USCA1 Opinion
July 15, 1994 [Not for Publication]
[Not for Publication]
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
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No. 93-1675
TODD G. DUCHARME,
Plaintiff, Appellant,
v.
STATE OF RHODE ISLAND, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Francis J. Boyle, Senior U.S. District Judge]
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Before
Torruella, Cyr, and Stahl,
Circuit Judges.
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Richard A. Sinapi with whom Sinapi Law Associates, Ltd. was on
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brief for appellant.
Robin E. Feder, Assistant Attorney General, with whom Jeffrey B.
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Pine, Attorney General, was on brief for appellee.
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Per Curiam. In this interlocutory appeal,
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plaintiff-appellant Todd G. Ducharme ("Ducharme") contends
that the district court erred in refusing to approve a
consent judgment in settlement of Ducharme's civil rights
action against the Rhode Island Division of State Police
("State Police") and Raymond A. Driscoll ("Driscoll"), a
member of the State Police. Alternatively, Ducharme argues
that the district court exceeded its authority in preventing
the parties from entering the proposed consent decree on
their own in the guise of an accepted offer of judgment
pursuant to Federal Rule of Civil Procedure 68.
I.
I.
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BACKGROUND
BACKGROUND
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On July 23, 1991, Ducharme was arrested by the
State Police and charged with disorderly conduct. The charge
was based on Ducharme's "abusive and belligerent" behavior
toward a lifeguard who had requested Ducharme to remove his
dog from Beach Pond, a state-run facility located in Exeter,
Rhode Island. Clad only in "swim trunks," Ducharme was taken
to a police building and strip searched. Specifically,
defendant Driscoll commanded Ducharme to pull his swim trunks
down to his knees, pull them up again, and then take them off
so that Driscoll could search the pockets of the swim trunks.
Driscoll then returned the swim trunks to Ducharme.
According to State Police Superintendent Edmond S. Culhane,
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Jr., Ducharme was strip searched because it "is a routine
procedure performed prior to placing an individual in a
holding cell." We assume that Ducharme was then placed in a
holding cell and that the disorderly conduct charge was
resolved in some fashion.
Ducharme later filed this action in the United
States District Court for the District of Rhode Island
against the State Police and Driscoll.1 The complaint
alleges, inter alia, that the strip search constituted a
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violation of Ducharme's right to be free of unreasonable
searches and seizures pursuant to the Fourth and Fourteenth
Amendments to the Constitution, actionable under 42 U.S.C.
1983.
The complaint contains specific allegations
concerning the unreasonableness of an automatic strip search
policy. The complaint asserts that "it is well settled law
that mandatory strip searches of arrestees charged with minor
offenses, absent a reasonable suspicion that the arrestee is
concealing weapons or contraband, such as that performed on
[Ducharme], are unconstitutional." As additional evidence
that an automatic strip search policy is unreasonable, the
complaint reports that Rhode Island's Attorney General issued
the following advice to the State Police in 1985:
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1. The complaint names Driscoll in both his individual and
official capacities.
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The strip searching of persons detained
for a short period of time for petty
offenses should not be undertaken as a
matter of routine procedure. The persons
arrested for petty offenses should not be
strip searched unless there is probable
cause to believe that the person is
concealing a weapon, drugs or evidence of
a crime.
Ducharme also alleged that he might again fall
victim to defendants' strip search policy. In particular,
Ducharme alleged that he
resides in close proximity to the State
of Rhode Island and has and continues to
travel to and frequent places in the
State of Rhode Island, as a result of
which, he has [been] and continues to be
exposed to the possibility of further
invasion of his privacy by Defendants'
policy of routinely strip searching
arrestees for minor offenses, even in the
absence of reasonable grounds to justify
such a search.
In addition to requesting compensatory damages and
attorney's fees, Ducharme also sought several forms of
equitable relief: (1) a declaratory judgment that the
automatic strip search policy of the State Police is
unconstitutional; (2) a declaratory judgment that defendants'
strip search of Ducharme was unconstitutional; and (3) an
injunction preventing "[d]efendants from routinely strip
searching [Ducharme] and all other persons arrested for minor
offenses, absent reasonable suspicion that the arrestee is
concealing a weapon or contraband."
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Prior to the filing of an answer or the
commencement of discovery, the parties began to negotiate a
settlement. In February 1993, defendants made an offer of
judgment pursuant to Rule 682 in the amount of $7500.
Ducharme rejected the offer, explaining that he would not
settle without a promise on the part of the defendants that
they would no longer conduct unreasonable strip searches.
Defendants responded by proposing, in addition to the money
judgment, a letter to Ducharme reportedly stating that the
policy of the State Police was now in conformity with the
Attorney General's 1985 letter.3 Once again, Ducharme
refused.
Sometime thereafter the parties agreed on a
proposed consent judgment, presented to the district court in
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2. In pertinent part, Fed R. Civ. P. 68 provides:
At any time more than 10 days before the
trial begins, a party defending against a
claim may serve upon the adverse party an
offer to allow judgment to be taken
against the defending party for the money
or property or to the effect specified in
the offer, with costs then accrued. If
within 10 days after the service of the
offer the adverse party serves written
notice that the offer is accepted, either
party may then file the offer and notice
of acceptance together with proof of
service thereof and thereupon the clerk
shall enter judgment.
3. This is our understanding of statements made by the State
at oral argument before this court. The letter does not
appear in the record on appeal.
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April 1993, that would award Ducharme $7500 and bind the
defendants with the following prospective provision:
Defendants shall not require as a matter
of policy, nor shall they perform or
cause to be performed strip searches of
arrestees charged with misdemeanor or
motor vehicle offenses, absent a
reasonable suspicion that an arrestee is
concealing a weapon or contraband, and
shall otherwise conduct searches of
arrestees within the limitations imposed
by law.
In an unrecorded chambers conference, the district court
apparently expressed its concern that the proposed decree
would saddle the court with the task of supervising strip
searches conducted by the State Police and on that basis
refused to approve the judgment.
With this avenue closed, the parties developed
another solution. Defendants orally agreed to amend their
Rule 68 offer of judgment to include the terms of the
proposed consent decree. Because Rhode Island law prohibits
the State from settling a case without some form of court
approval, see R.I. Gen. Laws 9-31-6 and 9-31-10 (1985),
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the parties gave the district judge an opportunity to object
by notifying him of their intentions. In another unrecorded
chambers conference, the district court evidently stated that
it had the discretion to prevent the entry of a consent
judgment even if the judgment was offered in the form of an
otherwise nondiscretionary, self-executing Rule 68 offer and
acceptance.
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Finally, Ducharme filed a self-styled "Motion for
Entry of Consent Judgment or in the Alternative Withdrawal of
the Court's Interference With the Entry of Judgment by Way of
a Rule 68 Offer and Acceptance Thereof." In the meantime,
the parties amended the proposed consent judgment to specify
that it could only be enforced by Ducharme. The district
court conducted a hearing in June 1993, and, after
considering the parties' arguments, denied Ducharme's motion
from the bench. This appeal followed.
II.
II.
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JURISDICTION
JURISDICTION
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Two important jurisdictional issues prevent us from
addressing the merits of this appeal. First, Ducharme's
claims for equitable relief do not fall within the subject
matter jurisdiction of the federal courts. Second, to the
extent that the prospective relief contained in the proposed
consent judgment does not amount to an injunction, we have no
appellate jurisdiction to consider the district court's
interlocutory refusal to approve the proposed consent
judgment. We discuss each jurisdictional issue in turn.
A. Subject Matter Jurisdiction
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Article III of the Constitution outlines the limits
of our mandate; federal jurisdiction extends only to actual
"Cases [or] Controversies." A federal court is powerless to
answer hypothetical legal questions or legislate the
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resolution of future problems. Nor may a federal court
intervene in an actual, ongoing controversy unless that
controversy is reduced to a dispute among parties lawfully
before the court. Accordingly, to stand before an Article
III court, "[a] plaintiff must demonstrate a concrete injury
caused by the defendant and remediable by the requested
relief." American Postal Workers Union v. Frank, 968 F.2d
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1373, 1378 (1st Cir. 1992).
The standing inquiry does not require an all-or-
nothing analysis, but may call for some careful dissection.
A suit may proceed in federal court even if some aspects of
the plaintiff's requested relief are not likely to redress
plaintiff's injuries. By the same token, however, a
plaintiff who is otherwise properly in federal court may lack
standing to pursue particular forms of relief. For example,
while past injury generates standing to bring an action for
damages, "past exposure to harm will not, in and of itself,
confer standing upon a litigant to obtain equitable relief
`[a]bsent a sufficient likelihood that [the litigant] will
again be wronged in a similar way.'" Id. at 1376 (quoting
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City of Los Angeles v. Lyons, 461 U.S. 95, 111 (1983)) (first
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brackets in original).
In this case, Ducharme clearly has standing to
bring an action for damages against the defendants based on
the July 23, 1991, strip search. It is equally obvious that
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Ducharme has no standing to request equitable relief.
According to Ducharme, the routine strip search policy only
applied to arrestees about to be placed in a holding cell.
We simply cannot assume that Ducharme will violate the law in
the future in a manner that would lead the State Police to
arrest him and place him in a holding cell. And, as far as
the record reveals, Ducharme is not in a State Police holding
cell now, nor is he about to be placed in one. Finally, it
appears that even in the event of a future arrest, Ducharme
is unlikely to be subject to an unconstitutional search if,
as the State represented at oral argument, the State Police
strip search policy now conforms to the prospective provision
of the proposed consent judgment. In the absence of a case
or controversy with respect to Ducharme's claim for equitable
relief, Lyons teaches that neither we nor the district court
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have jurisdiction to consider the merits of an equitable
decree. Nor do we perceive any reason why the outcome of the
jurisdictional inquiry should turn on whether the decree is
the product of a pre-trial consent judgment or a post-trial
order.
We hasten to add that the peculiarities of Rule 68
do not require a court to postpone ruling on the
jurisdictional basis of the judgment the parties seek to
enter. We acknowledge that Rule 68 requires the clerk of the
district court to enter the parties' agreed-upon judgment in
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a ministerial fashion. See Fed. R. Civ. P. 68 (providing
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that "the clerk shall enter judgment" according to the terms
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of a timely accepted offer) (emphasis added); see generally
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Mallory v. Eyrich, 922 F.2d 1273, 1279 (6th Cir. 1991) ("Rule
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68 . . . leaves no discretion in the district court to do
anything but enter judgment once an offer has been
accepted.") Accordingly, a district court would not
ordinarily have an opportunity to question the jurisdictional
basis for an injunction embodied in the judgment until some
later time, such as when one party seeks to enforce the
injunction. But Rule 68 cannot require entry of a
jurisdictionally defective judgment when the parties bring
that judgment to the attention of the court.
Our conclusion as to the claim for equitable relief
does not necessarily imply, however, that subject matter
jurisdiction is now entirely absent. As we have mentioned,
Ducharme still has standing to pursue his damages claim.
Consequently, Ducharme still has the right to settle his
damages claim by way of an agreement that does not ask the
court to ignore its jurisdictional limitations. And, because
neither the proposed consent judgment nor defendants' amended
Rule 68 offer of judgment are on their terms "injunctions,"
the parties may simply have been seeking the district court's
approval of a private contract containing a promise governing
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defendants' future behavior. With the issues thus narrowed,
we now turn to the matter of appellate jurisdiction.
B. Appellate Jurisdiction
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Ducharme concedes that his appeal does not concern
a "final decision[]" appealable under 28 U.S.C. 1291 (1988),
but correctly observes that we are authorized by 28 U.S.C.
1292(a)(1) (1988) to hear an appeal from "[i]nterlocutory
orders of the district courts . . . refusing . . .
injunctions." The Supreme Court has held that an order
refusing to approve a consent judgment containing injunctive
relief has the "practical effect" of a denial of an
injunction and is therefore appealable pursuant to Section
1292(a)(1). Carson v. American Brands, Inc., 450 U.S. 79,
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83-84 (1981); Durrett v. Housing Auth. of Providence, 896
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F.2d 600, 602 (1st Cir. 1990).
We have already concluded that neither we nor the
district court have jurisdiction to consider the entry of an
actual injunction. Thus, we need only determine whether we
have jurisdiction to review a district court's refusal to
approve a consent judgment containing non-injunctive yet
forward-looking contractual relief. Plainly, we do not.
Even if a simple contractual promise is nearly as valuable to
a plaintiff as an actual injunction, such a promise is not
the equivalent of an injunction and therefore a district
court's refusal to approve such a promise does not constitute
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the denial of an "injunction" within the meaning of Section
1292(a)(1). Moreover, to the extent that the prospective
provision of the settlement agreement in this case is
amenable to interpretation as an "injunction," appellate
jurisdiction would be meaningless because there is no
jurisdiction in the district court for the issuance of such
an injunction. In short, Ducharme has offered no valid basis
for the exercise of appellate jurisdiction.4
III.
III.
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CONCLUSION
CONCLUSION
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In light of the jurisdictional defect outlined
above, the district court's order denying plaintiff's motion
is vacated, and the cause is remanded for dismissal of
plaintiff's claim for equitable relief for lack of
jurisdiction. Any further action necessary to resolve
plaintiff's damages claim shall proceed in harmony with this
opinion.
So ordered.
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4. We decline Ducharme's invitation to treat his appeal as a
petition for a writ of mandamus pursuant to 28 U.S.C. 1651
(1988). See generally In re Pearson, 990 F.2d 653, 656 (1st
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Cir. 1993) (describing supervisory mandamus powers of the
courts of appeals); In re Ellsberg, 446 F.2d 954, 955-57 (1st
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Cir. 1971) (same). This is simply not an "extraordinary
situation" that would justify our "sparing[]" use of
mandamus. In re Pearson, 990 F.2d at 656 (citing, inter
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alia, Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 34
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(1980) (per curiam); Will v. United States, 389 U.S. 90, 107
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(1967)).
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