the District Court’s judgment. 612 F.2d 84 (1979) (en banc). It agreed that respondents had a right to habilitation in the least restrictive environment, but it grounded this right solely on the “bill of rights” provision in the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. § 6010. See 612 F.2d, at 95–100, 104–107. The court did *94 not consider the constitutional issues or § 504 of the Rehabilitation Act, and while it affirmed the District Court’s holding that the MH/MR Act provides a right to adequate habilitation, see id., at 100–103, the court did not decide whether that state right encompassed a right to treatment in the least restrictive setting.
On the question of remedy, the Court of Appeals affirmed except as to the District Court’s order that Pennhurst be closed. The court observed that some patients would be unable to adjust to life outside an institution, and it determined that none of the legal provisions relied on by plaintiffs precluded institutionalization. Id., at 114–115. It therefore remanded for “individual determinations by the [District Court], or by the Special Master, as to the appropriateness of an improved Pennhurst for each such patient,” guided by “a presumption in favor of placing individuals in [community living arrangements].” Ibid.2

2

In a companion case, the Court of Appeals affirmed the

District Court’s denial of the Pennhurst Parents-Staff

Association’s motion to intervene for purposes of

appeal, finding the denial harmless error. See 612 F.2d

131 (3 Cir.1979) (en banc). The Association

subsequently was granted leave to intervene and is a

petitioner in this Court.

**905 On remand the District Court established detailed procedures for determining the proper residential placement for each patient. A team consisting of the patient, his parents or guardian, and his case manager must establish an individual habilitation plan providing for habilitation of the patient in a designated community living arrangement. The plan is subject to review by the Special Master. A second master, called the Hearing Master, is available to conduct hearings, upon request by the resident, his parents or his advocate, on the question whether the services of Pennhurst would be more beneficial to the resident than the community living arrangement provided in the resident’s plan. The Hearing Master then determines where the patient should reside, *95 subject to possible review by the District Court. See App. 123a–134a (Order of April 24, 1980).3

3

Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984)

3

On July 1, 1981, Pennsylvania enacted an

appropriations bill providing that only $35,000 would

be paid for the Masters’ expenses for the fiscal year

July 1981 to June 1982. The District Court held the

Pennsylvania Department of Public Welfare and its

Secretary in contempt, and imposed a fine of $10,000

per day. Pennsylvania paid the fines, and the contempt

was purged on January 8, 1982. On appeal the Court of

Appeals affirmed the contempt order. Halderman v.

Pennhurst State School & Hospital, 673 F.2d 628 (3

Cir.1982), cert. pending, No. 81–2363.

This Court reversed the judgment of the Court of Appeals, finding that 42 U.S.C. § 6010 did not create any substantive rights. 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981). We remanded the case to the Court of Appeals to determine if the remedial order could be supported on the basis of state law, the Constitution, or § 504 of the Rehabilitation Act. See id., at 31, 101 S.Ct., at 1547.4 We also remanded for consideration of whether any relief was available under other provisions of the Developmentally Disabled Assistance and Bill of Rights Act. See id., at 27–30, 101 S.Ct., at 1545–1546 (discussing 42 U.S.C. §§ 6011(a), 6063(b)(5)).

4

Three Justices dissented from the Court’s construction

of the Act, but concluded that the District Court should

not have adopted the “far-reaching remedy” of

appointing “a Special Master to decide which of the

Pennhurst inmates should remain and which should be

moved to community-based facilities.... [T]he court

should not have assumed the task of managing

Pennhurst....” 451 U.S., at 54, 101 S.Ct., at 1558–1559

(WHITE, J., dissenting in part).

important case in the development of the doctrine of pendent jurisdiction, also involved state officials, “there cannot be ... an Eleventh Amendment exception to that rule.” 673 F.2d, at 658.5 Finally, the court **906 rejected petitioners’ argument that it should have abstained from deciding the state-law claim under principles of comity, see id., at 659–660, and refused to consider petitioners’ objections to the District Court’s use of a special master, see id., at 651 and n. 10. Three judges dissented in part, arguing that under principles of federalism and comity the establishment of a special master to supervise compliance was an abuse of discretion. See id., at 662 (Seitz, C.J., joined by Hunter, J., dissenting in part); ibid. (Garth, J., concurring in part and dissenting as to relief). See also id., at 661 (Aldisert, J., concurring) (seriously questioning the propriety of the order appointing the Special *97 Master, but concluding that a retroactive reversal of that order would be meaningless).6

5

The Court of Appeals also noted that “the United States

is an intervening plaintiff ... against which even the

state itself cannot successfully plead the Eleventh

Amendment as a bar to jurisdiction,” and that “the

counties, even as juridical entities, do not fall within the

coverage of the Eleventh Amendment. Against those

defendants even money damages may be awarded.” 673

F.2d, at 656 (citation omitted).

As Justice BRENNAN notes in his dissent, post, at 1,

Judge Gibbons has expanded on his views of the

Eleventh Amendment in a recent law review article.

Gibbons, The Eleventh Amendment and State

Sovereign Immunity: A Reinterpretation, 83

Colum.L.Rev. 1889 (1983). Judge Gibbons was the

author of both the first and second opinions by the

Court of Appeals in this case.

On remand the Court of Appeals affirmed its prior judgment in its entirety. 673 F.2d 647 (3 Cir.1982) (en banc). It determined that in a recent decision the Supreme Court of Pennsylvania had “spoken definitively” in holding that the MH/MR Act required the State to adopt the “least restrictive environment” approach for the care of the mentally retarded. Id., at 651 (citing In re Schmidt, 494 Pa. 86, 429 A.2d 631 (1981)). The Court of Appeals concluded that this state statute fully supported its prior judgment, and therefore did not *96 reach the remaining issues of federal law. It also rejected petitioners’ argument that the Eleventh Amendment barred a federal court from considering this pendent state-law claim. The court noted that the Amendment did not bar a federal court from granting prospective injunctive relief against state officials on the basis of federal claims, see 673 F.2d, at 656 (citing Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908)), and concluded that the same result obtained with respect to a pendent state-law claim. It reasoned that because Siler v. Louisville & Nashville R. Co., 213 U.S. 175, 29 S.Ct. 451, 53 L.Ed. 753 (1909), an

6

The Office of the Special Master was abolished in

December 1982. See App. 220a (Order of August 12,

1982). The Hearing Master remains in operation.

We granted certiorari, 457 U.S. 1131, 102 S.Ct. 2956, 73 L.Ed.2d 1348 (1982), and now reverse and remand.

II
Petitioners raise three challenges to the judgment of the Court of Appeals: (i) the Eleventh Amendment prohibited the District Court from ordering state officials to conform their conduct to state law; (ii) the doctrine of comity prohibited the District Court from issuing its injunctive relief; and (iii) the District Court abused its discretion in appointing two masters to supervise the decisions of state officials in implementing state law. We need not reach the
4

Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984)
latter two issues, for we find the Eleventh Amendment challenge dispositive.

at 437, 99 S.Ct., at 1196 (REHNQUIST, J., dissenting).

A
Article III, § 2 of the Constitution provides that the federal judicial power extends, inter alia, to controversies “between a State and Citizens of another State.” Relying on this language, this Court in 1793 assumed original jurisdiction over a suit brought by a citizen of South Carolina against the State of Georgia. Chisholm v. Georgia, 2 Dall. 419, 1 L.Ed. 440 (1793). The decision “created such a shock of surprise that the Eleventh Amendment was at once proposed and adopted.” Monaco v. Mississippi, 292 U.S. 313, 325, 54 S.Ct. 745, 749, 78 L.Ed. 1282 (1934). The Amendment provides:

“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

*98 The Amendment’s language overruled the particular result in Chisholm, but this Court has recognized that its greater significance lies in its affirmation that the fundamental principle of sovereign immunity limits the grant of judicial authority in Art. III. Thus, in Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890), the Court held that, despite the limited terms of the Eleventh Amendment, a federal court could not entertain a suit brought by a citizen against his own State. After reviewing the constitutional debates concerning the scope of Art. III, the Court determined that federal jurisdiction over suits against unconsenting States “was not contemplated by the Constitution when establishing the judicial power of the United States.” Id., at 15, 10 S.Ct., at 507. See Monaco v. Mississippi, supra, 292 U.S., at 322–323, 54 S.Ct., at 747–748 (1934).7 In short, **907 the principle of sovereign immunity is a constitutional limitation on the federal judicial power established in Art. III:

7

See Employees v. Missouri Public Health Dep’t, 411

U.S. 279, 291–292, 93 S.Ct. 1614, 1621–1622, 36

L.Ed.2d 251 (1973) (MARSHALL, J., concurring in

judgment) (The Eleventh Amendment “clarif[ied] the

intent of the Framers concerning the reach of federal

judicial power” and “restore[d] the original

understanding” that States could not be made unwilling

defendants in federal court). See also Nevada v. Hall,

440 U.S. 410, 430–431, 99 S.Ct. 1182, 1193–1194, 59

L.Ed.2d 416 (1979) (BLACKMUN, J., dissenting); id.,

“That a State may not be sued without its consent is a fundamental rule of jurisprudence having so important a bearing upon the construction of the Constitution of the United States that it has become established by repeated decisions of this court that the entire judicial power granted by the Constitution does not embrace authority to entertain a suit brought by private parties against a State without consent given: not one brought by citizens of another State, or by citizens or subjects of a foreign State, because of the Eleventh Amendment; and not even one brought by its own citizens, because of the fundamental rule of which the Amendment is but *99 an exemplification.” Ex parte State of New York No. 1, 256 U.S. 490, 497, 41 S.Ct. 588, 589, 65 L.Ed. 1057 (1921) (emphasis added).8

8

The limitation deprives federal courts of any

jurisdiction to entertain such claims, and thus may be

raised at any point in a proceeding. “The Eleventh

Amendment declares a policy and sets forth an explicit

limitation on federal judicial power of such compelling

force that this Court will consider the issue arising

under this Amendment ... even though urged for the

first time in this Court.” Ford Motor Co. v. Department

of Treasury, 323 U.S. 459, 467, 65 S.Ct. 347, 352, 89

L.Ed. 389 (1945).

[1] [2] A sovereign’s immunity may be waived, and the Court consistently has held that a State may consent to suit against it in federal court. See, e.g., Clark v. Barnard, 108 U.S. 436, 447, 2 S.Ct. 878, 882–883, 27 L.Ed. 780 (1883). We have insisted, however, that the State’s consent be unequivocally expressed. See, e.g., Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 1360–1361, 39 L.Ed.2d 662 (1974). Similarly, although Congress has power with respect to the rights protected by the Fourteenth Amendment to abrogate the Eleventh Amendment immunity, see Fitzpatrick v. Bitker, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976), we have required an unequivocal expression of congressional intent to “overturn the constitutionally guaranteed immunity of the several States.” Quern v. Jordan, 440 U.S. 332, 342, 99 S.Ct. 1139, 1146, 59 L.Ed.2d 358 (1979) (holding that 42 U.S.C. § 1983 does not override States’ Eleventh Amendment immunity). Our reluctance to infer that a State’s immunity from suit in the federal courts has been negated stems from recognition of the vital role of the doctrine of sovereign immunity in our federal system. A State’s constitutional interest in immunity encompasses not merely whether it may be sued, but where it may be sued.9 As Justice MARSHALL well has noted, “[b]ecause *100 of the problems of federalism inherent in making one sovereign appear against its will in the courts of the other, a restriction upon
5

Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984)

the exercise of the federal judicial power has long been considered to be appropriate in a case such as this.” Employees v. Missouri Public Health & Welfare Dep’t, 411 U.S. 279, 294, 93 S.Ct. 1614, 1622–1623, 36 L.Ed.2d 251 (1973) (MARSHALL, J., concurring in result).10 Accordingly, **908 in deciding this case we must be guided by “[t]he principles of federalism that inform Eleventh Amendment doctrine.” Hutto v. Finney, 437 U.S. 678, 691, 98 S.Ct. 2565, 2573–2574, 57 L.Ed.2d 522 (1978).

9

For this reason, the Court consistently has held that a

State’s waiver of sovereign immunity in its own courts

is not a waiver of the Eleventh Amendment immunity

in the federal courts. See, e.g., Florida Department of

Health v. Florida Nursing Home Assn., 450 U.S. 147,

150, 101 S.Ct. 1032, 1034, 67 L.Ed.2d 132 (1981) (per

curiam). “[I]t is not consonant with our dual system for

the federal courts ... to read the consent to embrace

federal as well as state courts.... [A] clear declaration of

the state’s intention to submit its fiscal problems to

other courts than those of its own creation must be

found.” Great Northern Life Insurance Co. v. Read,

322 U.S. 47, 54, 64 S.Ct. 873, 877, 88 L.Ed. 1121

(1944).

10

See Nevada v. Hall, 440 U.S., at 418–419, 99 S.Ct., at

1187–1188 (States were “vitally interested” in whether

they would be subject to suit in the federal courts, and

the debates about state immunity focused on the

question of federal judicial power). Cf. id., at 430–431,

99 S.Ct., at 1193 (BLACKMUN, J., dissenting)

(sovereign immunity is “a guarantee that is implied as

an essential component of federalism” and is

“sufficiently fundamental to our federal structure to

have implicit constitutional dimension”); id., at 437, 99

S.Ct., at 1196 (REHNQUIST, J., dissenting) (“[T]he

States that ratified the Eleventh Amendment thought

that they were putting an end to the possibility of

individual States as unconsenting defendants in foreign

jurisdictions”).

B
[3] [4] This Court’s decisions thus establish that “an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another state.” Employees, supra, 411 U.S., at 280, 93 S.Ct., at 1616. There may be a question, however, whether a particular suit in fact is a suit against a State. It is clear, of course, that in the absence of consent a suit in which the State or one of its agencies or departments is named as the defendant is proscribed by the Eleventh Amendment. See, e.g., Florida Department of Health v.

Florida Nursing Home Assn., 450 U.S. 147, 101 S.Ct. 1032, 67 L.Ed.2d 132 (1981) (per curiam); Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978) (per curiam ). This jurisdictional bar applies regardless of the nature of the relief sought. See, e.g., Missouri v. Fiske, 290 U.S. 18, 27, 54 S.Ct. 18, 21, 78 L.Ed. 145 (1933) (“Expressly applying *101 to suits in equity as well as at law, the Amendment necessarily embraces demands for the enforcement of equitable rights and the prosecution of equitable remedies when these are asserted and prosecuted by an individual against a State”).
[5] [6] [7] [8] [9] When the suit is brought only against state officials, a question arises as to whether that suit is a suit against the State itself. Although prior decisions of this Court have not been entirely consistent on this issue, certain principles are well established. The Eleventh Amendment bars a suit against state officials when “the state is the real, substantial party in interest.” Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 350, 89 L.Ed. 389 (1945). See, e.g., In re Ayers, 123 U.S. 443, 487–492, 8 S.Ct. 164, 173–176, 31 L.Ed. 216 (1887); Louisiana v. Jumel, 107 U.S. 711, 720–723, 727–728, 2 S.Ct. 128, 135–137, 141–142, 27 L.Ed. 448 (1882). Thus, “[t]he general rule is that relief sought nominally against an officer is in fact against the sovereign if the decree would operate against the latter.” Hawaii v. Gordon, 373 U.S. 57, 58, 83 S.Ct. 1052, 1053, 10 L.Ed.2d 191 (1963) (per curiam ).11 And, as when the State **909 itself is named as the *102 defendant, a suit against state officials that is in fact a suit against a State is barred regardless of whether it seeks damages or injunctive relief. See Cory v. White, 457 U.S. 85, 91, 102 S.Ct. 2325, 2329, 72 L.Ed.2d 694 (1982).

11

“The general rule is that a suit is against the sovereign

if ‘the judgment sought would expend itself on the

public treasury or domain, or interfere with the public

administration,’ or if the effect of the judgment would

be ‘to restrain the Government from acting, or to

compel it to act.’ ” Dugan v. Rank, 372 U.S. 609, 620,

83 S.Ct. 999, 1006, 10 L.Ed.2d 15 (1963) (citations

omitted).

Respondents do not dispute that the relief sought and

awarded below operated against the state in each of

the foregoing respects. They suggest, however, that

the suit here should not be considered to be against

the state for the purposes of the Eleventh

Amendment because, they say, petitioners were

acting ultra vires their authority. Respondents rely

largely on Florida Dep’t of State v. Treasure Salvors,

Inc., 458 U.S. 670, 102 S.Ct. 3304, 73 L.Ed.2d 1057

(1982), which in turn was founded upon Larson v.

Domestic & Foreign Commerce Corp., 337 U.S. 682,

69 S.Ct. 1457, 93 L.Ed. 1628 (1949). These cases

provide no support for this argument. These and

other modern cases make clear that a state officer

may be said to act ultra vires only when he acts

“without any authority whatever.” Treasure Salvors,

6

Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984)

supra, 458 U.S., at 697, 102 S.Ct., at 3321 (opinion of STEVENS, J.); accord id., at 716, 102 S.Ct., at 3330 (WHITE, J., concurring in judgment in part and dissenting in part) (test is whether there was no “colorable basis for the exercise of authority by state officials”). As the Court in Larson explained, an ultra vires claim rests on “the officer’s lack of delegated power. A claim of error in the exercise of that power is therefore not sufficient.” Larson, supra, 337 U.S., at 690, 69 S.Ct., at 1461. Petitioners’ actions in operating this mental health institution plainly were not beyond their delegated authority in this sense. The MH/MR Act gave them broad discretion to provide “adequate” mental health services. Pa.Stat.Ann., Tit. 50, § 4201(1) (Purdon 1969). The essence of respondents’ claim is that petitioners have not provided such services adequately. In his dissent, Justice STEVENS advances a far broader—and unprecedented—version of the ultra vires doctrine, which we discuss infra, at 929 – 935.
[10] The Court has recognized an important exception to this general rule: a suit challenging the constitutionality of a state official’s action is not one against the State. This was the holding in Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed.2d 714 (1908), in which a federal court enjoined the Attorney General of the State of Minnesota from bringing suit to enforce a state statute that allegedly violated the Fourteenth Amendment. This Court held that the Eleventh Amendment did not prohibit issuance of this injunction. The theory of the case was that an unconstitutional enactment is “void” and therefore does not “impart to [the officer] any immunity from responsibility to the supreme authority of the United States.” Id., at 160, 28 S.Ct., at 454. Since the State could not authorize the action, the officer was “stripped of his official or representative character and [was] subjected to the consequences of his official conduct.” Ibid.
While the rule permitting suits alleging conduct contrary to “the supreme authority of the United States” has survived, the theory of Young has not been provided an expansive interpretation. Thus, in Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), the Court emphasized that the Eleventh Amendment bars some forms of injunctive relief against state officials for violation of federal law. Id., at 666–667, 94 S.Ct., at 1357–1358. In particular, Edelman held that when a plaintiff sues a state official alleging a violation of federal law, the federal court *103 may award an injunction that governs the official’s future conduct, but not one that awards retroactive monetary relief. Under the theory of Young, such a suit would not be one against the State since the federal-law allegation would strip the state officer of his official authority. Nevertheless, retroactive relief was barred by the Eleventh Amendment.

III
With these principles in mind, we now turn to the question whether the claim that petitioners violated state law in carrying out their official duties at Pennhurst is one against the State and therefore barred by the Eleventh Amendment. Respondents advance two principal arguments in support of the judgment below.12 First, they contend that under the doctrine of Edelman **910 v. Jordan, supra, the suit is not against *104 the State because the courts below ordered only prospective injunctive relief. Second, they assert that the state-law claim properly was decided under the doctrine of pendent jurisdiction. Respondents rely on decisions of this Court awarding relief against state officials on the basis of a pendent state-law claim. See, e.g., Siler v. Louisville & Nashville R. Co., 213 U.S. 175, 193, 29 S.Ct. 451, 455, 53 L.Ed. 753 (1909).

12

We reject respondents’ additional contention that

Pennsylvania has waived its immunity from suit in

federal court. At the time the suit was filed, suits

against Pennsylvania were permitted only where

expressly authorized by the legislature, see, e.g.,

Freach v. Commonwealth, 471 Pa. 558, 370 A.2d 1163

(1977), and respondents have not referred us to any

provision expressly waiving Pennsylvania’s Eleventh

Amendment immunity. The State now has a statute

governing sovereign immunity, including an express

preservation of its immunity from suit in federal court:

“Federal courts.—Nothing contained in this subchapter

shall be construed to waive the immunity of the

Commonwealth from suit in Federal courts guaranteed

by the Eleventh Amendment to the Constitution of the

United States.” 42 Pa.Cons.Stat. § 8521(b) (1980).

We also do not agree with respondents that the

presence of the United States as a plaintiff in this

case removes the Eleventh Amendment from

consideration. Although the Eleventh Amendment

does not bar the United States from suing a State in

federal court, see, e.g., Monaco v. Mississippi, 292

U.S. 313, 329, 54 S.Ct. 745, 750, 78 L.Ed. 1282

(1934), the United States’ presence in the case for

any purpose does not eliminate the State’s immunity

for all purposes. For example, the fact that the

federal court could award injunctive relief to the

United States on federal constitutional claims would

not mean that the court could order the State to pay

damages to other plaintiffs. In any case, we think it

clear that the United States does not have standing to

assert the state-law claims of third-parties. For these

reasons, the applicability of the Eleventh

Amendment to respondents’ state-law claim is

unaffected by the United States’ participation in the

case.

7

Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984)

A
We first address the contention that respondents’ state-law claim is not barred by the Eleventh Amendment because it seeks only prospective relief as defined in Edelman v. Jordan, supra. The Court of Appeals held that if the judgment below rested on federal law, it could be entered against petitioner state officials under the doctrine established in Edelman and Young even though the prospective financial burden was substantial and ongoing.13 See 673 F.2d, at 656. The court assumed, and respondents assert, that this reasoning applies as well when the official acts in violation of state law. This argument misconstrues the basis of the doctrine established in Young and Edelman.

13

We do not decide whether the District Court would

have jurisdiction under this reasoning to grant

prospective relief on the basis of federal law, but we

note that the scope of any such relief would be

constrained by principles of comity and federalism.

“Where, as here, the exercise of authority by state

officials is attacked, federal courts must be constantly

mindful of the ‘special delicacy of the adjustment to be

preserved between federal equitable power and State

administration of its own law.’ ” Rizzo v. Goode, 423

U.S. 362, 378, 96 S.Ct. 598, 607, 46 L.Ed.2d 561

(1976) (quoting Stefanelli v. Minard, 342 U.S. 117,

120, 72 S.Ct. 118, 120, 96 L.Ed. 138 (1951)).

As discussed above, the injunction in Young was justified, notwithstanding the obvious impact on the State itself, on the view that sovereign immunity does not apply because an official who acts unconstitutionally is “stripped of his official or representative character,” Young, 209 U.S., at 160, 28 S.Ct., at 454. This *105 rationale, of course, created the “well-recognized irony” that an official’s unconstitutional conduct constitutes state action under the Fourteenth Amendment but not the Eleventh Amendment. Florida Department of State v. Treasure Salvors, Inc., 458 U.S. 670, 685, 102 S.Ct. 3304, 3315, 73 L.Ed.2d 1057 (1982) (opinion of STEVENS, J.). Nonetheless, the Young doctrine has been accepted as necessary to permit the federal courts to vindicate federal rights and hold state officials responsible to “the supreme authority of the United States.” Young, 209 U.S., at 160, 28 S.Ct., at 454. As Justice BRENNAN has observed, “Ex parte Young was the culmination of efforts by this Court to harmonize the principles of the Eleventh Amendment with the effective supremacy of rights and powers secured elsewhere in the Constitution.” Perez v. Ledesma, 401 U.S. 82, 106, 91 S.Ct. 674, 687, 27 L.Ed.2d 701 (1971) (BRENNAN, J., concurring in part and dissenting in part). Our decisions repeatedly have emphasized that the Young doctrine rests on the need to promote the vindication of federal rights. See, e.g., Quern v. Jordan, 440 U.S. 332, 337, 99 S.Ct. 1139, 1143, 59 L.Ed.2d 358 (1979); Scheuer

v. Rhodes, 416 U.S. 232, 237, 94 S.Ct. 1683, 1687, 40 L.Ed.2d 90 (1974); Georgia R. & Banking Co. v. Redwine, 342 U.S. 299, 304, 72 S.Ct. 321, 324, 96 L.Ed. 335 (1952).
The Court also has recognized, however, that the need to promote the supremacy of federal law must be accommodated to the constitutional immunity of the States. This is the significance of Edelman v. Jordan, supra. We recognized that the prospective relief authorized by Young “has permitted the Civil War Amendments to the Constitution to serve as a sword, rather than merely a shield, for those whom they were designed to protect.” 415 U.S., at 664, 94 S.Ct., at 1356. But we declined to extend the fiction of Young to encompass retroactive relief, for to do so would effectively eliminate the constitutional immunity of the States. Accordingly, we concluded that although the difference between permissible **911 and impermissible relief “will not in many instances be that between day and night,” id., at 667, 94 S.Ct., at 1357, an award of retroactive relief necessarily “ ‘fall[s] afoul of the Eleventh Amendment *106 if that basic constitutional provision is to be conceived of as having any present force.’ ” Id., at 665, 94 S.Ct., at 1357 (quoting Rothstein v. Wyman, 467 F.2d 226, 237 (CA2 1972) (McGowan, J., sitting by designation), cert. denied, 411 U.S. 921, 93 S.Ct. 1552, 36 L.Ed.2d 315 (1973)). In sum Edelman’ s distinction between prospective and retroactive relief fulfills the underlying purpose of Ex parte Young while at the same time preserving to an important degree the constitutional immunity of the States.
[11] This need to reconcile competing interests is wholly absent, however, when a plaintiff alleges that a state official has violated state law. In such a case the entire basis for the doctrine of Young and Edelman disappears. 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 directly with the principles of federalism that underlie the Eleventh Amendment. We conclude that Young and Edelman are inapplicable in a suit against state officials on the basis of state law.
B
The contrary view of Justice STEVENS’ dissent rests on fiction, is wrong on the law, and, most important, would emasculate the Eleventh Amendment.14 Under his view, an allegation that official conduct is contrary to a state
8

Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984)

statute would suffice to override the State’s protection under that Amendment. The theory is that such conduct is contrary to the official’s “instructions,” and thus ultra vires his authority. *107 Accordingly, official action based on a reasonable interpretation of any statute might, if the interpretation turned out to be erroneous,15 provide the basis for injunctive relief against the actors in their official capacities. In this case, where officials of a major state department, clearly acting within the scope of their authority, were found not to have improved conditions in a state institution adequately under state law, the dissent’s result would be that the State itself has forfeited its constitutionally provided immunity.

14

We are prompted to respond at some length to Justice

STEVENS’ 41-page dissent in part by his broad charge

that “the Court repudiates at least 28 cases,” post, at

922. The decisions the dissent relies upon simply do not

support this sweeping characterization. See nn. 19, 20,

and 21, infra.

15

In this case, for example, the court below rested its

finding that state law required habilitation in the least

restrictive environment on dicta in In re Schmidt, 494

Pa. 86, 429 A.2d 631 (1981). That decision was not

issued until seven years after this suit was filed, and

four years after trial ended.

The theory is out of touch with reality. The dissent does not dispute that the general criterion for determining when a suit is in fact against the sovereign is the effect of the relief sought. See supra, at 908; post, at 918, n. 29. According to the dissent, the relief sought and ordered here—which in effect was that a major state institution be closed and smaller state institutions be created and expansively funded—did not operate against the State. This view would make the law a pretense. No other court or judge in the ten-year history of this litigation has advanced this theory. And the dissent’s underlying view that the named defendants here were acting beyond and contrary to their authority cannot be reconciled with reality—or with the record. The District Court in this case held that the individual defendants “acted in the utmost good faith ... within the sphere of their official responsibilities,” and therefore were entitled to immunity from damages. 446 F.Supp., at 1324 (emphasis added). The named defendants had **912 nothing to gain personally from their conduct; they were not found to have acted wilfully or even negligently. See ibid. The court expressly noted that the individual defendants “apparently took every means available to them to reduce the incidents of abuse and injury, but were *108 constantly faced with staff shortages.” Ibid. It also found “that the individual defendants are dedicated professionals in the field of retardation who were given very little with

which to accomplish the habilitation of the retarded at Pennhurst.” Ibid.16 As a result, all the relief ordered by the courts below was institutional and official in character. To the extent *109 there was a violation of state law in this case, it is a case of the State itself not fulfilling its legislative promises.17

16

This part of the court’s findings and judgment was not

appealed. See 612 F.2d, at 90, n. 4. See also 446

F.Supp., at 1303 (“On the whole, the staff at Pennhurst

appears to be dedicated and trying hard to cope with the

inadequacies of the institution”).

The parties defendant in this suit were not all

individuals. They included as well the Pennsylvania

Department of Public Welfare, a major department of

the State itself; and the Pennhurst State School and

Hospital, a state institution. The dissent apparently is

arguing that the defendants as a group—including

both the state institutions, and state and county

officials—were acting ultra vires. Since the

institutions were only said to have violated the law

through the individual defendants, the District

Court’s findings, never since questioned by any

court, plainly exonerate all the defendants from the

dissent’s claim that they acted beyond the scope of

their authority.

A truth of which the dissent’s theoretical argument

seems unaware is the plight of many if not most of

the mental institutions in our country. As the District

Court in this case found, “History is replete with

misunderstanding and mistreatment of the retarded.”

446 F.Supp., at 1299. Accord Message from

President Kennedy Relative to Mental Illness and

Mental Retardation, H.R.Doc. No. 58, 88th Cong.,

1st Sess. 13 (1963) ( “We as a Nation have long

neglected the mentally ill and the mentally

retarded”). It is common knowledge that “insane

asylums,” as they were known until the middle of

this century, usually were underfunded and

understaffed. It is not easy to persuade competent

people to work in these institutions, particularly well

trained professionals. Physical facilities, due to

consistent underfunding by state legislatures, have

been grossly inadequate—especially in light of

advanced knowledge and techniques for the

treatment of the mentally ill. See generally id., at 2,

4; The President’s Comm. on Mental Retardation,

MR 68: The Edge of Change 11–13 (1968);

President’s Comm. on Mental Retardation, Changing

Patterns in Residential Services for the Mentally

Retarded 1–58 (R. Kugel & W. Wolfensberger ed.

1969); R.C. Scheerenberger, A History of Mental

Retardation 240–243 (1983). Only recently have

States commenced to move to correct widespread

deplorable conditions. The responsibility, as the

District Court recognized after a protracted trial, has

rested on the State itself.

17

The dissent appears to be confused about our argument

here. See post, at 928 – 929. It is of course true, as the

9

Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984)

dissent says, that the finding below that petitioners acted in good faith and therefore were immune from damages does not affect whether an injunction might be issued against them by a court possessed of jurisdiction. The point is that the courts below did not have jurisdiction because the relief ordered so plainly ran against the State. No one questions that the petitioners in operating Pennhurst were acting in their official capacity. Nor can it be questioned that the judgments under review commanded action that could be taken by petitioners only in their official capacity—and, of course, only if the State provided the necessary funding. It is evident that the dissent would vest in federal courts authority, acting solely under state law, to ignore the sovereignty of the States that the Eleventh Amendment was adopted to protect. Article III confers no jurisdiction on this Court to strip an explicit Amendment of the Constitution of its substantive meaning.
Contrary to the dissent’s view, see post, at 935–, an injunction based on federal law stands on very different footing, particularly in light of the Civil War Amendments. As we have explained, in such cases this Court is vested with the constitutional duty to vindicate “the supreme authority of the United States,” Young, 209 U.S., at 160, 28 S.Ct., at 454. There is no corresponding mandate to enforce state law.

The dissent bases its view on numerous cases from the turn of the century and earlier. These cases do not provide the support the dissent claims to find. Many are simply miscited. For example, with perhaps one exception,18 none of its Eleventh **913 Amendment cases can be said to hold that injunctive relief could be ordered against State officials for failing to carry out their duties under State statutes.19 And *110 the federal sovereign immunity cases the dissent relies on as analogy, while far from uniform, make clear that suit may not be predicated on violations of state statutes that command purely discretionary duties.20 Since it cannot be doubted *111 that the statutes at issue here gave petitioners broad discretion in operating Pennhurst, see n. 11, supra; see also 446 F.Supp., at 1324, the conduct alleged in this case would not be ultra vires even under the standards of the dissent’s cases.21

18

See Rolston v. Missouri Fund Commissioners, 120 U.S.

390, 7 S.Ct. 599, 30 L.Ed. 721 (1887). In Rolston,

however, the state officials were ordered to comply

with “a plain ministerial duty,” see Great Northern Life

Insurance Co. v. Read, 322 U.S. 47, 51, 64 S.Ct. 873,

875, 88 L.Ed. 1121 (1944), a far cry from this case, see

n. 20, infra.

19

The cases are collected in n. 50 of the dissent, post, at

943. Several of the cases do not rest on an Eleventh

Amendment holding at all. For example, federal

jurisdiction in fact was held to be lacking in Martin v. Lankford, 245 U.S. 547, 38 S.Ct. 205, 62 L.Ed. 464 (1918), because of lack of diversity. A fair reading of South Carolina v. Wesley, 155 U.S. 542, 15 S.Ct. 230, 39 L.Ed. 254 (1895), and the cases it cites, makes clear that the ruling there was on the purely procedural point that the party pressing the appeal was not a party to the proceeding. In two other cases the allegation was that a state officer or agency had acted unconstitutionally, rather than merely contrary to state law. Atchison, T. & S.F.R. Co. v. O’Connor, 223 U.S. 280, 32 S.Ct. 216, 56 L.Ed. 436 (1897); Hopkins v. Clemson Agricultural College, 221 U.S. 636, 31 S.Ct. 654, 55 L.Ed. 890 (1911). In Johnson v. Lankford, 245 U.S. 541, 38 S.Ct. 203, 62 L.Ed. 460 (1918), the relief sought was not injunctive relief but money damages against the individual officer. See infra n. 21. None of these cases can be said to be overruled by our holding today. As noted infra, at 935 – 936, the Greene cases do not discuss the Eleventh Amendment in connection with the state-law claim.
Tindal v. Wesley, 167 U.S. 204, 17 S.Ct. 770, 42 L.Ed. 137 (1897), and Scully v. Bird, 209 U.S. 481, 28 S.Ct. 597, 52 L.Ed. 899 (1908), are more closely analogous cases. In both of these old cases, however, the allegation was that the defendants had committed common law torts, not, as here, that they had failed to carry out affirmative duties assigned to them by statute. See Tindal, supra, 167 U.S., at 221, 17 S.Ct., at 777 (distinguishing suits brought “to enforce the discharge by the defendants of any specific duty enjoined by the State”); Transcript of Record, Tindal v. Wesley 3 (complaint alleged that defendants had “wrongfully entered into said premises and ousted the plaintiff ... to the damage of the plaintiff ten thousand dollars”); Scully, supra, 209 U.S., at 483, 28 S.Ct., at 597 (allegation was that defendant had “injuriously affect[ed] the reputation and sale of [plaintiff’s] products”). Tort cases such as these were explicitly overruled in Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949). See infra, at 932 – 934.

20

See, e.g., Philadelphia Co. v. Stimson, 223 U.S. 605,

620, 32 S.Ct. 340, 344, 56 L.Ed. 570 (1912) (“The

complainant did not ask the court to interfere with the

official discretion of the Secretary of War, but

challenged his authority to do the things of which

complaint was made”); Santa Fe P.R. Co. v. Fall, 259

U.S. 197, 198–199, 42 S.Ct. 466, 467, 66 L.Ed. 896

(1922) (same); see also Kendall v. Stokes, 3 How. 87,

98, 11 L.Ed. 506 (1845) (“[A] public officer is not

liable to an action if he falls into error in a case where

the act to be done is not merely a ministerial one, but is

one in relation to which it is his duty to exercise

judgment and discretion; even although an individual

may suffer by his mistake”); Noble v. Union River

Logging R., 147 U.S. 165, 171–172, 13 S.Ct. 271,

272–273, 37 L.Ed. 123 (1893); Belknap v. Schild, 161

U.S. 10, 18, 16 S.Ct. 443, 445, 40 L.Ed. 599 (1896)

(under Eleventh Amendment, injunctive relief is

10

Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984)

permitted where officer commits a tort that is “contrary to a plain official duty requiring no exercise of discretion”); Wells v. Roper, 246 U.S. 335, 338, 38 S.Ct. 317, 318, 62 L.Ed. 755 (1918); Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 695, 69 S.Ct. 1457, 1464, 93 L.Ed. 1628 (1949) (suit challenging “incorrect decision as to law or fact” is barred “if the officer making the decision was empowered to do so”); id., at 715, 69 S.Ct., at 1474 (Frankfurter, J., dissenting) (noting that cases involve orders to comply with nondiscretionary duties). The opinions make clear that the question of discretion went to sovereign immunity, and not to the court’s mandamus powers generally. See, e.g., Philadelphia Co., supra, 223 U.S., at 618–620, 32 S.Ct., at 344. The rationale appears to be that discretionary duties have a greater impact on the sovereign because they “brin[g] the operation of governmental machinery into play.” Larson, supra, 337 U.S., at 715, 69 S.Ct., at 1474 (Frankfurter, J., dissenting).

21

In any event, as with the Eleventh Amendment cases,

see n. 19, supra, the dissent also is wrong to say that

the federal sovereign immunity cases it cites post, at

943, n. 50, are today overruled. Many of them were

actions for damages in tort against the individual

officer. Little v. Barreme, 2 Cranch 170, 2 L.Ed. 243

(1804); Wise v. Withers, 3 Cranch 331, 2 L.Ed. 457

(1806); Mitchell v. Harmony, 13 How. 115, 14 L.Ed. 75

(1851); Bates v. Clark, 95 U.S. 204, 24 L.Ed. 471

(1877); Belknap v. Schild, 161 U.S. 10, 16 S.Ct. 443, 40

L.Ed. 599 (1896). In Belknap the Court drew a careful

distinction between such actions and suits in which the

relief would run more directly against the State. Id., at

18, 16 S.Ct., at 445. The Court disallowed injunctive

relief against the officers on this basis. Id., at 23–25, 16

S.Ct., at 447–448. Contrary to the view of the dissent,

post, at 926, n. 10, nothing in our opinion touches these

cases. The Court in Larson similarly distinguished

between cases seeking money damages against the

individual officer in tort, and those seeking injunctive

relief against the officer in his official capacity. It held

that the latter sought relief against the sovereign, while

the former might not. 337 U.S., at 687–688, and nn. 7,

8, 69 S.Ct., at 1460–1461 and nn. 7, 8.

There is language in other cases that suggests they

were actions alleging torts, not statutory violations.

See Philadelphia Co. v. Stimson, 223 U.S. 605, 623,

32 S.Ct. 340, 345, 56 L.Ed. 570 (1912); Sloan

Shipyards v. U.S. Fleet Corp., 258 U.S. 549, 568, 42

S.Ct. 386, 388–389, 66 L.Ed. 762 (1922); Land v.

Dollar, 330 U.S. 731, 736, 67 S.Ct. 1009, 1011, 91

L.Ed. 1209 (1947). The remainder clearly distinguish

cases (like the present one) involving statutes that

command discretionary duties. See n. 20, supra. In

any case, the Court in Larson explicitly limited the

precedential value of all of these cases. See Malone

v. Bowdoin, 369 U.S. 643, 646, and n. 6, 82 S.Ct.

980, 982, and n. 6, 8 L.Ed.2d 168 (1962).

**914 Thus, while there is language in the early cases that advances the authority-stripping theory advocated by the dissent, this theory had never been pressed as far as Justice STEVENS would do in this case. And when the expansive approach *112 of the dissent was advanced, this Court plainly and explicitly rejected it. In Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949), the Court was faced with the argument that an allegation that a government official committed a tort sufficed to distinguish the official from the sovereign. Therefore, the argument went, a suit for an injunction to remedy the injury would not be against the sovereign. The Court rejected the argument, noting that it would make the doctrine of sovereign immunity superfluous. A plaintiff would need only to “claim an invasion of his legal rights” in order to override sovereign immunity. Id., at 693, 69 S.Ct., at 1463. In the Court’s view, the argument “confuse[d] the doctrine of sovereign immunity with the requirement that a plaintiff state a cause of action.” Id., at 692–693, 69 S.Ct., at 1462–1463. The dissent’s theory suffers a like confusion.22 Under the dissent’s view, a plaintiff would need only to claim a denial of rights protected or provided by statute in order to override sovereign immunity. Except in rare cases it would make the constitutional doctrine of sovereign immunity a nullity.

22

In fact, as the dissent itself states, the argument in

Larson that an allegation of tortious activity overrides

sovereign immunity is essentially the same as the

dissent’s argument that an allegation of conduct

contrary to statute overrides sovereign immunity. See

post, at 939. The result in each case—as the Court in

Larson recognizes—turns on whether the defendant

state official was empowered to do what he did, i.e.,

whether, even if he acted erroneously, it was action

within the scope of his authority. See Larson, 337 U.S.,

at 685, 69 S.Ct., at 1459 (controversy on merits

concerned whether officer had interpreted government

contract correctly); id., at 695, 69 S.Ct., at 1464; id., at

716–717, 69 S.Ct., at 1474–1475 (Frankfurter, J.,

dissenting) (in cases alleging a tort, the “official seeks

to screen himself behind the sovereign”); id., at

721–722, 69 S.Ct., at 1477–1478. What the dissent fails

to note is that the Court in Larson explicitly rejected the

view that the dissent here also advances, which is “that

an officer given the power to make decisions is only

given the power to make correct decisions.” Id., at 695,

69 S.Ct., at 1464. The Court in Larson made crystal

clear that an officer might make errors and still be

acting within the scope of his authority. Ibid. (There

can be no question that the defendants here were “given

the power to make decisions” about the operation of

Pennhurst. See n. 11, supra.) The dissent’s view that

state officers “have no discretion to commit a tort,”

post, at 925, n. 7, cannot be reconciled with the plain

holding of Larson.

*113 [12] The crucial element of the dissent’s theory was 11

Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984)

also the plaintiff’s central contention in Larson. It is that “[a] sovereign, like any other principal, cannot authorize its agent to violate the law,” so that when the agent does so he cannot be acting for the sovereign. Post, at 937–; see also post, at 930, 934, 939; cf. **915 Larson, supra, at 693–694, 69 S.Ct., at 1463 (“It is argued ... that the commission of a tort cannot be authorized by the sovereign.... It is on this contention that the respondent’s position fundamentally rests....”). It is a view of agency law that the Court in Larson explicitly rejected.23 Larson thus made clear that, at least insofar as injunctive relief is sought, an error of law by state officers acting in their official capacities will not suffice to override the sovereign immunity of the State where the relief effectively is against it. Id., at 690, 695, 69 S.Ct., at 1461, 1464.24 Any resulting disadvantage to the plaintiff was “outweigh[ed]” by “the necessity of permitting the Government *114 to carry out its functions unhampered by direct judicial intervention.” Id., at 704, 69 S.Ct., at 1468. If anything, this public need is even greater when questions of federalism are involved. See supra, at 907 – 908.25

23

“It has been said, in a very special sense, that, as a

matter of agency law, a principal may never lawfully

authorize the commission of a tort by his agent. But

that statement, in its usual context, is only a way of

saying that an agent’s liability for torts committed by

him cannot be avoided by pleading the direction or

authorization of his principal. The agent is himself

liable whether or not he has been authorized or even

directed to commit the tort. This, of course, does not

mean that the principal is not liable nor that the tortious

action may not be regarded as the action of the

principal.” Id., at 694, 69 S.Ct., at 1463 (footnote

omitted).

24

The Larson Court noted that a similar argument “was at

one time advanced in connection with corporate agents,

in an effort to avoid corporate liability for torts, but was

decisively rejected.” 337 U.S., at 694, 69 S.Ct., at 1463.

See 10 Fletcher Cyclopedia of the Law of Private

Corporations § 4877, at 350 (1978 ed.) (a corporation is

liable for torts committed by its agent within the scope

of its authority even though the “act was contrary to or

in violation of the instructions or orders given by it to

the offending agent”); id., § 4959 (same as to crimes).

The dissent’s strained interpretation of Larson, post,

at 918 – 919, simply ignores the language that the

dissent itself quotes: “It is important to note that in

[ultra vires ] cases the relief can be granted, without

impleading the sovereign, only because of the

officer’s lack of delegated power. A claim of error in

the exercise of that power is therefore not sufficient.”

337 U.S., at 689–690, 69 S.Ct., at 1461–1462.

25

As we have discussed supra, at 909 – 910, Edelman v.

Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974), also shows that the broad ultra vires theory enunciated in Young and in some of the cases quoted by the dissent has been discarded. In Edelman, although the State officers were alleged to be acting contrary to law, and therefore should have been “stripped of their authority” under the theory of the dissent, we held the action to be barred by the Eleventh Amendment. The dissent attempts to distinguish Edelman on the ground that the retroactive relief there, unlike injunctive relief, does not run only against the agent. Post, at 918, n. 29. To say that injunctive relief against State officials acting in their official capacity does not run against the State is to resort to the fictions that characterize the dissent’s theories. Unlike the English sovereign perhaps, an American State can act only through its officials. It is true that the Court in Edelman recognized that retroactive relief often, or at least sometimes, has a greater impact on the State treasury than does injunctive relief, see 415 U.S., at 666, n. 11, 94 S.Ct., at 1357, n. 11, but there was no suggestion that damages alone were thought to run against the State while injunctive relief did not.
We have noted that the authority-stripping theory of Young is a fiction that has been narrowly construed. In this light, it may well be wondered what principled basis there is to the ultra vires doctrine as it was set forth in Larson and Treasure Salvors. That doctrine excepts from the Eleventh Amendment bar suits against officers acting in their official capacities but without any statutory authority, even though the relief would operate against the State. At bottom, the doctrine is based on the fiction of the Young opinion. The dissent’s method is merely to take this fiction to its extreme. While the dissent’s result may be logical, in the sense that it is difficult to draw principled lines short of that end, its view would virtually eliminate the constitutional doctrine of sovereign immunity. It is a result from which the Court in Larson wisely recoiled. We do so again today. For present purposes, however, we do no more than question the continued vitality of the ultra vires doctrine in the Eleventh Amendment context. We hold only that to the extent the doctrine is consistent with the analysis of this opinion, it is a very narrow exception that will allow suit only under the standards set forth in n. 11 supra.
The dissent in Larson made many of the arguments advanced by Justice STEVENS’ dissent today, and asserted that many of the same cases were being overruled or **916 ignored. *115 See 337 U.S., at 723–728, 69 S.Ct., at 1478–1480 (Frankfurter, J., dissenting). Those arguments were rejected, and the cases supporting them are moribund. Since Larson was decided in 1949,26 no opinion by any Member of this Court has cited the cases on which the dissent primarily relies for a proposition as broad as the language the dissent quotes. Many if not most of these cases have not been relied upon in an Eleventh Amendment context at all. Those that have been so cited have been relied upon only for propositions
12

Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984)

with which no one today quarrels.27 The plain fact is that the dissent’s broad theory, *116 if it ever was accepted to the full extent to which it is now pressed, has not been the law for at least a generation.

cited—and rejected—in Malone v. Bowdoin, 369 U.S. 643, 646, n. 6, 82 S.Ct. 980, 982, n. 6, 8 L.Ed.2d 168 (1962).

26

The dissent appears to believe that Larson is consistent

with all prior law. See post, at 936. This view ignores

the fact that the Larson Court itself understood that it

was required to “resolve [a] conflict in doctrine.” 337

U.S., at 701, 69 S.Ct., at 1467. The Court since has

recognized that Larson represented a watershed in the

law of sovereign immunity. In Malone v. Bowdoin, 369

U.S. 643, 82 S.Ct. 980, 8 L.Ed.2d 168, Justice

Stewart’s opinion for the Court observed that “to

reconcile completely all the decisions of the Court in

this field prior to 1949 would be a Procrustean task.”

Id., at 646, 82 S.Ct., at 983. His opinion continued:

“The Court’s 1949 Larson decision makes it

unnecessary, however, to undertake that task here.

For in Larson the Court, aware that it was called

upon to ‘resolve the conflict in doctrine’ ...,

thoroughly reviewed the many prior decisions, and

made an informed and carefully considered choice

between the seemingly conflicting precedents.” Ibid.

The Court included many of the cases upon which

the dissent relies in its list of cases that were rejected

by Larson. See id., n. 6.

27

E.g., Rolston v. Missouri Fund Commissioners, 120

U.S. 390, 7 S.Ct. 599, 30 L.Ed. 721 (1887) (never

cited); Scully v. Bird, 209 U.S. 481, 28 S.Ct. 597, 52

L.Ed. 899 (1908) (never cited); Hopkins v. Clemson

Agricultural College, 221 U.S. 636, 31 S.Ct. 654, 55

L.Ed. 890 (1911) (never cited); Johnson v. Lankford,

245 U.S. 541, 38 S.Ct. 203, 62 L.Ed. 460 (1918) (never

cited); Land v. Dollar, 330 U.S. 731, 67 S.Ct. 1009, 91

L.Ed. 1209 (1947) (cited only for proposition that

judgment that would expend itself on public treasury or

interfere with public administration is a suit against the

United States); Cunningham v. Macon & B.R. Co., 109

U.S. 446, 3 S.Ct. 292, 27 L.Ed. 992 (1883) (cited only

for proposition that a suit alleging unconstitutional

conduct is not barred by the Eleventh Amendment, and

that State cannot be sued without its consent);

Poindexter v. Greenhow, 114 U.S. 270, 5 S.Ct. 903,

962, 29 L.Ed. 185, 207 (1885)

(unconstitutional-conduct suit is not suit against State);

Reagan v. Farmers’ Loan & Trust, 154 U.S. 362, 14

S.Ct. 1047, 38 L.Ed. 1014 (1894) (same). Prior to

Florida Dept. of State v. Treasure Salvors, Inc., 458

U.S. 670, 102 S.Ct. 3304, 73 L.Ed.2d 1057 (1982),

Tindal v. Wesley, 167 U.S. 204, 17 S.Ct. 770, 42 L.Ed.

137 (1897), had been cited only for the proposition that

a suit alleging unconstitutional conduct is not barred by

the Eleventh Amendment. The plurality opinion in

Treasure Salvors discussed Tindal at some length, 458

U.S., at 685–688, 102 S.Ct., at 3315 – 3316, but noted

that the rule of Tindal “was clarified in Larson.” Id., at

688, 102 S.Ct., at 3316; see also id., at 715, n. 13, 102

S.Ct., at 3330 (WHITE, J., dissenting).

As noted, n. 26, supra, some of these cases were also

[13] The reason is obvious. Under the dissent’s view of the ultra vires doctrine, the Eleventh Amendment would have force only in the rare case in which a plaintiff foolishly attempts to sue the State in its own name, or where he cannot produce some state statute that has been violated to his asserted injury. Thus, the ultra vires doctrine, a narrow and questionable exception, would swallow the general rule that a suit is against the State if the relief will run against it. That result gives the dissent no pause presumably because of its view that the Eleventh Amendment and sovereign immunity “ ‘undoubtedly ru[n] counter to modern democratic notions of the moral responsibility of the State.’ ” Post, at 942, n. 48 (quoting Great Northern Life Insurance Co. v. Read, 322 U.S. 47, 59, 64 S.Ct. 873, 879, 88 L.Ed. 1121 (1944) (Frankfurter, J., dissenting)). This argument has not been adopted by this Court. See Great Northern Life Insurance Co. v. Read, 322 U.S. 47, 51, 64 S.Ct. 873, 875, 88 L.Ed. 1121 (1944) (“Efforts to force, through suits against officials, performance of promises by a state collide directly with the necessity that a sovereign must be free from judicial compulsion in the carrying out of its policies **917 within the limits of the Constitution.”); Larson, supra, 337 U.S., at 704, 69 S.Ct., at 1468 (“The Government, as representative of the community as a whole, cannot be stopped in its tracks ...”). Moreover, the argument substantially misses the point with respect to Eleventh Amendment sovereign immunity. As Justice MARSHALL has observed, the Eleventh Amendment’s restriction on the federal judicial power is based in large part on “the problems of federalism inherent in making *117 one sovereign appear against its will in the courts of the other.” Employees v. Missouri Public Health Dept., 411 U.S. 279, 294, 93 S.Ct. 1614, 1622, 36 L.Ed.2d 251 (1973) (MARSHALL, J., concurring in the result). The dissent totally rejects the Eleventh Amendment’s basis in federalism.
C
The reasoning of our recent decisions on sovereign immunity thus leads to the conclusion that a federal suit against state officials on the basis of state law contravenes the Eleventh Amendment when—as here—the relief sought and ordered has an impact directly on the State itself. In reaching a contrary conclusion, the Court of Appeals relied principally on a separate line of cases dealing with pendent jurisdiction. The crucial point for the Court of Appeals was that this Court has granted relief against state officials on the basis of a pendent state-law
13

Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984)

claim. See 673 F.2d, at 657–658. We therefore must consider the relationship between pendent jurisdiction and the Eleventh Amendment.
This Court long has held generally that when a federal court obtains jurisdiction over a federal claim, it may adjudicate other related claims over which the court otherwise would not have jurisdiction. See, e.g., Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966); Osborn v. Bank of the United States, 9 Wheat. 738, 819–823, 6 L.Ed. 204 (1824). The Court also has held that a federal court may resolve a case solely on the basis of a pendent state-law claim, see Siler, supra, 213 U.S., at 192–193, 29 S.Ct., at 455, and that in fact the court usually should do so in order to avoid federal constitutional questions, see id., at 193, 29 S.Ct., at 455; Ashwander v. TVA, 297 U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688 (1936) (Brandeis, J., concurring) (“[I]f a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter”). But pendent jurisdiction is a judge-made doctrine inferred from the general language of Art. III. The question presented is whether this doctrine *118 may be viewed as displacing the explicit limitation on federal jurisdiction contained in the Eleventh Amendment.
As the Court of Appeals noted, in Siler and subsequent cases concerning pendent jurisdiction, relief was granted against state officials on the basis of state-law claims that were pendent to federal constitutional claims. In none of these cases, however, did the Court so much as mention the Eleventh Amendment in connection with the state-law claim. Rather, the Court appears to have assumed that once jurisdiction was established over the federal-law claim, the doctrine of pendent jurisdiction would establish power to hear the state-law claims as well. The Court has not addressed whether that doctrine has a different scope when applied to suits against the State. This is illustrated by Greene v. Louisville & Interurban R. Co., 244 U.S. 499, 37 S.Ct. 673, 61 L.Ed. 1280 (1917), in which the plaintiff railroads sued state officials, alleging that certain tax assessments were excessive under the Fourteenth Amendment. The Court first rejected the officials’ argument that the Eleventh Amendment barred the federal constitutional claim. It held that Ex parte Young applied to all allegations challenging the constitutionality of official action, regardless of whether the state statute under which the officials purported to act was constitutional or unconstitutional. See id., at 507, 37 S.Ct., at 677. Having determined that the Eleventh Amendment did not deprive the federal court of jurisdiction **918 over the Fourteenth Amendment question, the Court declared that the court’s jurisdiction extended “to the determination of all questions involved in the case, including questions of state law, irrespective of the disposition that may be made of the federal

question, or whether it be found necessary to decide it at all.” Id., at 508, 37 S.Ct., at 677. The case then was decided solely on state-law grounds. Accord, Louisville & Nashville R. Co. v. Greene, 244 U.S. 522, 37 S.Ct. 683, 61 L.Ed. 1291 (1917).28

28

The case was argued in the same way. The Eleventh

Amendment argument in the briefs is confined to the

federal constitutional claims. See, e.g., Brief for

Louisville & N.R. Co., Louisville & N.R. Co. v. Greene

15–38 (jurisdiction over federal claims); id., at 38–39

(pendent jurisdiction over state claims). Indeed the

State’s brief somewhat curiously closes with a

concession that the federal courts had jurisdiction. Brief

for State Board and Officers, Louisville & N.R. Co. v.

Greene 139; see Reply Brief, Louisville & N.R. Co. v.

Greene 2 (pointing out concession). Thus, while the

State’s position on the Court’s jurisdiction over the

federal claims is somewhat unclear, the State never

argued that there might not be jurisdiction over the

local-law claims if the Court found jurisdiction over the

federal question in the case.

Nor do any of the other pendent-jurisdiction cases

cited in Justice STEVENS’ dissent, post, at 944, n.

52, discuss the Eleventh Amendment in connection

with the state-law claims. Moreover, since Larson

was decided in 1949, making clear that mere

violations of state law would not override the

Eleventh Amendment, these cases have been cited

only for the proposition that, as a general matter, a

federal court should decide a case on state-law

grounds where possible to avoid a federal

constitutional question. Nothing in our decision is

meant to cast doubt on the desirability of applying

the Siler principle in cases where the federal court

has jurisdiction to decide the state-law issues.

*119 These cases thus did not directly confront the question before us. “[W]hen questions of jurisdiction have been passed on in prior decisions sub silentio, this Court has never considered itself bound when a subsequent case finally brings the jurisdictional issue before us.” Hagans v. Lavine, 415 U.S. 528, 533, n. 5, 94 S.Ct. 1372, 1377 n. 5, 39 L.Ed.2d 577 (1974).29 We therefore view the question as an open one.

29

See Edelman v. Jordan, 415 U.S. 651, 671, 94 S.Ct.

1347, 1359–1360, 39 L.Ed.2d 662 (1974) (“Having

now had an opportunity to more fully consider the

Eleventh Amendment issue after briefing and

argument, we disapprove the Eleventh Amendment

holdings of [certain prior] cases to the extent that they

are inconsistent with our holding today”).

As noted, the implicit view of these cases seems to have been that once jurisdiction is established on the basis of a federal question, no further Eleventh Amendment inquiry is necessary with respect to other claims raised in the
14

Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984)

case. This is an erroneous view and contrary to the principles established in our Eleventh Amendment decisions. “The Eleventh Amendment is an explicit limitation on the judicial power of the United States.” Missouri v. Fiske, 290 U.S., at 25, 54 S.Ct., at 20. It deprives a federal court of power to decide certain claims against States that otherwise would be within the *120 scope of Art. III’s grant of jurisdiction. For example, if a lawsuit against state officials under 42 U.S.C. § 1983 alleges a constitutional claim, the federal court is barred from awarding damages against the state treasury even though the claim arises under the Constitution. See Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979). Similarly, if a § 1983 action alleging a constitutional claim is brought directly against a State, the Eleventh Amendment bars a federal court from granting any relief on that claim. See Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978) (per curiam ). The Amendment thus is a specific constitutional bar against hearing even federal claims that otherwise would be within the jurisdiction of the federal courts.30

30

See, e.g., Monaco v. Mississippi, 292 U.S. 313, 322, 54

S.Ct. 745, 747, 78 L.Ed. 1282 (1934) (“[A]lthough a

case may arise under the Constitution and laws of the

United States, the judicial power does not extend to it if

the suit is sought to be prosecuted against a State,

without her consent, by one of her own citizens”);

Missouri v. Fiske, 290 U.S. 18, 25–26, 54 S.Ct. 18,

20–21, 78 L.Ed. 145 (1933).

This constitutional bar applies to pendent claims as well. As noted above, pendent **919 jurisdiction is a judge-made doctrine of expediency and efficiency derived from the general Art. III language conferring power to hear all “cases” arising under federal law or between diverse parties. See Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966). See also Hagans v. Lavine, 415 U.S. 528, 545, 94 S.Ct. 1372, 1383, 39 L.Ed.2d 577 (1974) (terming pendent jurisdiction “a doctrine of discretion”). The Eleventh Amendment should not be construed to apply with less force to this implied form of jurisdiction than it does to the explicitly granted power to hear federal claims. The history of the adoption and development of the Amendment, see supra, at 6–9, confirms that it is an independent limitation on all exercises of Art. III power: “the entire judicial power granted by the Constitution does not embrace authority to entertain suit brought by private parties against a State without consent given,” Ex parte State of New York No. 1, 256 U.S. 490, 497, 41 S.Ct. 588, 589, 65 L.Ed. 1057 (1921). If we were to hold otherwise, a federal court could award damages against a State on the basis of a pendent claim. Our decision in *121 Edelman v. Jordan, supra, makes clear that pendent jurisdiction does not permit such an evasion of the immunity guaranteed by the Eleventh Amendment. We

there held that “the District Court was correct in exercising pendent jurisdiction over [plaintiffs’] statutory claim,” 415 U.S., at 653, n. 1, 94 S.Ct., at 1351, n. 1, but then concluded that the Eleventh Amendment barred an award of retroactive relief on the basis of that pendent claim. Id., at 678, 94 S.Ct., at 1363.
[14] In sum, contrary to the view implicit in decisions such as Greene, supra, neither pendent jurisdiction nor any other basis of jurisdiction may override the Eleventh Amendment.31 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 protected by the Eleventh Amendment. See supra, at 908. We now hold that this principle applies as well to state-law claims brought into federal court under pendent jurisdiction.

31

See Missouri v. Fiske, 290 U.S., at 27, 54 S.Ct., at 21

(“This is not less a suit against the State because the bill

is ancillary and supplemental.”).

D
Respondents urge that application of the Eleventh Amendment to pendent state-law claims will have a disruptive effect on litigation against state officials. They argue that the “considerations of judicial economy, convenience, and fairness to litigants” that underlie pendent jurisdiction, see Gibbs, supra, 383 U.S., at 726, 86 S.Ct., at 1138, counsel against a result that may cause litigants to split causes of action between state and federal courts. They also contend that the policy of avoiding unnecessary constitutional decisions will be contravened if plaintiffs choose to forgo their state-law claims and sue only in federal court or, alternatively, that the policy of Ex parte Young *122 will be hindered if plaintiffs choose to forgo their right to a federal forum and bring all of their claims in state court.
It may be that applying the Eleventh Amendment to pendent claims results in federal claims being brought in state court, or in bifurcation of claims. That is not uncommon in this area. Under Edelman v. Jordan, supra, a suit against state officials for retroactive monetary relief, whether based on federal or state law, must be brought in state court. Challenges to the validity of state tax systems under 42 U.S.C. § 1983 also must be brought in state court. Fair Assessment in Real Estate Ass’n. v. McNary, 454 U.S. 100, 102 S.Ct. 177, 70 L.Ed.2d 271 (1981). Under the abstention doctrine, unclear issues of **920 state law commonly are split off and referred to the
15

Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984)

state courts.32

32

Moreover, allowing claims against state officials based

on state law to be brought in the federal courts does not

necessarily foster the policies of “judicial economy,

convenience and fairness to litigants,” Mine Workers v.

Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16

L.Ed.2d 218 (1966), on which pendent jurisdiction is

founded. For example, when a federal decision on state

law is obtained, the federal court’s construction often is

uncertain and ephemeral. In cases of ongoing oversight

of a state program that may extend over years, as in this

case, the federal intrusion is likely to be extensive.

Duplication of effort, inconvenience, and uncertainty

may well result. See, e.g., Burford v. Sun Oil Co., 319

U.S. 315, 327, 63 S.Ct. 1098, 1104, 87 L.Ed. 1424

(1943) ( “Delay, misunderstanding of local law, and

needless conflict with the state policy, are the inevitable

product of this double [i.e., federal-state] system of

review”). This case is an example. Here, the federal

courts effectively have been undertaking to operate a

major state institution based on inferences drawn from

dicta in a state court opinion not decided until four

years after the suit was begun. The state court has had

no opportunity to review the federal courts’

construction of its opinion, or their choice of remedies.

The only sure escape from an erroneous interpretation

of state law is presumably the rather cumbersome route

of legislation.

Waste and delay may also result from abstention,

which often is called for when state law is unclear,

see Baggett v. Bullitt, 377 U.S. 360, 378–379, 84

S.Ct. 1316, 1326–1327, 12 L.Ed.2d 377 (1964)

(“abstention operates to require piecemeal

adjudication in many courts, thereby delaying

ultimate adjudication on the merits for an undue

length of time”) (citations omitted), or from

dismissals on the basis of comity, which has special

force when relief is sought on state-law grounds, see

Gibbs, supra, 383 U.S., at 726, 86 S.Ct., at 1139;

Hawks v. Hamill, 288 U.S. 52, 61, 53 S.Ct. 240, 243,

77 L.Ed. 610 (1933).

*123 In any case, the answer to respondents’ assertions is that such considerations of policy cannot override the constitutional limitation on the authority of the federal judiciary to adjudicate suits against a State. See Missouri v. Fiske, 290 U.S., at 25–26, 54 S.Ct., at 20–21 (“Considerations of convenience open no avenue of escape from the [Amendment’s] restriction”).33 That a litigant’s choice of forum is reduced “has long been understood to be a part of the tension inherent in our system of federalism.” Employees v. Missouri Public Health & Welfare Dept., 411 U.S. 279, 298, 93 S.Ct. 1614, 1625, 36 L.Ed.2d 251 (1973) (MARSHALL, J., concurring in result).

33

Cf. Aldinger v. Howard, 427 U.S. 1, 14–15, 96 S.Ct.

2413, 2420–2421, 49 L.Ed.2d 276 (1976) (Although

“considerations of judicial economy” would be served by permitting pendent-party jurisdiction, “the addition of a completely new party would run counter to the well-established principle that federal courts, as opposed to state trial courts of general jurisdiction, are courts of limited jurisdiction marked out by Congress”).

IV
[15] Respondents contend that, regardless of the applicability of the Eleventh Amendment to their state claims against petitioner state officials, the judgment may still be upheld against petitioner county officials. We are not persuaded. Even assuming that these officials are not immune from suit challenging their actions under the MH/MR Act,34 it is clear *124 that **921 without the injunction against the state institutions and officials in this case, an order entered on state-law grounds necessarily would be limited. The relief substantially concerns Pennhurst, an arm of the State that is operated by state officials. Moreover, funding for the county mental retardation programs comes almost entirely from the State, see Pa.Stat.Ann., Tit. 50, §§ 4507–4509 (Purdon 1969 and Supp. 1982), and the costs of the masters have been borne by the State, see 446 F.Supp., at 1327. Finally, the MH/MR Act contemplates that the state and county officials will cooperate in operating mental retardation programs. See In re Schmidt, 494 Pa. 86, 95–96, 429 A.2d 631, 635–636 (1981). In short, the present judgment could not be sustained on the basis of the state-law obligations of petitioner county officials. Indeed, any relief granted against the county officials on the basis of the state statute would be partial and incomplete at best. Such an ineffective enforcement of state law would not appear to serve the purposes of efficiency, convenience, and fairness that must inform the exercise of pendent jurisdiction.

34

We have held that the Eleventh Amendment does not

apply to “counties and similar municipal corporations.”

Mt. Healthy City School District v. Doyle, 429 U.S.

274, 280, 97 S.Ct. 568, 572, 50 L.Ed.2d 471 (1977); see

Lincoln County v. Luning, 133 U.S. 529, 530, 10 S.Ct.

363, 33 L.Ed. 766 (1890). At the same time, we have

applied the Amendment to bar relief against county

officials “in order to protect the state treasury from

liability that would have had essentially the same

practical consequences as a judgment against the State

itself.” Lake Country Estates, Inc. v. Tahoe Regional

Planning Agency, 440 U.S. 391, 401, 99 S.Ct. 1171,

1177, 59 L.Ed.2d 401 (1979). See, e.g., Edelman v.

Jordan, supra (Eleventh Amendment bars suit against

state and county officials for retroactive award of

welfare benefits). The Courts of Appeals are in general

agreement that a suit against officials of a county or

16

Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984)

other governmental entity is barred if the relief obtained runs against the State. See, e.g., Moore v. Tangipahoa Parish School Board, 594 F.2d 489, 493 (CA5 1979); Carey v. Quern, 588 F.2d 230, 233–234 (CA7 1978); Incarcerated Men of Allen County Jail v. Fair, 507 F.2d 281, 287–288 (CA6 1974); Harris v. Tooele County School District, 471 F.2d 218, 220 (CA10 1973). Given that the actions of the county commissioners and mental-health administrators are dependent on funding from the State, it may be that relief granted against these county officials, when exercising their functions under the MH/MR Act, effectively runs against the State. Cf. Farr v. Chesney, 441 F.Supp. 127, 130–132 (MD Pa.1977) (holding that Pennsylvania county commissioners, acting as members of the board of the county office of mental health and retardation, may not be sued for back pay under the Eleventh Amendment). We need not decide this issue in light of our disposition above.

V
The Court of Appeals upheld the judgment of the District Court solely on the basis of Pennsylvania’s MH/MR Act. We hold that these federal courts lacked jurisdiction to enjoin petitioner state institutions and state officials on the basis of *125 this state law. The District Court also rested its decision on the Eighth and Fourteenth Amendments and § 504 of the Rehabilitation Act of 1973. See supra, at 904. On remand the Court of Appeals may consider to what extent, if any, the judgment may be sustained on these bases.35 The court also may consider whether relief may be granted to respondents under the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. §§ 6011, 6063. The judgment of the Court of Appeals is reversed, and the case remanded for further proceedings consistent with this opinion.

35

On the Fourteenth Amendment issue, the court should

consider Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct.

2452, 73 L.Ed.2d 28 (1982), a decision that was not

available when the District Court issued its decision.

It is so ordered.
Justice BRENNAN, dissenting.
I fully agree with Justice STEVENS’ dissent. Nevertheless, I write separately to explain that in view of my continued belief that the Eleventh Amendment “bars federal court suits against States only by citizens of other States,” Yeomans v. Kentucky, 423 U.S. 983, 984, 96 S.Ct. 404, 46 L.Ed.2d 309 (1975) (BRENNAN, J., dissenting),

I would hold that petitioners are not entitled to invoke the protections of that Amendment in this federal court suit by citizens of Pennsylvania. See Employees v. Missouri Public Health & Welfare Dept., 411 U.S. 279, 298, 93 S.Ct. 1614, 1625, 36 L.Ed.2d 251 (1973) (BRENNAN, J., dissenting); Edelman v. Jordan, 415 U.S. 651, 697, 94 S.Ct. 1347, 1372, 39 L.Ed.2d 662 (1974) (BRENNAN, J., dissenting). In my view, Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890), upon which the Court today relies, ante, at 906, recognized that the Eleventh Amendment, by its terms, erects a limited constitutional barrier prohibiting suits against States by citizens of another State; the decision, however, “accords to nonconsenting States only a nonconstitutional immunity from suit by its own citizens.” Employees v. Missouri Public *126 Health & Welfare Dept., supra, 411 U.S., at 313, 93 S.Ct., at 1632 (BRENNAN, J., dissenting) (emphasis added). For scholarly discussions supporting this view, see Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 Colum.L.Rev. 1889, 1893–1894 (1983); Field, **922 The Eleventh Amendment and Other Sovereign Immunity Doctrines: Part One, 126 U.Pa.L.Rev. 515, 538–540 and n. 88 (1978). To the extent that such nonconstitutional sovereign immunity may apply to petitioners, I agree with Justice STEVENS that since petitioners’ conduct was prohibited by state law, the protections of sovereign immunity do not extend to them.
Justice STEVENS, with whom Justice BRENNAN, Justice MARSHALL, and Justice BLACKMUN join, dissenting. This case has illuminated the character of an institution. The record demonstrates that the Pennhurst State School and Hospital has been operated in violation of state law. In 1977, after three years of litigation, the District Court entered detailed findings of fact that abundantly support that conclusion. In 1981, after four more years of litigation, this Court ordered the United States Court of Appeals for the Third Circuit to decide whether the law of Pennsylvania provides an independent and adequate ground which can support the District Court’s remedial order. The Court of Appeals, sitting en banc, unanimously concluded that it did. This Court does not disagree with that conclusion. Rather, it reverses the Court of Appeals because it did precisely what this Court ordered it to do; the only error committed by the Court of Appeals was its faithful obedience to this Court’s command.
This remarkable result is the product of an equally remarkable misapplication of the ancient doctrine of sovereign immunity. In a completely unprecedented holding, today the Court concludes that Pennsylvania’s sovereign immunity prevents a federal court from enjoining the conduct that Pennsylvania itself has prohibited. No rational view of the sovereign immunity of
17

Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984)

the States supports this result. To the *127 contrary, the question whether a federal court may award injunctive relief on the basis of state law has been answered affirmatively by this Court many times in the past. Yet the Court repudiates at least 28 cases, spanning well over a century of this Court’s jurisprudence, proclaiming instead that federal courts have no power to enforce the will of the States by enjoining conduct because it violates state law. This new pronouncement will require the federal courts to decide federal constitutional questions despite the availability of state-law grounds for decision, a result inimical to sound principles of judicial restraint. Nothing in the Eleventh Amendment, the conception of state sovereignty it embodies, or the history of this institution, requires or justifies such a perverse result.

I
The conduct of petitioners that the Court attributes to the State of Pennsylvania in order to find it protected by the Eleventh Amendment is described in detail in the District Court’s findings. As noted in our prior opinion, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981), and by the majority today, ante, at 904, those findings were undisputed: “Conditions at Pennhurst are not only dangerous, with the residents often physically abused or drugged by staff members, but also inadequate for the ‘habilitation’ of the retarded. The court found that the physical, intellectual, and emotional skills of some residents have deteriorated at Pennhurst.” 451 U.S., at 7, 101 S.Ct., at 1534, 1535 (footnote omitted). The court concluded that Pennhurst was actually hazardous to its residents.1 Organized programs of **923 training or education *128 were inadequate or entirely unavailable, and programs of treatment or training were not developed for residents. When they visited Pennhurst, shocked parents of residents would find their children bruised, drugged and unattended. These conditions often led to a deterioration in the condition of the residents after being placed in Pennhurst. Terri Lee Halderman, for example, was learning to talk when she entered Pennhurst; after residing there she lost her verbal skills. At every stage of this litigation, petitioners have conceded that Pennhurst fails to provide even minimally adequate habilitation for its residents. See 612 F.2d 84, 92–94 (3d Cir.1979) (en banc); 446 F.Supp. 1295, 1304 (E.D.Pa.1977).

1

Infectious diseases were common and minimally

adequate health care was unavailable. Residents of

Pennhurst were inadequately supervised, and as a

consequence were often injured by other residents or as

a result of self-abuse. Assaults on residents by staff

members, including sexual assaults, were frequent.

Physical restraints were employed in lieu of adequate

staffing, often causing injury to residents, and on one

occasion leading to a death. Dangerous psychotropic drugs were indiscriminately used for purposes of behavior control and staff convenience. Staff supervision during meals was minimal, and residents often stole food from each other—leaving some without enough to eat. The unsafe conditions led to aggressive behavior on the part of residents which was punished by solitary confinement. There was often urine and excrement on the walls.
The District Court held that these conditions violated each resident’s rights under the Due Process and Equal Protection Clauses of the Fourteenth Amendment, § 504 of the Rehabilitation Act of 1973, 87 Stat. 394, as amended by 92 Stat. 2987, 29 U.S.C. § 794 (1976 ed., Supp. V), and the Pennsylvania Mental Health and Mental Retardation Act of 1966, Pa.Stat.Ann. tit. 50, §§ 4101–4704 (Purdon 1969 and Supp.1982) (“MH/MR Act”). The en banc Court of Appeals for the Third Circuit affirmed most of the District Court’s judgment, but it grounded its decision solely on the “bill of rights” provision in the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. § 6010 (1976 ed. and Supp. V). The court did not consider the constitutional issues or § 504 of the Rehabilitation Act. While it affirmed the District Court’s holding that the MH/MR Act provides a right to adequate habilitation, the court did not decide whether that state right justified all of the relief granted by the District Court.
Petitioners sought review by this Court, asserting that the Court of Appeals had erred in its construction of both federal and state statutes. This Court granted certiorari and reversed, *129 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981), holding that 42 U.S.C. § 6010 created no substantive rights. We did not accept respondents’ state-law contention, because there was a possibility that the Court of Appeals’ analysis of the state statute had been influenced by its erroneous reading of federal law. Concluding that it was “unclear whether state law provides an independent and adequate ground which can support the court’s remedial order,” 451 U.S., at 31, 101 S.Ct., at 1547, we “remand[ed] the state-law issue for reconsideration in light of our decision here.” Ibid. In a footnote we declined to consider the effect of the Pennsylvania Supreme Court’s then recent decision, In re Schmidt, 494 Pa. 86, 429 A.2d 631 (1981), on the state-law issues in the case, expressly stating that on remand the Court of Appeals could “consider the state law issues in light of the Pennsylvania Supreme Court’s recent decision.” 451 U.S., at 31, n. 24, 101 S.Ct., at 1547, n. 24.
On remand, 673 F.2d 647 (3d Cir.1982) (en banc), the Court of Appeals, noting that this Court had remanded for reconsideration of the state-law issue, examined the impact of Schmidt.2 According to the Court of Appeals,
18

Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984)

which was unanimous on this point, the State Supreme Court had “spoken definitively” on the duties of the State under the MH/MR Act, holding that the State was required to provide care to the mentally retarded in the “least restrictive environment.” Id., at 651. Since the MH/MR Act fully justified the relief issued in the Court of Appeals’ prior judgment, the court reinstated its prior judgment **924 on the basis of petitioner’s violation of state law.3

2

In the questions raised in their petition for certiorari,

petitioners do not ask this Court to reexamine the Court

of Appeals’ conclusion that respondents are clearly

entitled to relief under state law. Nor would it be

appropriate for this Court to reexamine the unanimous

conclusion of the en banc Court of Appeals on a

question of state law. See, e.g., Bishop v. Wood, 426

U.S. 341, 345–346, 96 S.Ct. 2074, 2077–2078, 48

L.Ed.2d 684 (1976).

3

The court therefore found it unnecessary to decide if

respondents were also entitled to relief under the

federal statutory and constitutional provisions which

had been raised in the District Court.

*130 Thus, the District Court found that petitioners have been operating the Pennhurst facility in a way that is forbidden by state law, by federal statute and by the Federal Constitution. The en banc Court of Appeals for the Third Circuit unanimously concluded that state law provided a clear and adequate basis for upholding the District Court and that it was not necessary to address the federal questions decided by that court. That action conformed precisely to the directive issued by this Court when the case was here before. Petitioners urge this Court to make an unprecedented about-face, and to hold that the Eleventh Amendment prohibited the Court of Appeals from doing what this Court ordered it to do when we instructed it to decide whether respondents were entitled to relief under state law. Of course, if petitioners are correct, then error was committed not by the Court of Appeals, which after all merely obeyed the instruction of this Court, but rather by this Court in 1981 when we ordered the Court of Appeals to consider the state-law issues in the case.
Petitioners’ position is utterly without support. The Eleventh Amendment and the doctrine of sovereign immunity it embodies have never been interpreted to deprive a court of jurisdiction to grant relief against government officials who are engaged in conduct that is forbidden by their sovereign. On the contrary, this Court has repeatedly and consistently exercised the power to enjoin state officials from violating state law.4

4

Although the Court struggles mightily to distinguish

some of the cases that foreclose its holding today, see

ante, at 911 – 916, this vain effort merely brings into

stark relief the total absence of any affirmative support

for its holding.

II
The majority proceeds as if this Court has not had previous occasion to consider Eleventh Amendment argument made by petitioners, and contends that Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908) has no application to a suit seeking injunctive relief on the basis of state law. That is simply not the case. The Court rejected the argument that the Eleventh *131 Amendment precludes injunctive relief on the basis of state law twice only two Terms ago. In Florida Dept. of State v. Treasure Salvors, Inc., 458 U.S. 670, 102 S.Ct. 3304, 73 L.Ed.2d 1057 (1982), four Justices concluded that a suit for possession of property in the hands of state officials was not barred by the Eleventh Amendment inasmuch as the State did not have even a colorable claim to the property under state law. See id., at 696–697, 102 S.Ct., at 3320 – 3321 (opinion of STEVENS, J., joined by BURGER, C.J., MARSHALL, and BLACKMUN, JJ.). Four additional Justices accepted the proposition that if the state officers’ conduct had been in violation of a state statute, the Eleventh Amendment would not bar the action. Id., at 714, 102 S.Ct., at 3329 (WHITE, J., concurring in the judgment in part and dissenting in part, joined by POWELL, REHNQUIST, and O’CONNOR, JJ.).5 And in just one short paragraph in Cory v. White, 457 U.S. 85, 102 S.Ct. 2325, 72 L.Ed.2d 694 (1982), the Court thrice restated the settled rule that the Eleventh Amendment does not bar suits against state officers when they are “alleged to be acting against federal or state law.”6 These *132 are only the two **925 most recent in an extraordinarily long line of cases.

5

“Larson established that where the officer’s actions are

limited by statute, actions beyond those limitations are

to be considered individual and not sovereign actions.”

Ibid.

6

“Neither did Edelman deal with a suit naming a state

officer as defendant, but not alleging a violation of

either federal or state law. Thus, there was no occasion

in the opinion to cite or discuss the unanimous opinion

in Worcester that the Eleventh Amendment bars suits

against state officers unless they are alleged to be

acting contrary to federal law or against the authority

of state law. Edelman did not hold that suits against

state officers who are not alleged to be acting against

19

Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984)

federal or state law are permissible under the Eleventh Amendment if only prospective relief is sought.” 457 U.S., at 91, 102 S.Ct., at 2329 (emphasis supplied).
See also Worcester County Co. v. Riley, 302 U.S. 292, 297, 58 S.Ct. 185, 187, 82 L.Ed. 268 (1937) (citations omitted) (“[G]enerally suits to restrain action of state officials can, consistently with the constitutional prohibition, be prosecuted only when the action sought to be restrained is without the authority of state law or contravenes the statutes or Constitution of the United States. The Eleventh Amendment, which denies to the citizen the right to resort to a federal court to compel or restrain state action, does not preclude suit against a wrongdoer merely because he asserts that his acts are within an official authority which the state does not confer.”). In Worcester the Court held a suit barred by the Eleventh Amendment only after stating: “Hence, it cannot be said that the threatened action of respondents involves any breach of state law or of the laws or Constitution of the United States.” Id., at 299, 58 S.Ct., at 188.

By 1908, it was firmly established that conduct of state officials under color of office that is tortious as a matter of state law is not protected by the Eleventh Amendment. See Reagan v. Farmers’ Loan & Trust, 154 U.S. 362, 390–391, 14 S.Ct. 1047, 1051–1052, 38 L.Ed. 1014 (1894); Poindexter v. Greenhow, 114 U.S. 270, 287, 5 S.Ct. 903, 912, 29 L.Ed. 185 (1885); Cunningham v. Macon & Brunswick R. Co., 109 U.S. 446, 452, 3 S.Ct. 292, 296, 27 L.Ed. 992 (1883).7 Cf. Belknap v. Schild, 161 U.S. 10, 18, 16 S.Ct. 443, 445, 40 L.Ed. 599 (1896) (same rule adopted for sovereign immunity of the United States); Stanley v. Schwalby, 147 U.S. 508, 518–519, 13 S.Ct. 418, 422, 37 L.Ed. 259 (1893) (same).8 In *133 Hopkins v. Clemson Agricultural College, 221 U.S. 636, 31 S.Ct. 654, 55 L.Ed. 890 (1911), the Court explained the relationship of these cases to the doctrine of sovereign immunity.

7

The Court explained that the state officer sued in tort

“is not sued as, or because he is, the officer of the

government, but as an individual, and the court is not

ousted of jurisdiction because he asserts jurisdiction as

such officer. To make out his defense he must show

that his authority was sufficient in law to protect him.”

Cunningham, 109 U.S., at 452, 3 S.Ct., at 297, quoted

in Poindexter, 114 U.S., at 287, 5 S.Ct., at 912. Today’s

majority notes that these cases involve nondiscretionary

duties of governmental officers, ante, at 913, but

overlooks the reason for this characterization—officers

have no discretion to commit a tort. The same is true of

the Court’s treatment of the federal sovereign immunity

cases I discuss below.

8

See also Butz v. Economou, 438 U.S. 478, 489–490, 98

S.Ct. 2894, 2902, 57 L.Ed.2d 895 (1978) (officers of the United States are liable for their torts unless the torts are authorized by federal law); Philadelphia Co. v. Stimson, 223 U.S. 605, 619–620, 32 S.Ct. 340, 344, 56 L.Ed. 570 (1912) (officers of the United States may be enjoined where they wrongfully interfere with property rights). Justice Holmes had occasion to state that sovereign immunity does not generally extend to the acts of an officer of the sovereign. “In general the United States cannot be sued for a tort, but its immunity does not extend to those that acted in its name.” Sloan Shipyards v. U.S. Fleet Corp., 258 U.S. 549, 568, 42 S.Ct. 386, 388, 66 L.Ed. 762 (1922). He characterized petitioner’s argument in that case—that sovereign immunity should extend to the unlawful acts of agents of the United States acting within the scope of their authority—as “a very dangerous departure from one of the first principles of our system of law. The sovereign properly so called is superior to suit for reasons that often have been explained. But the general rule is that any person within the jurisdiction is always amenable to the law.... An instrumentality of government he might be and for the greatest ends, but the agent, because he is agent, does not cease to be answerable for his acts.” Id., at 566–567, 42 S.Ct., at 388. See also Brady v. Roosevelt S.S. Co., 317 U.S. 575, 63 S.Ct. 425, 87 L.Ed. 471 (1943) (following Sloan ).

“[I]mmunity from suit is a high attribute of sovereignty—a prerogative of the State itself—which cannot be availed of by public agents when sued for their own torts. The Eleventh Amendment was not intended to afford them freedom from liability in any case where, under color of their office, they have injured one of the State’s citizens. To grant them such immunity would be to create a privileged class free from liability for **926 wrongs inflicted or injuries threatened.... Besides, neither a State nor an individual can confer upon an agent authority to commit a tort so as to excuse the perpetrator. In such cases the law of agency has no application—the wrongdoer is treated as a principal and individually liable for the damages inflicted and subject to injunction against the commission of acts causing irreparable injury.” Id., at 642–643, 31 S.Ct., at 656–657.9

9

The Court also stated,

“Corporate agents or individual officers of the State

stand in no better position than officers of the

General Government, and as to them it has often

been held that: ‘The exemption of the United States

from judicial process does not protect their officers

and agents, civil or military, in time of peace, from

being personally liable to an action of tort by a

private person, whose rights of property they have

wrongfully invaded, or injured, even by authority of

the United States.’ Belknap v. Schild, 161 U.S. 10, 18

[16 S.Ct. 443, 445, 40 L.Ed. 599].” 221 U.S., at 645,

31 S.Ct., at 657 (emphasis supplied). The language I

have quoted in the text makes it clear that the Court

20

Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984)

is incorrect to suggest ante, at 913, n. 19, that Clemson dealt only with unconstitutional conduct and not with conduct in violation of state tort law. See also Old Colony Trust Co. v. Seattle, 271 U.S. 426, 431, 46 S.Ct. 552, 554, 70 L.Ed. 1019 (1926) (reaffirming the rationale of Clemson in an action against city and county officials).

*134 The principles that were decisive in these cases are not confined to actions under state tort law. They also apply to claims that state officers have violated state statutes. In Johnson v. Lankford, 245 U.S. 541, 38 S.Ct. 203, 62 L.Ed. 460 (1918), the Court reversed the dismissal of an action against the bank commissioner of Oklahoma and his surety to recover damages for the loss of plaintiff’s bank deposit, allegedly caused by the commissioner’s failure to safeguard the business and assets of the bank in negligent or willful disregard of his duties under applicable state statutes. The Court explained that the action was not one against the State.
“To answer it otherwise would be to assert, we think, that whatever an officer does, even in contravention of the laws of the State, is state action, identifies him with it and makes the redress sought against him a claim against the State and therefore prohibited by the Eleventh Amendment. Surely an officer of a State may be delinquent without involving the State in delinquency, indeed, may injure the State by delinquency as well as some resident of the State, and be amenable to both.” Id., at 545, 38 S.Ct., at 205.
Similarly, in Rolston v. Missouri Fund Commissioners, 120 U.S. 390, 7 S.Ct. 599, 30 L.Ed. 721 (1887), the Court rejected the argument that a suit to enjoin a state officer to comply with state law violated the Eleventh Amendment. The Court wrote, “Here the suit is to get a state officer to do what a statute requires of him. The litigation is with the officer, not the state.” Id., at 411, 7 S.Ct., at 610.10

10

In Reagan v. Farmers’ Loan & Trust Co., 154 U.S.

362, 14 S.Ct. 1047, 38 L.Ed. 1014 (1894), the Court

held that the Eleventh Amendment does not bar a suit

alleging that a state officer has wrongfully administered

a state statute. The Court awarded injunctive relief

against state officers on the basis of both state and

federal law. In Atchison &c. R. Co. v. O’Connor, 223

U.S. 280, 32 S.Ct. 216, 56 L.Ed. 436 (1912), the Court

held that a suit against state officers seeking recovery

of taxes paid under duress was not against the State

since a state statute required the recovery of wrongfully

paid taxes. See id., at 287, 32 S.Ct., at 218. In Lankford

v. Platte Iron Works Co., 235 U.S. 461, 35 S.Ct. 173,

59 L.Ed. 316 (1915), the Court assumed that the

Eleventh Amendment would not bar a suit “to compel

submission by the officers of the State to the laws of

the State, accomplishing at once the policy of the law

and its specific purpose,” id., at 471, 35 S.Ct., at 175,

but rejected the appellees’ construction of the state statute. See also Parish v. State Banking Board, 235 U.S. 498, 35 S.Ct. 185, 59 L.Ed. 330 (1915); American Water Co. v. Lankford, 235 U.S. 496, 35 S.Ct. 184, 59 L.Ed. 329 (1915). In Martin v. Lankford, 245 U.S. 547, 38 S.Ct. 205, 62 L.Ed. 464 (1918), the Court stated that the case was not barred by the Eleventh Amendment since the claim “is based, as we have seen, not in exertion of the state law but in violation of it. The reasoning of [Johnson v. Lankford ] is therefore applicable and the conclusion must be the same, that is, the action is not one against the State, and the District Court erred in dismissing it for want of jurisdiction on that ground.” Id., at 551, 38 S.Ct., at 207. While it is true, as the Court points out ante, at 913, n. 19, that the Martin Court went on to hold that there was no federal diversity jurisdiction over the case, it cannot be denied that the majority today repudiates the reasoning of Martin. As for the Court’s treatment of Johnson v. Lankford and O’Connor, ante, at 913, n. 19, it is true that Johnson sought only damages, but the holding of that case, that the action was not barred by the Constitution since it alleged conduct in violation of state law, is utterly at odds with the Court’s decision today. Surely the Court cannot mean to rely on a distinction between damages and injunctive relief, for it states: “A federal court’s grant of relief against state officers on the basis of state law, whether prospective or retroactive, does not vindicate the supreme authority of federal law.... We conclude that Young and Edelman are inapplicable in a suit against state officials on the basis of state law.” Ante, at 911. Awarding damages for a violation of state law by state officers acting within their authority is inconsistent with the majority’s position that only a need to vindicate federal law justifies the lifting of the Eleventh Amendment bar. If an order to pay damages for wrongful conduct against a state officer is not against the State for purposes of the Eleventh Amendment, an additional order in the form of an injunction telling the officer not to do it again is no more against the State. It cannot be doubted that today’s decision overrules Johnson. Finally, as for O’Connor, while it involved an allegation of unconstitutional action, that allegation was insufficient to lift the bar of the Eleventh Amendment because the complaint sought retroactive relief. It was the fact that relief was authorized by state law that defeated the Eleventh Amendment claim in O’Connor. See 223 U.S., at 287, 32 S.Ct., at 218.
**927 *135 Significantly, this rule was expressly reaffirmed in a case decided by this Court in the same Term as Ex parte Young and published in the same volume of the United States Reports. *136 The appellant in Scully v. Bird, 209 U.S. 481, 28 S.Ct. 597, 52 L.Ed. 899 (1908), brought a diversity suit seeking injunctive relief against the dairy and food commissioner of the State of Michigan, on the ground that “under cover of his office” he had maliciously engaged in a course of conduct designed to ruin plaintiff’s business in the State. The circuit court dismissed the complaint on Eleventh
21

Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984)

Amendment grounds. On appeal, the plaintiff contended that the Eleventh Amendment “does not apply where a suit is brought against defendants who, claiming to act as officers of the State, and under color of a statute which is valid and constitutional, but wrongfully administered by them, commit, or threaten to commit, acts of wrong or injury to the rights and property of the plaintiff, or make such administration of the statute an illegal burden and exaction upon the plaintiff.” Id., at 418, 28 S.Ct., at 597. This Court agreed. It noted that the complaint alleged action “in dereliction of duties enjoined by the statutes of the State,” and concluded that it was “manifest from this summary of the allegations of the bill that this is not a suit against the State.” Id., at 490, 28 S.Ct., at 600.11

11

Cases construing the sovereign immunity of the Federal

Government also hold that conduct by federal officers

forbidden by statute is not shielded by sovereign

immunity even though the officer is not acting

completely beyond his authority. See Land v. Dollar,

330 U.S. 731, 67 S.Ct. 1009, 91 L.Ed. 1209 (1947);

Ickes v. Fox, 300 U.S. 82, 57 S.Ct. 412, 81 L.Ed. 525

(1937); Work v. Louisiana, 269 U.S. 250, 46 S.Ct. 92,

70 L.Ed. 259 (1925); Santa Fe Pac. R. Co. v. Fall, 259

U.S. 197, 42 S.Ct. 466, 66 L.Ed. 896 (1922); Payne v.

Central Pac. R. Co., 255 U.S. 228, 41 S.Ct. 314, 65

L.Ed. 598 (1921); Waite v. Macy, 246 U.S. 606, 38

S.Ct. 395, 62 L.Ed. 892 (1918).

Finally, in Greene v. Louisville & Interurban R. Co., 244 U.S. 499, 37 S.Ct. 673, 61 L.Ed. 1200 (1917), and its companion cases, Louisville & Nashville R. Co. v. Greene, 244 U.S. 522, 37 S.Ct. 683, 61 L.Ed. 1291 (1917); Illinois Central R. Co. v. Greene, 244 U.S. 555, 37 S.Ct. 697, 61 L.Ed. 1309 (1917), the plaintiffs challenged the conduct of state officials under both federal and state law. The Court, citing, inter alia, Young and Clemson, held that the Eleventh Amendment did not bar injunctive relief on the basis of state law, noting that the plaintiffs’ federal claim was sufficiently substantial to justify the exercise *137 of pendent jurisdiction over plaintiffs’ state-law claims,12 and that since violations of federal and state law had been alleged, it **928 was appropriate for the federal court to issue injunctive relief on the basis of state law without reaching the federal claims, despite the strictures of the Eleventh Amendment. In short, the Greene Court approved of precisely the methodology employed by the Court of Appeals in this case.13

12

The Court cited Siler v. Louisville & Nashville R. Co.,

213 U.S. 175, 29 S.Ct. 451, 53 L.Ed. 753 (1917), which

will be discussed in Part IV, infra, in support of this

proposition.

13

The unanimous rejection of the argument that the

Eleventh Amendment bars claims based on state

officers’ violations of federal statutes in Ray v. Atlantic

Richfield Co., 435 U.S. 151, 156 n. 6, 98 S.Ct. 988, 994

n. 6, 55 L.Ed.2d 179 (1978) is entirely consistent with

my analysis of our cases. But under the majority’s

view, it represented a rather dramatic extension of Ex

parte Young to encompass federal statutory claims as

well as constitutional claims. Ray demonstrates that it

cannot be maintained that Young and the other cases of

this Court permit injunctive relief only when the

constitutionality of state officers’ conduct is at issue. If

that were so Ray would be wrongly decided—an

argument that a state officer has violated a federal

statute does not constitute a challenge to the

constitutionality of the officer’s conduct. Chapman v.

Houston Welfare Rights Org., 441 U.S. 600, 612–615,

99 S.Ct. 1905, 1913–1914, 1915, 60 L.Ed.2d 508

(1979); Swift & Co. v. Wickham, 382 U.S. 111, 86 S.Ct.

258, 15 L.Ed.2d 194 (1965). In my view, the Eleventh

Amendment claim in Ray deserved no more than the

cursory footnote it received, since the state officials had

engaged in conduct forbidden by statute. If the Court

were willing to adhere to settled rules of law today, the

Eleventh Amendment claim could be rejected just as

summarily.

None of these cases contain only “implicit” or sub silentio holdings; all of them explicitly consider and reject the claim that the Eleventh Amendment prohibits federal courts from issuing injunctive relief based on state law. There is therefore no basis for the majority’s assertion that the issue presented by this case is an open one, ante, at 918.14

14

The majority incredibly claims that Greene contains

only an implicit holding on the Eleventh Amendment

question the Court decides today. Ante, at 917 – 918. In

plain words, the Greene Court held that the Eleventh

Amendment did not bar consideration of the pendent

state-law claims advanced in that case. The Court then

considered and sustained those claims on their merits.

*138 The Court tries to explain away these cases by arguing that the applicable state statutes gave petitioners such “broad discretion” over Pennhurst that their actions were not ultra vires, ante, at 913 – 914. The Court, however, does not dispute the Court of Appeals’ conclusion that these state statutes gave petitioners no discretion whatsoever to disregard their duties with respect to institutionalization of the retarded as they did. Petitioners acted outside of their lawful discretion every bit as much as did the government officials in the cases I have discussed, which hold that when an official commits an act prohibited by law, he acts beyond his authority and is not protected by sovereign immunity.15 After all, it is only common sense to conclude that States do not

22

Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984)

authorize their officers to violate their legal duties.

15

Contrary to the Court’s treatment of them, the cases

discussed above rely on the doctrine embraced in the

quotation from Clemson I have set out—officials have

no discretion to violate the law. The same is true of the

federal sovereign immunity cases. See, e.g., Land v.

Dollar, 330 U.S. 731, 736, 67 S.Ct. 1009, 1011, 91

L.Ed. 1209 (1947) (“the assertion by officers of the

Government of their authority to act did not foreclose

judicial inquiry into the lawfulness of their action [and]

a determination of whether their ‘authority is rightfully

assumed is the exercise of jurisdiction, and must lead to

the decision of the merits of the question.’ ”); Payne v.

Central P.R. Co., 255 U.S. 228, 236, 41 S.Ct. 314, 316,

65 L.Ed. 598 (1928) (“But of course [the Secretary’s

statutory authority] does not clothe him with any

discretion to enlarge or curtail the rights of the grantee,

nor to substitute his judgment for the will of Congress

as manifested in the granting act”); Waite v. Macy, 246

U.S. 606, 610, 38 S.Ct. 395, 397, 62 L.Ed. 892 (1918)

(“The Secretary and the board must keep within the

statute ... and we see no reason why the restriction

should not be enforced by injunction ...”); Philadelphia

Co. v. Stimson, 223 U.S. 605, 620, 32 S.Ct. 340, 618,

56 L.Ed. 570 (1912) ( “And in the case of an injury

threatened by his illegal action, the officer cannot claim

immunity from injunction process”).

The Court also relies heavily on the fact that the District Court found petitioners immune from damages liability because they “acted in the utmost good faith ... within the sphere of their official responsibilities,” ante, at 912 (emphasis in original) (quoting 446 F.Supp., at 1324). This confuses two distinct concepts. An official **929 can act in good faith and therefore be immune from damages liability despite the *139 fact that he has done that which the law prohibits, a point recognized as recently as Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Nevertheless, good faith immunity from damage liability is irrelevant to the availability of injunctive relief. See Wood v. Strickland, 420 U.S. 308, 314–315, n. 6, 95 S.Ct. 992, 997, n. 6, 43 L.Ed.2d 214 (1975). The state officials acted in nothing less than good faith and within the sphere of their official responsibilities in asserting Florida’s claim to the treasure in Treasure Salvors; the same can be said for the bank commissioner’s actions in safeguarding bank deposits challenged in Johnson v. Lankford, the fund commissioner’s decision to sell property mortgaged to the State challenged in Rolston, and the state food and dairy commissioner’s decision to prosecute the appellant for violating the state food impurity act challenged in Scully, to give just a few examples. Yet in each of these cases the state officers’ conduct was enjoined. Greene makes this point perfectly clear. There state officers did nothing more than carry out responsibilities clearly assigned to them by a statute. Their conduct was nevertheless

enjoined because this Court held that their conduct violated the state constitution, despite the fact that their reliance on a statute made it perfectly clear that their conduct was not only in good faith but reasonable. See Michigan v. DeFillippo, 443 U.S. 31, 99 S.Ct. 2627, 61 L.Ed.2d 343 (1979). Until today the rule has been simple: conduct that exceeds the scope of an official’s lawful discretion is not conduct the sovereign has authorized and hence is subject to injunction.16 Whether that conduct also gives rise to damage liability is an entirely separate question.

16

In a rather desperate attempt to explain these cases,

amici suggest that the Court simply did not realize that

it was deciding questions of state law, since in the era

before Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct.

817, 82 L.Ed. 1188 (1938) and United Mine Workers v.

Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218

(1966), it was not clear that diversity cases or pendent

claims were governed by state rather than federal law.

That suggestion is refuted by the cases discussed above

in which it was held that relief could issue against state

officers who had violated state statutes. Even under the

construction of the Rules of Decision Act, 28 U.S.C. §

1652, adopted in Swift v. Tyson, 16 Pet. 1, 10 L.Ed. 865

(1842), and repudiated in Erie, federal courts were

bound to apply state statutes. See, e.g., Black & White

Taxicab & Transfer Co. v. Brown & Yellow Taxicab &

Transfer Co., 276 U.S. 518, 529–531, 48 S.Ct. 404,

407–408, 72 L.Ed. 681 (1928); Swift, 16 Pet., at 18–19.

Thus, in these cases the Court was indisputably issuing

relief under state law. The Court was explicit about the

state-law basis for the relief it granted in Greene, to use

just one example. It stated that federal jurisdiction

“extends, to the determination of all questions involved

in the case, including questions of state law,

irrespective of the disposition that may be made of the

federal question, or whether it be found necessary to

decide it at all.” 244 U.S., at 508, 37 S.Ct., at 677. It

then granted plaintiffs relief under state law, and

concluded by declining to decide any question of

federal law. “It is obvious, however, in view of the

result reached upon the questions of state law, just

discussed, that the disposition of the cases would not be

affected by whatever result we might reach upon the

federal question.... Therefore, we find it unnecessary to

express any opinion upon the question raised under the

Fourteenth Amendment.” Id., at 519, 37 S.Ct., at

681–682.

*140 III
On its face, the Eleventh Amendment applies only to suits against a State brought by citizens of other States and foreign nations.17 This textual limitation upon the scope of the states’ immunity from suit in federal court was set aside in Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33
23

Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984)

L.Ed. 842 (1890). Hans was a suit against the State of Louisiana, brought by a citizen of Louisiana seeking to recover interest on the state’s bonds. The Court stated that some of the arguments favoring sovereign immunity for the States made during the process of the Amendment’s ratification had become a part of **930 the judicial scheme created by the Constitution. As a result, the Court concluded that the Constitution prohibited a suit by a citizen against his or her own state. When called upon to elaborate in Monaco v. Mississippi, 292 U.S. 313, 54 S.Ct. 745, 78 L.Ed. 1282 (1934), the Court explained that the Eleventh Amendment did more than simply prohibit suits brought by citizens of one State against another State. Rather, it exemplified the broader and more ancient doctrine of sovereign immunity, which operatesto *141 bar a suit brought by a citizen against his own State without its consent.18

17

“The Judicial power of the United States shall not be

construed to extend to any suit in law or equity,

commenced or prosecuted against one of the United

States by Citizens of another State, or by Citizens or

Subjects of any Foreign State.” U.S. Const. amend. XI.

18

“Manifestly, we cannot rest with a mere literal

application of the words of § 2 or Article III, or assume

that the letter of the Eleventh Amendment exhausts the

restriction upon suits against non-consenting states.

Behind the words of the constitutional provisions are

postulates which limit and control. There is the

essential postulate that the controversies, as

contemplated, shall be found to be of a justiciable

character. There is also the postulate that States of the

Union, still possessing attributes of sovereignty, shall

be immune from suits, without their consent, save

where there has been ‘a surrender of this immunity in

the plan of the convention.’ ” Id., at 322–323, 54 S.Ct.,

at 748 (footnote omitted). See also Ex parte New York,

256 U.S. 490, 497, 41 S.Ct. 588, 589, 65 L.Ed. 1057

(1921); Hans v. Louisiana, 134 U.S. 1, 15–18, 10 S.Ct.

504, 507–508, 33 L.Ed. 842 (1890). Most

commentators have understood this Court’s Eleventh

Amendment cases as taking the position that the

Constitution incorporates the common law doctrine of

sovereign immunity. See, e.g., Baker, Federalism and

the Eleventh Amendment, 48 U.Col.L.Rev. 139,

153–158 (1977); Field, The Eleventh Amendment and

Other Sovereign Immunity Doctrines: Part One, 126

U.Pa.L.Rev. 515, 538–546 (1978); Thornton, The

Eleventh Amendment: An Endangered Species, 55

Ind.L.J. 293, 305–310 (1980); Tribe, Intergovernmental

Immunities in Litigation, Taxation, and Regulation:

Separation of Powers Issues in Controversies About

Federalism, 89 Harv.L.Rev. 682, 684–688 (1976);

Comment, Private Suits Against States in the Federal

Courts, 33 U.Chi.L.Rev. 331, 334–336 (1966).

The Court has subsequently adhered to this interpretation

of the Eleventh Amendment. For example, in Quern v. Jordan, 440 U.S. 332, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979), the Court referred to the Eleventh Amendment as incorporating “the traditional sovereign immunity of the States.” Id., at 341, 99 S.Ct., at 1145. Similarly, in Fitzpatrick v. Bitzer, 427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976), the Court referred to “the Eleventh Amendment and the principle of sovereign immunity it embodies....” Id., at 456, 96 S.Ct., at 2671. See also Nevada v. Hall, 440 U.S. 410, 438–441, 99 S.Ct. 1182, 1197–1198, 59 L.Ed.2d 416 (1979) (REHNQUIST, J., dissenting).19 Thus, under our cases it is the doctrine of sovereign immunity, rather than the text of the Amendment *142 itself, which is critical to the analysis of any Eleventh Amendment problem.20

19

Petitioners themselves treat the Eleventh Amendment

as equivalent to the doctrine of sovereign immunity.

See Brief for Petitioners 12 n. 10. The Court appears to

agree. Ante, at 906.

20

Of course, if the Court were to apply the text of the

Amendment, it would not bar an action against

Pennsylvania by one of its own citizens. See n. 17,

supra.

The doctrine of sovereign immunity developed in England, where it was thought that the king could not be sued. However, common law courts, in applying the doctrine, traditionally distinguished between the king and his agents, on the theory that the king would never authorize unlawful conduct, and that therefore the unlawful acts of the king’s officers ought not to be treated as acts of the sovereign. See 1 W. Blackstone, Commentaries on the Laws of England * 244 (J. Andrews ed. 1909). As early as the fifteenth century, Holdsworth writes, servants of the king were held liable for their unlawful acts. See III W. Holdsworth, A History of English Law 388 (1903). During the seventeenth century, this rule of law was used extensively to curb the king’s authority. The king’s officers
“could do wrong, and if they committed wrongs, whether in the course of their employment or not, they could be made legally liable. The command or instruction of the king could not protect them. If the king really had given such commands or instructions, he must have been deceived.” VI id., at 101.
**931 In one famous case, it was held that although process would not issue against the sovereign himself, it could issue against his officers. “For the warrant of no man, not even of the King himself, can excuse the doing of an illegal act.” Sands v. Child, 83 Eng.Rep. 725, 726 (K.B.1693).21 By the eighteenth century, this rule of law
24

Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984)

was unquestioned. *143 See X W. Holdsworth,supra, at 650–652. And in the nineteenth Century this view was taken by the court to be so well-settled as to not require the citation of authority, see Feather v. The Queen, 122 Eng.Rep. 1191, 1205–1206 (K.B.1865).22

21

The rationale for this principle was compelling. Courts

did not wish to confront the king’s immunity from suit

directly; nevertheless they found the threat to liberty

posed by permitting the sovereign’s abuses to go

unremedied to be intolerable. Since in reality the king

could act only through his officers, the rule which

permitted suits against those officers formally

preserved the sovereign’s immunity while operating as

one of the means by which courts curbed the abuses of

the monarch. See X W. Holdsworth, supra, at 262–268.

22

Commentators have noted the influence of these

English doctrines on the American conception of

sovereign immunity. See Jaffe, Suits Against

Governments and Officers: Sovereign Immunity, 77

Harv.L.Rev. 1, 19–29 (1963); Note, Express Waiver of

Eleventh Amendment Immunity, 17 Ga.L.Rev. 513,

517–518 (1983); Note, Developments in the

Law—Remedies Against the United States and its

Officials, 70 Harv.L.Rev. 827, 831–833 (1957). In fact,

in Belknap v. Schild, 161 U.S. 10, 16 S.Ct. 443, 40

L.Ed. 599 (1896), the Court, in holding that officers of

the United States were liable for injuries caused by

their unlawful conduct even if they did so acting

pursuant to official duties, cited the passage from

Feather v. The Queen. See 161 U.S., at 18, 16 S.Ct., at

445.

It was only natural, then, that this Court, in applying the principles of sovereign immunity, recognized the distinction between a suit against a State and one against its officer.23 For example, while the Court did inquire as to whether a suit was “in essence” against the sovereign, it soon became settled law that the Eleventh Amendment did not bar suits against state officials in their official capacities challenging unconstitutional conduct. See Smyth v. Ames, 169 U.S. 466, 518–519, 18 S.Ct. 418, 423, 42 L.Ed. 819 (1898); Pennoyer v. McConnaughy, 140 U.S. 1, 10–12, 11 S.Ct. 699, 701–702, 35 L.Ed. 363 (1891); Poindexter v. Greenhow, 114 U.S. 270, 288, 5 S.Ct. 903, 913, 29 L.Ed. 185 (1885).24 This rule was reconciled with sovereign immunity *144 principles by use of the traditional rule that an action against an agent of the sovereign who had acted unlawfully was not considered to be against the sovereign. When an official acts pursuant to an unconstitutional statute, the Court reasoned, the absence of valid authority leaves the official ultra vires his authority, and thus a private actor stripped of his status as a representative of the sovereign.25 In Ex **932 parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), the Court was merely restating a settled

principle when it wrote:

23

Chief Justice Marshall, writing for the Court,

recognized this distinction in the very first case to reach

the Court concerning the application of the Eleventh

Amendment to the conduct of a state official, Osborn v.

Bank of the United States, 9 Wheat. 738, 6 L.Ed. 204

(1824).

24

See also McNeill v. Southern R. Co., 202 U.S. 543, 559,

26 S.Ct. 722, 724–725, 50 L.Ed. 1142 (1906); Gunter v.

Atlantic C.L.R. Co., 200 U.S. 273, 283–284, 26 S.Ct.

252, 255–256, 50 L.Ed. 477 (1906); Prout v. Starr, 188

U.S. 537, 23 S.Ct. 398, 47 L.Ed. 584 (1903); Scott v.

Donald, 165 U.S. 58, 67–70, 17 S.Ct. 265, 266, 41

L.Ed. 632 (1897); Reagan v. Farmers’ Loan & Trust

Co., 154 U.S. 362, 388–391, 14 S.Ct. 1047,

1050–1051, 1052, 38 L.Ed. 1014 (1894); In re Tyler,

149 U.S. 164, 190–191, 13 S.Ct. 785, 792–793, 37

L.Ed. 689 (1893); In re Ayers, 123 U.S. 443, 506–507,

8 S.Ct. 164, 183–184, 31 L.Ed. 216 (1887); Hagood v.

Southern, 117 U.S. 52, 70, 6 S.Ct. 608, 616, 29 L.Ed.

805 (1886); Allen v. Baltimore & O.R. Co., 114 U.S.

311, 315–316, 5 S.Ct. 925, 927–928, 29 L.Ed. 200

(1885); Board of Liquidation v. McComb, 92 U.S. 531,

541, 23 L.Ed. 623 (1875). Cf. United States v. Lee, 106

U.S. 196, 219–222, 1 S.Ct. 240, 259–262, 27 L.Ed. 171

(1883) (sovereign immunity of the United States not a

defense against suit charging officers of the United

States with unconstitutional conduct).

25

“That, it is true, is a legislative act of the government of

Virginia, but it is not a law of the State of Virginia. The

State has passed no such law, for it cannot; and what it

cannot do, it certainly, in contemplation of law, has not

done. The Constitution of the United States, and its

own contract, both irrepealable by any act on its part,

are the law of Virginia; and that law made it the duty of

the defendant to receive the coupons tendered in

payment of taxes, and declared every step to enforce

the tax, thereafter taken, to be without warrant of law,

and therefore a wrong. He stands, then, stripped of his

official character; and, confessing a personal violation

of the plaintiff’s rights for which he must personally

answer, he is without defence.” Poindexter v.

Greenhow, 114 U.S., at 288, 5 S.Ct., at 913.

“The Act to be enforced is alleged to be unconstitutional, and if it be so, the use of the name of the State to enforce an unconstitutional act to the injury of complainants is a proceeding without the authority of and one which does not affect the State in its sovereign or governmental capacity. It is simply an illegal act upon the part of a state official in attempting by the use of the name of the State to enforce a legislative enactment which is void because unconstitutional. If the act which the state Attorney
25

Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984)

General seeks to enforce be a violation of the Federal Constitution, the officer in proceeding under such enactment comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct.” Id., at 159–160, 28 S.Ct., at 454.26

26

See generally Orth, The Interpretation of the Eleventh

Amendment, 1798–1908: A Case Study of Judicial

Power, 1983 U.Ill.L.Rev. 423. The Court has adhered

to this formulation to the present day. See Florida

Dept. of State v. Treasure Salvors, Inc., 458 U.S. 670,

684–690, 102 S.Ct. 3304, 3314 – 3318, 73 L.Ed.2d

1057 (1982) (opinion of STEVENS, J.); id., at

714–715, 102 S.Ct., at 3329 – 3330 (WHITE, J.,

concurring in the judgment in part and dissenting in

part); Ray v. Atlantic Richfield Co., 435 U.S. 151, 156

n. 6, 98 S.Ct. 988, 994 n. 6, 55 L.Ed.2d 179 (1978);

Scheuer v. Rhodes, 416 U.S. 232, 237, 94 S.Ct. 1683,

1687, 40 L.Ed.2d 90 (1974); Georgia R. Co. v.

Redwine, 342 U.S. 299, 72 S.Ct. 321, 96 L.Ed. 335

(1952); Sterling v. Constantin, 287 U.S. 378, 393, 53

S.Ct. 190, 193, 77 L.Ed. 375 (1932). Of course, the

fragment from Young quoted by the Court, ante, at 912,

n. 17, does not convey the same meaning when

considered in the context of the paragraph quoted

above.

*145 The majority states that the holding of Ex parte Young is limited to cases in which relief is provided on the basis of federal law, and that it rests entirely on the need to protect the supremacy of federal law. That position overlooks the foundation of the rule of Young as well Pennoyer v. McConnaughy and Young’s other predecessors.
The Young Court distinguished between the State and its attorney general because the latter, in violating the Constitution, had engaged in conduct the sovereign could not authorize. The pivotal consideration was not that the conduct violated federal law, since nothing in the jurisprudence of the Eleventh Amendment permits a suit against a sovereign merely because federal law is at issue.27 Indeed, at least since Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890), the law has been settled that the Eleventh Amendment applies even though the State is accused of violating the Federal Constitution. In Hans the Court held that the Eleventh Amendment applies to all cases within the jurisdiction of the federal courts including those brought to require compliance with federal law, and bars any suit where the State is the proper defendant under sovereign immunity principles. A long line of cases has endorsed that proposition, holding that irrespective *146 of the need to vindicate federal law a suit is barred by the Eleventh Amendment if the State is the proper defendant.28 It was clear until today **933 that “the State [is not] divested of its immunity ‘on the mere ground that the case is one arising under the Constitution

or laws of the United States.’ ” Parden v. Terminal R. Co., 377 U.S. 184, 186, 84 S.Ct. 1207, 1209–1210, 12 L.Ed.2d 233 (1964) (quoting Hans, 134 U.S., at 10, 10 S.Ct., at 505).

27

As the Solicitor General correctly notes in his brief,

“this Court has no power to create any exception to a

constitutional bar to federal court jurisdiction. Ex parte

Young rests instead on recognition that the Eleventh

Amendment simply does not apply to suits seeking to

restrain illegal acts by state officials—whether those

acts are illegal because they violate the Constitution, as

in Young, or federal or state law.” Brief for the United

States 23 (citations omitted).

28

See Quern v. Jordan, 440 U.S. 332, 345 n. 17, 99 S.Ct.

1139, 1147 n. 17, 59 L.Ed.2d 358 (1979); Alabama v.

Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114

(1978) (per curiam ); Edelman v. Jordan, 415 U.S. 651,

668–669, 94 S.Ct. 1347, 1358–1359, 39 L.Ed.2d 662

(1974); Employees v. Missouri Public Health Dept.,

411 U.S. 279, 280 n. 1, 93 S.Ct. 1614, 1616 n. 1, 36

L.Ed.2d 251 (1973); Smith v. Reeves, 178 U.S. 436,

444–449, 20 S.Ct. 919, 922–924, 44 L.Ed. 1140 (1900);

Fitts v. McGhee, 172 U.S. 516, 19 S.Ct. 269, 43 L.Ed.

535 (1899); In re Ayers, 123 U.S. 443, 8 S.Ct. 164, 31

L.Ed. 216 (1887); Hagood v. Southern, 117 U.S. 52, 6

S.Ct. 608, 29 L.Ed. 805 (1886); Louisiana v. Jumel,

107 U.S. 711, 2 S.Ct. 128, 27 L.Ed. 448 (1882). See

generally C. Jacobs, The Eleventh Amendment and

Sovereign Immunity 88–91, 109–110 (1972).

The pivotal consideration in Young was that it was not conduct of the sovereign that was at issue.29 The rule that unlawful acts of an officer should not be attributed to the sovereign has deep roots in the history of sovereign immunity and makes Young reconcilable with the principles of sovereign immunity found in the Eleventh Amendment,30 rather *147 than merely an unprincipled accommodation between federal and state interests that ignores the principles contained in the Eleventh Amendment.

29

The distinction between the sovereign and its agents not

only explains why the rationale of Ex parte Young and

its predecessors is consistent with established sovereign

immunity doctrine, but it also explains the critical

difference between actions for injunctive relief and

actions for damages recognized in Edelman v. Jordan,

415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1973).

Since the damages remedy sought in that case would

have required payment by the State, it could not be said

that the action ran only against the agents of the State.

Therefore, while the agents’ unlawful conduct was

considered ultra vires and hence could be enjoined, a

remedy which did run against the sovereign and not

merely its agent could not fit within the ultra vires

26

Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984)

doctrine and hence was impermissible. If damages are not sought from the State and the relief will run only against the state official, damages are a permissible remedy under the Eleventh Amendment. See Scheuer v. Rhodes, 416 U.S. 232, 237–238, 94 S.Ct. 1683, 1686–1687 (1974).

contrary to her express commands.” Poindexter v. Greenhow, 114 U.S. 270, 293, 5 S.Ct. 903, 915, 29 L.Ed. 185 (1885) (emphasis supplied).31

31

See also Barney v. City of New York, 193 U.S. 430,

439–441, 24 S.Ct. 502, 504–505, 48 L.Ed. 737 (1904).

30

“While in England personification of sovereignty in the

person of the King may have been possible, attempts to

adopt this reasoning in the United States resulted in the

postulation of the abstract State as sovereign. Since the

ideal State could only act by law, whatever the State

did must be lawful. On this ground a distinction was

drawn between the State and its officers, and since the

State could not commit an illegal act, any such act was

imputed to government officers. It logically followed

that a suit against state officers was not necessarily a

suit against the State.” Note, The Sovereign Immunity

of the States: The Doctrine and Some of its Recent

Developments, 40 Minn.L.Rev. 234, 244–245 (1956)

(footnotes omitted). Curiously, the majority appears to

acknowledge that it has created a sovereign immunity

broader than had ever been enjoyed by the king of

England. Ante, at 915, n. 25.

This rule plainly applies to conduct of state officers in violation of state law. Young states that the significance of the charge of unconstitutional conduct is that it renders the state official’s conduct “simply an illegal act,” and hence the officer is not entitled to the sovereign’s immunity. Since a state officer’s conduct in violation of state law is certainly no less illegal than his violation of federal law, in either case the official, by committing an illegal act, is “stripped of his official or representative character.” For example, one of Young’s predecessors held that a suit challenging an unconstitutional attempt by the Virginia legislature to disavow a state contract was not barred by the Eleventh Amendment, reasoning that
“inasmuch as, by the Constitution of the United States, which is also the supreme law of Virginia, that contract, when made, became thereby unchangeable, irrepealable by the State, the subsequent act of January 26, 1882, and all other like acts, which deny the obligation of that contract and forbid its performance, are not the acts of the State of Virginia. The true and real Commonwealth which contracted the obligation is incapable in law of doing anything in derogation of it. Whatever having that effect, if operative, has been attempted or done, is the work of its government acting without authority, in violation of its fundamental law, and must be looked upon, in all courts of justice, as if it were not and never had been.... The State of Virginia **934 has done none of *148 these things with which this defence charges her. The defendant in error is not her officer, her agent, or her representative, in the matter complained of, for he has acted not only without her authority, but

It is clear that the Court in Poindexter attached no significance to the fact that Virginia had been accused of violating federal and not its own law.32 To the contrary, the Court treated the Federal Constitution as part of Virginia’s law, and concluded that the challenged action was not that of Virginia precisely because it violated Virginia’s law. The majority’s position turns the Young doctrine on its head—sovereign immunity did not bar actions challenging unconstitutional conduct by state officers since the Federal Constitution was also to be considered part of the State’s law—and since the State could not and would not authorize a violation of its own law, the officers’ conduct was considered individual *149 and not sovereign. No doubt the Courts that produced Poindexter and Young would be shocked to discover that conduct authorized by state law but prohibited by federal law is not considered conduct attributable to the State for sovereign immunity purposes, but conduct prohibited by state law is considered conduct attributable to the very State which prohibited that conduct. Indeed, in Tindal v. Wesley, 167 U.S. 204, 17 S.Ct. 770, 42 L.Ed. 137 (1896), the Court specifically found that it was impossible to distinguish between a suit challenging unconstitutional conduct of state officers and a suit challenging any other type of unlawful behavior:

32

This approach began long before Poindexter. The

earliest cases in which this Court rejected sovereign

immunity defenses raised by officers of the sovereign

accused of unlawful conduct did not involve charges of

unconstitutional conduct, but rather simple trespass

actions. In rejecting the defense, the Court simply noted

that although the officers were acting pursuant to their

duties, they were engaged in unlawful conduct which

therefore could not be the conduct of the sovereign. See

Bates v. Clark, 95 U.S. 204, 209, 24 L.Ed. 471 (1877);

Mitchell v. Harmony, 13 How. 115, 137, 14 L.Ed. 75

(1851); Wise v. Withers, 3 Cranch 331, 2 L.Ed. 457

(1806); Little v. Barreme, 2 Cranch 169, 2 L.Ed. 243

(1804). In the landmark case of Osborn v. Bank of the

United States, 9 Wheat. 738, 6 L.Ed. 204 (1824), the

Court took it as beyond argument that if a state officer

unlawfully seized property in an attempt to collect taxes

he believed to be owed the state, the Eleventh

Amendment would not bar a simple trespass action

against the officer. The majority strangely takes

comfort in the fact that the former cases allowed

damages actions against federal officers. Ante, at 914,

n. 21. The allowance of a damage remedy is no more

consistent with the Court’s approach than the allowance

of an injunction, see n. 10, supra.

27

Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984)

“If a suit against officers of a State to enjoin them from enforcing an unconstitutional statute ... be not one against the State, it is impossible to see how a suit against the individuals to recover the possession of property belonging to the plaintiff and illegally held by the defendants can be deemed a suit against the State.” Id., at 222, 17 S.Ct., at 777.33

33

To the same effect as Tindal is South Carolina v.

Wesley, 155 U.S. 542, 15 S.Ct. 230, 39 L.Ed. 254

(1895). The majority argues that the case notes that

South Carolina was not a party to the proceeding and

suggests the ruling was “purely procedural,” ante, at

913, n. 19, but that misses the whole purpose of the

“procedural” point made in the opinion—Eleventh

Amendment immunity may only be claimed by the

State; it does not extend to state officers accused of

violating state law. See also Florida Dept. of State v.

Treasure Salvors, Inc., 458 U.S. 670, 697, 102 S.Ct.

3304, 3321, 73 L.Ed.2d 1057 (1982) (opinion of

STEVENS, J.) (“If conduct of a state officer taken

pursuant to an unconstitutional state statute is deemed

to be unauthorized and may be challenged in federal

court, conduct undertaken without any authority

whatever is also not entitled to Eleventh Amendment

immunity.”).

recoverable by appropriate action at law or in equity [the] dominant interest of the sovereign is then on the side of the victim who may bring his possessory action to reclaim that which is wrongfully withheld.” Land v. Dollar, 330 U.S. 731, 738, 67 S.Ct. 1009, 1012, 91 L.Ed. 1209 (1947).34

34

While Land v. Dollar is a case dealing with the

sovereign immunity of the Federal Government, it is

pertinent to the Eleventh Amendment, which after all

for present purposes is no more than an embodiment of

sovereign immunity principles.

The majority’s position that the Eleventh Amendment does not permit federal courts to enjoin conduct that the sovereign State itself seeks to prohibit thus is inconsistent with both *151 the doctrine of sovereign immunity and the underlying respect for the integrity of State policy which the Eleventh Amendment protects. The issuance of injunctive relief which enforces state laws and policies, if anything, enhances federal courts’ respect for the sovereign prerogatives of the States.35 The majority’s approach, which requires federal courts to ignore questions of state law and to rest their decisions on federal bases, will create more rather than less friction between the States and the federal judiciary.

These cases are based on the simple idea that an illegal act strips the official of his state-law shield, thereby depriving the official of the sovereign’s immunity. The majority criticizes this approach as being “out of touch with reality” because it ignores the practical impact of an injunction on the **935 *150 State though directed at its officers. Ante, at 911 – 912. Yet that criticism cannot account for Young, since an injunction has the same effect on the State whether it is based on federal or state law. Indeed, the majority recognizes that injunctions approved by Young “have an obvious impact on the State itself,” ante, at 910. In the final analysis the distinction between the State and its officers, realistic or not, is one firmly embedded in the doctrine of sovereign immunity. It is that doctrine and not any theory of federal supremacy which the Framers placed in the Eleventh Amendment and which this Court therefore has a duty to respect.
It follows that the basis for the Young rule is present when the officer sued has violated the law of the sovereign; in all such cases the conduct is of a type that would not be permitted by the sovereign and hence is not attributable to the sovereign under traditional sovereign immunity principles. In such a case, the sovereign’s interest lies with those who seek to enforce its laws, rather than those who have violated them.
“[P]ublic officials may become tort-feasors by exceeding the limits of their authority. And where they unlawfully seize or hold a citizen’s realty or chattel,

35

For example, in cases barring suits against individual

officers as suits against the state, the Court has also

acknowledged the importance of state-law authority for

the challenged conduct of the officer. In such cases the

Court has frequently noted that the relief sought would

be unauthorized by state law and would therefore

adversely affect the state itself. See, e.g., Hagood v.

Southern, 117 U.S. 52, 68, 6 S.Ct. 608, 615, 29 L.Ed.

805 (1886); Louisiana v. Jumel, 107 U.S. 711, 721, 2

S.Ct. 128, 135–136, 27 L.Ed. 448 (1882). In contrast, in

cases of official actions contrary to state law, a federal

court’s remedy would not adversely affect any state

policy.

Moreover, the majority’s rule has nothing to do with the basic reason the Eleventh Amendment was added to the Constitution. There is general agreement that the Amendment was passed because the States were fearful that federal courts would force them to pay their Revolutionary War debts, leading to their financial ruin.36 Entertaining a suit for injunctive relief based on state law implicates none of the concerns of the Framers. Since only injunctive relief is sought there is no threat to the state treasury of the type that concerned the Framers, see Milliken v. Bradley, 433 U.S. 267, 288–290, 97 S.Ct. 2749, 2761–2762, 53 L.Ed.2d 745 (1977); Edelman v. Jordan, 415 U.S. 651, 667–668, 94 S.Ct. 1347, 1357–1358, 39 L.Ed.2d 662 (1974); and if the State wishes to avoid the federal injunction, it can easily do so
28

Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984)

simply by changing its law. The possibility of States left helpless in the face of disruptive **936 federal decrees which led to the passage of the Eleventh *152 Amendment simply is not presented by this case. Indeed, the Framers no doubt would have preferred federal courts to base their decisions on state law, which the State is then free to reexamine, rather than forcing courts to decide cases on federal grounds, leaving the litigation beyond state control.

36

See, e.g., Petty v. Tennessee-Missouri Bridge Comm’n,

359 U.S. 275, 276 n. 1, 79 S.Ct. 785, 787 n. 1, 3

L.Ed.2d 804 (1959); Missouri v. Fiske, 290 U.S. 18, 27,

54 S.Ct. 18, 21, 78 L.Ed. 145 (1933); Cohens v.

Virginia, 6 Wheat. 264, 406–407, 5 L.Ed. 257 (1821).

In light of the preceding, it should come as no surprise that there is absolutely no authority for the majority’s position that the rule of Young is inapplicable to violations of state law. The only cases the majority cites, ante, at 910 – 911, for the proposition that Young is limited to the vindication of federal law do not consider the question whether Young permits injunctive relief on the basis of state law—in each of the cases the question was neither presented, briefed, argued nor decided.37 It is curious, to say the least, that the majority disapproves of reliance on cases in which the issue we face today was decided sub silentio, see ante, at 918, yet it is willing to rely on cases in which the issue was not decided at all. In fact, not only is there no precedent for the majority’s position, but, as I have demonstrated in Part II, supra, there is an avalanche of precedent squarely to the contrary.38

37

The majority cites Quern v. Jordan, 440 U.S. 332, 99

S.Ct. 1139, 59 L.Ed.2d 358 (1979); Scheuer v. Rhodes,

416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974);

Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39

L.Ed.2d 662 (1974); Georgia R. & Banking Co. v.

Redwine, 342 U.S. 299, 72 S.Ct. 321, 96 L.Ed. 335

(1952). In each of these cases, the only question

presented or decided was whether monetary relief could

be obtained against state officials on the basis of

federal law, except for Redwine, where the Court

decided that a suit to enjoin collection of a state tax on

the basis of federal law was not barred by the Eleventh

Amendment. In none of these cases was any question

concerning the availability of injunctive relief under

state law considered even in dicta.

38

In addition to overruling the cases discussed in part II,

supra, the majority’s view that Young exists simply to

ensure the supremacy of federal law indicates that a

number of our prior cases, which held that the Eleventh

Amendment may bar an action for injunctive relief

even where the State has violated the Federal

Constitution, see, e.g., Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978) (per curiam ), were incorrectly decided. The Court can have no satisfactory explanation for Pugh, which held that even as to a federal constitutional claim, a suit may not be brought directly against a state even where it may be brought against its officials. On the majority’s view, there is no basis for distinguishing between the state and its officials—as to both there is a need to vindicate the supremacy of federal law through the issuance of injunctive relief, and unless the officials are acting completely outside of their authority, they must be treated as is the state. However, Pugh can be explained simply by reference to Young’s use of the ultra vires doctrine with respect to unconstitutional conduct by state officers—such conduct is not conduct by the sovereign because it could not be authorized by the sovereign, hence the officers are not entitled to the sovereign’s immunity. A suit directly against the state cannot succeed because the ultra vires doctrine is unavailable without a state officer to which it can be applied. Pugh makes it clear that Young rests not on a need to vindicate federal law, but on the traditional distinction between the sovereign and its agents.
*153 That the doctrine of sovereign immunity does not protect conduct which has been prohibited by the sovereign is clearly demonstrated by the case on which petitioners chiefly rely, Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949). The Larson opinion teaches that the actions of state officials are not attributable to the state—are ultra vires —in two different types of situations: (1) when the official is engaged in conduct that the sovereign has not authorized, and (2) when he has engaged in conduct that the sovereign has forbidden. A sovereign, like any other principal, cannot authorize its agent to violate the law. When an agent does so, his actions are considered ultra vires and he is liable for his own conduct under the law of agency. Both types of ultra vires conduct are clearly identified in Larson.
“There may be, of course, suits for specific relief against officers of the sovereign which are not suits against the sovereign. If the officer purports to act as an individual and not as an official, a suit directed against that action is not a **937 suit against the sovereign. If the War Assets Administrator had completed a sale of his own personal home, he presumably could be enjoined from later conveying it to a third person. On a similar theory, where the officer’s powers are limited by statute, his actions beyond those limitations are considered individual and not sovereign actions. The officer is not doing *154 the business which the sovereign has empowered him to do or he is doing it in a way that the sovereign has forbidden. His actions are ultra vires his authority and therefore may be made the object of specific relief. It is important to note that in

29

Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984)

such cases the relief can be granted, without impleading the sovereign, only because of the officer’s lack of delegated power. A claim of error in the exercise of that power is therefore not sufficient. And, since the jurisdiction of the court to hear the case may depend, as we have recently recognized, upon the decision which it ultimately reaches on the merits, it is necessary that the plaintiff set out in his complaint the statutory limitation on which he relies.” Id., at 689–690, 69 S.Ct., at 1461 (emphasis supplied).
Larson thus clearly indicates that the immunity determination depends upon the merits of the plaintiff’s claim. The same approach is employed by Young —the plaintiff can overcome the state official’s immunity only by succeeding on the merits of its claim of unconstitutional conduct.
Following the two-track analysis of Larson, the cases considering the question whether the state official is entitled to the sovereign’s immunity can be grouped into two categories. In cases like Larson, Malone v. Bowdoin, 369 U.S. 643, 82 S.Ct. 980, 8 L.Ed.2d 168 (1962), and Florida Dept. of State v. Treasure Salvors, Inc., 458 U.S. 670, 102 S.Ct. 3304, 73 L.Ed.2d 1057 (1982), which usually involve the state functioning in its proprietary capacity, the ultra vires issue can be resolved solely by reference to the law of agency. Since there is no specific limitation on the powers of the officers other than the general limitations on their authority, the only question that need be asked is whether they have acted completely beyond their authority. But when the State has placed specific limitations on the manner in which state officials may perform their duties, as it often does in regulatory or other administrative contexts as were considered in Scully v. Bird and Johnson v. *155 Lankford, the ultra vires inquiry also involves the question whether the officials acted in a way that state law forbids. No sovereign would authorize its officials to violate its own law, and if the official does so, then Larson indicates that his conduct is ultra vires and not protected by sovereign immunity.
Larson confirms that the Court’s disposition of this case in 1981—ordering the Court of Appeals to consider respondents’ state law claims—was fully harmonious with established sovereign immunity principles. The jurisdiction of the federal court was established by a federal claim;39 the Court of Appeals therefore had jurisdiction to resolve the case and to grant injunctive relief on either federal or state grounds. Respondents pleaded a specific statutory limitation on the way in which petitioners were entitled to run Pennhurst. The District Court and the Court of Appeals have **938 both found that petitioners operated Pennhurst in a way that the sovereign has forbidden. Specifically, both courts concluded that petitioners placed residents in Pennhurst without any consideration at all of the limitations on institutional confinement that are found in state law, and

that they failed to create community living programs that are mandated by state law. In short, there can be no dispute that petitioners ran Pennhurst in a way that the sovereign had *156 forbidden. Under the second track of the Larson analysis, petitioners were acting ultra vires because they were acting in a way that the sovereign, by statute, had forbidden.40

39

There can be no doubt that respondents’ federal claims

were sufficiently substantial to justify federal

jurisdiction in this case. In another case brought by a

resident of Pennhurst, we held that the Due Process

Clause of the Fourteenth Amendment requires, at a

minimum, that petitioners provide the residents with

reasonable care and safety. See Youngberg v. Romeo,

457 U.S. 307, 324, 102 S.Ct. 2452, 2462–2463, 73

L.Ed.2d 28 (1982). The uncontested findings of the

District Court in this case establish that Pennhurst was

neither safe nor providing reasonable care to its

residents. Therefore, respondents’ federal claims not

only were sufficiently substantial to support the

exercise of federal jurisdiction in this case, but would

almost certainly have justified the issuance of at least

some injunctive relief had a state-law basis for the

relief been unavailable.

40

In Larson, the Administrator of the War Assets

Administration was in possession of coal that the

plaintiff claimed the Administrator was contractually

obligated to deliver to it. Instead of seeking damages

for breach of contract in the Court of Claims, the

plaintiff sought an injunction in the district court. The

Court held that the Administrator had acted properly in

refusing to deliver the coal and instead insisting that the

plaintiff seek its remedy in the Court of Claims.

“There was, it is true, an allegation that the

Administrator was acting ‘illegally,’ and that the

refusal to deliver was ‘unauthorized.’ But these

allegations were not based and did not purport to be

based upon any lack of delegated power. Nor could

they be, since the Administrator was empowered by

the sovereign to administer a general sales program

encompassing the negotiation of contracts, the

shipment of goods and the receipt of payment. A

normal concomitant of such powers, as a matter of

general agency law, is the power to refuse delivery

when, in the agent’s view, delivery is not called for

under a contract and the power to sell goods which

the agent believes are still his principal’s to sell.” 337

U.S. at 691–92, 69 S.Ct., at 1462 (footnotes omitted).

Thus, the Administrator had acted properly. He was

doing what any agent would do—holding on to

property he believed was his principal’s and insisting

that the claimant sue the principal if it wanted the

property. He was merely exercising the “normal”

duties of a sales agent. Congress envisioned that he

do exactly that; the remedy it had provided required

the claimant to sue for damages in the Court of

Claims rather than obtaining the property directly

from the Administrator, and no one had questioned

30

Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984)

the constitutional sufficiency of that alternate remedy. See McCord, Fault Without Liability: Immunity of Federal Employees, 1966 U.Ill.L.F. 849, 862–867. “Since the plaintiff had not made an affirmative allegation of any relevant statutory limitation upon the Administrator’s powers, and had made no claim that the Administrator’s action amounted to an unconstitutional taking, the Court ruled that the suit must fail as an effort to enjoin the United States.” Malone v. Bowdoin, 369 U.S. 643, 647, 82 S.Ct. 980, 983, 8 L.Ed.2d 168 (1962). Malone can be explained similarly. These cases hold that Congress had empowered the governmental official to make necessary decisions about whether to hold onto property the official believes is the government’s, at least pending the aggrieved party’s remedy in the Claims Court under the Tucker Act, 28 U.S.C. §§ 1491–1507 (1976 ed. and Supp. V 1981 and West Supp.1983). See Byse, Proposed Reforms in Federal “Nonstatutory” Judicial Review: Sovereign Immunity, Indispensible Parties, Mandamus, 75 Harv.L.Rev. 1479, 1490–1491 (1962); Jaffe, The Right to Judicial Review I, 71 Harv.L.Rev. 401, 436–437 (1958). Thus, where the official acts as the sovereign intends, he is entitled to the sovereign’s immunity under the principles discussed above. Where that is not the case, Larson permits injunctive relief. In this case, respondents did plead a specific limitation on petitioners’ powers, and the holding of the Court of Appeals on the merits of respondents’ state law claims indicates that petitioners were not exercising the “normal” duties that the sovereign had envisioned for them, unlike the Administrator in Larson. Instead, petitioners were running Pennhurst “in a way which the sovereign has forbidden.” 337 U.S., at 689, 69 S.Ct., at 1461.
*157 Petitioners readily concede, both in their brief and at oral argument, that the Eleventh Amendment does not bar a suit against state officers who have acted ultra vires. The majority makes a similar concession, ante, at 908, n. 11. Yet both ignore the fact that the cases, and most especially Larson, set out a two-step analysis for ultra vires conduct—conduct that is completely beyond the scope of the officer’s authority, or conduct that the sovereign has forbidden. In fact, the majority goes so far as to quote the passage from Larson indicating that a state official acts ultra vires when he completely lacks power delegated from the state, ante, at 908 – 909, n. 11. That quotation ignores sentences immediately preceding and following the quoted passage stating in terms that where an official violates a statutory prohibition, he acts ultra vires and is not protected by sovereign immunity. This omission is understandable, since petitioners’ conduct in **939 this case clearly falls into the category of conduct the sovereign has specifically forbidden by statute. Petitioners were told by Pennsylvania how to run Pennhurst, and there is no dispute that they disobeyed their instructions. Yet without explanation, the Court

repudiates the two-track analysis of Larson and holds that sovereign immunity extends to conduct the sovereign has statutorily prohibited.41 Thus, contrary *158 to the Court’s assertion, Larson is in conflict with the result reached today.42

41

The majority also repudiates Justice WHITE’s recent

statement in Treasure Salvors: “where the officer’s

actions are limited by statute, actions beyond those

limitations are to be considered individual and not

sovereign actions.” 458 U.S., at 714, 102 S.Ct., at 3329.

Four Members of today’s majority subscribed to that

statement only two Terms ago.

42

Indeed, the majority senses as much, by admitting that

it cannot reconcile the ultra vires doctrine endorsed by

Larson with its approach. See ante, at 915, n. 25. The

majority is also incorrect in suggesting that Larson

overruled most if not all of the cases contrary to its

position. In fact, Larson cited most of those cases with

approval, including Clemson, Tindal v. Wesley,

Poindexter v. Greenhow and Land v. Dollar; the

Larson opinion stated that it was overruling only a

single case, Goltra v. Weeks, 271 U.S. 536, 46 S.Ct.

613, 70 L.Ed. 1074 (1926). See 337 U.S., at 698–702,

69 S.Ct., at 1465–1467. Larson simply did not wreak

the kind of havoc on this Court’s precedents that the

majority does today.

In sum, a century and a half of this Court’s Eleventh Amendment jurisprudence has established the following. A suit alleging that the official had acted within his authority but in a manner contrary to state statutes was not barred because the Eleventh Amendment prohibits suits against States; it does not bar suits against state officials for actions not permitted by the State under its own law. The sovereign could not and would not authorize its officers to violate its own law; hence an action against a state officer seeking redress for conduct not permitted by state law is a suit against the officer, not the sovereign. Ex parte Young concluded in as explicit a fashion as possible that unconstitutional action by state officials is not action by the State even if it purports to be authorized by state law, because the federal Constitution strikes down the state law shield. In the tort cases, if the plaintiff proves his case, there is by definition no state-law defense to shield the defendant. Similarly, when the state officer violates a state statute, the sovereign has by definition erected no shield against liability. These precedents make clear that there is no foundation for the contention that the majority embraces—that Ex parte Young authorizes injunctive relief against state officials only on the basis of federal law. To the contrary, Young is as clear as a *159 bell: the Eleventh Amendment does not apply where there is no state-law shield. That simple principle should control this case.
31

Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984)

IV
The majority’s decision in this case is especially unwise in that it overrules a long line of cases in order to reach a result that is at odds with the usual practices of this Court. In one of the most respected opinions ever written by a Member of this Court, Justice Brandeis wrote:
“The Court [has] developed, for its own governance in the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision. They are:
The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. This rule has found most varied application. Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the **940 Court will decide only the latter. Siler v. Louisville & Nashville R. Co., 213 U.S. 175, 191 [29 S.Ct. 451, 454–455, 53 L.Ed. 753].” Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346–347, 56 S.Ct. 466, 482–483, 80 L.Ed. 688 (1936) (Brandeis, J., concurring).
The Siler case, cited with approval by Justice Brandeis in Ashwander, employed a remarkably similar approach to that used by the Court of Appeals in this case. A privately owned railroad corporation brought suit against the members of the railroad commission of Kentucky to enjoin the enforcement of a rate schedule promulgated by the commission. The federal circuit court found that the schedule violated the plaintiff’s federal constitutional rights and granted relief. *160 This Court affirmed, but it refused to decide the constitutional question because injunctive relief against the state officials was adequately supported by state law. The Court held that the plaintiff’s claim that the schedule violated the Federal Constitution was sufficient to justify the assertion of federal jurisdiction over the case, but then declined to reach the federal question, deciding the case on the basis of state law instead:
“Where a case in this court can be decided without reference to questions arising under the Federal Constitution, that course is usually pursued and is not departed from without important reasons. In this case we think it much better to decide it with regard to the

question of a local nature, involving the construction of the state statute and the authority therein given to the commission to make the order in question, rather than to unnecessarily decide the various constitutional questions appearing in the record.” Siler v. Louisville & Nashville R. Co., 213 U.S. 175, 193, 29 S.Ct. 451, 455, 53 L.Ed. 753 (1909).43

43

In Siler the Court decided the case on state-law

grounds, even though it acknowledged that “[i]n this

case we are without the benefit of a construction of the

statute by the highest state court of Kentucky, and we

must proceed in the absence of state adjudication upon

the subject.” Id., 213 U.S., at 194, 29 S.Ct., at 456.

The Siler principle has been applied on numerous occasions; when a suit against state officials has presented both federal constitutional questions and issues of state law, the Court has upheld injunctive relief on state law grounds. See, e.g., Lee v. Bickell, 292 U.S. 415, 425, 54 S.Ct. 727, 731, 78 L.Ed. 1337 (1934); Glenn v. Field Packing Co., 290 U.S. 177, 178, 54 S.Ct. 138, 138, 78 L.Ed. 252 (1933); Davis v. Wallace, 257 U.S. 478, 482–485, 42 S.Ct. 164, 165–166, 66 L.Ed. 325 (1922); Louisville & Nashville R. Co. v. Greene, 244 U.S. 522, 527, 37 S.Ct. 683, 686, 61 L.Ed. 1291 (1917); Greene v. Louisville & Interurban R. Co., 244 U.S. 499, 508, 512–514, 37 S.Ct. 673, 679–680, 61 L.Ed. 1280 (1917).44

44

Justice Peckham’s opinion in Siler rested on a long line

of cases, dating back to Chief Justice Marshall’s

decision in Osborn v. Bank of the United States, 9

Wheat. 738, 822, 6 L.Ed. 204 (1824), holding that a

federal court has jurisdiction over all the issues—state

as well as federal—presented by a case that properly

falls within its jurisdiction. Nor was Siler breaking new

ground in avoiding a federal constitutional question by

deciding on state law grounds. In Santa Clara County

v. Southern Pacific R. Co., 118 U.S. 394, 6 S.Ct. 1132,

30 L.Ed. 118 (1886), the Court noted the importance of

the federal constitutional questions. Even though these

had been treated as dispositive by the lower court, and

though they were the “main—almost the

only—questions discussed by counsel,” id., at 395, 6

S.Ct., at 1132, the Court stated, “These questions

belong to a class which this court should not decide,

unless their determination is essential to the disposal of

the case in which they arise.” Id., at 410, 6 S.Ct., at

1140. It then determined that the challenged tax

assessments were not authorized by state law and

affirmed the judgment solely on that ground. In

addition, the Court has routinely applied the Siler rule

in cases upholding injunctive relief on the basis of state

law against municipal officials, see, e.g., Hillsborough

v. Cromwell, 326 U.S. 620, 629, 66 S.Ct. 445, 451, 90

L.Ed. 358 (1946); Cincinnati v. Vester, 281 U.S. 439,

448–449, 50 S.Ct. 360, 363, 74 L.Ed. 950 (1930); Risty

v. Chicago, Rock Island & Pacific R. Co., 270 U.S.

378, 46 S.Ct. 236, 70 L.Ed. 641 (1926); Bohler v.

32

Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984)

Callaway, 267 U.S. 479, 489, 45 S.Ct. 431, 435, 69 L.Ed. 745 (1925); Lincoln Gas & Electric Light Co. v. City of Lincoln, 250 U.S. 256, 268–269, 39 S.Ct. 454, 458, 63 L.Ed. 968 (1919); and in cases in which the plaintiffs were not held to be entitled to the relief they sought, see Schmidt v. Oakland Unified School Dist., 457 U.S. 594, 102 S.Ct. 2612, 73 L.Ed.2d 245 (1982) (per curiam ); Railroad Comm’n of California v. Pacific Gas & Electric Co., 302 U.S. 388, 391, 58 S.Ct. 334, 337, 82 L.Ed. 319 (1938); United Gas Co. v. Railroad Commission of Kentucky, 278 U.S. 300, 307, 49 S.Ct. 150, 151, 73 L.Ed. 390 (1929); Waggoner Estate v. Wichita County, 273 U.S. 113, 116, 47 S.Ct. 271, 272, 71 L.Ed. 566 (1927); Chicago Great Western R. Co. v. Kendall, 266 U.S. 94, 97–98, 45 S.Ct. 55, 56–57, 69 L.Ed. 183 (1924); Ohio Tax Cases, 232 U.S. 576, 586–587, 34 S.Ct. 372, 373–374, 58 L.Ed. 737 (1914); Louisville & Nashville R. Co. v. Garrett, 231 U.S. 298, 303–304, 34 S.Ct. 48, 50, 58 L.Ed. 229 (1913). Numerous other cases decided by this Court have cited Siler as an accurate statement of the law regarding pendent jurisdiction. See, e.g., Aldinger v. Howard, 427 U.S. 1, 7, 96 S.Ct. 2413, 2417, 49 L.Ed.2d 276 (1976); Florida Lime Growers v. Jacobsen, 362 U.S. 73, 81, n. 7, 80 S.Ct. 568, 573 n. 7, 4 L.Ed.2d 568 (1960); Hurn v. Oursler, 289 U.S. 238, 243–245, 53 S.Ct. 586 (1933).
*161 In Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974), the Court **941 quoted from the Siler opinion and noted that the “Court has characteristically dealt first with possibly dispositive state law claims pendent to federal constitutional claims.” Id., at 546, 94 S.Ct., at 1384. It added:
“Numerous decisions of this Court have stated the general proposition endorsed in Siler —that a federal court properly vested with jurisdiction may pass on the state or local law question without deciding the federal constitutional issues—and have then proceeded to dispose *162 of the case solely on the nonfederal ground. See, e.g., Hillsborough v. Cromwell, 326 U.S. 620, 629–630, 66 S.Ct. 445, 451, 90 L.Ed. 358 (1946); Waggoner Estate v. Wichita County, 273 U.S. 113, 116–119, 47 S.Ct. 271, 272–273, 71 L.Ed. 566 (1927); Chicago G.W.R. Co. v. Kendall, 266 U.S. 94, 45 S.Ct. 55, 69 L.Ed. 183 (1924); United Gas Co. v. Railroad Comm’n, 278 U.S. 300, 308, 49 S.Ct. 150, 152, 73 L.Ed. 390 (1929); Risty v. Chicago, R.I. & P.R. Co., 270 U.S. 378, 387, 46 S.Ct. 236, 240, 70 L.Ed. 641 (1926). These and other cases illustrate in practice the wisdom of the federal policy of avoiding constitutional adjudication where not absolutely essential to disposition of a case.” 415 U.S., at 547, n. 12, 94 S.Ct., at 1384, n. 12.
In fact, in this very case we applied the Siler rule by remanding the case to the Court of Appeals with explicit instructions to consider whether respondents were entitled

to relief under state law.
Not only does the Siler rule have an impressive historical pedigree, but it is also strongly supported by the interest in avoiding duplicative litigation and the unnecessary decision of federal constitutional questions.
“The policy’s ultimate foundations ... lie in all that goes to make up the unique place and character, in our scheme, of judicial review of governmental action for constitutionality. They are found in the delicacy of that function, particularly in view of possible consequences for others stemming also from constitutional roots; the comparative finality of those consequences; the consideration due to the judgment of other repositories of constitutional power concerning the scope of their authority; the necessity, if government is to function constitutionally, for each to keep within its power, including the courts; the inherent limitations of the judicial process, arising especially from its largely negative character and limited resources of enforcement; withal in the paramount importance of constitutional adjudication in our *163 system.” Rescue Army v. Municipal Court, 331 U.S. 549, 571, 67 S.Ct. 1409, 1421, 91 L.Ed. 1666 (1947).45

45

Cf. H.L. v. Matheson, 450 U.S. 398, 407, 101 S.Ct.

1164, 1170, 67 L.Ed.2d 388 (1981) (citing Justice

Brandeis’ opinion in Ashwander ); Hutchinson v.

Proxmire, 443 U.S. 111, 122, 99 S.Ct. 2675, 2681, 61

L.Ed.2d 411 (1979) (citing the Court’s opinion in Siler

).

In addition, application of the Siler rule enhances the decisionmaking autonomy of the States. Siler directs the federal court to turn first to state law, which the State is free to modify or repeal.46 By leaving the policy determinations underlying injunctive relief in the hands of the State, the Court **942 of Appeals’ approach gives appropriate deference to established state policies.

46

In some of the cases following Siler, this Court has

required that the decree include a provision expressly

authorizing its reopening in the event that a state court

later decided the question of state law differently. See

Lee v. Bickell, 292 U.S. 415, 426, 54 S.Ct. 727, 732, 78

L.Ed. 1337 (1934); Wald Transfer & Storage Co. v.

Smyth, 290 U.S. 602, 54 S.Ct. 227, 78 L.Ed. 528

(1933); Glenn v. Field Packing Co., 290 U.S. 177,

178–179, 54 S.Ct. 138, 138, 78 L.Ed. 252 (1933).

In contrast, the rule the majority creates today serves none of the interests of the State. The majority prevents federal courts from implementing State policies through equitable enforcement of State law. Instead, federal courts are required to resolve cases on federal grounds that no State authority can undo. Leaving violations of state law
33

Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984)

unredressed and ensuring that the decisions of federal

48

courts may never be reexamined by the States hardly

comports with the respect for States as sovereign entities

commanded by the Eleventh Amendment.

V
One basic fact underlies this case: far from immunizing petitioners’ conduct, the State of Pennsylvania prohibited it. Respondents do not complain about the conduct of the State of Pennsylvania—it is Pennsylvania’s commands which they seek to enforce. Respondents seek only to have Pennhurst *164 run the way Pennsylvania envisioned that it be run. Until today, the Court understood that the Eleventh Amendment does not shield the conduct of state officers which has been prohibited by their sovereign.
Throughout its history this Court has derived strength from institutional self-discipline. Adherence to settled doctrine is presumptively the correct course.47 Departures are, of course, occasionally required by changes in the fabric of our society.48 When a court, rather than a legislature, initiates *165 such a departure, it has a special **943 obligation to explain and to justify the new course on which it has embarked. Today, however, the Court casts aside well settled respected doctrine that plainly commands affirmance of the Court of Appeals—the doctrine of the law of the case,49 the doctrine of stare decisis (the Court repudiates at least 28 cases),50 the *166 doctrine of sovereign immunity,51 the doctrine of pendant jurisdiction,52 and the doctrine of judicial restraint. No sound reason justifies the further prolongation of this litigation or this Court’s voyage into the sea of undisciplined lawmaking.

47

“I agree with what the Court stated only days ago, that

‘the doctrine of stare decisis, while perhaps never

entirely persuasive on a constitutional question, is a

doctrine that demands respect in a society governed by

the rule of law.’ City of Akron v. Akron Center for

Reproductive Health, Inc., ––– U.S. ––––, ––––, 103

S.Ct. 2481, 76 L.Ed.2d 687 (1983). While the doctrine

of stare decisis does not absolutely bind the Court to its

prior opinions, a decent regard for the orderly

administration of justice requires that directly

controlling cases either be followed or candidly

overruled.” Solem v. Helm, –––U.S. ––––, ––––, 103

S.Ct. 3001, 3020–3021, 77 L.Ed.2d 637 (1983)

(BURGER, C.J., dissenting) (footnote omitted).

This statement was joined by four members of

today’s majority. The fifth was the author of the

opinion of the Court in City of Akron.

49

This is an especially odd context in which to repudiate settled law in that if anything changes in our social fabric favor limitation rather than expansion of sovereign immunity. The concept that the sovereign can do no wrong and that citizens should be remediless in the face of its abuses is more a relic of medieval thought than anything else.
“Whether this immunity is an absolute survival of the monarchial privilege, or is a manifestation merely of power, or rests on abstract logical grounds, it undoubtedly runs counter to modern democratic notions of the moral responsibility of the State. Accordingly, courts reflect a strong legislative momentum in their tendency to extend the legal responsibility of Government and to confirm Maitland’s belief, expressed nearly fifty years ago that, ‘it is a wholesome sight to see “the Crown” sued and answering for its torts.’ ” Great Northern Life Ins. Co. v. Read, 322 U.S. 47, 59, 64 S.Ct. 873, 879, 88 L.Ed. 1121 (1944) (Frankfurter, J., dissenting) (citation omitted). In the even older decision of Poindexter v. Greenhow, 114 U.S. 270, 5 S.Ct. 903, 29 L.Ed. 185 (1884), the Court, after observing that “the distinction between the government of a State and the State itself is important, and should be observed,” id., at 290, 5 S.Ct., at 914 wrote: “This distinction is essential to the idea of constitutional government. To deny it or blot it out obliterates the line of demarcation that separates constitutional government from absolutism, free self-government based on the sovereignty of the people from that despotism, whether of the one or the many, which enables the agent of the State to declare and decree that he is the State; to say ‘L’Etat c’est moi.’ Of what avail are written constitutions whose bills of right for the security of individual liberty are written, too often, with the blood of martyrs shed upon the battle-field and the scaffold, if their limitations and restraints upon power may be overpassed with impunity by the very agencies created and appointed to guard, defend, and enforce them; and that, too, with the sacred authority of law, not only compelling obedience, but entitled to respect? And how else can these principles of individual liberty and right be maintained, if, when violated, the judicial tribunals are forbidden to visit penalties upon individual offenders, who are the instruments of wrong, whenever they interpose the shield of the State? The doctrine is not to be tolerated. The whole frame and scheme of the political institutions of this country, State and Federal, protest against it. Their continued existence is not compatible with it. It is the doctrine of absolutism, pure, simple, and naked....” Id., at 291, 5 S.Ct., at 914–915. See also Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 Colum.L.Rev. 1889 (1983).
The heart of today’s holding is that this Court had no power to act as it did in 1981 when it ordered the Court
34

Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89 (1984)

of Appeals to consider and decide the state law issues in this very case.

these cases have been rarely cited, see ante, at 916, n. 27, this is because until today the law was thought to be well-settled on this point.

50

In the following cases the Court held injunctive relief

may issue against state officers on the basis of state law

after explicitly rejecting their Eleventh Amendment

defense: Rolston v. Missouri Fund Commissioners, 120

U.S. 390, 7 S.Ct. 599, 30 L.Ed. 721 (1887); South

Carolina v. Wesley, 155 U.S. 542, 15 S.Ct. 230, 39

L.Ed. 254 (1895); Tindal v. Wesley, 167 U.S. 204, 17

S.Ct. 770, 42 L.Ed. 137 (1897); Scully v. Bird, 209 U.S.

481, 28 S.Ct. 597, 52 L.Ed. 899 (1908); Hopkins v.

Clemson College, 221 U.S. 636, 31 S.Ct. 654, 55 L.Ed.

890 (1911); Atchison &c. R. Co. v. O’Connor, 223 U.S.

280, 32 S.Ct. 216, 56 L.Ed. 436 (1912); Johnson v.

Lankford, 245 U.S. 541, 38 S.Ct. 203, 62 L.Ed. 460

(1918); Martin v. Lankford, 245 U.S. 547, 38 S.Ct. 205,

62 L.Ed. 464 (1918); Greene v. Louisville & Interurban

R. Co., 244 U.S. 499, 37 S.Ct. 673, 61 L.Ed. 1220

(1917); Louisville & Nashville R. Co. v. Greene, 244

U.S. 522, 37 S.Ct. 683, 61 L.Ed. 1291 (1917); Illinois

Central R. Co. v. Greene, 244 U.S. 555, 37 S.Ct. 697,

61 L.Ed. 1309 (1917).

Since petitioners’ position applies also to federal

sovereign immunity (indeed the principal case on

which they rely, Larson, is a federal sovereign

immunity case), the following additional cases which

refused to apply sovereign immunity to suits against

federal officers acting within the scope of their

authority because the plaintiff had alleged that the

officers had engaged in unlawful conduct are

rejected: Little v. Barreme, 2 Cranch 169, 2 L.Ed.

243 (1804); Wise v. Withers, 3 Cranch 331, 2 L.Ed.

457 (1806); Mitchell v. Harmony, 13 How. 115, 14

L.Ed. 75 (1851); Bates v. Clark, 95 U.S. 204, 24

L.Ed. 471 (1877); Belknap v. Schild, 161 U.S. 10, 16

S.Ct. 443, 40 L.Ed. 599 (1896); Sloan Shipyards v.

U.S. Fleet Corp., 258 U.S. 549, 42 S.Ct. 386, 66

L.Ed. 762 (1922); Santa Fe Pac. R. Co. v. Fall, 259

U.S. 197, 42 S.Ct. 466, 66 L.Ed. 896 (1922);

Philadelphia Co. v. Stimson, 223 U.S. 605, 32 S.Ct.

340, 56 L.Ed. 570 (1912); Land v. Dollar, 330 U.S.

731, 738, 67 S.Ct. 1009, 1012, 91 L.Ed. 1209 (1947).

Larson itself cites most of these cases with approval,

and disapproves of none of them. All are overruled

today. In fact, today the Court repudiates the

two-track analysis of Larson, since in Larson the

Court stated that conduct which has been specifically

prohibited by statute is not protected by sovereign

immunity even if it is performed within the scope of

the official’s duties, yet today the Court holds that

even if an officer violates a statute, his conduct is

protected by sovereign immunity. The Court also

overrules the cases cited in n. 52, infra. If some of

51

From the fifteenth century English common law to

Larson and beyond, courts have never held that

prohibited conduct can be shielded by sovereign

immunity. That rule makes good sense—since a

principal cannot authorize unlawful conduct, such

conduct is of necessity ultra vires. There is no reason to

abandon such a well settled and sensible rule.

52

The majority also overrules Siler v. Louisville &

Nashville R. Co., 213 U.S. 175, 29 S.Ct. 451, 53 L.Ed.

753 (1909), and its progeny, including Louisville &

Nashville R. Co. v. Garrett, 231 U.S. 298, 34 S.Ct. 48,

58 L.Ed. 229 (1913); Davis v. Wallace, 257 U.S. 478,

42 S.Ct. 164, 66 L.Ed. 325 (1922); Chicago Great

Western R. Co. v. Kendall, 266 U.S. 94, 45 S.Ct. 55, 69

L.Ed. 183 (1924); United Gas Co. v. Railroad

Commission, 278 U.S. 300, 49 S.Ct. 150, 73 L.Ed. 390

(1919); Glenn v. Field Packing Co., 290 U.S. 177, 54

S.Ct. 138, 78 L.Ed. 252 (1933); Lee v. Bickell, 292 U.S.

415, 54 S.Ct. 727, 78 L.Ed. 1337 (1934); Railroad

Commission of California v. Pacific Gas & Electric

Co., 302 U.S. 388, 58 S.Ct. 334, 82 L.Ed. 319 (1938).

*167 As I said at the outset, this case has illuminated the character of an institution.
I respectfully dissent.

Parallel Citations
104 S.Ct. 900, 79 L.Ed.2d 67
	  

35

 
 Halderman by Halderman v. Pennhurst State School & Hosp., 977 F.2d 568 (Table) (1992)

977 F.2d 568 (Table) (The decision of the Court is referenced in a “Table of Decisions Without Reported Opinions” appearing in the Federal Reporter. The Third Circuit provides
by rule for the reporting of opinions having “precedential or institutional value. An opinion which appears to have value only to the trial court or the parties is ordinarily not published.” The Federal Reporter tables are prepared from lists of cases terminated by judgment orders, unpublished per curiam opinions and unpublished signed opinions, indicating the disposition of each case, transmitted by the Court. Third Circuit Rules, App. 1, Internal Operating Procedures, Ch. 5, sec. 5.1, 28 U.S.C.A.)
United States Court of Appeals, Third Circuit.
Halderman (Terri Lee), By Halderman (Winifred), Taylor (Larry), By Taylor (Elmer, Doris, Kenny),
Sobetsky (Robert, Frank, Angela, Theresa), Bowman (Nancy Beth, Horace, Mr., Ms.), Taub

(Linda, Allen, Mr., Mrs.), Sorotos (George), Caranfa (William, Marion), Parents and Family
Assoc. of Pennhurst, PA Assoc. for Retarded Citizen, Moskowitz (Jo Suzanne, Leonard, Nancy),
Hight (Robert, John, Jeanne), Preusch (David, Calvin, Elizabeth), DiNolfi (Charles), U.S. v. Pennhurst State
NO. 92-1186 | Sept 11, 1992
Appeal From: E.D.Pa., 784 F.Supp. 215
Opinion
AFFIRMED.
	  

1

 
 Pennhurst State School & Hosp. v. Halderman, 498 U.S. 850 (1990)

111 S.Ct. 140 Supreme Court of the United States
PENNHURST STATE SCHOOL & HOSPITAL, et al., petitioners v.
Terri Lee HALDERMAN, et al
No. 90-103 | October 1, 1990
Opinion

Case *901 below, 901 F.2d 311. Petition for writ of certiorari to the United States Court of Appeals for the Third Circuit. Denied.
Parallel Citations 111 S.Ct. 140 (Mem), 112 L.Ed.2d 107
	  

1