Case Information
*1 United States Court of Appeals
For the First Circuit
Nos. 13-1546
13-1604
13-1610
JEFFREY M. HEALEY; EDWARD GIVEN, Plaintiffs - Appellees/Cross-Appellants, JOEL PENTLARGE,
Plaintiff,
v. LUIS S. SPENCER, in his official capacity as
Commissioner of Correction; MASSACHUSETTS DEPARTMENT OF CORRECTION; MICHAEL CORSINI, in his official capacity as the Superintendent of the Massachusetts Treatment Center, Defendants - Appellants/Cross-Appellees, NATAYLIA PUSHKINA; DEBORAH O’DONNELL, Defendants.
APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS [Hon. Patti B. Saris, U.S. District Judge]
Before
Torruella and Selya, Circuit Judges, McAuliffe, [*] District Judge.
Mary P. Murray , Supervising Counsel, with whom Nancy Ankers *2 White, Special Assistant Attorney General, and Brendan J. Frigault, Counsel, Massachusetts Treatment Center, were on brief, for appellants/cross-appellees. John A. Houlihan, for appellee Healey, and Harry L. Miles, for
appellee Given, with whom Hilary B. Dudley, Scott R. Magee, Kevin Kam, Edwards Wildman Palmer LLP, Green, Miles, Lipton, LLP, Eric Tennen, and Swomley & Tennen, LLP, were on brief, for appellees/cross-appellants. August 26, 2014
*3
McAULIFFE, District Judge . Jeffrey Healey and Edward Given reside in the Massachusetts Treatment Center in Bridgewater, Massachusetts (the Treatment Center or Center). Each has been civilly committed as a sexually dangerous person (SDP). In separate suits, Healey and Given challenged the adequacy of sex offender treatment provided by the Center as well as the conditions of their confinement. They sought equitable relief against the Massachusetts Department of Corrections, as well as the Commissioner of Correction and the Superintendent of the Treatment Center, in their official capacities (hereinafter referred to collectively as DOC). The cases were consolidated.
Healey and Given alleged violations of the Constitution and state statutory provisions. Healey also alleged that the DOC was not in compliance with the terms of its plan for the management of the Treatment Center — a management plan the DOC developed during the course of prior litigation. Following a trial on the merits, the district court entered a final order granting plaintiffs declaratory and injunctive relief on some claims, but entered judgment in favor of the defendants on the remaining claims. Both sides appeal from the district court’s final judgment. We affirm in part and reverse in part.
I. Background
Massachusetts law provides for the involuntary civil commitment of persons found to be sexually dangerous. Mass. Gen. Laws ch. 123A, § 1 et seq. Under Section 2 of the civil commitment statute, sexually dangerous persons may be placed in the Treatment Center, for “care, custody, treatment and rehabilitation.” Id. § 2. Operational control of the Center is vested in the DOC. Id. Each resident of the Center is permitted, by Section 9 of the statute, to annually petition the Massachusetts Superior Court for an examination and determination of whether he or she remains sexually dangerous. Id. § 9.
An earlier version of the statute provided for shared
control of the Treatment Center by the DOC and the Massachusetts
Department of Mental Health (DMH). In 1972, Treatment Center
residents brought two lawsuits seeking to rectify a broad array of
appalling conditions, as well as inadequacies in treatment, work
opportunities, and avocational and educational activities at the
Center. See King v. Greenblatt (King I),
In 1974, the district court entered two remedial consent
decrees in King and one in Williams, the parties having agreed that
the then prevailing conditions warranted judicial relief. See King
III,
The Original Decree provided that “patients at the Treatment Center should have the least restrictive conditions necessary to achieve the purposes of commitment.” King II, 149 F.3d at 15 (internal quotation marks omitted). That provision, we noted in King II, was the Original Decree’s “substantive essence.” Id. The decree’s more specific provisions required DMH and DOC to “take steps jointly to improve physical conditions, implement a meaningful work program, and have a system of differing security for different categories of patients . . . to permit less restrictive conditions for those patients not requiring maximum security.” King III, 53 F. Supp. 2d at 120 (internal quotation marks omitted). Defendants were also required “to submit a plan for therapeutic, educational, vocational, and avocational programs at the Treatment Center,” as well as for the short-term release of residents into the community. [2] Id. The Supplemental Decree prohibited the placement of Treatment Center residents into solitary confinement as punishment or for disciplinary purposes, and required all sequestration to meet “minimum standards of due *7 process” and “human decency.” Id. (internal quotation marks omitted).
The decrees considered the Center a mental health facility, with primary responsibility over residents and their treatment vested in the Department of Mental Health. The Department of Corrections, on the other hand, was responsible for providing a secure setting. The DOC was expected to work collaboratively with DMH to carry out the decrees’ requirements. Id. at 119-20. The joint governance framework embodied in the decrees mimicked the division of control described in the statute, as it then existed.
For nearly two decades after entry of the consent
decrees, “[t]he stream of [enforcement] litigation occasionally
overflowed the district court,” Pearson,
Finding that the proffered Plan met the “goals of
treatment and security and protection of residents’ rights,” the
district court modified the outstanding decrees to reflect DOC’s
sole responsibility for the Treatment Center’s operation. Id. at
122. The Original Decree’s provisions governing the allocation of
state agency responsibility were modified, and the Supplemental
Decree’s “general proscription of disciplinary and punishment
procedures” was stricken, with solitary confinement “link[ed] . . .
to the offense underlying the original commitment of the
individual.” King II, 149 F.3d at 19. The Commonwealth’s
alternative request — for outright vacation of the decrees — was
denied, but without prejudice to its renewing that request after
one year. King III,
In several related appeals from the district court’s
modification orders, this Court determined that the modifications
passed muster under Rufo v. Inmates of Suffolk Cnty. Jail, 502 U.S.
*9
367 (1992). See King II, 149 F.3d at 19, 22. Rufo requires
institutional consent decree modifications to be grounded on a
“‘significant change’ in either factual conditions or in law” and
“‘suitably tailored to the changed circumstance.’” King I, 52 F.3d
at 4 (quoting Rufo, 502 U.S. at 383). We held that the state
statutory amendment constituted a significant change in law
impacting the Original Decree’s terms regarding the division of
control between DMH and DOC, id. at 6, and that factual
circumstances had changed sufficiently to warrant modification of
the Supplemental Decree’s “general proscription of disciplinary and
punishment procedures.” King II,
Addressing Rufo’s second prong, we anticipatorily scrutinized the DOC’s Plan, id. at 15, and determined, based on that review, that the change in Treatment Center governance did not “appear likely to undermine the Original Decree or to violate the Constitution.” Id. at 19. Importantly, in making that determination, we emphasized that the Plan itself did not constitute a modification of the Original Decree, but represented, instead, the “ways in which DOC aspire[d] to fulfill the requirements of the Original Decree.” Id. at 15. Just as the “policies and practices that [had] been relied on in the past by DMH” constituted that agency’s response to its obligation under the decree “to achieve effective treatment under the least restrictive conditions,” the Plan represented the DOC’s own proposed means of *10 achieving the same goal. Id. We also held, upon review of the Plan’s provisions regarding “clinical treatment programs and procedural safeguards,” and its specifications for a disciplinary system, that the modifications to the Supplemental Decree were suitably tailored to the changed circumstances. Id. at 22.
Within a year of this Court’s decision in King II, the
Commonwealth again filed a motion to vacate or, in the alternative,
to terminate the consent decrees. King III,
In a thorough decision, the district court (Mazzone, J.)
correctly identified and applied the relevant legal standards, as
described in Bd. of Educ. v. Dowell,
In a preface to his findings, Judge Mazzone acknowledged that “there may be issues arising out of the administration of the Plan in the future if DOC becomes indifferent to its responsibilities both under the statute and the Plan to keep residents separate and apart from inmates.” Id. at 136. He suggested that, “[i]f ignored, the Plan will simply replace the consent decrees as the basis of future complaints and the parties will be destined for a future generation of litigation.” Id. He found, nevertheless, that “the Commonwealth has sustained its burden of demonstrating” that the preconditions to termination of the decrees had been met and specifically concluded that “these consent decrees should be terminated.” Id.
In an epilogue to his findings, Judge Mazzone offered the following commentary which, for comprehensiveness and context, we repeat in its entirety:
I believe the Management Plan is an enforceable operating document that recognizes the improvements made as a result of the consent decrees over the years and acknowledges DOC's responsibilities to manage the Treatment Center accordingly.
I recognize that residents will
continue to voice their complaints about the
circumstances of their existence at the
Treatment Center. This decision does not
preclude them from challenging events on the
basis of constitutional or other protected
rights. In the first place,
residents may
bring an action to enforce the terms of the
existing Plan.
Moreover, as the First Circuit
stated in affirming a district court's
decision to terminate another consent decree,
plaintiffs remain “free to initiate a new
round of proceedings designed to show that
post-termination conditions actually do
violate their federally protected rights.”
Rouse,
Id. at 137 (emphasis added).
Two years after the consent decrees were terminated, Healey brought this suit challenging both the conditions of his confinement at the Treatment Center and the adequacy of his sexual offender treatment. In 2005, Healey’s case was consolidated with a similar suit in which Given was later joined as plaintiff. [4] Both Healey and Given alleged violations of various constitutional rights. Healey also alleged that the DOC was in violation of numerous provisions of the Plan. Arguing that the Plan constitutes a settlement agreement, Healey alleged a breach of contract by the DOC and, contending that the Plan amounts to an enforceable court *13 order, he alleged that Plan violations can be remedied in the context of contempt proceedings. Both Healey and Given sought permanent injunctive relief on their own behalf; no class was certified.
The district court (Gertner, J.) determined that the Plan was not properly construed as an enforceable settlement agreement. But, relying on Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 380-81 (1994), it held that the Plan was enforceable as a court order. Under Kokkonen , a federal court retains subject matter jurisdiction to enforce a settlement agreement if the dismissal order incorporates the terms of the agreement or if the court retains jurisdiction to enforce it. Id. at 381. The district court determined that Judge Mazzone had “effectively incorporated the Plan into [his] order allowing the termination of the consent decrees,” such that the Plan acquired the character of a court order over which the court retained continuing jurisdiction to enforce. Central to the district court’s reasoning was its apparent conclusion that Judge Mazzone’s termination of the consent decrees was conditional on the Plan’s having attained the status of an enforceable injunctive order. [5]
*14 After additional dispositive rulings, Judge Gertner presided over a ten-day bench trial on the remaining claims, which included Healey and Given’s claims that the DOC’s failure to provide adequate treatment violated their Fourteenth Amendment substantive due process rights; claims for violations of several other constitutional provisions; and Healey’s claim that the DOC was in violation of numerous Plan requirements. While post-trial mediation proceedings were being conducted, Judge Gertner retired. The case was reassigned to Chief Judge Saris who presided over a second, shorter, trial. See Fed. R. Civ. P. 63 (describing the procedure when one judge replaces another before the completion of a trial). After the second trial, Chief Judge Saris issued a Memorandum and Order and Final Judgment and Order.
The district court entered judgment for the DOC on most
of Healey’s claims, but ruled that the DOC violated some of its
obligations under the Plan, as well as Healey’s substantive due
process rights, by failing to provide adequate pharmacological
evaluation and treatment. Healey,
The district court ordered the DOC to “have Healey and Given evaluated by a qualified psychiatrist and, if appropriate, provide them pharmacological treatment.” Id. at *47. The district court declined to afford injunctive relief to Healey with respect to his CAP claim, because his “persistent behavioral problems” rendered him ineligible for the program. Id. at *46. The court, did, however, enter a broad injunction requiring the DOC to “meet the requirements of the Amended Management Plan in all material respects.” Id. at *47.
The DOC appeals the declaratory judgment in favor of Healey on his claim that it violated its obligations under the Plan and failed to provide adequate pharmacological evaluation and treatment. The DOC also challenges the district court’s injunction to the extent it recognizes the Plan as an enforceable court order, and requires compliance with its provisions. For his part, Healey also appeals from the injunction compelling DOC’s compliance with the Plan, arguing that the district court should have required more, and erred in not finding additional Plan violations. Healey and Given both challenge the district court’s determinations that the DOC, in several respects, did not violate their constitutional rights, including its determination that the DOC’s failure to provide a functioning Community Access Program does not violate *16 their constitutional right to due process. Neither side has challenged the district court's determination that the Constitution requires the defendants to offer the plaintiffs adequate pharmacological evaluation and treatment.
II. Standard of Review
We review the district court’s grant of permanent
injunctive relief for abuse of discretion. Asociacion de Educacion
Privada de P.R., Inc. v. Garcia-Padilla,
III. Discussion
To issue a permanent injunction, the district court must
find that: “(1) plaintiffs prevail on the merits; (2) plaintiffs
would suffer irreparable injury in the absence of injunctive
relief; (3) the harm to plaintiffs would outweigh the harm the
defendant would suffer from the imposition of an injunction; and
(4) the public interest would not be adversely affected by an
injunction.” Garcia-Padilla,
Although the parties devote considerable attention to the element of irreparable harm, this case can be resolved by answering two basic questions that relate to the merits. The first question is whether the Plan is an enforceable court order. That question, which we answer in the negative, is necessary to Healey’s contempt claim and central to both the DOC’s accountability for its failure to follow Plan provisions and Healey’s claim that the district court did not do enough to enforce the Plan. The second question, broadly speaking, is whether, as Healey and Given argue, the district court erred in not finding additional constitutional violations.
A. Plan Violations
The district court’s construction of the Plan as,
effectively, an enforceable court order, is in error. An order
enforceable on pain of contempt, as the district court construed
the Plan to be, is an injunction. See Int’l Longshoremen’s Ass’n,
Local 1291 v. Philadelphia Marine Trade Ass’n, 389 U.S. 64, 75
(1967) (“[A]n equitable decree compelling obedience under the
threat of contempt . . . [is] an ‘order granting an injunction.’”)
(quoting Fed. R. Civ. P. 65(d)). The Plan, however, was clearly
not offered as a proposed decree meant to be substituted for the
existing consent decrees that were being terminated. Indeed, the
Plan was never entered as an order, and certainly not an order that
was consistent with the requirements of Fed. R. Civ. P. 65(d).
[6]
Moreover, Judge Mazzone did not, either expressly or impliedly,
condition termination of the existing consent decrees on the Plan’s
status as an enforceable injunction, as plaintiffs contend.
*19
In his final decision, Judge Mazzone commented pointedly
and forcefully about his hope for, and expectations of, the Plan.
His comments, upon which Given and Healey heavily rely, that “I
believe the Plan is an enforceable operating document” and that
“[i]n the first place, residents may bring an action to enforce the
terms of the existing plan,” are at best ambiguous in context. But
even broadly construed, these passing comments simply cannot
provide the necessary positive command of an order “compelling
obedience under the threat of contempt,” particularly when they
were made in the course and context of terminating consent decrees
that mandated essentially identical legal obligations. Int’l
Longshoreman’s Ass’n,
The critical point, however, is that Judge Mazzone did
precisely what he intended to do — we perceive no misstep on his
part. The highly respected judge was fully capable and
experienced; he knew how to issue an injunction and how to make it
stick. Viewing his decision in the full context of this decades-
old litigation, it is plain to us that Judge Mazzone dissolved the
existing consent decrees, while simultaneously exhorting the DOC
not to regress, to continue to implement the Plan as the right
thing to do, and to recognize that failure to maintain the then-
*20
acceptable conditions would surely result in yet additional costly,
disruptive, and likely successful litigation. As judicial
oversight of the DOC’s operation of the Treatment Center came to an
end, the judge’s comments were meant to counsel, not dictate.
Acknowledging federalism’s demand that judicial oversight not
continue in perpetuity, Judge Mazzone considered the record
evidence, applied the proper legal standards, and correctly
concluded that the time had arrived to terminate judicial
supervision. King III ,
The Plan was important, of course. It supplied the assurance of continuing constitutionally acceptable conditions necessary to support the court’s termination of the decrees. Because the unconstitutional conditions had been remedied, assurances of future adequacy had been given and found credible, and the consent decrees had outlived their usefulness, the judge’s path to termination was well-marked. See Freeman v. Pitts, 503 U.S. 467, 489 (1992) (“We have said that the court’s end purpose must be to remedy the violation and, in addition, to restore state and local authorities to the control of a school system that is operating in compliance with the Constitution.”)
The Plan cannot plausibly be characterized as a
replacement consent decree. A consent decree is both a settlement
*21
and an injunction. Aronov v. Napolitano,
The Supreme Court also has cautioned that a district
court must be explicit if it wishes to retain jurisdiction to
enforce the terms of a settlement agreement by, for example,
incorporating the terms of the settlement agreement into its final
order. See Kokkonen,
All of this is not to say that Judge Mazzone’s comments
about the Plan’s role as an operating document served no purpose.
The end of judicial oversight in institutional reform cases often
*22
brings with it appropriate judicial warnings cautioning defendants
to avoid future repetition of past violations. It seems to us that
Judge Mazzone’s comments fell comfortably within that commendable
tradition. See, e.g., People Who Care v. Rockford Bd. of Educ.
Sch. Dist. 205,
Healey argues, in the alternative, that even if the Plan is not the equivalent of an enforceable order, still, the DOC should be judicially estopped from denying its enforceability. He says that the position the DOC currently takes — that it is not judicially bound by the Plan — is inconsistent with litigation positions it has taken in the past. The argument is not persuasive.
“‘[T]he doctrine of judicial estoppel prevents a litigant
from pressing a claim that is inconsistent with a position taken by
that litigant either in a prior legal proceeding or in an earlier
phase of the same legal proceeding.’” Alt. Sys. Concepts, Inc. v.
Synopsys, Inc., 374 F.3d 23, 32-33 (1st Cir. 2004) (quoting
InterGen N.V. v. Grina,
Healey identifies two prior DOC positions that, he says, directly contradict the DOC’s current position. He points first to the fact that the DOC presented the Plan to the King III court, as its then current and future strategy for running the Treatment Center, in support of its motions to modify and terminate the consent decrees. Healey implies (but does not argue explicitly) that, by doing so, the DOC represented to the court that it was undertaking the obligation, under pain of contempt, to implement the Plan, presumably indefinitely into the future. Healey also contends that, following termination of the decrees in 1999, the DOC repeatedly put forth arguments, including in this case, that hinge on Treatment Center residents being bound by the Plan. Although the DOC purportedly took that position “repeatedly,” Healey gives only one such example. In the district court, the DOC moved to dismiss the constitutional claims. It argued that those claims are barred by res judicata on grounds that Judge Mazzone had implicitly found that the Plan did not violate any state or federal rights.
The minimum prerequisites for judicial estoppel have not been met here. The DOC’s prior positions are not “directly inconsistent” with the position it takes now. As we have already *25 noted, at the consent decree modification stage in King III the Plan served the evidentiary purpose of providing assurance to the court that the shift to sole control of the Center by the DOC would not undermine the decrees’ provisions. At the decree termination stage, the DOC, like most defendants seeking release from institutional reform decrees, did not commit to follow its Plan indefinitely under threat of contempt, but instead offered the Plan as evidence of compliance with its outstanding legal obligations, and as assurance that it was unlikely to revert to its old unconstitutional ways once the decrees were lifted.
The DOC’s res judicata argument in the court below is, likewise, not directly contradictory to its position here. The argument that Treatment Center residents are bound by (purported) judicial determinations regarding the Plan’s constitutionality is not inconsistent with a subsequent position that the DOC is not bound, on pain of contempt, to follow the Plan. The two positions relate to very different issues and are obviously not mutually exclusive.
For these reasons, we hold that the Plan is not, and was
not meant by Judge Mazzone to be, an enforceable court order.
Healey is not, therefore, entitled to declaratory or injunctive
relief based on Plan violations. We, necessarily, reverse the
district court’s declaratory judgment in favor of Healey on his
claim that DOC is in contempt of court for failing to comply with
*26
provisions of the Plan. We also necessarily reverse the district
court’s affirmative injunction requiring DOC to “meet the
requirements of the Amended Management Plan in all material
respects.” Healey,
B. Constitutional Violations
Healey and Given also challenge the district court’s determination that conditions at the Center (other than inadequate pharmacological treatment) do not violate their due process rights under the Fourteenth Amendment. We find no error.
Civilly committed sexually dangerous persons are entitled
to conditions of confinement that comport with minimum Fourteenth
Amendment due process standards. Cote v. Murphy,
When
challenging
the
treatment
provided
as
constitutionally inadequate, civilly committed persons must show
that “the defendant failed to exercise a reasonable professional
judgment.” Battista v. Clarke,
The district court thoroughly reviewed the DOC’s sex
offender treatment program. It examined the qualifications of
professionals involved in developing the program, the steps taken
by those professionals to keep the program current with evolving
practices in the field, and the DOC’s implementation of the
program. It found that the treatment program is based on
“considerable research in the field,” Healey,
We have recognized that the DOC confronts “legitimate
security concerns,” Langton v. Johnston,
The district court did find that there is no functioning
community access program at the Treatment Center in contravention
*29
of applicable state law and the Plan. But it also determined,
correctly, that such a program is not constitutionally required.
The district court pointed out that plaintiffs “submitted no expert
testimony or professional standards stating that civilly committed
sex offenders must have a community access program,” and that they
had not “explained why a meaningful treatment program using the
. . . model of therapy” employed at the Center, “combined with the
section 9 release process is not constitutionally sufficient.”
Healey ,
Healey and Given do not challenge the district court’s factual findings, but argue that it failed to consider conditions at the Treatment Center in combination. They point to conditions which, they say, when considered as a whole, create an environment that is not reasonably related to the purposes of commitment, especially rehabilitation (i.e., the lack of a treatment program “calculated to ready Residents for release into the community within a reasonable time”; the absence of a meaningful community access program; and a punitive level of security).
In assessing prevailing conditions at the Treatment Center, the district court applied the relevant due process standards and accorded appropriate deference to administrators with respect to safety issues. After visiting the Treatment Center and thoroughly reviewing the relevant evidence, the district judge concluded that, with the exception of inadequate pharmacological *30 treatment, conditions at the Center do not violate Healey or Given’s substantive due process rights.
The court reviewed aspects of the physical conditions of confinement at the Center and found that, among other things, the DOC’s telephone restrictions, property restrictions, use of shackles when transporting residents outside the Center, elimination of room visits, and system of privileges all address legitimate security concerns. It concluded, therefore, that those conditions, either alone or in combination, do not violate residents’ rights to due process.
Having thoroughly reviewed the district court’s decision and the pertinent record, we discern no error. The district court recognized and correctly applied the relevant legal standards, and it expressly acknowledged that “[a]lthough . . . conditions may not state a due process claim when considered individually, [they could] when taken together.” The court carefully considered all the evidence, made extensive factual findings, and meticulously applied the appropriate legal standards. It is clear to us that the district judge assessed the conditions both individually and in combination. The unchallenged factual findings fully support the district court’s determination that, apart from inadequate pharmacological treatment, conditions at the Treatment Center do not offend Healey and Given’s substantive due process rights.
IV. Conclusion
We affirm in part and reverse in part the district court’s final judgment and order. The declaratory judgment in favor of Healey on his contempt claim (Count I), as well as injunctive relief compelling the Commonwealth’s compliance with the Plan’s provisions, are reversed. The district court's judgment for the plaintiffs regarding the constitutionality of the pharmacological evaluation and treatment provided by defendants was not challenged on appeal and, thus, survives without regard to the proceedings before us. The district court’s judgment in favor of defendants in all other respects is affirmed. The parties shall bear their own costs.
Notes
[*] Of the District of New Hampshire, sitting by designation.
[1] For simplicity’s sake we refer to the Original Decrees in King III and Williams collectively as the Original Decree.
[2] That requirement was contained in the Original Williams Decree, but not in the Original King Decree. See King III, 53 F. Supp. 2d at 120.
[3] The Commonwealth abolished new civil commitments in 1990, but reinstated the practice nine years later. The King III litigation (during that interim period) addressed conditions relative to persons civilly committed under the old law.
[4] In 2005, Healey’s suit was consolidated with a case brought in 2004 by then-resident Joel Pentlarge. Given was joined as a plaintiff in Pentlarge’s suit in 2006. Pentlarge dropped his request for monetary damages and was dismissed from the suit upon his release from the Treatment Center in 2006.
[5] The district court’s reasoning is found in Magistrate Judge
Dein’s report and recommendation, which was adopted by Judge
Gertner. Chief Judge Saris later declined to revisit the issue,
reasoning that Judge Gertner’s earlier resolution was controlling,
as “law of the case.” Healey v. Murphy, Nos. 01-11099, 04-30177,
[6] Rule 65(d) governs the “[c]ontents and [s]cope of [e]very
[i]njunction,” clearly providing that “[e]very order granting an
injunction . . . must . . . state its terms specifically . . . and
. . . describe in reasonable detail — and not by referring to the
complaint or other document — the act or acts sought to be
restrained or required.” Fed. R. Civ. P. 65(d). These
requirements “are not ‘mere[ly] technical’ but are ‘designed to
prevent uncertainty and confusion . . . and to avoid’ basing a
‘contempt citation on a decree too vague to be understood.’” NBA
Props., Inc. v. Gold, 895 F.2d 30, 32 (1st Cir. 1990) (quoting
Schmidt v. Lessard, 414 U.S. 473, 476 (1974) (per curiam)).
Accordingly, “[t]o be enforceable in contempt, an injunctive decree
must satisfy” Rule 65(d)’s “specificity requirements.” Burke v.
Guiney,
[7] The comment is best understood as a general prediction, to the effect that should the Commonwealth revert to prior unacceptable practices, the Plan’s terms would likely serve as a solid blueprint for future injunctive relief.