Filed: Jan. 13, 2012
Latest Update: Feb. 22, 2020
Summary: evidence of noncompliance with the 90-day requirement in 2010, and, the district court expressed no concern in its 2010 order denying, the motion for contempt.12, The Class does not explain how the Department might provide, services to eligible children whose families do not request them.
United States Court of Appeals
For the First Circuit
No. 10-1761
CASSANDRA HAWKINS, ET AL.,
Plaintiffs, Appellants,
v.
DEPARTMENT OF HEALTH AND HUMAN SERVICES
FOR THE STATE OF NEW HAMPSHIRE,
Commissioner
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, Jr., U.S. District Judge]
Before
Torruella, Selya and Lipez, Circuit Judges.
Kay E. Drought for appellants.
Danielle L. Pacik, Assistant Attorney General, with whom
Michael A. Delaney, Attorney General, and Nancy L. Smith, Senior
Assistant Attorney General, were on brief, for appellee.
January 13, 2012
LIPEZ, Circuit Judge. In August 2003, the New Hampshire
Department of Health and Human Services (the "Department") and a
certified class of Medicaid-eligible children (the "Class") reached
a settlement agreement and proposed a consent decree (the "Decree")
that outlined the Department's obligations to provide dental
services to Medicaid-enrolled children in accordance with federal
law. The district court approved the Decree on January 26, 2004.
Between January 2007 and January 2010, the Class filed four motions
in the district court, alleging that the Department was not
complying with its obligations under the Decree and seeking various
remedies. The district court denied each of the motions.
On appeal, the Class claims that the district court (1) erred
by requiring the Class to file a motion for contempt 1 to enforce the
Decree; (2) abused its discretion by denying the Class's 2010 motion
for contempt; (3) abused its discretion by denying the Class's
request for an evidentiary hearing in 2010; and (4) erred by holding
the Class to a clear and convincing burden of proof on its 2010
motion to modify or extend the Decree. 2 After careful review of the
record, we affirm.
1
"Motion for contempt" is used as shorthand throughout this
opinion for what is technically a motion to show cause why the
defendant should not be adjudged in contempt.
2
Throughout this opinion, we refer to the Class's 2010 motion
entitled "Motion for Modification of Consent Decree Based on the
Defendant's Noncompliance with Federal Medicaid Law, or, in the
Alternative, for an Order Extending the Terms of the Decree Based
on the Defendant's Lack of Required Compliance" as the "motion to
modify or extend the Decree."
-3-
I.
In 1999, three mothers filed a proposed class action against
the Department on behalf of their Medicaid-eligible children.
Plaintiffs sought dental services for children in New Hampshire3
under Title XIX of the Medicaid Act, which requires participating
states to administer a health services plan that meets federal
requirements, including provision of an Early and Periodic
Screening, Diagnosis, and Treatment ("EPSDT") program. See 42
U.S.C. §§ 1396a(a)(43)(B), (C); Frew v. Hawkins, 540 U.S. 431, 433
(2004). A state's EPSDT program must include dental services.
Rosie D. v. Swift,
310 F.3d 230, 232 (1st Cir. 2002).
After years of mediation and litigation, the parties reached
a settlement in September 2003. The district court certified the
plaintiffs as a class in January 2004 and approved the proposed
Decree the same month. Under the terms of the Decree, the district
court retained jurisdiction over the action for five years from the
date of decree approval. On January 8, 2009, approximately two
weeks before the five year period was set to expire, the parties
agreed to modify the Decree by extending the court's jurisdiction
by six months. At the end of the extension, the court retained
3
The district court found that there were more than 55,000
Medicaid-eligible children in New Hampshire in May 2003. The
certified class includes "all persons under age 21 who are now
enrolled, or who become enrolled during the term of this Decree, in
the New Hampshire Medicaid program and are, or become, entitled to
receive EPSDT dental services."
-4-
jurisdiction for another six months to determine whether the
Department was in compliance during the five years and six months
of the primary term and, if not, what remedies were available.
Throughout the early years that the Decree was in place, the
parties engaged in disputes over the Department's compliance. In
October 2006, the district court appointed a mediator to help
resolve the parties' differences. When the mediation failed, the
Class filed a motion to enforce in January 2007. In August 2007,
the motion was denied without prejudice to the right of the Class
"to file a properly supported motion for appropriate relief." The
district court specified that enforcement of the Decree required
invocation of the court's contempt power.
The Class again sought enforcement of the Decree in 2008 by
filing a motion for contempt, alleging that the Department was
failing to provide (1) eligible families with accurate information
about dentists who had openings for Medicaid patients, (2) timely
dental care to eligible children, and (3) orthodontic care in all
of New Hampshire's counties. The district court denied the motion,
finding insufficient "factual support for each element [of
contempt] to meet the clear and convincing standard of proof." At
the same time, the district court "put [the Department] on notice
that it is required to update its provider [l]ist every ninety
days" and that "[f]ailure to do so . . . [would] result in a
finding of contempt."
-5-
In 2010, the Class filed another motion for contempt and a
motion to modify or extend the Decree based on alleged
noncompliance with the same three requirements set out in the 2008
motion. The district court found that the Class had again failed
to prove that the Department was noncompliant. In its analysis,
the district court applied the clear and convincing evidentiary
standard, but stated that even under the less exacting
preponderance standard, the Class had not met its burden of proof.
The district court denied both motions.
The Class now appeals the denials of the 2010 motions.4 We
address each in turn.
II.
A. Enforcement of the Consent Decree by Filing a Motion for
Contempt5
The Class argues that the district court erred by requiring
the Class to file a motion for contempt to enforce the Decree, with
4
Although the 2008 Order was listed in the Notice of Appeal
filed on June 17, 2010, the Class does not argue on appeal the
denial of its 2008 motion for contempt, which raised essentially
the same issues as the 2010 motion. Accordingly, we do not address
it here.
5
At oral argument we asked the parties to file supplemental
briefs discussing whether we could address in this appeal from the
denial of the 2010 motion for contempt the district court's ruling,
in its denial of the 2007 motion to enforce, that enforcement of
the Decree could only be sought by filing a motion for contempt.
For present purposes, we assume, without deciding, that the 2007
order was not immediately appealable and that the district court's
insistence on the filing of a motion for contempt to enforce the
Decree is properly challenged in this appeal.
-6-
its requirement of proof by clear and convincing evidence. As the
Class put it, "Due to the district court's insistence on a contempt
proceeding, the Children faced an arbitrary and unreasonably high
bar in bringing Decree noncompliance issues to the court's
attention over the life of the Decree." We find no support in the
Decree or the case law for the Class's insistence that it did not
have to file a motion for contempt to remedy the Department's
alleged noncompliance with the Decree.
Under the terms of the Decree, the party alleging
noncompliance is charged with bringing the issue to the court's
attention by either (1) a motion for contempt, or (2) a
stipulation:
The Court shall also retain jurisdiction over this action
for an additional sixth year to determine whether or not
the Defendant was in compliance with the Decree during
the previous five years of the Decree and if not, what
remedy or remedies are appropriate if requested by the
filing of a motion for contempt or by stipulation of the
parties prior to the end of the sixth year.
Decree Section I (emphasis added). The Decree repeats these
options elsewhere in Section I:
If no motion for contempt or stipulation is filed, the
parties agree that the case shall be dismissed from the
Court's docket at the conclusion of the sixth year or any
extension of federal Court jurisdiction.
Id. (emphasis added). The remedial measures designated in
Section I differ from other mechanisms identified in the Decree.
For example, under Section II, modification of the decree may be
-7-
"sought by motion or stipulation." This distinction suggests that
an ordinary motion is sufficient for modification, whereas a
request to enforce the original terms of the Decree must take the
form of a motion for contempt.
The Class points to language in the Decree stating that "if
the parties cannot agree" whether the Department is in compliance
with the Decree, "[t]hen either party may ask the Court to resolve
the dispute, including but not limited to ordering the Department
to take further actions designed to achieve compliance with this
Decree and with federal law." Decree Section XII(B). The Class
suggests that this language "demonstrates that the parties intended
the trial court to have available as an enforcement tool the entry
of remedial orders as needed." We do not read this provision to
create a distinct enforcement mechanism. The quoted language
follows language requiring the parties to meet outside of court to
discuss compliance concerns before engaging the court. Decree
Section XII(B). In this context, we read the quoted language to
mean that the parties may seek enforcement from the court if
negotiations fail. Other provisions in the Decree specify the
mechanism by which the parties must seek enforcement from the
court. As noted, those provisions make clear that a party seeking
enforcement must do so through a motion for contempt. See Decree
Section I.
-8-
Moreover, it is well settled in the law that a motion for
contempt is the proper way to seek enforcement of a consent decree.
Brewster v. Dukakis, 675 F.2d 1, 3 (1st Cir. 1982) (stating that
enforcement of a consent decree is sought by "an action for
enforcement (i.e., contempt)"); see also, e.g., Whitehouse v.
LaRoche,
277 F.3d 568, 578 n.6 (1st Cir. 2002); Martel v.
Fridovich,
14 F.3d 1, 3 n.4 (1st Cir. 1993); Johnson v. City of
Tulsa,
489 F.3d 1089, 1103-04 (10th Cir. 2007); NLRB v. Ironworkers
Local 433,
169 F.3d 1217, 1219 (9th Cir. 1999); United States v.
O'Rourke,
943 F.2d 180, 189 (2d Cir. 1991); DeGidio v. Pung,
920
F.2d 525, 534 (8th Cir. 1990); Green v. McKaskle,
788 F.2d 1116,
1123 (5th Cir. 1986).6 Hence, the district court did not err by
insisting that the Class seek enforcement through a motion for
contempt.
B. Denial of the 2010 Motion for Contempt
We review the denial of a motion for contempt for abuse of
discretion. See Islamic Inv. Co. of the Gulf (Bah.) Ltd. v. Harper
6
The Class asserts that the use of the phrase "motion to
enforce" in Frew, 540 U.S. at 435, 439, shows that a mechanism
other than invocation of the contempt power is available to enforce
consent decrees. The label given to a motion to enforce a consent
decree does not control the legal requirements applicable to such
a motion, including the requirement of proof of noncompliance by
clear and convincing evidence. Moreover, in discussing the motion
to enforce, the Frew Court relied on a case that states that
"noncompliance with a consent decree is enforceable by citation for
contempt of court."
Id. at 439 (citing Firefighters v. Cleveland,
478 U.S. 501, 518 (1986)).
-9-
(In re Grand Jury Investigation), 545 F.3d 21, 24 (1st Cir. 2008)
(citing Langton v. Johnston,
928 F.2d 1206, 1220 (1st Cir. 1991)).
To prove civil contempt, a movant must show that (1) the alleged
contemnor had notice of the order, (2) "the order was clear and
unambiguous," (3) the alleged contemnor "had the ability to comply
with the order," and (4) the alleged contemnor violated the order.
United States v. Saccoccia,
433 F.3d 19, 27 (1st Cir. 2005)
(internal quotation marks omitted). As noted, the movant must make
this demonstration with clear and convincing evidence. See, e.g.,
Islamic Inv. Co. of the Gulf (Bah.)
Ltd., 545 F.3d at 25;
Saccoccia, 433 F.3d at 27.7
The parties do not contest that the first three prongs of the
contempt inquiry are satisfied. They contest only whether the
Department violated the Decree. The Class alleged three varieties
of noncompliance in 2010, asserting that the Department violated
its duty to (1) effectively inform Medicaid participants of the
7
Even if the plaintiff is able to prove each of the elements,
a court may exercise its discretion and decline to make a finding
of contempt where the defendant has been substantially compliant
with the terms of the underlying order. AccuSoft Corp. v. Palo,
237 F.3d 31, 47 (1st Cir. 2001);
Langton, 928 F.2d at 1220 (citing,
inter alia, Howard Johnson Co. v. Khimani,
892 F.2d 1512, 1516
(11th Cir. 1990) ("Conduct that evinces substantial, but not
complete, compliance with the court order may be excused if it was
made as part of a good faith effort at compliance."); Balla v.
Idaho State Bd. of Corrections, 869 F.2d 461, 466 (9th Cir. 1989)
("Substantial compliance with a court order is a defense to an
action for civil contempt.")). The district court's denial of the
motion for contempt did not rest on findings of substantial
compliance.
-10-
dental EPSDT program, (2) provide reasonably prompt dental
assistance, and (3) provide statewide dental assistance. Taking
each in turn, we consider whether the district court committed
error by finding that the Class had not proved by clear and
convincing evidence that the Department's performance was
deficient. We then consider whether the district court abused its
discretion by refusing to hold an evidentiary hearing on the
contempt motion.
1. Duty to Effectively Inform Medicaid Participants of
the EPSDT Program
Under the terms of the Decree, the Department must comply with
federal Medicaid law. Federal law requires the Department to
inform eligible persons "of the availability of early and periodic
screening, diagnostic, and treatment services," 42 U.S.C. §
1396(a)(43)(A), including dental services, 42 U.S.C. § 1396d(r)(3);
see also Rosie D., 310 F.3d at 232.
The Decree expands on the Department's obligations by
requiring the Department to provide "reasonably current
information" to Class members as to whether dental offices are
accepting new Medicaid patients. In 2008, the district court
interpreted this requirement to mean that the Department must
update its provider information list at least every 90 days.8
8
In its order denying the Class's 2008 motion for contempt,
the district court expressed concern about the currency of the
information available to Class members. The Class presented no
-11-
The Class argues that the Department did not comply with its
information obligation between 2004 and 2008 because it failed to
inform patients effectively about which dentists had openings. The
Class also argues that the Department remains out of compliance
because it does not list the number of openings at offices
accepting new Medicaid patients.
Civil contempt is a forward-looking penalty meant to coerce
compliance rather than to punish past noncompliance. See McComb v.
Jacksonville Paper Co., 336 U.S. 187, 191 (1949); United States v.
United Mine Workers,
330 U.S. 258, 303-04 (1947); United States v.
Puerto Rico,
642 F.3d 103, 108 (1st Cir. 2011). In its 2010 motion
for contempt, the Class sought to coerce such compliance.
Nevertheless, the Class argues that a provision in the Decree
required the court, in considering the contempt motion generally,
to review the Department's level of compliance over the entire term
of the Decree.9 Indeed, at oral argument, counsel for the Class
evidence of noncompliance with the 90-day requirement in 2010, and
the district court expressed no concern in its 2010 order denying
the motion for contempt.
9
After being amended in 2009, Decree Section I stated that
[t]he Court shall . . . retain jurisdiction over this
action for an additional six months to determine whether
or not the Defendant was in compliance with the Decree
during the previous five years and six months of the
Decree and if not, what remedy or remedies are
appropriate if requested by the filing of a motion for
contempt or by stipulation of the parties prior to the
end of the sixth year.
-12-
suggested that the Class's 2010 motion for contempt should have
been granted based on the Department's alleged noncompliance
between 2004 and 2008. Although evidence of any noncompliance from
2004 to 2008 was certainly relevant to consideration of the Class's
motion, the district court could properly focus on the Department's
current compliance with the Decree, and whether any measures had to
be taken to achieve the level of compliance sought by the Class.10
On the particular issue of effectively informing Medicaid
participants of the EPSDT program, the district court rejected the
Class's allegation of noncompliance for failing to list the number
of openings at dental offices accepting new Medicaid patients. The
court reasonably concluded that including the number of openings
could result in the list becoming outdated well before the
Department's next quarterly update, making inclusion of this
information unlikely to improve the list's accuracy.
10
In some instances, a finding of civil contempt may be
imposed to compensate a party harmed by noncompliance. Puerto
Rico, 642 F.3d at 108; see also United Mine
Workers, 330 U.S. at
303-04 ("Judicial sanctions in civil contempt proceedings may, in
a proper case, be employed for either or both of two purposes: to
coerce the defendant into compliance with the court's order, and to
compensate the complainant for losses sustained."). The Class did
not seek compensation for its members; it sought only to coerce
compliance. Thus, the district court properly focused on current
compliance. See id. at 304 (noting that while compensation must be
based on the actual loss caused by past wrongs, a court seeking to
coerce compliance properly looks forward and "consider[s] the
character and magnitude of the harm threatened by continued
contumacy, and the probable effectiveness of any suggested sanction
in bringing about the result desired").
-13-
Moreover, there is no language in the Decree requiring the
Department to collect information from providers about the number
of openings in each office or to include that information in the
Department's provider list. The Decree includes a significant
level of detail on the information about dental providers that the
Department must give Class members. For example, the Department
must relay the names and phone numbers of three to six dental
providers to all eligible, non-emergency callers and supply a
"reasonably current" list of dentists, dental offices, and dental
clinics with openings for new Medicaid patients. See Decree
Section VII(F)(1). Nowhere does the Decree specify that the number
of openings at an office should be included on the provider list.
Because the Department is not required to provide the number of
openings, its failure to do so did not constitute contempt.
2. Duty to Provide Reasonably Prompt Medical Assistance
Both Section VII(B) of the Decree and federal law require the
Department to provide medical assistance to eligible individuals
with reasonable promptness. See 42 U.S.C. § 1396a(a)(8). Under
the terms of the Decree, the Department is obligated to "arrange
for provision of dental screenings using a periodicity schedule of
every six months." Decree Section VII(B). In an effort to
facilitate provision of EPSDT program services, the Department
notifies eligible families of the availability of the program and
provides them with information about a variety of program
-14-
components, including, for example, transportation and scheduling
assistance services. Decree Section VIII. The Department also
contacts Class members to "advise of the importance of preventive
oral health care" and, among other things, to "remind the Class
[m]embers that it is time to schedule a dental check-up/exam."
Decree Section VIII(a)(1), (2). After contacting Class members
with this type of information, the Department relies on them to
request available services. A request for services, in turn,
triggers additional obligations on the part of the Department to
provide services with reasonable promptness. For example, when a
Class member "contacts the Department's Medicaid Client Services
Unit to request a dental screening," the Department must "use its
best efforts to ensure that [the Class member] receives a dental
screening from a dental provider within ninety (90) days of the
initial request for such service." Decree Section VII(B).
The Class argues that the Department's responsibility to
provide a six-month screening within ninety days of a Class
member's request for one does not define the full scope of the
Department's promptness obligations. Instead, the Class argues
that the Department has an affirmative duty to ensure that eligible
children receive services in a timely and effective manner,
regardless of whether services are requested. Stating that it is
unfair to place "legal responsibilities on indigent families to
'trigger' their children's rights to any dental services," the
-15-
Class maintains that the Department must "assure that these
services are actually provided to children." The Class cites
evidence that approximately 40 percent of eligible children are not
receiving regular dental screenings.11 It also cites a survey
conducted by the University of New Hampshire Survey Center in early
2008 showing that 14 percent of Medicaid-enrolled survey
participants expressed some level of dissatisfaction with the ease
of scheduling and the timeliness of receiving dental services.
The Department maintains that reasonable promptness should be
measured from the time that services are requested. Siding with
the Department, the district court found that
[b]ased on the plain meaning of Section VII(b), the
'reasonable promptness' requirement for screenings is
triggered by a request made by a Class member and does
not exist until a request is made. Therefore, statistics
about how many children have received dental services,
without detail about how many contacted the Department
for screenings and the time taken to provide screenings,
may provide some evidence of a lack of reasonable
promptness but does not provide clear and convincing
evidence of noncompliance.
The Class misinterprets the district court's statement that
"statistics about how many children have received dental services
. . . may provide some evidence of a lack of reasonable promptness"
11
The data are from a "program measure report" provided by the
Department pursuant to Section XI(A) of the Decree. The data
indicated that of the 58,309 Class members continuously enrolled in
Medicaid during State Fiscal Year 2009, 59.7 percent received the
preventive services described in Section XI(A)(6)(b)(iii) of the
Decree.
-16-
to mean that the district court found the Department at least
partially noncompliant. Instead, the district court found that the
statistics, though relevant to the compliance issue, were
insufficient to prove the Class's claim. In fact, the district
court found that
[t]he survey results cited by the Class . . . tend to
indicate that the Department is providing the services
covered by the survey with reasonable promptness.
We agree with the district court that the Decree itself
incorporates the request-based timeliness assessment by imposing a
90-day deadline on action to fulfill a request for a dental
screening. See Decree Section VII(B). Moreover, the vague concept
of timeliness proposed by the Class is unworkable. Beyond
notification efforts, we cannot envision how the Department would
ensure that eligible individuals submit to services.12 The
Department cannot compel families to use the program, and
timeliness cannot be measured when services are never requested or
performed.
We also agree with the district court that the fact that up to
40 percent of eligible children were not receiving services is
insufficient to demonstrate by clear and convincing evidence that
the Department is failing to provide services with reasonable
12
The Class does not explain how the Department might provide
services to eligible children whose families do not request them.
It simply insists that it do so.
-17-
promptness. The Class did not provide statistical evidence
regarding how many eligible children actually requested services.
Given the absence of that far more probative evidence, the Class
failed to make its case for noncompliance with the reasonable
promptness requirement.13
Although we share the district court's concern that 14 percent
of survey participants expressed dissatisfaction with the ease of
scheduling and the timeliness of receiving dental services, we note
that this level of dissatisfaction was not unique to Class members.
When the length of a patient's relationship with a dental office
was taken into account, the survey found that there was no
significant difference among the three sampled populations -
Medicaid participants, commercially insured or uninsured
individuals, and subscribers to the State Children's Health
Insurance Program.14 Under the terms of the Decree, the Department
may not be required to provide services in a shorter timeframe than
13
In its 2008 order, the district court found that a large
percentage of eligible children were not receiving dental
screenings. Although the court put the Department "on notice" that
its procedures needed improvement, it held that the statistical
evidence regarding receipt of dental services was insufficient,
standing alone, to show that the Department was not providing
services with reasonable promptness. In 2010, the district court
observed that since its 2008 admonition, the Department had
demonstrated "improvement in [its] efforts and an increase in the
number of Class members receiving services."
14
The State Children's Health Insurance Program is also known
as the New Hampshire Healthy Kids Silver program. It provides low-
cost health and dental coverage for uninsured children in families
whose income is above the limit for Medicaid.
-18-
is available to privately insured parties. See Decree Section VII
("The timeliness requirements described herein are subject to
market conditions and in no event shall the Department be required
to provide the assistance or services described in a shorter
timeframe than would be available to a privately insured person.").
3. Duty to Provide Statewide Medical Assistance
In its 2008 motion for contempt, the Class argued that the
Department was noncompliant with its obligation to provide
orthodontic services to all Class members. Specifically, the Class
took issue with the Department referring Class members who lived in
three northern counties, in which there were no participating
orthodontists, to orthodontists in other parts of New Hampshire.
The Class argued that such referrals resulted in significant travel
burdens for some Class members, and that such burdens rendered the
Department noncompliant with its obligation to implement a plan
that makes medical and dental assistance available statewide. 42
U.S.C. § 1396a(a)(1); 42 C.F.R. § 431.50. The Department did not
dispute that the lack of orthodontists in the three northern
counties made those services less readily available to Medicaid
patients in that part of the state.15 However, because the Class
did not present evidence that the Department had the ability to
15
Though not required under a statewide plan, the Department
had orthodontists available in each county by the time of the 2010
contempt motion.
-19-
provide orthodontic services in those counties, the district court
found that the Class did not show by clear and convincing evidence
that the Department was noncompliant with is orthodontic services
obligations.
In its 2010 motion for contempt, the Class again contended
that the Department was noncompliant with the statewide requirement
because certain Class members had to travel significant distances
to see an orthodontist. Under federal law, states participating in
Medicaid must submit for approval a plan that will be effective "in
all political subdivisions of the State, and, if administered by
them, be mandatory upon them." 42 U.S.C. § 1396(a)(1). Under
federal regulations, that plan must "be in effect throughout the
State" and "in operation statewide." 42 C.F.R § 431.50(a)-(b)(1).
The district court found that neither of these provisions, nor the
Decree, requires the Department to provide services within a
certain driving distance. We agree. The Department's failure to
provide orthodontic services to Class members within a specific
geographic distance did not constitute contempt.
4. The Request for an Evidentiary Hearing
We review the district court's refusal to hold an evidentiary
hearing for abuse of discretion. See United States v. Comunidades
Unidas Contra la Contaminacion, 204 F.3d 275, 278 (1st Cir. 2000).
Although the Class now emphasizes that it was denied an evidentiary
hearing, its motion for contempt included only a cursory request
-20-
for such a proceeding. In its memorandum of law in support of the
contempt motion, the plaintiffs requested an evidentiary hearing
because they were "prepared to present additional cumulative
factual support for the relief requested" (emphasis added).16 The
Class did not reveal the evidence it was prepared to offer.
Where the moving party fails to indicate that it possesses new
material evidence that it wishes to present to the court, an
evidentiary hearing is not required. Cf. Gonzalez-Sanchez v.
United States, No. 91-1561, 1992 U.S. App. LEXIS 28914, at *11 (1st
Cir. 1992)(unpublished) ("No[] . . . evidentiary hearing on
petitioner's motion to hold the government in contempt [was]
required, for petitioner did not indicate he had any material
evidence to present."). To the extent that the Class asks us to
hold that the mere request for an evidentiary hearing entitles a
party to one, we decline.17
16
Plaintiffs made two other succinct requests for an
evidentiary hearing. The opening paragraph of the 2010 motion for
contempt states: "Plaintiffs seek an evidentiary hearing." At the
end of the same motion, within a list of ten requests for relief,
the Class asked the court to "[c]onduct an evidentiary hearing."
Neither request is accompanied by a proffer or an elaboration on
the request.
17
Because the Class's 2007 motion to enforce, its 2008 motion
for contempt, and its 2010 motion for contempt were nearly
identical, the Class's 2010 motion for contempt was effectively its
third opportunity to present relevant facts and arguments to the
district court.
-21-
C. The 2010 Motion to Modify Or Extend the Consent Decree
In conjunction with its 2010 motion for contempt, the Class
moved to modify or, in the alternative, extend the Decree. In its
2010 order denying the motion, the district court characterized the
Class's requests as follows:
The Class asks the court to modify the Consent Decree by
extending its duration, arguing that the Department
agreed to comply fully with federal law and has failed to
do so. The Class also asks that the Department be
ordered to prepare a remedial plan that would address the
Department's violations of federal law and to impose an
injunction requiring the Department to comply with its
obligations under Medicaid.
The district court refused to impose an injunction or extend the
Decree, finding that "the Class did not meet its burden of
establishing that the Department [wa]s violating the terms of the
Decree or Medicaid laws, a requirement for civil contempt."
1. Modification of the Decree
The Class argues that the district court erred by applying the
clear and convincing evidence standard to the motion to modify. It
is far from clear what aspect of the Decree - other than the term
of the court's jurisdiction - the Class wished to modify. As we
read the Class's motion, it sought, in essence, to enforce and
extend the Decree in light of alleged violations of federal law and
the Decree. Hence, in substance, the motion to modify raised the
same compliance issues as the motion for contempt. Because those
issues could only be properly raised in a motion for contempt and
-22-
considered under the clear and convincing evidence standard, there
were no discrete issues related to modification to consider under
the lesser preponderance of the evidence standard urged by the
Class. Moreover, in Section I, the Decree outlines the
circumstances in which modification is appropriate:
In the event that the actions taken hereunder are not
effective in meeting and maintaining the requirements of
federal law . . . it is intended that the issues be
addressed promptly or in the annual meeting under
¶ XII(B), and if necessary, that modification of this
Consent Decree be properly sought by motion or
stipulation.
Under the terms of the Decree, modification is only appropriate if
the Department fails to meet or maintain the requirements of
federal law. In considering the Class's 2010 motion for contempt,
the district court did not find any violations of either federal
law or the Decree by the Department. Thus, the district court was
justified in denying the motion to modify on the basis of its
findings.
2. Extension of the Decree
The Class also sought to extend by three years the court's
jurisdiction over the Decree. The Class again argues that the
district court erred by holding the Class to a clear and convincing
standard of proof on its motion to extend the Decree, when the
appropriate standard was a preponderance of the evidence. However,
as described above, the district court explicitly stated that the
Class failed to meet its burden of proof on the noncompliance
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issues even under the standard the Class urges - the preponderance
standard. We therefore need not dwell on the appropriate burden of
proof applicable to the extension request.
Section I of the Decree permits extension of the court's
jurisdiction "for whatever time is directed by the Court upon a
showing that substantial compliance with the provisions of the
Decree has not been achieved." The district court did not directly
address the extension provision of the Decree. Instead, focusing
on the distinct modification provision of the Decree, the district
court framed the issue as "[t]he Class ask[ing] the court to modify
the Consent Decree by extending its duration."
To the extent that the court erred by not applying the
extension provision of the Decree, that error was inconsequential.
The extension provision requires the Class to show "that
substantial compliance with the provisions of the Decree has not
been achieved." In pursuing its contempt and modification motions,
the Class was unable to show that the Department was noncompliant
at all with its obligations under federal law and the Decree. In
the absence of such a showing, the district court did not err in
denying the motion to extend the Decree.
III.
For the foregoing reasons, the judgment of the district court
is affirmed.
So ordered.
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