REVISED - July 16, 1998

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-30486

HAMILTON PLAINTIFFS,

Plaintiffs-Appellants,

versus

WILLIAMS PLAINTIFFS,

Plaintiffs-Appellees,

versus

CHARLES C. FOTI, JR., SHERIFF; CITY OF NEW ORLEANS;

STATE OF LOUISIANA; RICHARD STALDER, SECRETARY;

MIKE FOSTER, GOVERNOR, STATE OF LOUISIANA; SIXTYFOUR (64) LOUISIANA SHERIFFS,

Defendants-Appellees.

Appeal from the United States District Court

for the Middle District of Louisiana

July 14, 1998

Before POLITZ, Chief Judge, REYNALDO G. GARZA and DENNIS, Circuit

Judges.

POLITZ, Chief Judge:

The Hamilton plaintiffs appeal the district court’s order vacating and

rescinding consent decrees setting inmate populations and guard-to-prisoner ratios1 338 F.Supp. 1016 (E.D. La. 1970).

2 No. 71-98-B (June 10, 1975).

2 at parish correctional facilities. For the reasons assigned, we dismiss this appeal

for lack of jurisdiction.

BACKGROUND

For nearly three decades federal c ourts have been required to address

problems in the operation of the Louisiana prison system. In 1969 a class action,

Ham ilton v. Schiro

, 1 was filed in the Eastern District of Louisiana challenging

conditions in the New Orlea ns Parish Prison. In April 1970, the trial court found

that the prison conditions were unconstitutional and issued a r emedial decree,

i ncluding a prisoner population cap. Over the years, as new jails were built in

Orleans Paris h, the plaintiff class was expanded to include prisoners in the other

facilities and population caps were set for same.

In 1971, four inmates in the Louisiana State Penitentiary at Angola filed suit

in the Middle District of Louisiana, claiming that their conditions of confinement

were unconstitutional. This action, W illiams v. Edwards

, 2 was treated as a de facto

class action for both the inmat es at Angola and the inmates housed in facilities3 The class was certified in 1991 but excluded DOC prisoners in parish jails.

The class order was amended on May 27, 1993 to, inter alia , include

such prisoners. For ease in review, a copy of this order is attached hereto as

Exhibit A.

4 644 F.2d 351 (5th Cir. 1981).

3 operated by the State of Louisiana Department of Corrections. 3 In April 1975, the

district court adopted a Special Master’s report and found that the conditions of

confinement violated the Constitution re sulting in injunctive relief, including a

prisoner population cap. This cap ultimately was imposed on all relevant facilities.

Thereafter, the DOC sought, pursuant to court order, the development of a

comprehensive plan for bringing the state prison system into full compliance.

Incident to that plan, the DOC secured the cooperation of the Louisiana parishes

and cities to house inmat es sentenced to state confinement to help alleviate

overcrowded conditions in the state prison facilities. As state prisoner numbers

increased in local jails, federal actions were filed, complaining of overcrowding.

To avoid the spectre of inconsistent decrees, in Hamilton v. Morial

, 4 we ordered

that all federal litigation then pending or subsequently filed against state, parish or

local prison facilities, relating directly or indirectly to inmate population issues, be

consolidated in the Middle District of Louisiana. Thereafter, officials in charge of

the many Louisia na state, parish, and city facilities entered into stipulations and4

consent decrees specifying, inter alia

, population limits and officer-to-prisoner

rat ios. Since 1981, these facilities continuously have been under the judicial

oversight of Judge Frank J. Polozola of the Middle District of Louisiana, and the

population caps and officer-to-prisoner ratios have been revised as conditions

warranted.

In March 1994, the State and the Sheriffs execute d an agreement entitled

“Basic Jail Guidelines” in their effort to ensure that the prison system in Louisiana

would operate consistent with the Constitution and laws of the United States and

of the State of Louisiana. On September 26, 1996, a Petition for Order Approving

Settlement for Purpose of Terminating Consent Decrees was filed in the court à quo

by class counsel for the Williams plaintiffs and counsel for the Governor and the

Secretary of th e DOC, seeking a final resolution of the litigation between them.

The Petition Agreement stated that the Williams par t ies had agreed to the

“dismissal of all consent decrees” for all state, parish, and city facili ties housing

DOC inm ates, except the Louisiana State Penitentiary at Angola and specified

juvenile detention facilities, effective April 1, 1997, and they requested the court’s

aid in effectuating their agreement. Included with the Petition Agreement was a

letter from counsel for the Sheriffs, requesting that all consent decrees pertaining

to parish facilities be vacated effective April 1, 1997. Following a hearing on5

September 26, 1996, the court approved the settlement and entered three orders

consistent therewith. For ease of review, copies of these three orders are attached

hereto as Exhibits B (state), C (parish), and D (city).

On October 23, 1996, the Hamilton plaintiffs filed a Motion to Reconsider

and Vacate Orders of September 26th. The Hamilton plaintiffs contended that the

issua nce of the September 26th orders violated their fundamental rights to due

process because they were not included in the negotiations resulting in the Petition

Agreement and Sheriffs’ Order, were not given n o tice of their filing, were not

signatories thereto, and were not present when they were presented to and approved

by the court. The H amilton plaintiffs informed the court that they did not consent

to the dismissal of the population cap consent decrees affecting the facilities

covered by the Hamilton litigation, and did not authorize counsel for the plaintiffs

to act as their counsel or to represent their interest. The State responded by moving

dismissal of the Hamilton plaintiffs’ motion because they were not parties to the

suit in which the orders were entered.

The Hamilton plaintiffs responded, contending that they were parti es and

asking, in the alternative, that they be allowed to intervene. Judge Polozola denied

both the Stat e’s motion to dismiss and the H amilton plaintiffs’ motion to5 In referring to the state facilities the order declares that they “are released

from all further supervision . . . .” The reference to parish and local jails,

however, notes that they “have been released from all further supervision . . .”

We do not view this careful choice of language to be happenstance.

6 reconsider. The H amilton plaintiffs appealed this order and Sheriff Charles C. Foti

of Orleans Parish moved to dismiss the appeal. We granted that motion.

On April 1, 1997 the district court entered an order finally releasing all state

facilities, with t he exception of five institutions including the Louisiana State

Penitentiary at Angola, from further supervision and reporting requirements and,

in doing so, noted that it earlier had released all parish and local facilities from

further supervision and rep orting requirements. A copy of that order is attached

hereto as Exhibit E. 5 On April 30, 1997 the H amilton plaintiffs f iled a notice of

appeal from the April 1, 1997 order. The Sheriffs seek dismissal of this appeal.

That motion was ordered carried with the case and is thus outstanding.

ANALYSIS

Before addressing t he merits of this appeal, we must first determine the

threshold issue of our appellate jurisdiction, on our own motion, if necessary. The

Sheriffs contend that this appeal involves a non-appealable interlocutory order of

the district court. We cannot accept that contention.

The relevant statute, 28 U.S.C. § 1292(a)(1) provides that the courts of6 See Walker v. United States Dep’t of Housing and Urban Dev. , 912 F.2d

819 (5th Cir. 1990) (modification of a consent decree to compel federal

subsidization of low-cost housing units was appealable pursuant to 28 U.S.C. §

1292(a)(1) as modification of injunctive decree); Thompson v. Enomoto , 815

F.2d 1323 (9th Cir. 1987)(consent decree dictating conduct for the California

Department of Corrections and compelling compliance through the court’s

contempt power was sufficiently injunctive in nature to be considered an

injunction under § 1292(a)(1)); Gary v. Louisiana , 601 F.2d 240 (5th Cir. 1979)

(order appointing a special master to oversee implementation of court’s consent

decree was an appealable modification of an injunction under § 1292(a)(1)).

7 appeals shall have jurisdiction of appeals fro m “[i]nterlocutory orders of the district

courts

. . . granting, continuing, modifying, refusing or dissolving injunctions, or

refusing to dissolve or modify injunctions, except where a direct review may be had

in the Supreme Court.” Consent decrees are “injunctions” within the meaning of

section 1292(a)(1). 6 It is clear that the H a milton plaintiffs challenge the order

vacating the consent decrees affect ing the Orleans Parish facilities. The parties

dispute, however, whether the September 26, 1996 order or the April 1, 1997 order

is the relevant, dispositive order. That relevant dispute aside for the moment, the

challenged order explicitly dissolved injunctive relief by vacating the population

cap consent decrees for the parish facilities. Accordingly, the order clearly is

appealable under 28 U.S.C. § 1292(a)(1).

A close review of the record in this appeal, aided by the briefs and oral

arguments of counsel, leads inexorably to the conclusion that the September 26th7 Sheriff Foti signed on behalf of Orleans Parish, first on the list of sheriffsignatories.

8 The confusion manifested herein perhaps results from the State order which

also was signed on September 26, 1996. That order says, “WHEREFORE, IT IS

ORDERED that the original and all subsequent orders entered by the Court in

this action, including [a consent decree entered on December 7, 1983 dealing

with various state facilities] (“the DPSC Facilities”), are to be rescinded and

have no further effect on April 1, 1997. On that date, the Court shall issue a

final order of dismissal.” It further provided, “IT IS FURTHER ORDERED that

all NON-DPSC Facilities in which DPSC prisoners are being held shall also

finally be dismissed from further Court supervision on April 1, 1997.”

The filings defined DPSC as the Department of Public Safety and

Corrections and DPSC Facilities as the state facilities. Non-DPSC Facilities

were defined as “secure parish of (sic) local jails listed in Exhibit A-1 [which

includes Orleans Parish Prison] that may hold adult inmates sentenced to the

custody of the DPSC.” The provision of the order which refers to the NonDPSC facilities could perhaps be taken as requiring a final order on April 1st

before the parishes would be released from the consent decrees. When this

order is read in conjunction with the initiating petition, however, it is clear that

supervision of the Non-DPSC facilities was being retained by the court only to

allow for inspections to determine whether these facilities complied with the

Basic Jail Guidelines. The limiting language in the order on use of the results of

8 order is the dispositiv e order herein. It states, “IT IS ORDERED that each and

every consent decree entered by this court pertaining to inmate population and

guard-to-prisoner ratio at any facility operated by or under the authority of any

Sheriff, appearing hereinbelow

. . . are hereby VACATED, RESCINDED and are

without further effect as of Ap ril 1, 1997.” 7 It cannot be gainsaid that this order

vacates and rescinds the consent decrees effective April 1st; it is self-executing and

does not merely await the entry of another order to be issued on April 1st. 8these inspections fortifies our conclusion. The September 26th order is the final

order which released the parish prisons from the population caps.

9 Fed. R. App. P. 4 provides in pertinent part:

(a) Appeals in Civil Cases.

(1) In a civil case in which an appeal is permitted by law as of right

from a district court to a court of appeals the notice of appeal

required by Rule 3 shall be filed with the clerk of the district court

within 30 days after the date of entry of the judgment or order

appealed from. . . .

10 The Federal Rules of Civil Procedure do not provide for a “Motion for

Reconsideration” but such motions may properly be considered either a Rule

59(e) motion to alter or amend judgment or a Rule 60(b) motion for relief from

judgment. See Kelley v. Price-Macemon

, Inc. , 992 F.2d 1408 (5th Cir. 1993).

A Rule 60(b) motion does not toll the running of time for filing a notice of

appeal whereas a timely filed Rule 59(e) motion does. See Fischer v. United

States , 759 F.2d 461 (5th Cir. 1985); Fed.R.App.P.4(a). In order to be timely

filed, a Rule 59(e) motion must be filed within ten days of the judgment or order

of which the party complains. Fed.R.Civ.P. 59(e). Motions which are

“untimely under Rule 59 must be treated as motions under Fed.R.Civ.P. 60(b)

for purposes of Rule 4(a)(4).” Brown v. United Ins. Co. of Am. , 807 F.2d 1239,

1242 (5th Cir. 1987)(citing Huff v. International Longshoremen’s Ass’n , 799

F.2d 1087, 1090 (5th Cir. 1986).

9 The Hamilton plaintiffs did not timely appeal the September 26th order. The

requirements of Rule 4 are both clear and mandatory. 9 An appellant has 30 days

from the entry of a final judgment in which to appeal. On October 23, 1996, 27

days aft er the entry of the order vacating the population caps, the H amilton

plaintiffs filed a Motion to Reconsider and Vacate Orders of September 26th. This

motion did not toll the time for filing a notice of appeal. 10 The H amilton plaintiffs11 Hamilton v. Williams , No. 97-30069 (5th Cir., April 17,1997)(appeal

dismissed).

10 did not file a notice of appeal until December 20, 1996, almost three months after

the entry of the September 26th orders. Thus, their appeal was untimely. 11

Although the Hamilton plaintiffs filed a notice of appeal within 30 days after

entry of the April 1st order, it is manifest that it is the September 26th order of

which they complain. They cannot now revive an appeal of the earlier final order

by appealing the April 1st decree.

This court lacks appellate jurisdict i on and the appeal must be and is

DISMISSED.

ENDRECORDDENNIS, Circuit Judge, dissenting:

I respectfully dissent.

The rationale of the majority opinion is that because the Hamilton plaintiffs

did not appeal timely after the district court’s September 26, 1996 order, they

forfeited their right to appeal after that court’s April 1, 1997 order. The majority

opinion appears to rely o n three possible theories as to the appealability of the

September 26, 1996 order: The order is appealable (1) “clearly

. . . under 28 U.S.C.

§ 1292(a)(1).” Maj. Op. at 7; (2) as a final judgment under 28 U.S.C. § 1291; or

(3) as an order that comes within an appropriate exceptio n to the final judgment

rule. It is difficult to see how the majority’s decision can be soundly based on any

of these grounds, however.

(1)

Section 1292(a)(1) of 28 U.S.C. expre ssly permits an appeal from an

interlo cutory order of a district court that, i nter alia, dissolves an injunction. An

interlocutory appeal is permissive, not mandatory, because the district court retains

complete control over its interlocutory orders until entry of a final judgment into

which they are merged. A party does not forfeit its right to appeal after the final

decree by failing to bring an interlocutory appeal. M atherne v. Wilson, 8 51 F.2d

752, 756 & n.9 (5th Cir. 1988); Gloria S.S Co. v. Smith, 376 F.2d 46, 47 (5th Cir.12

1967). S ee also 19 JAMES W

. M OORE ET AL

. , MOORE ’ S FEDERAL PRACTICE §

203.32[3][b] (3d ed. 1998) and other authorities cited therein.

Accordingly, if the district court’s September 26, 1996 order was an

interlocutory or der dissolving an injunction-like consent decree, as the majority

first asserts, the Hamilton plaintiffs’ failure to take an interlocutory appeal did not

cause them to forfeit their right to appeal after the district court’s final April 1,

1997 decree.

(2)

Federal a ppellate jurisdiction generally depends on the existence of a

decision by the district court tha t “ends the litigation on the merits and leaves

nothing for the court to do but execute the judgment.” C oo pers & Lybrand v.

Livesay, 437 U.S. 463, 467 (1978) (quoting Catlin v. United States, 324 U.S. 229,

233 (1945)); Sierra Club v. City of San Antonio, 115 F.3d 311, 313 (5th Cir. 1997).

An order dissolving a consent decree is in essence the same as one dissolving an

injunction. S ee Carson v. American Brands, Inc., 450 U.S. 79, 90 (1981) (holding

that an order refusing to approve a consent decree is an order refusing an

injunction, and is therefore appealable under § 1292(a)(1)); R oberts v. St. Regis

Paper Co., 653 F.2d 166, 170 (5th Cir. Unit B Aug. 10, 1981). Consequently, such

an order is inherently not final but interlocutory. See 28 U.S.C. § 1292(a)(1).13

Moreover, the district court’s September 26, 1996 order affecting the

Hamilton plaintiffs’ rights expressly provided that the consent decree was vacated

“as of April 1, 1997.” Also, as the majority opinion recognizes, the district court

in it s September 26, 1996 order made clear that “supervision of the Non-DPSC

facilit ies was being retained by the court o nly to allow for inspections [by the

Court’s expert] to determine whether these facilities complied with the Basic Jail

Guidelines.” Maj. Op. at 8 n.7 (emphasis in original). Thus, the district court

clearly retained jurisdiction of the case until April 1, 1997 for the purpose of taking

remedial action in the event any facility failed to comply. The September 26, 1996

order, therefore, does not of its own force terminate the entire litigation as of the

date of its entry. S ee Coopers & Lybrand, 437 U.S. at 467. “‘[A]t a minimum,

appellate review should not ordinarily occur before it is clear that the judge has no

intention of further reconsidering the challenged ruling.’” I n re Delta Servs. Indus.,

7 82 F.2d 1267, 1271 (5th Cir. 1986) (quoting 15 WRIGHT

, MILLER & COOPER

,

FEDERAL PRACTICE & PROCEDURE § 3907 (1st ed. 1976)). See also Cinerama, Inc. v.

Sweet Music, S.A., 482 F.2d 66, 70 (2d Cir. 1973) (Among the purposes of the final

judgment rule is “to prevent an appeal on an issue concerning which the trial court

has not yet made up its mind beyond possibility of change.

. . .”); Erstling v

.

Southern Bell Tel. & Tel. Co., 255 F.2d 93, 95 (5th Cir. 1958) (“If the language used1 2 The District Court’s April 1, 1997 order provided “that the following secure

p arish and local jails have been released from all further supervision an d

jurisdiction of this Court and from all further reporting requirements” and listed

those facilitie s. The majority concludes that the court’s April 1, 1997 use of a

present perfect tense verb is determinative of whether the Court’s September 26,

1996 order was a final judgment. For the reasons stated above, I do not think that

a court can retroactively remake its prior interlocutory order into a final judgment,

especially not by a brief, cryptic comment in a later judgment under a different

docket number. “For a ruling to be final, it must end the litigation on the merits,

and the judge must clearly declare his intention in this respect.

. . . Moreover, the

judge did not explicitly exclude the possibility that he might change his mind in the

interim.” F

irsTier Mortgage Co. v. Investors Mortgage Ins. Co., 498 U.S. 269, 273-

74 (1991) (internal citations and quotations omitted). “The Federal Rules are not

intended to create procedural traps for the parties, forcing them to file premature

appeals whenever some slight doubt arises as to the propriety of the court’s way of

entering judgment.” Blanchard v. Commonwealth Oil Co., 294 F.2d 834, 837 (5th

Cir. 1961).

14 by the court clearly evidences the judge’s intention that it shall be his final act[,]

it constitutes a final judgment.

. . .”) (citing United States v. F. & M. Schaefer

Brewing Co., 356 U. S. 227, 232 (1958)). Because the district court retained

juris diction and supervision and could have reconsidered all or parts of its

September 26, 1996 order at any time prior to April 1, 1997, the September order

was not a final judgment that ended the litigation and left nothing for the court to

do but execute the judgment. 12

(3)

Such an order is appealable, therefore, only if it comes within an appropriate

exception to the final judgment rule. The majority opinion does not identify any15

appropriate exception to the final judgment rule that affords appealability to the

September 26, 1996 order. From the majority’s statement that the order “vacates

and rescinds the consent decrees effective April 1st; it is self-executing and does

not merely await the entry of another order to be issued on April 1st[,]” it can be

speculated that the majority thinks that the September order fits within either the

death knell or prag matic finality exception to the final judgment rule. These

exceptions cannot be applied so as to make the September 26 order appealable as

if it were a final judgment, however; and even if they could, the Hamilton plaintiffs,

by failing to take such an appeal, did not forfeit their right to appeal after the April

1, 1997 final decree.

This court has limited the death knell exception to those cases in which a stay

requires all or essentially all of the suit to be litigated in state court. K mart Corp.

v . Aronds, 1 23 F.3d 297, 300 (5th Cir. 1997). Furthermore, its viability was

severely if not fatally undermined by the Supreme Court in Coopers & Lybrand v.

Livesay, 475 U.S. 463 (1978).

This court no longer recognizes the pragmatic finality except ion. A ronds,

123 F.3d at 300 (citing Newpark Shipbuilding & Repair, Inc. v. Roundtree, 723 F.2d

399, 405 (5th Cir.) (stating that pragmatic finality is in fundamental conflict with

the purpose of the finality rule), cert. denied, 469 U.S. 818 (1984)).1 3 The September 26, 1996 order also does not satisfy the requirements for

certification as a partial final order under Fe deral Rule of Civil Procedure 54(b)

because “the language in the order.

. . either independently or together with related

portions of the record referred to in the order” does not “reflect[] the district court’s

unmistakable intent to enter a partial final judgment” under this rule. S ee Kelly v.

Lee’s Old Fashioned Hamburgers, Inc., 9 08 F.2d 1218, 1220 (5th Cir. 1990) (en

banc).

16 Moreover, a party’s failure to take an appeal under one of these exceptions

to the final judgment rule does not cause him or her to lose the right to appeal after

the final decree. As Professors Wright, Miller and Cooper observe:

Forfeiture of the right to review on appeal from a final judgment

should not follow from failure to take an appeal authorized by

the hardship, col lateral order, death knell, and pragmatic finality

doctrines.

. . . Unlike Rule 54(b), the purpose of these doctrines

is only to pr o vide an opportunity for immediate appeal to

protect against the harsh results that the final judgment

requirement c an cause, not to force immediate appeal for the

purpose of achieving final resolution of some portion of the

ca se. While it is appropriate to hold, for example, that the

opportunity for collateral order appeal is lost if appeal is not

taken within the appeal period that runs from entry of the order,

review should remain available on appeal from the final

judgment.

15A W RIGHT

, MILLER & COOPER

, FEDERAL PRACTICE AND PROCEDURE § 3905.1, at

262 (2d ed. 1992). 13

CONCLUSION

I agree with the majority that the district court, in its September 26, 1996

order, intended to retain supervision of the Non-DPSC facilities to ensure that those17

facilities were in compliance with the Basic Jail Guidelines before the effective

date of the dissolution of the consent decrees on April 1, 1997. Accordingly, the

district court retained jurisdiction of the case and therefore could have further

modified, amended, altered or reversed its decision to vacate and re scind the

consent decrees at any time prior to April 1, 1997, the effective date of its

preliminary decree and its final decree. Consequently, because the September 26,

1996 order was interlocutory, the Hamilton plaintiffs, by failing to appeal from it

interlocutorily, did not forfeit their right to appeal after the April 1, 1997 final

decree. The H

am ilton plaintiffs did appeal timely after this date, bringing up all

interlocutory orders affecting the rights finally and effectively adjudicated on April

1, 1997. Therefore, I believe this court has jurisdiction of the H amilton plaintiffs’

appeal, and I must respectfully dissent from the majority’s decision.