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United States v. State

United States District Court, W.D. Tennessee, Western Division

September 4, 2012

UNITED STATES OF AMERICA, Plaintiff,
v.
STATE OF TENNESSEE, et al., Defendants; PEOPLE FIRST OF TENNESSEE, et al., Intervener

John I. Houseal, Jr., Miscellaneous, Pro se, Memphis, TN.

Gaye G. Hansen, Miscellaneous, Pro se.

For USA, Plaintiff: Amin Aminfar, LEAD ATTORNEY, UNITED STATES DEPARTMENT OF JUSTICE, Washington, DC; Joe A. Dycus, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE, Memphis, TN; R. Jonas Geissler, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Civil Rights Division, Special Litigation Section, Washington, DC; Robert A. Koch, LEAD ATTORNEY, Corey M. Sanders, UNITED STATES DEPARTMENT OF JUSTICE, Civil Rights Division-Special Litigation Section, Washington, DC; Shelley Ramell Jackson, LEAD ATTORNEY, PRO HAC VICE, U.S. DEPARTMENT OF JUSTICE, Civil Rights Division, Washington, DC; Matthew Donnelly, UNITED STATES DEPARTMENT OFJUSTICE, Washington, DC; Michelle Anne Jones, PRO HAC VICE, U.S. DEPARTMENT OF JUSTICE, Special Litigation Section - PHB, Washington, DC.

For Tennessee, State of, Defendant: Charles J Cooper, Michael W. Kirk, LEAD ATTORNEYS, David Lehn, Jesse Panuccio, Derek L Shaffer, COOPER & KIRK, PLLC, Washington, DC; Dianne Stamey Dycus, LEAD ATTORNEY, ATTORNEY GENERAL AND REPORTER, Civil Division, Nashville, TN; Jonathan P. Lakey, LEAD ATTORNEY, PIETRANGELO COOK, Memphis, TN; Nicole J Moss, LEAD ATTORNEY, COOPER & KIRK, Washington, DC; Martha A. Campbell, TENNESSEE ATTORNEY GENERAL'S OFFICE, Nashville, TN.

For Don Sundquist, Governor of the State of Tennessee, Marjorie Nelle Cardwell, Max Jackson, Superintendent of Arlington Developement Center, Defendants: Dianne Stamey Dycus, LEAD ATTORNEY, ATTORNEY GENERAL AND REPORTER, Civil Division, Nashville, TN; David Lehn, Jesse Panuccio, Derek L Shaffer, Michael W. Kirk, COOPER & KIRK, PLLC, Washington, DC; Jonathan P. Lakey, PIETRANGELO COOK, Memphis, TN; Martha A. Campbell, TENNESSEE ATTORNEY GENERAL'S OFFICE, Nashville, TN.

For Carl Beard, by his next friend Wendy Kurland, Intervenor: Earle J. Schwarz, LEAD ATTORNEY, The Offices of Earle J. Schwarz, Memphis, TN; Jack W. Derryberry, Jr., LEAD ATTORNEY, WARD DERRYBERRY & THOMPSON, Nashville, TN; Judith A. Gran, LEAD ATTORNEY, REISMAN CAROLLA GRAN, LLP, Haddonfield, NJ.

For People First of Tennessee, on behalf of all its members, Intervenor: Earle J. Schwarz, LEAD ATTORNEY, The Offices of Earle J. Schwarz, Memphis, TN; Jack W. Derryberry, Jr., LEAD ATTORNEY, WARD DERRYBERRY & THOMPSON, Nashville, TN; Judith A. Gran, LEAD ATTORNEY, REISMAN CAROLLA GRAN, LLP, Haddonfield, NJ; Marcella G. Derryberry, LAW OFFICES OF MARCELLA G. DERRYBERRY, Nashville, TN.

For Sandra Howard, by her next friend Elizabeth Henderson, Herman Walter Runions, by his next friend Sarah R. Todd, Harvey Richard Watson, by his next friend Jodie Wheeler, Clarence Wilson, by his next friend Wilma Williamson, Keith Collins, by his mother and next friend Joyce Cisco, Stevelyn Danieal Tucker, by her parents and next friends Carolyn and Steve Tucker, Intervenors: Earle J. Schwarz, LEAD ATTORNEY, The Offices of Earle J. Schwarz, Memphis, TN; Jack W. Derryberry, Jr., LEAD ATTORNEY, WARD DERRYBERRY & THOMPSON, Nashville, TN; Judith A. Gran, LEAD ATTORNEY, REISMAN CAROLLA GRAN, LLP, Haddonfield, NJ.

For West Tennessee Parent Guardian Association, Intervenor: Kimbrough Brown Mullins, LEAD ATTORNEY, MULLINS GARDNER, PLC, Memphis, TN; William F. Sherman, LEAD ATTORNEY, LAW OFFICES OF WILLIAM F. SHERMAN, Little Rock, AR.

OPINION

Page 922

ORDER DENYING DEFENDANTS' AMENDED MOTION TO VACATE AND DISMISS

Jon P. McCalla, CHIEF U.S. DISTRICT JUDGE.

Before the Court is Defendant State of Tennessee's (" the State" ) Amended Motion

Page 923

to Vacate All Outstanding Orders and Dismiss the Case (Docket Entry (" D.E." ) 2737), filed on August 11, 2011. The United States and People First of Tennessee both filed responses in opposition on August 31, 2011. (D.E. 2741; D.E. 2742.) The State filed a reply on September 12, 2011. (D.E. 2764.) On September 27, 2011, the case was transferred to this Court. (D.E. 2752.) The Court held an evidentiary hearing on the State's Motion on January 3rd and 4th, 2012. (D.E. 2799; D.E. 2801.) Following the hearing, the Court allowed the parties to submit closing briefs, which the parties did on April 30, 2012. (D.E. 2867; D.E. 2868; D.E. 2870.) The Court heard closing arguments on the Motion on June 18, 2012. (D.E. 2890.) For the reasons that follow, the Court DENIES the State's Motion.

I. BACKGROUND

a. Case History

This case arises from the unconstitutional conditions that existed at the Arlington Developmental Center (" Arlington" ) in Arlington, Tennessee. In 1992, the United States brought suit against the State pursuant to the Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997, alleging that the care and conditions at Arlington violated the substantive due process rights of the center's residents. At the same time, People First, an advocacy organization for persons with disabilities, and individual residents of Arlington brought a class action suit against the State on behalf of all the residents of Arlington and all those " at risk" of institutionalization at Arlington. The Court held a trial in United States v. Tennessee in 1993. At trial the Court found that the conditions at Arlington did not comply with the substantive due process requirements of the Fourteenth Amendment as articulated by the Supreme Court in Youngberg v. Romeo, 457 U.S. 307, 102 S.Ct. 2452, 73 L.Ed.2d 28 (1982). (See Supplemental Findings of Fact (D.E. 251) 4.) Following the trial and the parties' negotiations, the Court entered the Remedial Order (D.E. 338) requiring the State to take certain actions to guarantee the Youngberg rights of Arlington's residents.

In September 1995, the Court certified the class in the People First action, defining the class as including individuals who had resided, were residing, or were at risk of residing at Arlington. The Sixth Circuit affirmed the certification of this class. People First of Tenn. v. Arlington Developmental Ctr., 145 F.3d 1332 (table), [published in full-text format at __] 1998 WL 246146, at *3 (6th Cir. May 7,1998) (per curiam). The Court allowed People First to intervene in United States v. Tennessee and extended its liability finding and the Remedial Order in United States v. Tennessee to the People First class. As a result of these consolidated cases, the Court has for nearly two decades provided judicial supervision over the conditions at Arlington and the State's services for class members.

The Sixth Circuit has noted, " litigation between the parties has resulted in multiple findings of contempt, additional plans of corrections, settlement agreements, and consent orders." United States v. Tennessee, 615 F.3d 646, 651 (6th Cir. 2010). The Remedial Order, the Court's first remedy, contained more than 150 requirements and 103 deadlines. The Remedial Order enjoined the State from admitting any additional residents to Arlington except for emergency, short-term, and court-ordered admissions. The Remedial Order also called for the appointment of a Court Monitor to oversee the State's implementation of the Court's mandates. Nancy K. Ray, Ed.D., has served as the Court Monitor since 2000, with the assistance of her staff

Page 924

at NKR & Associates, Inc., located in Delmar, New York.

In 1997, the Court entered the Community Plan (D.E. 753). The Community Plan was the result of a settlement between the parties after the United States filed a fourth motion for contempt regarding the conditions at Arlington. Like the Remedial Order, the Community Plan was a detailed document that set forth hundreds of specific provisions to improve the quality of care at Arlington. The Court noted in its Order that the Community Plan " represents a paradigm shift by the State of Tennessee in the provision of services to the developmentally disabled." (Order on Community Plan of W. Tenn. (D.E. 753) 3.) Relevant to the present status of this litigation is a provision from the Community Plan prohibiting the placement of class members in non-community homes. This provision applies to all members of the class, both members who were residents of Arlington and those at risk of placement at Arlington. The United States and People First argue that the State is currently violating this provision by placing class members in non-community homes. (See United States' Mem. of Law in Opp'n to State's Updated and Am. Mot. to Vacate and Dismiss (D.E. 2741) 15.)

In 1999, the Court formed the Community Services Network of West Tennessee, a non-profit corporation dedicated to directing health-related services provided with state funds to Arlington class members. (See D.E. 1248.) In creating the Community Services Network, the Court interpreted the definition of " at risk" class members to include all individuals in the geographic area served by Arlington who demonstrate medical needs sufficient to require institutional care. (Order Regarding Scope of " At-Risk" Population (D.E. 1302).) At the time, this class definition was estimated to include 800 to 1200 individuals in West Tennessee.

In 2006, the parties reached another settlement agreement (2006 Settlement Agreement (D.E. 2085-1)), which the Court approved (see All-Party Consent Order Approving 2006 Settlement (D.E. 2174)). The agreement was intended " to resolve and fully settle all claims arising between [the parties] in connection with the appeal pending [before the Sixth Circuit] . . ., regarding the proper interpretation of the 'at-risk' portion of the class definition." (2006 Settlement Agreement 1.) The agreement called for the closure of Arlington and modified the definition of " at-risk" for the purposes of class membership. The " at-risk" portion of class members was defined as persons who reside in the region served by Arlington (i.e., West Tennessee), who meet Medicaid eligibility criteria for an Intermediate Care Facility for the Developmentally Disabled (" ICF/DD" ) and demonstrate a need or desire for institutional placement by: (i) residing in a nursing home or mental health facility, (ii) residing in a private ICF/DD, (iii) having been placed in a public ICF/DD in middle or eastern Tennessee, or (iv) having been hospitalized or placed in respite care and not being able to return to pre-hospitalization placement due to a need for more intensive services. (2006 Settlement Agreement 12.)

Pursuant to the 2006 Settlement Agreement, the parties developed a plan to transition from the Community Services Network to a Medicaid-funded integrated health services delivery model that would be part of a new statewide service program for persons with intellectual disabilities. (See Mem. Op. (D.E. 2517).) The plan also required all Arlington residents to be transitioned to other facilities and settings. The transition plans for individual residents were subject to the approval

Page 925

of the Court Monitor. On October 27, 2010, the last residents of Arlington transitioned to new facilities, and the State closed Arlington.

b. Recent Procedural History

Even before the closure of Arlington, the State moved to vacate the Court's injunctive relief and dismiss the case. In September 2008, the State filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 60(b)(5), arguing that changes in law indicated that residents of Arlington were no longer entitled to Youngberg Rights, and, therefore, continuing the injunctive relief was inequitable. The Court disagreed and denied the State's motion. The Sixth Circuit affirmed the Court's decision. United States v. Tennessee, 615 F.3d 646, 657 (2010).

The closure of Arlington in October 2010 again prompted a dispute over the future of this litigation. The State maintains that the closure of Arlington should lead to the termination of the litigation and the vacating of all outstanding orders. The United States and People First argue that despite the closure of Arlington, the State continues to provide inadequate and segregated services in violation of the substantive due process rights of class members and the Court's remedial orders, and thus the Court's supervision remains necessary.

On October 22, 2010, People First filed a Motion for an Order to the State to Proceed with Enrollment of At Risk Class Members (D.E. 2604), alleging that the State has failed to enroll hundreds of individuals who qualify as at-risk class members under the terms of the 2006 Settlement Agreement. On November 3, 2010, the State filed a Motion to Vacate All Outstanding Injunctive Relief and Dismiss the Case (D.E. 2605). On November 5, 2010, the United States filed a Motion to Enforce Judgment of the 2006 Settlement Agreement (D.E. 2608), seeking essentially the same relief as People First's Motion for an Order to the State to Proceed with Enrollment of At Risk Class Members. The Court issued an Order Setting a Schedule for Disposition of Pending Motions (D.E. 2676) on April 4, 2011, after considering a Report and Recommendation from the Magistrate Judge. The Court determined that the State's Motion to Vacate should be decided before considering the motions of the United States and People First to enroll new class members. (See id. at 2-3.) On June 30, 2011, the Court, with the consent of the parties, entered an Agreed Order Vacating in part Orders Relating to Conditions at Arlington Residential Units (D.E. 2724), vacating the Court's orders that dealt specifically with conditions at Arlington. Left outstanding by the Agreed Order was whether the litigation would continue. On August 11, 2011, the State filed an Amended Motion to Vacate All Outstanding Orders and to Dismiss the Case (D.E. 2737). After the Amended Motion was briefed by the parties, the Court conducted an evidentiary hearing on January 3rd and 4th, 2012.

c. The January 2012 Hearing

The Court held an evidentiary hearing [1] to afford the State an opportunity to demonstrate that vacating the Court's orders and dismissing the case is warranted. The State declined to call any witnesses at the hearing, relying instead on the declarations and depositions it filed as exhibits to its Motion. From the State's perspective, the issue before the Court " is almost entirely legal." (Jan. 3, 2012 Tr. (D.E. 2810) 14.) As the State argued at the hearing,

Page 926

" the sole violation of federal law that the Court has found in this case arises from the conditions at the Arlington Developmental Center, and with the closure of [Arlington] and the transition of all the residents at [Arlington] to community placements that were approved by the Court Monitor, that violation has been fully and completely remedied." (Id. at 15.) The State submitted that Arlington's ...


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