United States Court of Appeals

For the First Circuit

No. 07-2522 

ROBERT SIMPSON RICCI, ET AL.,

Plaintiffs, Appellees,

v.

DEVAL L. PATRICK, in his capacity as Governor 

of the Commonwealth of Massachusetts, ET AL.,

Defendants, Appellants.

No. 07-2523 

MASSACHUSETTS ASSOCIATION FOR RETARDED CITIZENS, INC., 

a/k/a Arc/Massachusetts, Inc., ET AL.,

Plaintiffs, Appellants,

DISABILITY LAW CENTER, INC.,

Intervenor, Appellant,

v.

DEVAL L. PATRICK, in his capacity as Governor 

of the Commonwealth of Massachusetts, ET AL.,

Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Joseph L. Tauro, U.S. District Judge]
Of the Northern District of California, sitting by *

designation.

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Before

 Lynch, Chief Judge,

Selya, Circuit Judge,

and Schwarzer, District Judge. *

Robert L. Quinan, Jr., Assistant Attorney General, with whom

Marianne Meacham, Special Assistant Attorney General, and Martha

Coakley, Attorney General, Commonwealth of Massachusetts, were on

brief for appellants Deval L. Patrick, et al.

Steven J. Schwartz with whom Robert D. Fleischner, J. Paterson

Rae, Center for Public Representation, Richard M. Glassman, Matthew

Engel, and Disability Law Center were on brief for appellants

Massachusetts Association for Retarded Citizens, Inc. and

Disability Law Center.

Jeffrey S. Follett, Ramzi B. Ajami, Foley Hoag LLP, Judith A.

Gran, and Public Interest Law Center of Philadelphia on brief for

National Association of State Directors of Developmental

Disabilities Services, amicus curiae.

Joshua S. Krumolz, Lawrence R. Kulig, Gillian Rattray, Edwin

L. Hall, and Holland & Knight LLP on brief for Association of

Developmental Disabilities Providers, et al., amici curiae.

Dana A. Curhan with whom Beryl W. Cohen was on brief for

appellees Robert Simpson Ricci, et al.

Daniel J. Brown with whom Margaret M. Pinkham and Brown

Rudnick Berlack Israels LLP were on brief for appellee Wrentham

Association for Retarded Citizens, Inc.

Thomas J. Frain and C. Alex Hahn on brief for Massachusetts

Coalition of Families and Advocates for the Retarded, Inc., et al.,

amici curiae.

October 1, 2008
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LYNCH, Chief Judge. The Governor of Massachusetts and

the state Department of Mental Retardation ("DMR") appeal from an

order of a federal district court which both reopens a 1993 consent

decree and then requires them to take certain steps as to the

residents of the Fernald Development Center. Ricci v. Okin (Ricci

IV), 499 F. Supp. 2d 89 (D. Mass. 2007). Appellants, whom we shall

call the Commonwealth, deny that the court had any authority to

reopen the consent decree or otherwise issue any orders. 

The Commonwealth characterizes the order as essentially

prohibiting it from relocating residents as it attempts to close

the Fernald Development Center. The Fernald Center, some 160 years

old, has been the residence of over 180 mentally retarded residents

committed to the care of the Commonwealth. The Commonwealth

announced, in 2003, its intention to move these residents to one of

the five other residential facilities or to a community based

setting, whichever comports best with each resident's individual

service plan ("ISP"). The Commonwealth has committed itself to

transferring residents only if the Superintendent at Fernald

"certifies that the individual to be transferred will receive equal

or better services to meet their needs in the new location." Ricci

v. Okin (Ricci III), 823 F. Supp. 984, 987 (D. Mass. 1993). The

Commonwealth did transfer, in fact, some 49 Fernald residents

before February 8, 2006. 
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The federal district court, which has conscientiously and

with great care presided over institutional reform litigation

concerning these mentally retarded persons since 1972, see

generally Ricci v. Okin (Ricci I), 537 F. Supp. 817, 819 (1982),

closed the underlying case in 1993 pursuant to a consent decree

whose terms it adopted into a court order known as the

Disengagement Order, see Ricci III, 823 F. Supp. at 986-89. 

Nonetheless, in 2006, the court enjoined the Commonwealth

from transferring any more residents on the motion of a class of

Fernald residents alleging violation of the decree. Ricci v. Okin,

Nos. 72-0469-T, etc. (D. Mass. Feb. 8, 2006) (order freezing

resident transfers and appointing court monitor). The court found

that it had authority under the 1993 Disengagement Order to

investigate whether, as the plaintiffs alleged, the Commonwealth

was violating the Disengagement Order. The court appointed a

monitor, the U.S. Attorney for Massachusetts, to investigate and

prepare a report. The court asked the monitor's report to address

"whether the past and prospective transfer processes employed by

the Department of Mental Retardation comply with federal law, state

regulations, as well as the orders of this court." Id. The

district court's authority to investigate the allegations of

violation is not at issue.

After receiving the report, the court, in an order dated

August 14, 2007, found that the conditions for reopening the case
Amici in support of the Commonwealth are: National 1

Association of State Directors of Developmental Disabilities

Services; Association of Developmental Disabilities Providers of

Massachusetts; Adlib, Inc.; The Arc of the United States; Boston

Center for Independent Living; Independent Living Center of the

North Shore and Cape Ann, Inc.; Massachusetts Advocates Standing

Strong; Massachusetts Council of Human Service Providers, Inc.;

Massachusetts Families Organizing for Change; MetroWest Center for

Independent Living, Inc.; National Disability Rights Network;

Northeast Independent Living Program; Service Employees

International Union; Local 509 of the Service Employees

International Union; Stavros Center for Independent Living; and

United Cerebral Palsy. 

Amici in support of the plaintiffs are: Massachusetts 2

Coalition of Families and Advocates for the Retarded, Inc.; and

Voice of the Retarded, Inc.

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contained in the Disengagement Order had been met. It also issued

a further remedial order, the specific terms of which we describe

later. Ricci IV, 499 F. Supp. 2d at 92. Those orders are at

issue.

The Commonwealth's appeal is from both components of the

August 14, 2007 order. The appeal is supported by a number of

amici who are of the view that deinstitutionalization is in the

best interests of the Fernald residents. In addition, the 1

Massachusetts Association of Retarded Citizens, Inc. appeared as a

plaintiff-appellant urging reversal. The Disability Law Center

appeared as an intervenor-appellant also urging reversal.

On the other side, the plaintiffs' arguments to uphold

the district court's decision are supported by other amici. In 2

addition, the Wrentham Association for Retarded Citizens, Inc.

appeared as a plaintiff and appellee on behalf of a class composed
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of residents at the Commonwealth's Wrentham Development Center,

stating that in its view, the issues involved in this case affected

residents in other state institutions for the mentally retarded

such as Wrentham.

We review first whether the district court had authority

to reopen this case because the Commonwealth violated the

Disengagement Order or the residents' constitutional rights and

whether the court had authority to reopen on some other basis.

Because we conclude there was no basis for the district court to

reopen the case or otherwise assert jurisdiction, we do not reach

the issues relating to the remedial order. We reverse the district

court, vacate its order, and order dismissal of these proceedings

for lack of jurisdiction.

I.

We set forth the factual background for this suit,

starting with the events which precipitated these proceedings.

A. Actions By the Commonwealth Which Led to This Action

In three budgetary acts from 2004-2007, the Massachusetts

legislature directed DMR to take appropriate steps to consolidate

or close its six Intermediate Care Facilities for the Mentally

Retarded ("ICFs"), including Fernald. Several reasons were

articulated. The legislation stated one purpose of the directive

was to promote compliance with a Supreme Court decision, Olmstead

v. L.C. ex rel. Zimring, 527 U.S. 581 (1999). That decision, in
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turn, emphasized the congressional intent in Title II of the

Americans with Disabilities Act of 1991 ("ADA") to avoid

discrimination against mentally disabled persons by promoting their

placement into community settings. Another stated purpose was to

further the Commonwealth's own established policy of reducing its

institutional capacity and of providing services to patients in

less restrictive settings. This policy decision was grounded in

evidence of prior successful transitions of a number of mentally

retarded residents from residential settings, from the past closing

of other ICFs. Further, the Commonwealth was cognizant of national

trends toward deinstitutionalization and the need for certainty in

planning matters such as personnel placement. The legislature

required DMR to reduce capacity at these ICFs, provided that equal

or better services for residents could be furnished in community

settings.

Another consideration for the Commonwealth was how to use

its available resources for the care of the mentally retarded. DMR

had received estimates in 2001 for the amount of capital

expenditures needed to maintain each ICF. As of 2001, Fernald

needed $14.3 million in capital expenditures to repair its

infrastructure and $41.2 million to achieve full compliance with

the ADA. The Fernald facility was ranked first among the

Commonwealth's ICFs in needed capital costs. Indeed, the average

daily cost of services at Fernald as of FY 2007 was over $700 per
These figures in part reflect the reduced population at 3

Fernald due to the earlier transfers of residents.

This was a general policy announcement, which was not 4

accompanied by a formal timetable to close Fernald.

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person a day, or $259,000 per person annually. By contrast the 3

costs at the other ICFs ranged from $433 to $590 per day. The

Fernald per-resident cost was also more than 2.5 times the average

annual per-person cost of residential community-based services. In

2007, these were at $280 per day or $102,103 annually per patient,

including day programs and transportation services. 

As of May 2007, there were 186 Fernald residents living

in a facility that once housed nearly 2,000 individuals. The

remaining residents included 131 in the profound range of mental

retardation, 40 in the severe range, 12 in the moderate range, and

3 in the mild range. Fernald Center residents ranged in age from

36 to 95 years old, with an average age of 57. Some 38 Fernald

Center residents were aged 63 or older.

In 2003, as said, the Commonwealth announced its

intention to close Fernald by transferring its residents to equal

or better care in its other five ICFs or into community based

settings, including group homes. The Commonwealth planned to keep 4

open at the Fernald campus a 24-person residential unit and a

skilled nursing center which can serve 29 individuals. It began

its program in 2003 and has successfully transferred 49 of

approximately 238 residents. Of these, 35 residents were
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transferred to other ICFs and 14 were transferred to community

residences.

The efforts of the Commonwealth to make these transfers

were brought to a halt in February 2006 when, as described above,

the federal district court, acting at the behest of a purported

class of the remaining 189 Fernald residents, enjoined the process

pending further investigation.

B. The History of the Ricci Class Action

In 1972, residents of the Belchertown State School, a

state institution for the mentally retarded, filed a class action

against state officials alleging that conditions there violated

their constitutional and statutory rights. See Ricci I, 537 F.

Supp. at 819; see also Ricci III, 823 F. Supp. at 985-86. A class

action challenge to conditions at Fernald was filed on July 23,

1974. Complaint, McEvoy v. Goldmark, No. C.A. 74-2768-T (D. Mass.

July 23, 1974). Suits were also filed on behalf of residents of

other state institutions. See Ricci I, 537 F. Supp. at 819. The

actions were consolidated before Judge Tauro of the U.S. District

Court for the District of Massachusetts.

After the suits were filed, the court took day-long views

of conditions at the facilities. Ricci I, 537 F. Supp. at 820.

The court determined that the Commonwealth was not providing the

constitutionally required minimum level of care. The Commonwealth

defendants chose not to dispute this and instead "agreed to work
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with the plaintiffs and the court to fashion comprehensive remedial

programs that would be memorialized in the form of consent

decrees." Id. The parties entered into separate interim consent

decrees, one for each institution, in 1977, and a consent decree

governing personnel in 1978. Id. at 820-21.

The district court actively oversaw the implementation of

the consent decrees for almost ten years. See generally Ricci v.

Okin, 978 F.2d 764, 764 (1st Cir. 1992). On October 9, 1986, the

court entered an order which set out a list of specific tasks for

the Commonwealth to accomplish and represented a "step of

disengagement" for the court. Id. The order contemplated the

court's final disengagement after three years, a term that the

parties extended by agreement. Id. at 764-65.

The class action effectively ended in 1993 when the

parties entered into a final consent decree, which the district

court adopted in a final Disengagement Order.

C. The Disengagement Order

On May 25, 1993, the district court signed an order

"closing the federal court's oversight of the[] [consolidated]

cases." Ricci III, 823 F. Supp. at 985. The Disengagement Order,

which supplanted and replaced all prior consent decrees and court

orders, adopted the parties' final consent decree. Several

provisions of the Disengagement Order are important for purposes of

these appeals.
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First, the Disengagement Order terminated the court's

jurisdiction over the cases. The cases could be reopened and

jurisdiction could be asserted only if certain explicit conditions

were met. The Order allowed "action[s] to enforce the rights of

the plaintiff classes" only when they were brought "pursuant to the

terms of paragraph 7" of the Order. Id. at 986 (Disengagement

Order ¶ 1).

Paragraph 7, in turn, allowed class members to seek

enforcement of the Disengagement Order if one or more of three

conditions had been met. Plaintiffs were required to show that 1)

"defendants substantially fail[ed] to provide a state ISP process

in compliance with [the] Order"; 2) defendants engaged in "a

systemic failure to provide services to class members as described

in [the] Order"; or 3) defendants engaged in "a systemic failure to

provide ISP services required by [the] Order." Id. at 988

(Disengagement Order ¶ 7). The Order did not, however, allow

plaintiffs to reopen "based solely on facts known by them as of the

date of [the] Order." Id. It also explicitly prohibited

plaintiffs from enforcing the Commonwealth's state law obligations

in a federal court action.

Second, the Disengagement Order outlined the obligations

DMR owes to class members. Under the Disengagement Order, the

Commonwealth may not transfer a class member from a state school to

a community residence "until and unless the Superintendent of the
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transferring school . . . certifies that the individual to be

transferred will receive equal or better services to meet their

needs in the new location, and that all ISP-recommended services

for the individual's current needs . . . are available at the new

location." Id. at 987 (Disengagement Order ¶ 4). This commits the

decision to transfer a resident of Fernald to the Superintendent of

Fernald, who makes the certification. 

Review of that certification is not in the federal court,

but rather through state administrative procedures. See generally

104 Mass. Code Regs. 29.15. Under the applicable regulations, if

an individual or guardian objects to the transfer, he or she may

file an appeal within 30 days of receipt of the ISP. DMR must

attempt to resolve the matter through an informal conference with

the client and his or her legally authorized representative. The

resident may then petition for a hearing. The individual has the

right to be represented at the hearing, to present evidence and

call witnesses, and to examine DMR's records. Under state law,

"[t]he hearing officer shall determine which placement meets the

best interest of the ward giving due consideration to the

objections to the placement made by the relative or permanent

guardian." Mass. Gen. Laws. ch. 123B, § 3. The objecting party

may then seek judicial review of the hearing officer's decision

through appeal to superior court. See Mass. Gen. Laws. ch. 30A, §

14. There is no claim in this case that the Superintendent has
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failed to make such certifications for prior transfers from Fernald

or will fail to do so for future transfers.

Third, the Disengagement Order details the Commonwealth's

obligations with regard to the ISP process. An ISP details each

resident's "capabilities and needs for services" such as medical or

psychological care. Ricci III, 823 F. Supp. at 986-87

(Disengagement Order ¶ 2(a)); see generally 104 Mass. Code Regs.

29.06(2). ISPs are drafted after individual meetings between

evaluating professionals and clients and their guardians. See 104

Mass. Code Regs. 29.06(2)(b). The Disengagement Order required DMR

to comply with state regulations governing ISP planning and

mandated that any changes to the Commonwealth's ISP regulations

continue to "guarantee that each class member be provided with the

least restrictive, most normal, appropriate residential

environment." Ricci III, 823 F. Supp. at 987 n.2; see also 104

Mass. Code Regs. 29.06(2)(a)(2). 

D. The Motions to Reopen

The Ricci class members filed a motion to reopen the case

in 2004. The Massachusetts Association for Retarded Citizens, Inc.

appeared as a class representative for the Wrentham and Dever

plaintiff classes, who had not been included in the Ricci class

members' motion to reopen but had separately alleged that DMR was

not in substantial compliance with the Disengagement Order. It

ultimately filed a notice of appeal from the district court's
Plaintiff Wrentham Association filed a similar motion on 5

February 7, 2006. The motion contained similar allegations and was

premised on similar grounds.

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August 17, 2007 order. As a result, we have two appeals before us

from the same district court order. The Ricci class members based

their 2004 motion to reopen on the Commonwealth's alleged violation

of the Disengagement Order. Specifically, they claimed that the

Commonwealth had "substantially failed to provide a state ISP

process in compliance with the Order," had engaged in "a systemic

failure to provide services to class members as described in the

Order," and were "not in substantial compliance with the Order with

regard to systemic issues." Motion to Reopen and Restore Case to

Active Docket and Enforce the Final Order of May 12, 1993, at 1,

Ricci IV, 499 F. Supp. 2d 89 (D. Mass. 2007) (Nos. 72-0469-T,

etc.). As noted, the court appointed a special monitor to 5

investigate the allegations raised in the plaintiffs' motion and

their reports to the court.

E. The Monitor's Report

The court monitor completed a 13-month investigation into

the transfers from Fernald between February 26, 2003 and February

8, 2006. The monitor reviewed all of DMR's records for the

transferred individuals and interviewed most of the individuals or

their guardians. The monitor also visited the individuals' new

placements as well as all of DMR's ICFs and many of the locations

for community placement. In addition, the monitor hired
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independent medical professionals to assess each individual whose

transfer was planned, in order to review whether these individuals

would receive "equal or better" services in the new location.

The monitor reviewed allegations that DMR had violated

the Disengagement Order's requirement that it "certify[] that

individuals to be transferred will receive equal or better services

at their new residences" and "certify[] that ISP recommended

services for the individual's current needs are available at the

new location." The monitor's report concluded that DMR had

complied with both obligations. 

The report also found DMR to be in compliance with its

procedural obligations under state law, such as the requirement it

provide notice to guardians forty-five days in advance of a

transfer and the requirement that it ensure guardians knew they had

a right to visit and examine the proposed homes. The report also

found no violations by DMR of federal regulations, such as 42

C.F.R. § 483.12, which governs transfer standards for skilled

nursing facilities. Finally, the monitor found no violation of

state regulations governing informed consent. See 115 Mass. Code

Regs. 5.08(1)(a).

In addition, the monitor examined conditions at the

Commonwealth's other ICF facilities, to which Fernald residents

could be transferred. The monitor concluded that "[e]ach facility
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currently ha[d] the minimum services, staffing and amenities to

provide equal or better services."

The monitor's report also inquired into guardians'

assessments of their satisfaction with the resulting placement and

their participation in the transfer decision. The monitor reported

the results of a survey distributed to guardians of the 49

transferees. Guardians were asked to rate their satisfaction with

their wards' placements on a scale of one to five, with one being

the most favorable. The results showed 78% rated their

satisfaction as a "1," 14% rated their satisfaction a "2," 1% rated

their satisfaction a "4," and another 1% rated their satisfaction

a "5."

Thus, the monitor's report concluded that the DMR had

complied with the Disengagement Order and state and federal law in

effectuating past transfers of residents from Fernald. 

As to future transfers, the report offered the monitor's

opinion that:

As a result of a year long

investigation, our office has concluded that

some of the residents at Fernald could suffer

an adverse impact, either emotionally and/or

physically, if they were forced to transfer

from Fernald to another ICF/MR or to a

community residence.

. . . Fernald residents should be

allowed to remain at the Fernald facility,

since for some, many or most, any other place

would not meet an "equal or better" outcome.
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Report of Court Monitor Michael J. Sullivan at 27, Ricci IV, 499 F.

Supp. 2d 89 (D. Mass. 2007) (No. 72-0469-T) [hereinafter "Monitor's

Report"]. The monitor stated his opinion that "residents should

continue to have the opportunity and option to move from Fernald to

other ICFs, or to a community residence, provided that the

Certification Process is enforced" but that "Fernald residents

should be allowed to remain at the Fernald facility." The monitor

also suggested that Fernald could be changed by reducing the

facility's acreage, building new residential units, and

consolidating residences.

F. The District Court's August 14, 2007 Order

The district court reviewed the monitor's report,

affirmed the monitor's finding that there had been no past

violation of the Disengagement Order, and agreed that "[f]or some

Fernald residents, a transfer 'could have devastating effects that

unravel years of positive, non-abusive behavior.'" Ricci IV, 499

F. Supp. 2d at 91 (quoting Monitor's Report at 24). The court

concluded that "the Commonwealth's stated global policy judgment

that Fernald should be closed ha[d] damaged the Commonwealth's

ability to adequately assess the needs of the Fernald residents on

an individual, as opposed to a wholesale basis." Id. (footnote

omitted).

On this basis, the court held that a necessary condition

for federal court intervention -- that the Commonwealth had engaged
Even if the district court did have authority, the 6

Commonwealth argues, the August 2007 order was improper because:

(1) it exceeded the bounds of the 1993 Disengagement Order; (2) it

improperly issued a mandatory injunction when neither federal law

nor the Disengagement Order had been violated; and (3) it

effectively mandated that the Commonwealth keep Fernald open

indefinitely, which is beyond the power of a federal court. We do

not reach those arguments.

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in a "'systemic failure' to provide a compliant ISP process" -- had

been met. Id. at 91. The court issued a mandatory injunction to

remedy this failure:

Any further communication from Defendant

Commonwealth of Massachusetts Department of

Mental Retardation to Fernald residents and

their guardians which solicits choices for

further residential placement shall include

Fernald among the options which residents and

guardians may rank when expressing their

preferences.

Id. at 92. The court administratively closed the case and the

Commonwealth appealed.

II.

The Commonwealth argues that there was no basis on which

the court could assert jurisdiction over the matter and asks that

the action be dismissed. 

6

The Commonwealth argues that there are three bases on

which the court might have authority to reopen, but says none is

present here. Those bases are "the defendants' failure to abide by

the terms of the [Disengagement Order]; an ongoing violation of the

Constitution; or a significant change in either the factual

circumstances or the law." The first basis arises from the terms
The plaintiffs argue that the court's conclusion that it 7

had authority to reopen can also be justified as an exercise of its

"ancillary jurisdiction" or "inherent jurisdiction." We discuss

this argument later.

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of the Disengagement Order itself. See Ricci III, 823 F. Supp. at

988 (Disengagement Order ¶ 7). The second condition requires that

there be a finding of a violation of a federal constitutional

provision, thus providing a basis to issue a decree, but the decree

"must directly address and relate to the constitutional violation,"

Milliken v. Bradley, 433 U.S. 267, 281-82 (1977); see also Lovell

v. Brennan, 728 F.2d 560, 564 (1st Cir. 1984) (noting that a court

may exercise continuing jurisdiction in a case if it finds a

constitutional violation or the likelihood of a constitutional

violation in the near future). The third and final condition

represents the "traditional power of a court of equity to modify

its decree in light of changed circumstances," Frew ex rel. Frew v.

Hawkins, 540 U.S. 431, 441 (2004), subject to the strict limits the

Supreme Court has imposed for finding such modifications.7

The district court based its authority to issue the order

on the first condition: a purported violation under the terms of

paragraph 7 of the Disengagement Order. Plaintiffs urge affirmance

on that ground but argue the order is supportable on the other two.

We conclude that the district court does not have

authority to reopen the case on any permissible basis. We explain.
In 1993, years before it issued the August 2007 order, 8

the district court recognized the Disengagement Order did not

prohibit the closing of any facility. Ricci III, 823 F. Supp. at

987 ("[N]othing in this Order is intended to detract from or limit

the discretion of the defendants in . . . allocating its resources

to ensure equitable treatment of its citizens."). It also

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A. Whether the Consent Decree Provided Authority to Reopen

the Case

The Disengagement Order allows class members to seek

enforcement of the defendants' obligations in federal court "[i]f

the defendants substantially fail to provide a state ISP process"

as detailed in the Disengagement Order or "if there is a systemic

failure to provide services to class members." Ricci III, 823 F.

Supp. at 988 (Disengagement Order ¶ 7). The district court held

that the Commonwealth's administration of the ISP process under its

global closure policy "amount[ed] to a 'systemic failure' to

provide a compliant ISP process" within the meaning of the 1993

consent decree. Ricci IV, 499 F. Supp. 2d at 91. 

The terms of the consent decree embodied in the

Disengagement Order, like any contract construction issue, present

an issue of law that we review de novo. See generally F.A.C., Inc.

v. Cooperativa de Seguros de Vida de P.R., 449 F.3d 185, 192 (1st

Cir. 2006). Our view of the proper construction is different from

the district court's.

Several provisions of the Disengagement Order are

important. First, the Order plainly contemplated that DMR, in its

discretion, would be able to close institutions. Ricci III, 823 8
acknowledged in 1992 that DMR could close any facility. See Ricci

v. Okin (Ricci II), 781 F. Supp. 826, 827-28 (D. Mass. 1992) ("The

court is not opposed to the eventual closing of Dever or any other

[pre-1993] Consent Decree facility."); see also Ricci IV, 499 F.

Supp. 2d at 92 n.17 ("The court maintains [the position articulated

in 1992]."). 

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F. Supp. at 987 (Disengagement Order ¶ 5). Second, the Order does

not permit state law, including the ISP regulations or review of

the Superintendent's certification decision, to become enforceable

in the federal court. Id. at 988 (Disengagement Order ¶ 7(b)).

Thus, the Disengagement Order preserved to DMR the discretion to

"allocat[e] its resources to ensure equitable treatment of its

citizens without federal court interference." Id. at 987

(Disengagement Order ¶ 5).

The defendants' practices under the Disengagement Order,

as the monitor found, were consistent with the terms of the Order.

In fact, DMR had earlier closed two residential facilities, the

Dever School in 1992 and the Belchertown School in 2002. The

parties had agreed to the consent decree against the background of

a 1991 policy announcement by then-Governor William Weld that

several DMR facilities would be consolidated and that the Dever

School would be closed within three years. See generally Ricci II,

781 F. Supp. at 827 & n.3. So long as equal or better services

remain available for each resident elsewhere, the closing of one

residential facility such as Fernald cannot itself constitute a

violation of the Disengagement Order.
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There is also no basis for a conclusion that the

Commonwealth has failed to meet the conditions it agreed to meet as

to how it goes about providing care to class members. Centrally,

the Commonwealth is required to undertake an ISP process that

outlines the services each individual class member needs. See

generally Ricci III, 823 F. Supp. at 986-87 (Disengagement Order ¶

2). Again, the record contains no evidence that DMR failed to

discharge its ISP duties for any Fernald resident between 2003,

when the policy was announced, and 2007. To the contrary, the

monitor found that DMR had complied with its obligations in that

period.

The district court nevertheless concluded that the

Commonwealth's operation of the ISP process against the background

of its policy decision to close Fernald constituted a systemic

failure. The court reasoned that in announcing its intention to

close Fernald, the Commonwealth "eviscerate[d] [the] opportunity

for fully informed individualized oversight," "dismiss[ed] the

benefit of hearing the voices and wishes of those most directly

impacted," and "deprive[d] the DMR itself of valuable information,

thereby undermining the efficacy of the ISP process." Ricci IV,

499 F. Supp. 2d at 91. Given that the monitor found and the court

accepted that the transfer of 49 patients after the 2003

announcement fully complied with the Disengagement Order, it cannot

follow that the fact of the announcement caused a systemic failure.
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Indeed, the 2003 announcement was not the first but one of several

announcements made of a closing or phase-down of a DMR institution

over a 15-year period. The pre-2003 announcements did not cause

there to be systemic failures or damage the plaintiffs' ability

adequately to participate in the ISP process, nor did the 2003

announcement. The monitor found there had been full compliance

with the consent decree as to these earlier closings of facilities.

Further, the Disengagement Order requires the defendants

to follow an ISP process but does not predetermine the placement

which will result at the end of the ISP process. The Disengagement

Order, by its terms, does not guarantee any class member any

particular residential placement, nor does it guarantee that

Fernald be maintained open so long as any particular resident

prefers to remain there. 

This, in turn, has several consequences. The removal of

one of several available residential facilities which have been

found to comply fully with the Disengagement Order cannot itself

result in there being a violation of the ISP process. Further, the

very nature of the ISP process itself contradicts the district

court's conclusion. As the Commonwealth notes, the ISP process

focuses only on the services a resident is to receive; the ISP

process does not specify where those services are to be delivered.

See generally 115 Mass. Code Regs. 6.20-6.25; cf. Ricci II, 781 F.

Supp. at 827 n.4 (noting, in discussing ISP process for Dever
-24-

residents, that "[r]ecommendation[s] as to residential and program

placement are based on evaluation of the actual needs of the

resident or client rather than on what facilities and programs are

currently available").

The Commonwealth also argues that its closing of Fernald

could have no effect on the ISP process in the future because the

Commonwealth and the class members entered into a stipulation,

filed with the court on December 29, 2004, that included an

agreement that:

The Department, its representatives, and

employees shall not discuss alternative

placement . . . for individuals at Fernald

during the team meeting convened to develop

the individual's annual ISP. The annual ISP

meeting shall be limited to the identification

and recording of the individual's current

needs and supports. The description of an

individual's needs and supports as defined in

the ISP shall be independent of any discussion

regarding where the individual currently lives

or what level or type of staffing exists

there, and shall be based solely upon

professional and direct care assessments done

by persons in their assigned roles.

Stipulation at 1, Ricci IV, 499 F. Supp. 2d 89 (D. Mass. 2007)

(Nos. 72-0469-T, etc.) (citations omitted). As the Commonwealth

points out, the stipulation creates even further distance between

discussions of placement and the ISP process.

Further, the district court's injunction did not rest on

the likelihood that the remaining Fernald residents systemically

would be transferred into a location that was not "equal to or
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better" than Fernald. There is no basis in the record for such a

conclusion. The monitor found that the other residential

facilities were at least equal to Fernald. Rather, the court

concluded that the systemic failure consisted of "[a]dministering

[the ISP] process under the global declaration that Fernald will be

closed." Ricci IV, 499 F. Supp. 2d at 91. Under the Disengagement

Order, the question of whether a transfer will result in an equal

or better placement is separate from the question whether the

Commonwealth has correctly implemented the ISP process. The

section of the Disengagement Order which deals with transfers

states:

Defendants shall not approve a transfer

of any class member out of a state school into

the community, or from one community residence

to another such residence, until and unless

the Superintendent of the transferring school

(or the Regional Director of the pertinent

community region) certifies that the

individual to be transferred will receive

equal or better services to meet their needs

in the new location, and that all

ISP-recommended services for the individual's

current needs as identified in the ISP are

available at the new location.

Ricci III, 823 F. Supp. at 987 (Disengagement Order ¶ 4) (emphasis

added). Under the language of the Disengagement Order, a resident

may not be transferred to a new location until the Superintendent

certifies that the location can satisfactorily provide all ISPrecommended services. This individualized process, that the

Commonwealth has followed, cannot constitute a "'systemic failure'
Plaintiff Wrentham Association argues that the record 9

shows there was intimidation of residents. Neither the district

court nor the monitor found any intimidation during the relevant

period and the record does not sustain the accusation.

-26-

to provide a compliant ISP process." The legal premise for the

court's conclusion was in error.

The plaintiff class members have expressed their concerns

that the outcome of the ISP process for the remaining Fernald

residents will not result in their receiving equal or better

services. That determination, by its nature, must be made on an 9

individual basis. The Disengagement Order and state regulations

provide a procedure and a place where individual disputes about

adequacy of the services resulting from the ISP process may be

heard. See generally 104 Mass. Code Regs. 29.15. Again, the

Disengagement Order commits these disputes to resolution in a state

forum and under state law and thus provides no basis for federal

court intervention. A resident who is the subject of the ISP

process may request a conference and an adjudicatory hearing, which

includes procedural safeguards and the right to judicial review in

the state Superior Court.

If in an individual case there is a failure to provide

through the ISP process "an individualized and personalized

analysis of each resident," a concern expressed by the district

court, then the remedy is provided by state regulations, which

inform the ISP process. See generally 115 Mass. Code Regs. 6.25.
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This concern then, does not satisfy the conditions for reopening

the decree or warrant federal intervention in state proceedings.

The conditions precedent set forth in the Disengagement

Order for the court to reopen the case have not been met and the

court erred in concluding otherwise. 

B. Whether There Was Authority Under the Modification

Doctrine

In reopening the consent decree, the district court did

not rely on the doctrine that in limited circumstances, consent

decrees in institutional reform cases may be modified. In fact,

this theory was not advanced before the district court. Several of

the briefs advance this modification rationale as an alternative

rationale which they argue would support the court's reopening of

the decree. Given the significance of this case, we address the

question. We hold that the plaintiffs have not met and cannot meet

their burden to establish that modification is warranted and that

the court thus lacked jurisdiction to modify the consent decree. 

In Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367

(1992), the Supreme Court set forth the standards that apply when

"a party seeks modification of a term of a consent decree that

arguably relates to the vindication of a constitutional right."

Id. at 383 n.7. The district court can modify the decree only on

a showing of a significant change in circumstances. Id. at 383.

The party seeking modification has the burden of showing "a
We do not need to reach the preliminary question of 10

whether the modification doctrine can apply at all when the parties

have in a consent decree defined the conditions for reopening.

Amici, Massachusetts Coalition of Families and Advocates 11

for the Retarded, Inc. and Voice of the Retarded, Inc., filed a

brief in this court in support of appellees that argues to the

contrary that the core holding of Olmstead does not endorse

deinstitutionalization but requires an individualized assessment

that considers "the views of treatment professionals; the views of

the affected individual; and state resources." Amici, the

Association of Developmental Disabilities Providers of

Massachusetts and others, filed a brief in support of appellants.

They argue that there has been a paradigm shift throughout the

nation in favor of deinstitutionalization. 

We note but have no need to address these different views.

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significant change either in factual conditions or in law." Id. at

384.

There is no justification in the modification rationale

under Rufo to reopen the consent decree. There has been no 10

significant change in factual circumstances. The parties, and the

Disengagement Order, recognized that the Commonwealth might choose

to close any of the residential facilities, including Fernald.

There has also been no significant change in law which would

warrant reopening the decree. Indeed, the law has moved in a

direction disfavoring institutionalization of residents. The

Commonwealth cites Olmstead as recognizing that federal law now

favors community placement of institutionalized individuals. In 11

addition, the Commonwealth notes that law of neighboring states,

including Maine, New Hampshire, and Rhode Island, has moved away

from institutionalization completely.
-29-

C. Whether There Was Authority to Reopnen Due to

Constitutional Violations

The plaintiffs argue that there is a separate basis to be

found in the Constitution, which would support the district court's

assertion of jurisdiction. They argue that there has and will be

a violation of the residents' due process rights. The district

court wisely did not rely on this ground. There is no basis in the

record for this assertion. The record is to the contrary

The plaintiffs allege that "a process that would permit

the transfer of residents from Fernald without [allowing them]

meaningful participation" violates principles of due process. But

the record does not show that there has been a "lack of meaningful

participation." The record provides no basis to infer, much less

to demonstrate, that there will be a lack of meaningful

participation. The monitor made no findings that DMR had prevented

residents or guardians involved in transfers between 2003 and 2006

from participating meaningfully in discussions of their transfer.

The findings are that there was full compliance with the

Commonwealth's obligations.

D. Whether Other Grounds Provided Authority to Reopen

This leaves only the attempt of the plaintiff class to

recharacterize the district court's assertion of jurisdiction as an

exercise of "ancillary jurisdiction." Plaintiff Wrentham

Association makes a related argument that a court has "inherent
The Wrentham Association argues that, in addition to its 12

inherent authority, the district court explicitly retained

jurisdiction here. Any jurisdiction retained in the Disengagement

Order, however, could be activated only after certain conditions

precedent, such as a showing of a systemic failure of the ISP

process, were met.

-30-

authority" to enforce its own orders. Neither doctrine applies 12

here.

"Ancillary jurisdiction" is a term with a specialized

meaning, and the term has no application here. Nor does the court

have "inherent authority" to revisit its Disengagement Order. In

Kokkonen v. Guardian Life Insurance Co. of America, 511 U.S. 375

(1994), the Court explained that ancillary jurisdiction can be used

for two limited purposes: "(1) to permit disposition by a single

court of claims that are, in varying respects and degrees,

factually interdependent . . . ; and (2) to enable a court to

function successfully, that is, to manage its proceedings,

vindicate its authority, and effectuate its decrees." Id. at 379-

80 (citations omitted). In discussing the second purpose, the

Court noted that a district court may possess "inherent authority"

to address violations of an order where it retains jurisdiction in

a separate provision, but only when the order itself is violated.

See id. at 380-81. The Court found that neither power justified

federal court jurisdiction to revisit a settlement agreement

between two parties where the court order did not contain a

provision retaining jurisdiction. Kokkonen thus stands for the
-31-

proposition "that district courts enjoy no free-ranging 'ancillary'

jurisdiction to enforce consent decrees, but are instead

constrained by the terms of the decree and related order." Pigford

v. Veneman, 292 F.3d 918, 924 (D.C. Cir. 2002) (citing Kokkonen,

511 U.S. at 381). The district court's ancillary jurisdiction thus

did not provide authority to reopen the Disengagement Order absent

a showing, not sustainable here, that the terms of the

Disengagement Order itself had been violated.

III.

The issue this court decides concerns the limits on the

jurisdiction of the federal courts. We do not decide the issue of

what path best serves the interests of the residents of Fernald and

the other parties who have a stake in this matter. People of good

faith can and do passionately differ about the Commonwealth's

intention to close the Fernald Center. We hold only that the

district court lacked authority to reopen the consent decree in

this case and that it lacked jurisdiction on that or any other

basis to reopen and to enter the orders it did.

We reverse and direct entry of judgment dismissing with

prejudice the claims plaintiffs have brought in this action. In

doing so, we also recognize the able stewardship exercised by the

district court over the years, which led to the improvement of

conditions for the Fernald residents and to the landmark 1993

consent decree.
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It is so ordered.