HENRIETTA D., NIDIA S., SIMONE A., EZZARD S., JOHN R., and PEDRO R., on behalf of themselves and all others similarly situated, Plaintiffs Appellees, v. RUDOLPH GIULIANI, Mayor of the City of New York, MARVA HAMMONS, Administrator of the New York City Human Resources Administration and Commissioner of the New York City Department of Social Services, and MARY E. GLASS, Commissioner of the New York State Department of Social Services, Defendants Appellants.
Docket Nos. 00-9238 and 00-9312
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
Argued: March 12, 2001; Decided: April 09, 2001
246 F.3d 176
Before: JACOBS and SOTOMAYOR, Circuit Judges, and BERTELSMAN, District Judge.
SUSAN J. KOHLMANN, Pillsbury Winthrop LLP, New York, NY (Karen B. Dine and David W. Oakland, Pillsbury Winthrop, LLP; Vickie Neilson, HIV Law Project, New York, NY; and Armen H. Merjian and Virginia Shubert, Housing Works, New York, NY, on the brief), for Plaintiffs-Appellees.
EDWARD F.X. HART, Assistant Corporation Counsel, Office of the Corporation Counsel of the City of New York, New York, NY (Michael D. Hess, Corporation Counsel, Leonard Koerner, Assistant Corporation Counsel, and Georgia M. Pestana, Assistant Corporation Counsel, on the brief), for Defendants-Appellants Rudolph Giuliani and Marva Hammons.
VINCENT LEONG, Assistant Attorney General, Office of the Attorney General of the State of New York, New York, NY (Eliot Spitzer, Attorney General, Michael S. Belohlavek, Deputy Solicitor General, and Deon Nossel, Assistant Solicitor General, on the brief), for Defendant-Appellant Mary E. Glass.
*JACOBS, Circuit Judge:
1 This appeal presents a threshold question as to whether we have appellate jurisdiction where the district court (i) found that injunctive relief against the defendants was warranted, (ii) directed the Clerk of the Court to close the case, and (iii) entered a “Judgment,” but (iv) declined to order the defendants to do anything, leaving the terms of the injunction for a later determination by a magistrate judge. We conclude that we lack jurisdiction, and dismiss the appeal.
BACKGROUND
2 This is a class action brought in the United States District Court for the Eastern District of New York (S. Johnson, J.) by indigent New York City residents who suffer from AIDS and other HIV-related illnesses. All plaintiffs are clients of the City‘s Division of AIDS Services and Income Support (“DASIS“), an agency whose sole function is to assist persons with HIV-related diseases in obtaining public assistance benefits and services. Plaintiffs allege that despite the DASIS initiative, New York City and New York State are failing to provide them with adequate access to public benefits. Plaintiffs sought a declaratory judgment and a permanent injunction.
3 Following a bench trial, Judge Johnson detailed his findings of fact and conclusions of law in a memorandum and order dated September 18, 2000. The district court determined inter alia that New York City, through its DASIS program, failed to provide plaintiffs with meaningful access to public assistance benefits and services in violation of Title II of the Americans with Disabilities Act (“ADA“) and
4 IT IS FURTHER ADJUDGED, ORDERED, AND DECREED that
5 3. This Court retains full jurisdiction over compliance with this judgment.
6 4. This Court shall appoint the Honorable Cheryl L. Pollak, United States Magistrate Judge to will [sic] monitor compliance with the terms of this order for a period of three years from this date. Magistrate Judge Pollak shall have the power to compel compliance with the requirements of this judgment, and to recommend penalties and sanctions in the event of noncompliance.
7 Id. at 221. The final sentence of the memorandum and order directed the Clerk of the Court to close the case. See id.
8 The same day that the memorandum and order was issued, the court entered a “Judgment,” which incorporated the declarations of liability and the appointment of Magistrate Judge Pollak, and added that “IT IS ORDERED AND ADJUDGED that Judgment is entered in favor of the plaintiff [sic] and against the defendant [sic].” The defendants immediately appealed.
9 At oral argument before this Court, we raised the issue of our jurisdiction sua sponte, as we are obliged to do when it is questionable. See Petereit v. S.B. Thomas, Inc., 63 F.3d 1169, 1175 (2d Cir. 1995). In particular, we observed that neither the memorandum and order nor the “Judgment” described what injunctive relief the plaintiffs were entitled to, or (to say the same thing) articulated what actions defendants were required to do or refrain from doing. The parties explained that they were in the process of negotiating the terms of relief under the supervision of Magistrate Judge Pollak. At that point, we directed the parties to provide us with the most recent draft of those terms, and to brief the question of appellate jurisdiction.
10 The draft provided by the parties is styled an “Order of Compliance.” When finalized, it will be signed by Magistrate Judge Pollak. The order would impose numerous obligations on the City and State. Among other things, it would require the City to “provide Plaintiffs’ counsel with a proposed plan and time frame for hiring, training, and deploying sufficient case managers and supervisors to meet the legally-mandated ratios” of caseworkers to DASIS clients described in a New York City law; to “appoint a representative to handle all problems that DASIS clients are experiencing as reported by Plaintiffs’ counsel or their representative ‘Troubleshooter‘“; to permit plaintiffs’ counsel “to conduct on-site inspections of DASIS centers to monitor DASIS’ compliance with the law“; and to provide plaintiffs’ counsel on a monthly basis with vast amounts of data concerning DASIS’ operations. The State would be required, among other things, to “appoint a representative to handle problems that DASIS clients are experiencing relating to [administrative] Fair Hearings as reported by Plaintiffs’ counsel or their representative ‘Troubleshooter‘” and to issue 90% of its administrative fair hearing decisions within 60 days of a request for a fair hearing by a DASIS client.
11 The parties posit two bases for our jurisdiction:
I. 28 U.S.C. § 1291
12
13 The City and State defendants argue that the district court‘s decision is final because the court awarded plaintiffs declaratory relief pursuant to the Declaratory Judgment Act,
14 Although Judge Johnson‘s memorandum and order characterizes the magistrate judge‘s role as supervisory only, the draft “Order of Compliance” demonstrates that her first task is to work with the parties to determine what affirmative obligations should be imposed on the defendants. Cf. Petereit, 63 F.3d at 1175 (the pendency of “merely ministerial” tasks relating to relief is not fatal to finality and consequent appealability) (emphasis added); Arp Films, Inc. v. Marvel Entertainment Group, 905 F.2d 687, 689 (2d. Cir. 1990) (per curiam) (same); Taylor, 288 F.2d at 602 (same). Indeed, without such a further order, it is impossible to see what the magistrate judge would be supervising. Thus, the draft Order contemplates that the magistrate judge will “so order” such relief and only then (as the draft terms reflect) will she have ongoing supervisory responsibilities. Cf. Kidder, Peabody & Co. v. Maxus Energy Corp., 925 F.2d 556, 564-65 (2d Cir. 1991) (after jurisdiction shifts to the court of appeals, a district court may issue orders that are “necessary to preserve the status quo pending the appeal“) (citing
15 With so much left to be done, the district court‘s directive to “close the case” is insufficient to vest this Court with jurisdiction under
28 U.S.C. § 1292(a)(1)
16
17 To qualify as an “injunction” under
18 At oral argument, plaintiffs argued that defendants had been ordered to “meet their obligations” under the ADA and the Rehabilitation Act; but plaintiffs could not direct our attention to such language and we do not see it. In any event, an “obey the law” order entered in a case arising under statutes so general as the ADA and the Rehabilitation Act would not pass muster under Rule 65(d) of the Federal Rules of Civil Procedure, which requires that injunctions be “specific in terms” and “describe in reasonable detail... the act or acts sought to be restrained.”
19 Both the “Judgment” and the memorandum and order‘s “Remedies” section merely declare liability and appoint Magistrate Judge Pollak to “monitor compliance with the terms of this order” and to “compel compliance with the requirements of this judgment.” However, the order contains no terms and the judgment contains no requirements. It appears to us that the district judge has chosen to follow a path well-worn by equity judges overseeing complex, institutional litigation: determine liability first, then ask the parties to propose remedial plans to the court.2 See, e.g., Spates, 619 F.2d at 208-09; Taylor, 288 F.2d at 601. But whatever the district court has in mind, we lack jurisdiction under
20 Finally, we add a point that should be obvious: the defendants’ participation in the formulation of a remedial order “implies no acceptance of the [d]istrict [j]udge‘s determinations of fact and law and no waiver of a right to appeal--any more than does the action of a losing party in any suit, either at the request of the court or of his own volition, in submitting a form of judgment conforming with findings and conclusions from which he dissents.” Taylor, 288 F.2d at 604 n.2.
CONCLUSION
21 The appeal is dismissed.