9.2 Negotiated Settlements and Injunctive Relief

Updated 2013 by Anne Louise Blanchard

A case concludes in the district court by entry of judgment pursuant to Federal Rule of Civil Procedure 58. The judgment generally includes whatever relief is ordered by the court. It usually refers to any prior or contemporaneous decision adjudicating liability and any ruling on relief when appropriate relief is disputed.

9.2.A. Judgments

Judgments may be entered on the basis of litigated decisions,1 by agreement, or by some combination of the two. For example, courts commonly decide whether defendants violated a legal duty to plaintiffs and urge the parties to agree on a remedial order. In the absence of agreement, both parties may submit their proposed orders. The remedial order itself may also be partially agreed upon and partially litigated, with unresolved issues submitted to the court for determination.

The legal force, effect, and enforceability of litigated judgments are relatively well defined. However, resolutions by agreement, depending upon their form, content, and entry by the court, can have vastly different legal import. For this reason, this section focuses on such agreements.

9.2.B. Negotiated Settlements

Judgments arrived at, in whole or in part, by negotiation have the potential advantage of far greater specificity than a court might otherwise order.2 When an effective remedy requires major changes in an agency’s mode of operation, such as promulgating new rules, establishing new practices, and monitoring implementation and outcomes, truly workable results often can be more effectively obtained through negotiation than a court-fashioned decree.3 Courts generally are reluctant to get involved in the details of agency processes and are likely to be excessively deferential to an agency’s judgment of how best to carry out its legal duties. Furthermore, plaintiffs may have suggestions for relief that is more practical than what a court is willing to order; a deferential court may be reluctant to enter necessary orders over defendants’ objection. Negotiating the decree—and perhaps the joint announcement of its entry—may commit the defendants to assuring compliance. Similarly, from the defendants’ perspective, a negotiated settlement protects them from the uncertainty inherent in a judicially crafted remedial order. Concerns about the need for administrative flexibility to respond to new or unforeseen problems and situations can be addressed. Relief can be structured to ensure compatibility with existing agency systems and resources. For these reasons and more, resolving complex remedial orders by consent holds many potential advantages.4 A disadvantage is that consent decrees lack precedential effect in future cases.5

As in any negotiation, the strength of your case dictates your bottom line. Institutional defendants, especially those represented by state attorneys general, have become increasingly resistant to formal consent decrees.6 However, despite assertions that entering into consent decrees is against official policy, attorney generals and other government officials regularly enter into complex, detailed, enforceable remedial decrees when their other options are less attractive. If you have solid claims and exude a willingness, even enthusiasm, to litigate them to judgment, the defendant may agree to a detailed, enforceable consent decree. As your bargaining strength decreases, the likelihood of having to settle for something less than a consent decree increases. Common alternatives to judicially ordered and enforceable consent decrees are private settlements or conditional stipulations of dismissal. The legal ramifications of each of these forms of settlement are different and must be understood and evaluated before entering into settlement discussions.

9.2.B.1. Consent Decrees

A consent decree is an agreement of the parties and is embodied in an injunctive order of the court, signed by the judge, and entered as the judgment of the court. As such, it has “‘attributes of both contracts and judicial decrees’, a dual character that has resulted in different treatment for different purposes.”7 The decree stands as a judgment of the court for purposes of enforcement and modification.8 The decree’s interpretation is governed by general principles of contract law.9 Because its interpretation and scope are discerned by general contract principles, a consent decree’s preclusive effect is governed by the intent of the parties.10 In most cases, the parties intend the consent decree to preclude relitigation of the claims raised in the litigation. However, because settlements by definition do not involve an actual judicial adjudication of the legal issues, consent decrees and other forms of settlements do not generally support issue preclusion.11 Significantly, a party who obtained a formal consent decree “prevailed” for purposes of attorney's fee entitlement.12

9.2.B.2. Private Settlements

A settlement whose terms are not incorporated into a decree entered by the court stands on a very different legal footing from a consent decree. Most commonly, when cases are resolved by such an agreement, the parties terminate the litigation by a stipulation of dismissal which may or may not refer to the agreement. In Kokkonen v. Guardian Life Insurance Company, the Supreme Court addressed whether a federal court had jurisdiction to enforce an agreement that settled a case when the dismissal order neither incorporated the terms of the settlement in the body of the order nor reserved enforcement power in the court.13 Viewing dismissal of the lawsuit as essentially part of the consideration for the agreement, the Kokkonen Court considered the enforcement action not as a renewal or continuation of the original case, but as an entirely new contract action.14 As such, the alleged breach of the settlement agreement had to be brought as a new action, one that the Kokkonen Court observed would have to be filed in state court in the absence of federal jurisdiction.15

The Kokkonen Court did note, however, that if the explicit terms of the settlement agreement had been incorporated into the order of dismissal or if the order had provided for continued jurisdiction over the settlement, then the federal district court would have had the authority to enforce the agreement.16 For purposes of attorney fees, a case that is resolved by a settlement agreement that is not incorporated into the dismissal order does not generally qualify the plaintiff as a prevailing party.17 When the agreement is incorporated into the dismissal order and the court retains jurisdiction to enforce the terms of the agreement in the order of dismissal, the court’s order of dismissal is the legal equivalent of a consent decree, and the party should be entitled to fees.18 It is unclear whether “prevailing party” status is obtained when the court does not incorporate the terms of the settlement into the dismissal order but does retain jurisdiction to enforce the settlement.19 Because the law regarding the application of Buckhannon v. West Virginia Department of Health and Human Resources to various hybrid settlement arrangements is evolving, you need to research recent case law, particularly within your circuit.20

9.2.B.3. Conditional Stipulations of Dismissal

Basing a settlement on the defendant’s compliance with certain conditions is not uncommon. Such conditional stipulations of dismissal can be simple, with full compliance anticipated almost immediately, or complex, involving detailed structural changes in agency practices requiring phased compliance over several years. Such stipulations often contain specific provisions for monitoring and enforcement.

Because stipulations of dismissal are governed by Federal Rule of Civil Procedure 41(a)(1)(ii) and are self-effectuating without necessity of court order, you must, when drafting such a stipulation, be very specific about when and under what conditions the dismissal becomes operative.21 Failure to do so can leave the court without jurisdiction to act despite the clear intent of the parties.22 Be sure to have the stipulation provide for judicial endorsement.23

The best course of action is to provide specifically that the dismissal becomes operative after all the conditions are completed and that the court retains jurisdiction in the interim to enforce compliance. Defendants, especially those represented by state attorneys general or U.S. Department of Justice lawyers, are increasingly seeking provisions in such stipulations stating that the remedy for a breach is not specific enforcement but to restore the case to the court’s active docket for litigation on the merits. Depending upon the strength of your case, the scope of relief agreed to by the defendant, and your assessment of the likelihood that the defendant will not comply, you may or may not be willing to accept such a provision.24

Whether a conditional stipulation of dismissal establishes the plaintiff as a “prevailing party” for purposes of attorney's fees depends upon how much the stipulation looks like a consent decree. Certainly, after Buckhannon, it must be signed by the judge.25 Other factors that weigh in favor of prevailing party status include specific provisions of the substantive agreement in the stipulation, continuing court power to enforce compliance, specific monitoring requirements over an extended period of time, or an admission of liability by the defendant.

9.2.C. Drafting Consent Decrees or Other Remedial Orders

Other issues and factors need to be considered when preparing to negotiate a settlement designed to implement systemic change in the defendant’s policies or practices.26 Some of the more common issues are (1) defining the class and choosing defendants, (2) statement of facts and goals, (3) declaratory relief, (4) admission of liability, (5) implementation plan, (6) regulations, (7) defining compliance, (8) monitoring compliance, (9) funding, (10) duration of the decree, (11) retention of jurisdiction, (12) specifying grounds for modification, (13) specifying noncompliance procedures and remedies, and (14) attorney's fees.27 Each of these topics is briefly discussed below.

The Civil Rights Litigation Clearinghouse28 is an excellent resource for finding case-related documents, including consent decrees in civil rights cases involving injunctive relief.  The best approach to drafting a decree is to study prior decrees in similar cases and to ask counsel in those cases how they might have redrafted the decree in retrospect. 

9.2.C.1. Defining the Class and Choosing Defendants

If the case is brought as a class action, but the class was never certified by the court, certifying the class in the order may be helpful, particularly to minimize future disputes over any retroactive relief or future enforcement.29 However, class certification may not be as significant if the scope of declaratory or injunctive relief or both is specific and comprehensive. Class certification can have adverse effects, such as barring others similarly situated from seeking other relief,30 and interfering with the flexible adaptation of the judgment to changed circumstances. If a class is certified, Federal Rule of Civil Procedure 23(c)(3) requires the final judgment to define the class. Thus, you must include in a consent decree whatever class definition is adopted by the court or agreed to by the parties.

With respect to government defendants sued in their official capacity, you must specify that the agents and successors of the defendants, including private contractors, are bound by the terms of the decree to avoid any possible ambiguity as to whether Federal Rule of Civil Procedure 25(d) would apply.31 Having all parties necessary for relief joined as defendants facilitates implementation. Having the defendants personally sign the decree may also promote its strict enforcement.

9.2.C.2. Statement of Facts and Goals

To make express the basis of the parties’ agreement and to guide resolution of any future disputes, a recitation in the decree of the critical facts and the goals that the parties seek to further by entering into the decree may be helpful.32 Such a statement is especially appropriate in a proposed decree in a class action as a predicate to a fairness hearing to establish that the decree fairly and adequately resolves class claims. This may be set forth in an introductory section or in detail. Agreed facts may not be necessary if the liability phase of the case is resolved by litigation.

9.2.C.3. Declaratory Relief

Declaring plaintiffs’ rights under specified provisions of law or based on particular facts serves plaintiffs’ interests by setting out the legal standard against which future compliance and unanticipated changes can be assessed. Even if the declaration is by agreement rather than based on a prior adjudication of liability, a stated declaration of law may have some precedential effect, at least of a persuasive nature, in subsequent related cases against the same or a similar agency.

However, specifying the basis for declaratory relief has two potential risks to plaintiffs.  First, a recitation of the law and facts upon which declaratory relief can make it easier for a judge to grant a Rule 60(b)(5) motion for relief from the judgment, particularly under the more relaxed and flexible standard set forth recently by the Supreme Court in Horne v. Flores33 a case marked by the federalism concerns inherent in a federal court decree over state or local affairs.  That flexible standard requires the court to determine whether a "significant change either in factual conditions or law"34 warrants setting aside or modifying the consent decree.  That determination is not limited to whether the particulars of the decree have been satisfied, but also whether the defendant continues to violate the underlying statute.35 Horne makes it clear that a statutory violation may be remedied in ways not considered or dictated in the decree and that subsequent legislative changes related to the matter resulting in the decree may bring about changed circumstances relevant to the Rule 60(b)(5) analysis. 

Second, federal court jurisdiction to enforce relief based on specified legal grounds may be limited in the future. After Pennhurst State School and Hospital v. Halderman, for example, a federal court would probably decline to enforce a decree specifically grounded solely in state law.36 In contrast, Pennhurst might not be implicated if the case had been brought on federal as well as state grounds, the federal claim had not been adversely determined, and no legal basis for the decree was specified.37

9.2.C.4. Admission of Liability

Defendants almost always balk at an admission of liability. They may agree to a declaration that plaintiffs have certain rights or that their own procedures should be improved or both, without admitting that they had ever done anything illegal. If there is neither a declaration of rights nor an admission of liability, a court in a future enforcement proceeding may read the terms of the decree more narrowly than plaintiffs may wish.38 While an admission of liability is preferable, a declaration standing alone is likely to give plaintiffs reasonable protection regarding the future interpretation and application of the decree if the risks identified above can be surmounted.

Although an admission of liability is helpful, it is rarely forthcoming. Insistence upon an admission may kill otherwise productive negotiations. The more comprehensive and specific the terms of the decree, the less necessary an admission becomes, because a comprehensive and specific decree leaves little room for potentially harmful judicial interpretation. Therefore, if the defendants insist on a nonadmission-of-liability clause, plaintiffs’ counsel should insist in return on more specific language defining and implementing relief.

9.2.C.5. Implementation Plan

The decree itself should specify the details of who will do what, and by when, to accomplish the desired changes in institutional behavior, or the decree should contain a blueprint for the process of developing such an implementation plan. For example, in a more straightforward case, where the parties are able to agree in advance on what steps are necessary to accomplish the agreed-upon performance changes, such as issuance of new procedures and training of staff, the decree can simply specify the timetable for such actions. In a case involving more complex implementation measures, the parties may prefer to leave the details to be worked out subsequently. However, if plaintiffs wish to continue to have a role in helping ensure successful implementation, the decree should specify what part plaintiffs will play in the implementation process, such as in the review of draft regulations or in the design of a monitoring plan. When developing the necessary implementation steps is thought to be beyond the expertise of the parties, the decree may provide for involving third parties, such as a panel of experts, in the design, review or moitoring of the implementation plan.39

The parties may wish to specify when they may later resort to the court (or, perhaps, to a special master under Federal Rule of Civil Procedure 53) if they cannot agree on the nature of the implementation tasks. Resort to the court is possible if continuing jurisdiction is provided.  Nonetheless, the court may be more willing to continue to be involved in implementation details if its role is clearly specified.40

One of the distinct advantages of a detailed implementation plan is that it will often obligate the defendant to undertake remedial action that exceeds the bare requirements of the federal statute at issue. As a result, the plaintiffs will obtain some relief that may exceed what a court might have ordered, while the defendant avoids the risk of court-ordered relief that it may find difficult to implement. In Frew v. Hawkins,41 the Supreme Court considered whether a federal court could, consonant with the principles underlying the Eleventh Amendment,42 enforce against a state provisions of a consent decree that exceeded specific federal statutory requirements. While accepting the state’s characterization of numerous provisions of the consent decree as exceeding the bare requirements of federal law (in this case the Medicaid Act’s Early Periodic Screening Diagnostic & Treatment requirements), the Court, nevertheless, concluded that the district court retained jurisdiction to enforce all of the consent decree’s detailed provisions. Noting that “[t]he decree is a federal court order that springs from a federal dispute and furthers the objectives of a federal law”, the Court held that “enforcing the decree vindicates an agreement that the state officials reached to comply with federal law.”43

9.2.C.6. Regulations

An appropriate remedy often requires the agency to promulgate new regulations to correct or replace an invalid policy or practice. Incorporating the actual text of the new regulation(s) in the decree has the advantages of certainty, because the parties know exactly what they are agreeing to, and security, because the defendants cannot alter the regulation without a court-granted modification under Federal Rule of Civil Procedure 60. By contrast, the inflexibility that may result from including regulation language in a decree may be problematic for plaintiffs as well as defendants, depending on the nature of future circumstances.

If the decree does not include the regulation language, plaintiffs should consider having the decree specify the issues on which the defendants must, may, or cannot promulgate regulations.44 Plaintiffs should advocate that the decree also specify the legal standards to be used to determine the adequacy of the regulations (these standards may be implicit in a declaration, an adjudication, or an admission of liability), the role of the plaintiffs and any third parties in developing and promulgating the regulations, and the timing for issuing the regulations.

9.2.C.7. Defining Compliance

If at all possible, the decree itself should define, in objectively measurable terms, what constitutes compliance. The decree should not, for example, state merely that persons are entitled to timely services, or to treatment in the least restrictive setting, but actually define what “timely” and “least restrictive” mean in a manner not subject to reasonable dispute. A court may refuse to enforce an overly vague decree.45

To avoid potentially frustrating and time-consuming litigation in any future enforcement action, a specific statement of what degree of compliance is required is also highly desirable. If the decree is silent on this issue, and merely requires, for example, service delivery within fifteen days, different courts may apply different standards in a contempt action to determine whether the defendant is in substantial noncompliance. In light of this problem, some decrees specify the percentage of cases that must come within the specified time limit, perhaps increasing the percentage over the life of the decree. Furthermore, if plaintiffs want to avoid giving the defendants substantial leeway on compliance, they should not agree to any language that precludes an enforcement action for de minimis noncompliance.

9.2.C.8. Monitoring Compliance

In any case where ongoing compliance is at issue, plaintiffs must ensure that a formal monitoring process will inform them whether there are compliance problems. Although relying on anecdotal case information, statistics or reports obtained through another method, such as Freedom of Information Act requests or formal discovery is possible, it is more desirable for the decree itself to detail an effective monitoring system.

The goal of such a system is twofold—to ensure self-regulation by the defendant and to give the plaintiffs, as well as the defendant, accurate, usable, relevant, and timely compliance information. Thus, for a monitoring system to help achieve the desired permanent change in the defendant’s activities, it should be integrated into the defendant’s usual data-gathering or other performance-evaluation systems, rather than grafted on as a separate operation. The information generated should not be too voluminous to use. The parties should either pare down the required information or develop relevant, reliable measures to ensure that the information is delivered in a manner that enables plaintiffs to extract the needed information easily.46

Depending on the nature of the activity governed by the decree, different types of monitoring systems may be most appropriate. Statistical data gathering, with specified reports furnished to the plaintiffs’ counsel, and/or to the court or a designated third party, such as a monitor, is the usual method. Where the activity is too qualitative in nature for using a statistical method, other systems, such as visits and assessments by evaluation teams of designated professionals, may be designed.47 Combining statistical and qualitative methods may be appropriate in some cases.

The decree or implementation plan should specify the plaintiffs’ role, if any, in assisting in the design of the monitoring system.48 It may be helpful for plaintiffs to retain expert consultants to design and/or review the monitoring system. Given the importance of the system and the weight that a court is likely to give to officially generated data, plaintiffs must ensure that the monitoring system is likely to function in the desired manner. To this end, it may be helpful to require the defendants to submit more frequent reports in the initial stages of implementation, both to confirm that the monitoring system is functioning and to assist the defendants in expediting any necessary performance improvements. In any event, the decree should specify the timing of steps in the monitoring process.

In addition to taking a role in the design of the system, plaintiffs should be able to obtain the court’s intervention if they believe that the monitoring system is operating deficiently. In some cases, having a designated decree monitor with authority to oversee the monitoring system and compliance with the decree may be appropriate. This may be an agency staff member or an outsider appointed by the court pursuant to its power under Federal Rule of Civil Procedure 53 to appoint masters.49 Such an outside entity may appear to be an attractive means to achieve compliance from a recalcitrant or inept defendant without enormous expenditure of resources by plaintiffs’ counsel.50 However, using outside monitors or masters (as opposed to designated agency staff) also has drawbacks. By definition, they are outside of the defendant’s ordinary processes and not likely to further the goal of self-regulation; they may interfere with, rather than facilitate, the plaintiffs’ access to information and to the court as they are technically agents of the court; and they can be effective only if they have adequate funding to do their job.  Given the extraordinary nature of an outside monitor, a court may be unwilling to impose one on a defendant in the initial stage of compliance and may wait until plaintiffs can show that such an intrusive remedy is justified.

9.2.C.9. Funding

In virtually all cases, the defendant’s ability to comply with the mandates of an institutional reform decree depends on having adequate funds. Executive officials alone do not control appropriations, and legislators are extremely unlikely to be parties to a decree.51 Thus, consider whether specifying what steps or types of actions the defendants must take to obtain sufficient appropriations is helpful. (Private parties may, of course, be required to provide the necessary funds.) For example, decree provisions requiring the defendant to seek appropriations for adequate staff within a particular time period may provide a concrete benchmark for a recalcitrant defendant. However, a provision that the executive use “best efforts” to obtain funding may be used as a defense if the legislature refuses to appropriate the funds, and may be viewed by a court as a limit on the court’s power to order any further relief.52 However, regardless of what the decree specifies, a court may be able only to order executive officials to use their best efforts to obtain necessary funds.53

9.2.C.10. Duration of the Decree

The parties can determine, through negotiations, whether an injunction is intended to be permanent. For example, a defendant may agree to be subject to a court order only for a specified period or until the vestiges of the illegal action are remedied. At the expiration of such a period, the decree may be vacated and the action dismissed. Obviously, it is preferable, if possible, to obtain a permanent injunction concerning the defendant’s overall legal obligations, even if other provisions in the decree, such as reporting to plaintiffs, expire after a designated time or achievement of specified events. As long as the decree specifies that it is a permanent order, the defendant has a very heavy burden to meet before the order may be vacated.

9.2.C.11. Retention of Jurisdiction

If the order is designated as a permanent injunction and signed by the court, a party to the original action (including a class member) may bring an enforcement action by filing an appropriate motion in the “old” case rather than by instituting a new action. Nonetheless, specifying that the court retains jurisdiction to ensure the court’s power to hear the enforcement action is necessary.54 The period during which the court retains jurisdiction should at least be commensurate with any required reporting.

9.2.C.12. Specifying Grounds for Modification

Not uncommonly, when settling institutional reform litigation, one or both of the parties will be concerned about the impact of a possible change in facts or law upon the efficacy or viability of the agreement. For example, in a due process notice case, plaintiffs may be willing to agree to a notice containing a certain level of factual detail based upon the defendant’s current computer system capabilities but may want to incorporate the right to a modification if future technological advances make it possible for the defendant to add information without undue financial or administrative burden. Similarly defendants may want to include language giving them the ability to modify the decree if legal requirements change. In addition, if there is uncertainty as to how a particular monitoring methodology may work, it may be helpful to state that modification be made in the system under certain circumstances.

If the language in a consent decree regarding modification, or similar agreement over which the court retains ongoing enforcement jurisdiction, is absent,55 the criteria set forth in Federal Rule of Civil Procedure 60(b) controls.56 In Rufo v. Inmates of Suffolk County Jail, the Court retreated from the previously strict standard of United States v. Swift and Co., which provided that “[n]othing less than a clear showing of grievous wrong evoked by new and unforeseen circumstances should lead us to change what was decreed after years of litigation with the consent of all concerned.”57 As for consent decrees in institutional reform litigation, the Rufo Court held that the “grievous wrong” standard was too strict and adopted a “more flexible” approach.58 Emphasizing that the public interest was a critical component in such litigation, the Court held that the “no longer equitable” standard of Rule 60(b)(5) permitted modification upon a showing of a significant change in the factual or legal circumstances that gave rise to the decree and a showing that the proposed modification was suitably tailored to the change of circumstances.59 Rufo did provide that anticipated changes in fact or law when the decree was entered into would not generally satisfy the “significant change in circumstances test.”60 Nevertheless, Rufo gives defendants, especially governmental defendants, some leeway.61 Defendants have substantially greater ability to modify or vacate consent decrees than they previously possessed.

9.2.C.13. Specifying Noncompliance Procedures and Remedies

While failing to identify the consequences of noncompliance may not hurt in the case of a formal consent decree because plaintiffs retain the full panoply of enforcement remedies, such specification may be critical in other contexts. Regardless of the form of settlement, specifying noncompliance remedies is often helpful in facilitating compliance. For example, when individual problems in the application of the decree are anticipated, particularly when they may involve lengthy factual disputes, such as in special education cases, specifying a hearing mechanism may be helpful. The hearing officer could be a court-appointed magistrate, a Rule 53 master,62 or a person or group designated by the parties.

The defendant will typically seek provisions that require plaintiffs to exhaust certain preliminary steps, such as discussions, before seeking court intervention. Plaintiffs are best advised to advocate that these steps be short and clear and that an exception for specified emergencies be included. A decree may specify that certain penalties, such as fines, will be imposed on the defendant in certain circumstances of noncompliance. The certainty of consequences for noncompliance before any contempt action should help achieve compliance. Such a provision could be the quid pro quo for the defendant’s obtaining a grace period to seek to achieve compliance. In many cases, only the actual imposition of a penalty, or the real prospect of it, rather than the speculative prospect of time-consuming contempt litigation, will prompt the effort necessary to achieve compliance.

9.2.C.14. Attorney's Fees

While obtaining a consent decree should be sufficient in itself to justify plaintiffs’ entitlement to fees, other forms of settlement may be more problematic after Buckhannon.63 Obtaining an agreement that plaintiffs are the prevailing party and entitled to specified fees is often possible and should be pursued. Such an agreement will likely avoid litigation over the issue and establish the right to a fee award.

If the parties cannot agree on fees, to avoid any problems of alleged waiver, plaintiffs should make clear in the consent decree or settlement that the issue of fees is outstanding. It should then specify the process by which the issue is to be resolved. Counsel should be careful about timing limits established by local rules.64

9.2.D. Construction of Consent Decrees

Despite the care taken in negotiating a consent decree, disputes may arise between the parties over its meaning in light of unanticipated circumstances. If the parties cannot resolve their differences through negotiation, they can request the court to construe the decree. In construing consent decrees, courts are guided by their dual nature as contracts and as judgments, but the interpretation is based on the contract law of the state in which it has evolved.65 Thus, if the court finds no ambiguity on the face of the decree, the court will not look beyond the “four corners” of the decree itself. 66 The consent decree "should be read to give effect to all of its provisions and to render them consistent with each other."67

To interpret the parties’ intent if there is ambiguity, the court may refer to extrinsic aids, such as

  • the negotiating history of the decree,68
  • any writings associated with the decree,69
  • events surrounding approval and entry of the decree,70 and
  • the conduct of the parties subsequent to entry of the decree.71

If no relevant extrinsic aids exist, the court may be guided by the spirit or purpose of the decree in construing ambiguous provisions.72 While a court must be mindful that the legal violations that plaintiffs alleged have ordinarily not been adjudicated, it may, nonetheless, look to the decree’s purpose in construing its terms.73 Of course, the court’s job is easier, and the court may be more willing to a take a broad view if the parties agree explicitly in the decree as to its purposes74 or if the decree follows a litigated determination of liability.75

9.2.E. Challenges to Consent Decrees

In Martin v. Wilks the Supreme Court held that a consent decree adjudicated only the rights of the parties to the decree.76 The Court, therefore, allowed those persons who were adversely affected by the operation of the decree to challenge actions taken pursuant to the decree even though they failed to intervene in the litigation from which the decree arose. Wilks was an employment discrimination case in which white employees, bringing a collateral attack on the consent decree, asserted that it discriminated against them in violation of Title VII. The white employees were aware of the original case and did not intervene. Nevertheless, the Supreme Court held that they were under no obligation to do so and were allowed collaterally to attack the decree.77 The Wilks decision relied heavily upon Federal Rules of Civil Procedure 19 and 24, which address joinder and intervention, respectively. While Wilks was legislatively overruled by the Civil Rights Act of 1991 with respect to Title VII actions, its analysis continues to be applicable in other contexts.78

The lesson to be learned from Wilks is that if a remedial decree will have a direct adverse effect on an identifiable group of individuals, counsel for plaintiffs should seriously consider joining those individuals or else risk a collateral attack. Because anticipating and joining as parties every individual potentially adversely affected by the operation of a proposed consent decree is not always possible, such decrees will sometimes be at risk of collateral attack.79 Nevertheless, a properly conducted Rule 23 fairness hearing establishing the evidentiary foundation for the claims may constitute some ammunition to fend off such a potential attack.  

Fed. R. Civ. P. 60(b)(5), which permits a court to relieve a party from a final judgment when it has been "satisfied, released or discharged" or when applying it prospectively is no longer "equitable," offers a mechanism for the setting aside of judgments. The Supreme Court's recent decision in Horne v. Flores80  made use of Rule 60(b)(5) easier for institutional defendants.  In 1992, parents of children in Arizona's English Language Learner program alleged that the program violated the Equal Education Opportunities Act of 1974 because, as a result of insufficient funding, it failed to provide students adequate English language instruction.  The district court agreed and entered a judgment for plaintiffs which was enforced several times thereafter.  In 2006, the Arizona legislature passed a bill increasing funding for the program. The House and Senate leaders then intervened and moved for relief from the judgment under Fed. R. Civ. P. 60(b)(5).  

Noting federalism concerns with federal institutional reform litigation against states,81 the Court held that Rule 60(b)(5) should be approached flexibly.82 Rather than focusing strictly on funding levels, whether those levels complied with the prior judgment, and noting the state's decision not to appeal the judgment, the Court held that the lower courts should have more broadly examined whether "changed circumstances" necessitated relief from the judgment. Here, federal and local educational reforms presented such circumstances and the Court held that the lower court should have evaluated whether the state remained in violation of the Act.

Updated 2013 by Anne Louise Blanchard

  • 1. Among the most recent, and potentially most significant, Supreme Court decisions upholding a structural injunction is Brown v. Plata, 131 S.Ct. 1910 (2011).  In Brown, the Court upheld a lower three-judge court's order that California reduce its prison population to 137.5% of design capacity and to develop a compliance plan within two years for court approval to implement that order
  • 2. Of course, a negotiated decree also minimizes the risk of adverse decision.
  • 3. This discussion is applicable to all defendants, but is particularly focused upon government defendants.
  • 4. See, e.g., Jane Perkins, Negotiating Consent Decrees That Work, 41 Clearinghouse Review 500, 501 (Jan.-Feb. 2008); Eric Rosand, Consent Decrees in Welfare Litigation: The Obstacles to Compliance, 28 Colum. J.L. & Soc. Probs. 83, 100-103 (1994) (discussing the advantages of settlements over full adjudication, such as increased efficiency, reduced uncertainty, creativity in remedial approaches, and improved standards for enforcement.); Lloyd C. Anderson, The Approval and Interpretation of Consent Decrees in Civil Rights Class Action Litigation, 1983 U. Ill. L. Rev. 579, 580 (advantages to consent decrees in civil rights class actions include the prospect that “structural reform can begin immediately and the likelihood of compliance is greater than if a coercive judicial decree is entered’’); Owen Fiss, The Supreme Court, 1978 Term Foreword: The Forms of Justice, 93 Harv. L. Rev. 1, 78 (1979) (stating that “[r]esolution of complex litigation through settlement enables the judge to avoid the difficult task of distilling and articulating detailed institutional standards from highly abstract constitutional or statutory principles and minimizes his involvement in the institution’s internal administrative detail”). For a dissenting view on the utility and legitimacy of consent decrees, see Ross Sandler and David Schoenbrod, From Status to Contract and Back Again, 27 Rev. Litig. 115 (Fall 2007).
  • 5.  Indeed, most decrees and similar orders are not easily accessible. Margo Schlanger, Against Secret Regulation: Why and How We Should End the Practical Obscurity of Injunctions and Consent Decrees, 59 DePaul Law Review 515 (2010).
  • 6. Some states require the governor or state legislature to approve the consent decrees. Perkins, supra note 41 at 502. See John V. Cardone, Substantive Standards and NEPA: Mitigating Environmental Consequences with Consent Decrees, 18 Boston College Environmental Affairs Law Review 159, 168 (1990) (discussing critique of consent decrees as binding on successive administrations and thus intruding on executive discretion); Robert V. Percival, The Bounds of Consent: Consent Decrees, Settlements and Federal Environmental Policy Making, 1987 University of Chicago Legal Forum 327, 337-38 (describing U.S. Department of Justice guidelines prohibiting settlement that interferes with future agency rule-making prerogatives, that commit to expenditure of funds that have not been budgeted, or that allow for judicial enforcement except by revival of underlying claims).
  • 7. Local 93, Int’l Ass’n of Firefighters v. City of Cleveland, 478 U.S. 501, 519 (1986) (quoting United States v. ITT Continental Baking, 420 U.S. 223, 235 (1975)); see Frew v. Hawkins, 540 U.S. 431, 437 (2004) (Clearinghouse No. 55,435); Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 378 (1992).
  • 8. Rufo, 502 U.S. at 378-79; Reynolds v. Roberts, 207 F.3d 1288, 1298, 1300 n.22 (11th Cir. 2000).
  • 9. United States v. Armour & Co., 402 U.S. 673, 681-83 (1971); ITT Continental Baking, 420 U.S. at 236; White v. NFL, 585 F.3d 1129, 1141 (8th Cir. 2009); Reynolds, 207 F.3d at 1300.
  • 10. Agrolinz Inc. v. Micro Flo Co., 202 F.3d 858, 861 (6th Cir. 2000); United States v. Sherwin-Williams, 165 F. Supp. 2d 797, 803-4 (C.D. Ill. 2001); 18A Charles A. Wright et al., Federal Practice and Procedure § 4443 at 262-64 (2d ed. 2002); Fleming James Jr., Consent Judgments as Collateral Estoppel, 108 University of Pennsylvania Law Review 173 (1959).
  • 11. Arizona v. California, 530 U.S. 392, 414 (2000); Wright et al., supra n. 47, § 4443 at 265-66. See Chapter 3 of this MANUAL for a more detailed discussion of preclusion law.
  • 12.  Buckhannon v. West Virginia Department of Health and Human Resources, 532 U.S. 598, 604 (2001) (Clearinghouse No. 53,373). The document need not be labeled a "consent decree," but must be the functional equivalent of one. Aronov v. Napolitano, 562 F.3d 84, 90 (1st Cir. 2009) (document should order relief, evaluate merits or contain provisions for enforcement), cert. denied, 130 S. Ct. 1137 (2010). See also Chapter 9.4 of this MANUAL regarding attorney fees.
  • 13. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375 (1994).
  • 14.  Id. at 378, 380.
  • 15. Id. at 381.
  • 16. Id. at 381-82. Most of the cases dealing with the nature, content and enforceability of the document concluding litigation are attorney's fees cases that decide whether the plaintiff is a "prevailing party." The cases generally turn on whether the document is analogous to a consent decree. See Bell v. Board of County Commissioners, 451 F.3d 1097, 1103 (10th Cir. 2006); but see Christina A. v. Bloomberg, 315 F.3d 990, 993 (8th Cir. 2003) (requiring a judgment on the merits or a consent decree). The key analogous feature is whether there is a judicially sanctioned change in the relationship between the parties. This change is reflected in dismissal orders which recite the terms of the agreement or orders permitting continued judicial oversight through the retention of jurisdiction. American Disability Association v. Chmielarz, 289 F.3d 1315, 1319-21 (11th Cir. 2002) (observing that either by adopting the terms of the settlement in the court order or by expressly retaining jurisdiction, parties obtain the functional equivalents of consent decrees) (later called into doubt by Anago Franchising Inc. v. Shaz LLC, 677 F.3d 1272 (11th Cir. 2012). For a case not involving attorney's fees discussing what should be in the stipulation of dismissal in order to retain federal jurisdiction over a claim for breach of an agreement, see Board of Trustees v. Madison Hotel, 97 F.3d 1479, 1486 (D.C. Cir. 1996) (parties should clearly provide for retention of federal jurisdiction or incorporate the full text of the agreement in that stipulation).
  • 17. Buckhannon, 532 U.S. at 604 n.7. While the Ninth Circuit initially suggested that this aspect of Buckhannon was dicta and not binding, see Barrios v. California Interscholastic Federation, 277 F.3d 1128, 1134-35 n.5 (9th Cir.), cert. denied, 537 U.S. 820. See Doe v. Boston Public Schools, 358 F.3d 20, 25 (1st Cir. 2004); see also Carbonell v. INS, 429 F.3d 894, 898-902 (9th Cir. 2005) (discussing requisite judicial imprimatur needed to convey prevailing party status). More recent decisions indicate that the Ninth Circuit has taken a minority view.
  • 18. Smalbein ex rel. Smalbein v. City of Daytona, 353 F.3d 901, 904-06 (11th Cir. 2003); Utility Automation 2000, Incorporated v. Choctawatchee Electric Cooperative, 298 F.3d 1238, 1248 (11th Cir. 2002); Rice Servs., Ltd. v. U.S., 59 Fed. Cl. 619, 622-23 (2004).
  • 19. Compare Perez v. Westchester County Department of Corrections, 587 F.3d 143, 152 (2d Cir. 2009) (order of dismissal incorporating terms of settlement without continuing enforcement authority is sufficient), and Roberson v. Giuliani, 346 F.3d 75, 82-83 (2d Cir. 2003) (holding that retention of enforcement jurisdiction is sufficient to confer “prevailing party” status); Christina A., 315 F.3d at 992-94 (neither retention of enforcement jurisdiction nor approval under Federal Rule of Civil Procedure 23 is sufficient).
  • 20.  See Chapter 9.4 of this MANUAL. See also Gill Deford, The Prevailing Winds After Buckhannon, 36 Clearinghouser Review 313 (Sept.-Oct. 2002).
  • 21. 9 Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure: § 2363 (3d ed. 2008); Marques v. Fed. Reserve Bank, 286 F.3d 1014, 1018 (7th Cir. 2002).
  • 22. Compare Metro-Goldwyn Mayer v. 007 Safety Prods., 183 F.3d 10, 14 (1st Cir. 1999) (where the stipulation expressly reserved jurisdiction over the terms of the settlement for sixty days), with Hester Indus. v. Tyson Foods, 160 F.3d 911, 913, 916 (2d Cir. 1998) (despite explicit settlement agreement provision that it was subject to enforcement by specific performance by the district court, where the stipulation of dismissal was immediately operative and did not provide for continuing jurisdiction, district court lacked power to enforce).
  • 23. If the stipulation is not signed by the judge, it will not constitute a “judicially sanctioned change in the legal relationship of the parties” as required by Buckhannon to justify a fee award. Buckhannon, 532 U.S. at 605.
  • 24. Such a provision may have implications regarding entitlement to fees. The possibility that the settlement could fall apart and the case proceed to trial makes any success that the plaintiff obtains somewhat uncertain and tentative.
  • 25. Buckhannon, 532 U.S. at 604-05 & n.7. If the case is certified as a class action, Rule 23(e) of the Federal Rules of Civil Procedure requires that the court must approve the settlement. Note that the 2003 amendments to Rule 23 eliminated the requirement of court approval of settlements in cases brought as class actions, but not certified as such.
  • 26. Many of these considerations would apply as well to a fully litigated case if plaintiff submitted a proposed order on relief to the court.
  • 27. Some of the following considerations are discussed in Anderson, supra n. 41, at 725, 729-37. See also Jim Rossi, Bargaining in the Shadow of Administrative Procedure: The Public Interest in Rulemaking Settlement, 51 Duke L. J. 1015,1015-58 (2001). This list is not exclusive; nor are all of the issues relevant in every case.
  • 28. See University of Michigan Law School, Civil Rights Litigation Clearinghouse, www.clearinghouse.net.
  • 29. If no class has been certified or described, there is no organizational plaintiff, and the claim of the plaintiff(s) becomes moot, the plaintiff may not be able to enforce the agreement. In Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 750 (1975), the Supreme Court held: "[A] well-settled line of authority from this Court establishes that a consent decree is not enforceable directly or in collateral proceedings by those who are not parties to it even though they were intended to be benefited by it."  Some circuits have interpreted Blue Chip Stamps narrowly, permitting third parties who were intended, rather than incidental, beneficiaries to enforce the decree, unless precluded to do so by the decree.  See United States v. FMC Corp., 531 F.3d 813, 820 (9th Cir. 2008) (collecting cases); Hook v. Ariz. Dep’t of Corr., 972 F.2d 1012, 1014-15 (9th Cir. 1992) (allowing non-parties who were intended beneficiaries of consent decree in uncertified class action to enforce decree) and Berger v. Heckler, 771 F.2d 1556, 1565-66 (2d Cir. 1985) (allowing original parties to enforce consent decree on behalf of non-parties whom it was intended to benefit). But see Aiken v. City of Memphis, 37 F.3d 1155, 1168 (6th Cir. 1994) (en banc); Rosen v. Tenn. Com’r of Fin., 288 F.3d 918, 930-31 (6th Cir. 2002) (holding that original parties to consent decree lacked standing to enforce provisions designed to protect the rights of third parties).  Thus, in additional to certifying the class in the order, the decree drafted should permit enforcement by third parties as well.
  • 30. Cooper v. Fed. Reserve Bank of Richmond, 467 U.S. 867, 874 (1984) (“a judgment in any properly maintained class action is binding on class members in any subsequent litigation”).
  • 31. See Navarro-Ayala v. Hernandez-Colon, 951 F.2d 1325, 1356 n.37 (1st Cir. 1991) (finding decree inapplicable to a mental health facility housing patients transferred from a public mental health institution, the original signatory to the decree); Newman v. Graddick, 740 F.2d 1513, 1517 (11th Cir. 1984) (commissioner of corrections lacked standing to challenge consent decree signed by previous commissioner and governor since he was a defendant in his official capacity pursuant to Rule25(d) of the Federal Rules of Civil Procedure); Cornelius v. Hogan, 663 F.2d 330, 332-33 (1st Cir. 1981) (court relied in part on “agents” language in consent decree to rule that commissioner of newly created agency taking over responsibility for some of covered services was bound by decree, where new commissioner was an agent of one of the defendants, the secretary of human services).
  • 32. See Doe v. Pataki, 481 F.3d 69 (2d Cir. 2007) (absence of language in decree precluding a legislative change led court to permit such change).
  • 33. Horne v. Flores, 129 S. Ct. 2579, 2593-95 (2009).
  • 34. Rufo, 502 U.S. at 384.
  • 35. Horne, 129 S. Ct. at 2597.
  • 36. Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984). Pennhurst is discussed in Chapter 8 of this MANUAL.
  • 37. Compare Saahir v. Estelle, 47 F.3d 758, 761 (5th Cir. 1995) (finding jurisdiction to enforce decree where no state laws are implicated) and Evans v. City of Chicago, 10 F.3d 474, 479 (7th Cir. 1993) ("the court must ensure that there is a substantial federal claim, not only when the decree is entered but also when it is enforced"), Lelsz v. Kavaugh, 807 F.2d 1243, 1251 (5th Cir. 1987) (vacating district court order enforcing portion of consent decree grounded on state law).  See Komyatti v. Bayh, 96 F.3d 955, 960 (7th Cir. 1995) (federal consent decree may incorporate state statute).
  • 38. See United States v. Atlantic Ref. Co., 360 U.S. 19, 23 (1959). A statement of goals, however, may help.
  • 39. See N.Y. State Ass’n for Retarded Children v. Carey, 596 F.2d 27, 32 (2d Cir.), cert. denied, 444 U.S. 836 (1979); Allen v. Alabama State Bd. of Educ., 190 F.R.D. 602, 605 (M.D. Ala. 2000).
  • 40. See, e.g., United States v. Boston Scientific Corp., 167 F. Supp. 2d 424, 434-35 (D. Mass. 2001) (finding that defendant violated the consent decree’s express requirement to license a product within ten days after the order became final); Ricci v. Okin, 537 F. Supp. 817, 820, 830 (D. Mass. 1982) (consent decree requirement that disputes over staffing levels be brought to the court demonstrated an intention that personnel reductions be implemented only after a careful analysis by the court of the clinical, educational, and other needs of the individual clients).
  • 41. Frew v. Hawkins, 540 U.S. 431 (2004).
  • 42. The state in Frew based its Eleventh Amendment argument on the principle established in Pennhurst State Sch. & Hosp., 465 U.S. at 106, that federal courts lack the authority to grant relief against state officials based upon alleged violations of state law. Frew, 540 U.S. at 439-40.
  • 43. Frew, 540 U.S. at 439. The Court did point out that the state’s remedy, if it believed that the continued operation of the decree as drafted was no longer equitable, was to move under Rule 60(b)(5) of the Federal Rules of Civil Procedure for modification. For a discussion of the standards governing modification of consent decrees, see infra at subsection 9.2.C.12.
  • 44. For example, defendants may wish to have procedures that plaintiffs would prefer them not to have, such as extensions of timeliness standards for verification delays, but plaintiffs may be willing to agree to a compromise as long as such procedures are promulgated as regulations. Such a process at least gives plaintiffs leverage over the content of the rules and makes arbitrary, informal standards impermissible.
  • 45. See, e.g., International Longshoremen’s Association v. Philadelphia Marine Trade Association, 389 U.S. 64, 76 (1967); United States v. Saccoccia, 433 F.3d. 19, 28-29 (1st Cir. 2005); Equal Employment Opportunity Commission v. American Telephone & Telegraph Company, 419 F. Supp. 1022, 1059 (E.D. Pa. 1976); Fed. R. Civ. P. 65(d). See Anderson, supra n. 41, at 730. Additional definitions of technical terms may, of course, be helpful.
  • 46. For example, the decree might specify data production in a particular format or on particular software that enables plaintiffs easily to generate reports or otherwise retrieve the information that they deem relevant.
  • 47. See, e.g., Hook v. Arizona, 120 F.3d 921, 926 (9th Cir. 1997); N.Y. State Ass’n for Retarded Children v. Carey, 631 F.2d 162 (2d Cir. 1980); Allen v. Board of Education, 190 F.R.D. 602, 609-20 (M.D. Ala. 2000); Goldsby v. Carnes, 429 F. Supp. 370, 374 (W.D. Mo. 1977); United States v. Wood, Wire & Metal Lathers Int’l Union, Local Union 46, 328 F. Supp. 429, 433 (S.D.N.Y. 1971). See Anderson, supra n. 41, at 735-36. Monitoring reports concluding that defendants are not in compliance with the decree can be used by plaintiffs to obtain an enforcement order from the court. See, e.g., Duran v. Elrod, 713 F.2d 292, 293 (7th Cir. 1983); LaShawn A. v. Fenty, 701 F. Supp. 2d 84 (D.D.C. 2010); Juan F. v. Rowland, 2000 U.S. Dist. LEXIS 19327, 2000 WL 33119474, at *1-4 (D. Conn. Dec. 22, 2000);  Suthrie v. Evans, 93 F.R.D. 390, 392 (S.D. Ga. 1981).
  • 48. Time spent by plaintiff’s counsel in negotiating and implementing consent decrees is reimbursable by defendants if the plaintiffs are otherwise entitled to fees in the action under 42 U.S.C. § 1988. See Maher v. Gagne, 448 U.S. 122 (1980) (plaintiffs who prevail through settlement rather than litigation may be awarded attorney fees under Section 1988, subject to Buckhannon constraints). With regard to postjudgment efforts, plaintiffs need only show that the time was reasonably spent, not that the time necessarily achieved specified results. Pennsylvania v. Del. Valley Citizens Council, 478 U.S. 546, 558-60 (1986); Prison Legal News v. Schwazeneggar, 608 F.3d 446, 451-52 (9th Cir. 2010); but see Alliance to End Repression v. City of Chicago, 356 F.3d 767, 772 (7th Cir. 2004).
  • 49. See, e.g., Corey H. v. Board of Education of the City of Chicago, 534 F.3d 683 (7th Cir. 2008) (monitor appointed to oversee compliance with decree under IDEA); Labor/Community Strategy Center v. Los Angeles County Metropolitan Transportation Authority, 263 F.3d 1041, 1049-50 (9th Cir. 2001) (upholding special master’s authority under consent decree to require the purchase of new buses under remedial plan); In re Pearson, 990 F.2d 653, 659 (1st Cir. 1993) (affirming district court’s appointment of special master to monitor a treatment center for sex offenders consistent with consent decree); Cronin v. Browner, 90 F. Supp. 2d 364, 377-78 (S.D.N.Y. 2000) (appointing special master to regulate cooling water intake structures pursuant to Rule 53(b) of the Federal Rules of Civil Procedure); New York State Association for Retarded Children v. Carey, 551 F. Supp. 1165, 1178-81 (E.D.N.Y. 1982), aff’d, 706 F.2d 956 (2d Cir. 1983) (appointing special master after defendants refused to fund review panel of experts provided for in consent decree); Armstrong v. Board of School Directors, 471 F. Supp. 800, 809-10 (E. D. Wis. 1979) (approving appointment of a five-member citizen monitoring board to ensure compliance), aff’d, 616 F.2d 305 (7th Cir. 1980). See generally Ellen E. Deason, Managing the Managerial Expert, 1998 U. Ill. L. Rev. 341 (1998). For case studies on the use of special masters in developing remedial programs in the school desegregation context, see David Kirp & Gary Babcock, Judge and Company: Court Appointed Masters, School Desegregation, and Institutional Reform, 32 Alab. L. Rev. 313 (1981); But cf. Brewster v. Dukakis, 687 F.2d 495 (1st Cir. 1982) (holding that the decree did not provide the monitor with the authority to resolve disagreement over the establishment of a broad legal services program for community-based mental patients).
  • 50. Defendants usually have to pay for Rule 53 appointments. See Reed v. Cleveland Board of Education, 607 F.2d 737, 743 (6th Cir. 1979); Newman v. Alabama, 559 F.2d 283, 290 (5th Cir. 1977); St. Martin v. Mobil Exploration & Producing U.S., 2002 WL 1933720, *1 (E.D. La. Aug. 21, 2002); Woodson v. Sully, 801 F. Supp. 466, 471 (D. Kan. 1992); Toussaint v. McCarthy, 597 F. Supp. 1388, 1388, 1419 (N.D. Cal. 1984), reversed in part by 801 F.2d 1080 (9th Cir. 1986); Halderman v. Pennhurst State School & Hospital, 533 F. Supp. 631 (E.D. Pa. 1981), aff’d, 673 F.2d 628 (3d Cir. 1982), cert. denied, 465 U.S. 1038 (1984); Valentine v. Englehardt, 474 F. Supp. 294, 304 (D.N.J. 1979). But see Atlantic Richfield Company v. American Airlines Incorporated, 98 F.3d 564, 571-72 (10th Cir. 1996) (affirming the equal division of costs of special master to assist in settlement negotiation because both sides benefited from his services).
  • 51. State and federal legislators are generally absolutely immune from suit concerning their official duties; this immunity does not apply to the same extent to lesser legislative-type officials such as county commissioners. See Chapter 8 of this MANUAL. Courts may seek to obtain the cooperation of key legislators by having them attend certain court hearings. See Ricci, 537 F. Supp. at 820-21.
  • 52. See, e.g., San Francisco Nat’l Ass’n for the Advancement of Colored People v. San Francisco Unified Sch. Dist., 896 F.2d 412, 413-16 (9th Cir. 1990) (declining to extend consent decree to require state to reimburse costs incurred in carrying out desegregation plan where state legislature reduced reimbursement funds after the decree was entered into); Brewster v. Dukakis, 675 F.2d 1 (1st Cir. 1982); N.Y. State Ass’n for Retarded Children, 631 F.2d at 164.
  • 53. See James M. Hirschhorn, Where the Money Is: Remedies to Finance Compliance with Strict Structural Injunctions, 82 Mich. L. Rev. 1815 (1984), for an excellent discussion of the situations in which a federal court may require executive official defendants to do more than just use best efforts to fund remedial decrees. In Missouri v. Jenkins, 495 U.S. 33, 51, 55-56 (1990), the Supreme Court, while holding that the trial court exceeded its equitable powers in imposing a tax increase on a locality to fund a school desegregation decree, did uphold an order requiring the local officials to levy a tax increase sufficient to fund the decree. See also Wyatt ex rel. Rawlins v. Sawyer, 105 F. Supp. 2d 1234, 1248 (M.D. Ala. 2000) (validating governor’s duty to use “best efforts” to secure funding to fulfill consent decree provisions).
  • 54. Especially if the settlement does not constitute a formal consent decree, retention of enforcement jurisdiction may be critical. Kokkonen, 511 U.S. at 381. See discussion in Chapter 9.2.B. of this MANUAL.
  • 55. In the event of a settlement agreement over which the court has no enforcement authority after Kokonnen, traditional contract law regarding modifications apparently would control, and the party seeking such a modification or alleging a breach would have to file an independent action, most likely in state court, to seek such relief.
  • 56. Rufo, 502 U.S. at 378.
  • 57. Id.; United States v. Swift & Company, 286 U.S. 106, 119 (1932).
  • 58. Rufo, 502 U.S. at 381, 393. See Horne v. Flores, 129 S. Ct. 2579, 2593-95.
  • 59. Id. at 383, 393.
  • 60. Id. at 385, 388.
  • 61.  Rufo was specifically limited to institutional reform litigation. Whether the more liberalized standard that it announced applies in other contexts is not definitively established. Jed Goldfarb, Keeping Rufo in Its Cell: The Modification of Antitrust Consent Decrees fter Rufo v. Inmates of Suffolk County Jail, 72 New York University Law Review 625, 640-44 (1997) (collecting cases demonstrating split among circuits on this issue); In re Midlands Utility, 253 B.R. 683, 689-90 (Bankr. D.S.C. 2000) (collecting cases on both sides of issue and applying Rufo in the noninstitutional context).
  • 62.  See, e.g., Halderman v. Pennhurst State Sch. & Hosp., 526 F. Supp. 428 (E.D. Pa. 1981) (special master authorized to review and approve treatment plan for each child).
  • 63. See Chapter 9.4 of this MANUAL.
  • 64. Counsel also should ensure the court has jurisdiction over the underlying case if the settlement does not include fees, as the parties cannot confer jurisdiction on the court via a settlement agreement. See W.G. v. Senatore, 18 F.3d 60 (2d Cir. 1994).
  • 65. See Wicker v. Oregon, 543 F.3d 1168, 1174 (9th Cir. 2008); Segar v. Mukasey, 508 F.3d 16, 21-22 (D.C. Cir. 2007); Local No. 93, Int’l Ass’n of Firefighters v. City of Cleveland, 478 U.S. 501 (1986).
  • 66. See United States v. Armour & Co., 402 U.S. 673, 682 (1971); Langton v. Hogan, 71 F.3d 930, 937-38 (1st Cir. 1995); San Francisco NAACP, 896 F.2d at 413; Roberts v. St. Regis Paper Co., 653 F.2d 166, 171 (5th Cir. 1981). Even where the decree appears clear on its face, a court may find it ambiguous in light of changed circumstances. Cornelius, 663 F.2d at 333; Escalera v. N.Y. Hous. Auth., 924 F. Supp. 1323, 1339-41 (S.D.N.Y. 1996) (relaxing procedural eviction safeguards under twenty-five year old consent decree due to increased drug trafficking in building). But see Marlowe v. Bottarelli, 938 F.2d 807, 812-13 (7th Cir. 1991); White v. Roughton, 689 F.2d 118, 120 (7th Cir. 1982) (disregarding unambiguous language when it clearly contradicts the intent of the parties).
  • 67. Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 63 (1995).
  • 68. See, e.g., In re Holocaust Victim Assets Litig., 282 F.3d 103, 111 (2d Cir. 2002); Sportmart Inc. v. Wolverine World Wide Inc., 601 F.2d 313, 318 (7th Cir. 1979).
  • 69. See, e.g., United States v. ITT Cont’l Baking Co., 420 U.S. 223, 237 (1975) (appendix to decree); Holocaust Litig., 282 F.3d at 111; N.Y. Ass’n for Retarded Children, 631 F.2d at 163 (same); Reynolds v. Ala. DOT, 1996 U.S. Dist. LEXIS 10691, at *8, 1996 WL 420834 (M.D. Ala. Apr. 23, 1996) (notice to the plaintiff class regarding the contents of the consent decree).
  • 70. See, e.g., Goluba v. Sch. Dist., 45 F.3d 1035, 1038-39 (7th Cir. 1995) (the jurisprudence of religious clause cases and a then recent Supreme Court decision informed the contents of the consent decree); Armstrong v. Bd. of Sch. Directors, 616 F.2d 305, 310 (7th Cir. 1980) (parties’ statements at settlement hearing).
  • 71. See, e.g., Wicker v. Oregon, 543 F.3d 1168, 1176-77 (9th Cir. 2008); ICC v. Holmes Transp., 983 F.2d 1122, 1127 n. 5 (1st Cir. 1993) (representations made in a negotiation subsequent to the consent decree); Sanchez v. Maher, 560 F.2d 1105, 1107-09 (2d Cir. 1977) (letter of defendant welfare official).
  • 72. See I.T.T. Cont’l Baking Co., 420 U.S. at 223. While the Court paid lip service to the “four corners” rule of Armour, it was clearly moving to a broader standard of construction in light of the nature of a consent decree as both a negotiated “contract” and a judicial order.
  • 73. Numerous courts come to this conclusion, regardless of the words they use to formulate the contract versus judgment tension. See, e.g., United States v. O'Rourke, 943 F.2d 180 (2d Cir. 1991); N.Y. State Ass’n for Retarded Children, 596 F.2d at 37-38; Sanchez, 560 F.2d at 1108-09; Mass. Ass’n for Retarded Citizens v. King, 668 F.2d 602, 607-8 (1st Cir. 1981); Sarabia v. Toledo Police Patrolman’s Ass’n, 601 F.2d 914, 918 (6th Cir. 1979); Hammon v. Kelly, 845 F. Supp. 6 (D.D.C. 1993). See also Anderson, supra n. 41.
  • 74. See, e.g., Equal Employment Opportunity Comm’n v. Local Union No. 3, 416 F. Supp. 728, 732-33 (N.D. Cal. 1975).
  • 75. See, e.g., Cornelius, 633 F.2d at 330.
  • 76. Martin v. Wilks, 490 U.S. 755, 761-62 (1989) (superseded by statute (in the civil rights context), Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1074).
  • 77. Id. at 762-65.
  • 78. Civil Rights Act of 1991, 42 U.S.C. § 2000e-2(n).
  • 79. See Wilson v. Minor, 220 F.3d 1297, 1302 n.10 (11th Cir. 2000) (explaining that the Civil Rights Act of 1991 did not curtail the applicability of Wilks to Voting Rights Act violations); United States v. City of New York, 198 F.3d 360, 366 (2d Cir. 1999) (noting that the Civil Rights Act of 1991 eroded Wilks only in the narrow context of employment discrimination claims and did not affect environmental claims). The reasoning of Wilks applies equally to a fully litigated judgment entered by the court.
  • 80. Horne v. Flores, 129 S.Ct. 2579 (2009). Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367 (1992) was also a Rule 60(b)(5) case.
  • 81. Horne, 129 S.Ct. at 2593,
  • 82.  Id. at 2594-95.