John Armstrong v. Edmund Brown, Jr.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN ARMSTRONG; JAMES No. 12-16018

AMAURIC; RICHARD PONCIANO;

JACK SWENSEN; BILLY BECK; JUDY D.C. No.

FENDT; WALTER FRATUS; GREGORY 4:94-cv-02307-

SANDOVAL; DARLENE MADISON; CW

PETER RICHARDSON; STEVEN HILL;

DAVID ROSE; DAVID BLESSING; ELIO

CASTRO; ELMER UMBENHOWER;

RAYMOND HAYES; GENE

HORROCKS; KIAH MINCEY; CLIFTON

FEATHERS; WILLIE JOHNSON; DAVID

BADILLO; JAMES SIMMONS; FLORA

ABRAMS; JOEY GOUGH; TIMOTHY

WHISMAN,

Plaintiffs-Appellees,

v.

EDMUND G. BROWN, JR.; MICHAEL

MINOR; MATTHEW L. CATE; DIANA

TOCHE; CHRIS MEYER; KATHLEEN

DICKINSON; ROBERT AMBROSELLI,

Defendants-Appellants.

2 ARMSTRONG V. BROWN

JOHN ARMSTRONG; JAMES No. 12-17198

AMAURIC; RICHARD PONCIANO;

JACK SWENSEN; BILLY BECK; JUDY D.C. No.

FENDT; WALTER FRATUS; GREGORY 4:94-cv-02307-

SANDOVAL; DARLENE MADISON; CW

PETER RICHARDSON; STEVEN HILL;

DAVID ROSE; DAVID BLESSING; ELIO

CASTRO; ELMER UMBENHOWER; OPINION

RAYMOND HAYES; GENE

HORROCKS; KIAH MINCEY; CLIFTON

FEATHERS; WILLIE JOHNSON; DAVID

BADILLO; JAMES SIMMONS; FLORA

ABRAMS; JOEY GOUGH; TIMOTHY

WHISMAN,

Plaintiffs-Appellees,

v.

EDMUND G. BROWN, JR.; MICHAEL

MINOR; MATTHEW L. CATE; DIANA

TOCHE; CHRIS MEYER; KATHLEEN

DICKINSON; MARGARITA PEREZ,

Defendants-Appellants.

Appeals from the United States District Court

for the Northern District of California

Claudia Wilken, Chief District Judge, Presiding

No. 12-16018

Argued and Submitted

September 5, 2012—San Francisco, California

ARMSTRONG V. BROWN 3

No. 12-17198

Submitted September 27, 2013*

Filed October 4, 2013

Before: Stephen Reinhardt, A. Wallace Tashima,

and Marsha S. Berzon, Circuit Judges.

Opinion by Judge Reinhardt

SUMMARY**

Prisoner Civil Rights

In an action initiated in 1994 by disabled prisoners and

parolees seeking disability accommodation under the

Americans with Disabilities Act and the Rehabilitation Act,

the panel (1) affirmed the district court’s August 28, 2012

orders which required California state officials to disseminate

and implement a previously negotiated County Jail Plan for

disabled prisoners and parolees, and (2) dismissed as moot an

appeal from the district court’s April 2012 orders.

Defendant state officials asserted that a narrow portion of

a class of disabled state prisoners and parolees was no longer

eligible to benefit from the district court’s remedial orders

*

The panel unanimously concludes that this appeal is suitable for

decision without oral argument. See Fed. R. App. P. 34(a)(2).

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

4 ARMSTRONG V. BROWN

due to amendments to California Penal Code § 3056, which

were designed to ameliorate overcrowding in state prisons by

placing certain parolees in county facilities. The panel held

that although § 3056 altered the balance of control between

the state and its counties somewhat while parolees covered by

§ 3056 were incarcerated, both the instigation of parole

revocation and the service of any jail time for revocations

enforced state-imposed requirements and served essentially

state purposes. Therefore, the state was not absolved by

§ 3056 of all its responsibility for Americans with Disabilities

Act obligations as to parolees placed in county jails to enforce

their state-imposed sentences, including their parole

conditions. The panel concluded that the district court’s

August 28 orders requiring implementation of the County Jail

Plan neither conflicted with § 3056 nor required more of

defendants than was appropriate to assist in remedying the

Americans with Disabilities Act and Rehabilitation Act

violations for which they bore responsibility.

The panel dismissed as moot the appeal from the district

court’s April orders which required renewed negotiations and

the eventual dissemination to the counties of a compliance

plan providing for, among other things, the tracking and

monitoring of class members housed in county jails.

ARMSTRONG V. BROWN 5

COUNSEL

Kamala D. Harris, Attorney General of the State of

California; Jonathan L. Wolff, Senior Assistant Attorney

General; Jay C. Russell, Supervising Deputy Attorney

General; Giam M. Nguyen, Janelle M. Smith, and Jay M.

Goldman (argued), Deputies Attorney General, San

Francisco, California, for Defendants-Appellants.

Michael W. Bien, Gay C. Grunfeld (argued), Lisa Ells, Blake

Thompson, and Michael Freedman, Rosen Bien Galvan &

Grunfeld LLP, San Francisco, California; Warren E. George,

Bingham McCutchen LLP, San Francisco, California; Donald

Specter and Rebekah Evenson, Prison Law Office, Berkeley,

California; and Linda Kilb, Disability Rights Education &

Defense Fund, Inc., Berkeley, California, for Plaintiffs-

Appellees.

OPINION

REINHARDT, Circuit Judge:

Since 1994, disabled state prisoners and parolees have

been engaged in a seemingly never-ending struggle with

California state officials over whether defendants must

provide disability accommodations under the Americans with

Disabilities Act (“ADA”) and the Rehabilitation Act. These

accommodations include basic necessities of life for disabled

prisoners and parolees, such as wheelchairs, sign language

interpreters, accessible beds and toilets, and tapping canes for

the blind. Notwithstanding a series of careful district court

orders dating back to 1996 and an opinion by this Court

affirming the issuance of a permanent injunction, defendants

6 ARMSTRONG V. BROWN

have resisted complying with their federal obligations at

every turn. These appeals provide no exception. Defendants

contend that a narrow portion of the class of disabled state

prisoners and parolees is no longer eligible to benefit from

the district court’s remedial orders due to a change in

California Penal Code § 3056. We reject that contention and

affirm the district court’s latest enforcement orders.

BACKGROUND

Our most recent opinion in this case summarized its long

history. See Armstrong v. Schwarzenegger, 622 F.3d 1058,

1063–64 (9th Cir. 2010). In that opinion, we affirmed the

validity of an ADA regulation1 and concluded that defendants

“cannot shirk their obligations to plaintiffs under federal law

by housing them in facilities operated by the third-party

counties.” Id. at 1074. We made clear that “defendants have

the responsibility of ensuring that their prisoners are afforded

their rights under the ADA, regardless of where the State

incarcerates them.” Id. at 1072.

Since our 2010 decision, plaintiffs have renewed their

motion in the district court to enforce the injunction against

defendants as it pertains to class members housed in county

jails, and California has begun implementation of

“realignment,” a plan designed to ameliorate overcrowding in

its prisons.

As a part of realignment, amendments to § 3056 became

effective on October 1, 2011. Defendants then asserted in the

district court that they had been absolved by these

amendments of all responsibility for violations of class

1

28 C.F.R. § 35.130(b)(1).

ARMSTRONG V. BROWN 7

members’ rights while they are housed by state law in county

jails.2 The district court rejected this contention in January

2012 and then again in April 2012.3 It also issued orders

(“the April orders”) requiring the renewal of negotiations and

the eventual dissemination to the counties of a compliance

plan providing for, among other things, the tracking and

monitoring of Armstrong class members housed in county

jails. Defendants appealed these orders. The parties then

negotiated a revised County Jail Plan (“the Plan”).

2

Prior to October 1, 2011, § 3056 provided “[prisoners] on parole shall

remain under the legal custody of the department and shall be subject at

any time to be taken back within the inclosure of the prison.” Cal. Penal

Code § 3056 (West 2010). The realignment amendments provided:

“Prisoners on parole shall remain under the supervision

of the department but shall not be returned to prison

except as provided in subdivision (b) or as provided by

subdivisions (c) or Section 3000.09. Except as

provided by subdivision (c) of Section 3000.09, upon

revocation of parole, a parolee may be housed in a

county jail for a maximum of 180 days. When housed

in county facilities, parolees shall be under the legal

custody and jurisdiction of local county facilities.

When released from custody parolees shall be returned

to the parole supervision of the department for the

duration of parole.”

Cal. Penal Code § 3056(a) (West 2011). The current version of § 3056(a),

as amended June 27, 2012, is reproduced in footnote 5.

3

Under realignment, low-level, non-serious, non-violent offenders are

not placed on state parole after their release from prison. § 3451. Instead,

the counties assume supervision responsibility for these parolees, termed

Post-Release Community Supervision parolees. In its January 2012 order,

the district court makes clear that its order does not extend to Post-Release

Community Supervision parolees, as the plaintiffs opted to not include

community supervision parolees in their renewed motion.

8 ARMSTRONG V. BROWN

On June 27, 2012, additional amendments to § 3056 went

into effect, modifying the statute to provide, inter alia, that

certain parolees awaiting a revocation hearing or serving a

revocation term “shall be under the sole legal custody and

jurisdiction of local county facilities”4 while housed in county

jails.5 After the governor signed the new version of § 3056

4

It is unlikely that the California legislature intended to place persons

under the legal custody of “facilities,” but we will construe the statute in

accordance with its apparent intent.

5

The current version of the statute (with amendments in italics)

provides:

(a) Prisoners on parole shall remain under the

supervision of the department but shall not be returned

to prison except as provided in subdivision (b) or as

provided by subdivision (c) of Section 3000.09. A

parolee awaiting a parole revocation hearing may be

housed in a county jail while awaiting revocation

proceedings. If a parolee is housed in a county jail, he

or she shall be housed in the county in which he or she

was arrested or the county in which a petition to revoke

parole has been filed or, if there is no county jail in that

county, in the housing facility with which that county

has contracted to house jail inmates. Additionally,

except as provided by subdivision (c) of Section

3000.09, upon revocation of parole, a parolee may be

housed in a county jail for a maximum of 180 days per

revocation. When housed in county facilities, parolees

shall be under the sole legal custody and jurisdiction of

local county facilities. A parolee shall remain under the

sole legal custody and jurisdiction of the local county

or local correctional administrator, even if placed in an

alternative custody program in lieu of incarceration,

including, but not limited to, work furlough and

electronic home detention. When a parolee is under the

legal custody and jurisdiction of a county facility

awaiting parole revocation proceedings or upon

ARMSTRONG V. BROWN 9

into law, defendants refused to disseminate or implement the

Plan. They adhered to this view despite the district court’s

denial of a stay pending appeal, our denial of defendants’

request for a stay pending appeal, and our subsequent denial

of defendants’ motion for reconsideration of that denial.

In response to defendants’ refusal to cooperate and

implement the Plan, the Armstrong class filed an emergency

motion to enforce the district court’s order. The district court

exercised its power to “preserve the status quo” pending the

decision of the appellate court under Federal Rule of Civil

Procedure 62(c) and granted plaintiffs’ motion on August 28,

2012 (“the August 28 orders”). The August 28 orders

essentially required defendants to disseminate and implement

the Plan. Nonetheless, defendants appealed the August 28

orders, reiterating their arguments that § 3056, as amended,

absolves them of any responsibility for Armstrong class

members during the time in which they are housed in county

jails and challenging for other reasons the district court’s

jurisdiction to issue those orders.6

revocation, he or she shall not be under the parole

supervision or jurisdiction of the department. When

released from the county facility or county alternative

custody program following a period of custody for

revocation of parole or because no violation of parole

is found, the parolee shall be returned to the parole

supervision of the department for the duration of parole.

6

We reject defendants’ argument that the district court lacked subject

matter jurisdiction to issue the August 28 orders. Although an appeal

ordinarily divests the district court of jurisdiction over the matters on

appeal, Rule 62(c) creates an exception by providing that, “[w]hile an

appeal is pending from an interlocutory order or final judgment that

grants, dissolves, or denies an injunction, the court may suspend, modify,

restore, or grant an injunction on terms for bond or other terms that secure

10 ARMSTRONG V. BROWN

Defendants argue that realignment divested them of

authority over a subpart of the Armstrong class—those

disabled parolees housed in county jails pursuant to

§ 3056—during the fairly brief and intermittent periods in

which those class members are either awaiting a parole

revocation hearing or detained due to revocation of parole.

They also assert that any court-imposed duty with respect to

those disabled parolees would interfere with California’s

prerogative to structure its internal affairs. They contend that,

as a result of the changes in state law, the court may no longer

the opposing party’s rights.” That exception applies here. The district

court acted to preserve the status quo and protect plaintiffs’ rights in direct

response to defendants’ repeated and willful non-compliance with its

earlier orders. Such action was particularly appropriate in this case, which

involves a series of enforcement orders dating back over a decade and a

continuous course of conduct marked by the development of new facts.

See Hoffman for & on Behalf of NLRB v. Beer Drivers & Salesmen’s

Local Union No. 888, Int’l Bhd. of Teamsters, Chauffeurs, Warehousemen

& Helpers of Am., 536 F.2d 1268, 1276 (9th Cir. 1976) (“[I]n the kinds of

cases where the court supervises a continuing course of conduct and where

as new facts develop additional supervisory action by the court is required,

an appeal from the supervisory order does not divest the district court of

jurisdiction to continue its supervision, even though in the course of that

supervision the court acts upon or modifies the order from which the

appeal is taken.”). Defendants’ arguments that the August 28 orders

nonetheless violated Rule 62(c) by materially altering the status of the

case on appeal, see Natural Res. Def. Council, Inc. v. Sw. Marine Inc.,

242 F.3d 1163, 1166 (9th Cir. 2001), do not succeed. The August 28

orders reduce rather than increase any imposition on defendants. The

three “substantive changes” that defendants identify were anticipated by

the injunction issued in January and as amended in April and are only

slight modifications of those orders, calibrated to changes in the relevant

facts. Most important, the status of this case on appeal remains unaltered

by the August 28 orders because the question before us remains

unchanged—whether the amendments to § 3056 wholly absolve

defendants of responsibility for the Armstrong class members housed in

county jails pursuant to that section.

ARMSTRONG V. BROWN 11

order them to assist the counties with regard to the

implementation of remedial actions, whether or not the state

has in its possession information essential to the taking of

such action. Thus, while defendants have not challenged the

fact that the housing of parolees in county jails has led to

widespread violations of Armstrong class members’ rights

under federal civil rights laws, they insist that they may no

longer be ordered to take any action whatsoever that may

serve to avert or alleviate such violations with respect to

parolees housed in county jail pursuant to § 3056.

We consolidate defendants’ appeals of the April and

August 28 orders for purposes of disposition because both

raise the same challenge to the scope of the injunction in light

of the amendments to § 3056.7

DISCUSSION

I.

Plaintiffs have extensively documented the ADA and

Rehabilitation Act violations suffered while serving parole

revocation terms or awaiting revocation hearings in county

jails. These violations are systemwide and extensive. They

involve the widespread denial of mobility-assistance devices

to persons unable to physically function without them, the

denial of hearing devices to deaf class members, and the

7

Because § 3056 was amended while this appeal was pending, the

district court did not rule on the most recent amendments to § 3056.

Ordinarily, we do not give consideration to issues not decided below.

Romain v. Shear, 799 F.2d 1416, 1419 (9th Cir. 1986). Here, however,

one of the exceptions to our ordinary rule is met—the issue on appeal “is

purely one of law and the necessary facts are fully developed.” Id. We

therefore address it at this juncture.

12 ARMSTRONG V. BROWN

denial of accessibility devices, such as tapping canes, to blind

class members. These denials forced disabled class members

into the vulnerable position of being dependent on other

inmates to enable them to obtain basic services, such as

meals, mail, showers, and toilets.

For their part in these violations, defendants failed to

ensure that the counties knew of Armstrong class members’

disabilities and failed to assist the counties with the

development of appropriate disability-related policies. The

vast majority of these undisputed violations could have been

prevented if defendants had shared their knowledge with the

county jails as to the accommodations needed by individual

Armstrong class members. Those that could not have been

prevented might have been cured if the class members had

been afforded a grievance procedure through which they

could have made defendants and the counties aware of their

needs and their right to an accommodation.

The amendments to § 3056 do not relieve defendants of

all responsibility for the discrimination suffered by

Armstrong class members housed in county jails, past and

present, or of their obligation to assist in preventing further

violations.

Defendants were and remain an important player in the

placement of disabled parolees in county jails without regard

to the ADA compliance of those facilities. California’s

realignment of authority over certain parolees, including

those who are disabled, to its counties has not changed this

critical fact. Parole conditions are set by the state, § 3053,

and violations of parole conditions are grounds for

revocation. § 3000.08(f). The revocation process thus

functions to enforce the state imposed parole conditions.

ARMSTRONG V. BROWN 13

Although courts, rather than defendants, now conduct parole

revocation hearings, it is still defendants who initiate the

process of parole revocation. § 1203.2; § 3000.08(f).

Defendants can also impose “flash incarceration” in county

jails of one to ten days without judicial involvement.

§ 3000.08(e). In certain cases, after a revocation hearing

before the state court, defendants, rather than the court,

determine the appropriate period of incarceration.

§§ 3000(b)(4), 3000.1, 3000.08(h). When state parolees are

released from county jails at the end of their revocation term

or after a finding that they did not violate their parole

conditions, they are “returned to the parole supervision of [the

state] for the duration of parole.” § 3056. As a result,

although § 3056 alters the balance of control between the

state and its counties somewhat while parolees covered by

§ 3056 are incarcerated, both the instigation of parole

revocation and the service of any jail time for revocations

enforce state-imposed requirements and serve essentially

state purposes. Therefore, the state is not absolved by § 3056

of all its responsibility for ADA obligations as to parolees

placed in county jails to enforce their state-imposed

sentences, including their parole conditions. See Castle v.

Eurofresh, Inc., No. 11-17947, slip op. at 18–19 (9th Cir.

Sept. 24, 2013); Armstrong, 622 F.3d at 1063.

Just three years ago, addressing an earlier version of

§ 3056, we held that “defendants are responsible for

providing reasonable accommodations to the disabled

prisoners and parolees that they house in county jails.”

Armstrong, 622 F.3d at 1063. In the April order, the district

court found that defendants remained responsible for

continued violations in county jails because, inter alia, of

their “ongoing failure to train, supervise, and monitor” their

employees and their “ongoing failure to communicate with

14 ARMSTRONG V. BROWN

county jails regarding the known needs of class members.”

These actions and culpable failures to act have played a

significant role in causing the undoubted discrimination

against Armstrong class members in county jails. The district

court’s findings directly implicate defendants in the violations

of the ADA and the Rehabilitation Act, and they cannot

escape responsibility for their conduct by means of the

amendments to § 3056.8

The defendants are, by now, well aware of the history of

ADA violations and degradations visited on parolees in

county jails. In a different context, this court has held that a

state may be liable to a child in the foster-care system, even

after the child is adopted and “[i]t becomes the adoptive

parent’s responsibility to provide for the [child’s] well-

being,” if the state “affirmatively create[s] a danger that the

adopted child would not have otherwise faced,” and the state

was aware of the danger it created. Tamas v. Dep’t of Soc. &

Health Servs., 630 F.3d 833, 843–44 (9th Cir. 2010). Here

too, the state cannot house persons for whom it is responsible

in jails where the state reasonably expects indignities and

violations of federal law will continue to occur, turn care over

8

Defendants’ reliance on the Fourth Circuit’s decision in Bacon v. City

of Richmond, 475 F.3d 633 (4th Cir. 2007), is misplaced. In Bacon, the

district court ordered the city to pay to fix accessibility barriers in public

schools despite its never having found that the city had in fact

“discriminated against [the plaintiffs],” nor having found that the city bore

any of the fault at all. Id. at 636, 639. Accordingly, the Fourth Circuit

held that the city could not be held financially responsible for the ADA

violations. Id. at 637, 639. In stark contrast, here, defendants are

responsible for the parolees’ incarceration. And the remedial order does

not require the state to fund ADA accommodations generally, but only to

facilitate the counties’ provision of disability accommodations through

services consistent with the state’s role in placing parolees in county jails

as part of a state-imposed sentence.

ARMSTRONG V. BROWN 15

to county custodians, and then disown all responsibility for

their welfare.

We must therefore reject defendants’ categorical assertion

that, under the amendments to § 3056, they may no longer be

required to assist in any way with the counties’ remedial

actions—actions intended to facilitate the accommodation of

plaintiffs’ disabilities while they are temporarily detained in

county jails. The amendments to § 3056 alter the balance of

control between the state and its counties, but do not relieve

defendants of all responsibility for the discrimination

Armstrong class members suffer. We affirm the district

court’s conclusion that defendants have a continuing

obligation to assist in alleviating the conditions that result in

ADA and Rehabilitation Act violations in county jails.

II.

The August 28 orders, which we review here, are

consistent with federal law and do not infringe on

California’s prerogative to structure its internal affairs.9

The August 28 orders require principally that defendants:

disseminate a copy of the Plan to their personnel and county

officials; track disabled parolees by means of the existing

tracking system; within 24 hours after a disabled parolee is

detained in jail, e-mail information about that individual’s

disability and accommodation needs to the appropriate jail

officer; provide stamped envelopes and grievance forms to all

parolees and out-to-court prisoners with disabilities housed in

county jails, while also encouraging parolees to use county

9

On this appeal, we review only the August 28 orders because they

supersede the April orders, which are now moot.

16 ARMSTRONG V. BROWN

grievance procedures; notify a county designee when CDCR

personnel become aware that a class member faces an

emergency situation in county jail; review all grievances

received from class members in county jails for patterns of

non-compliance; and notify county officers of any patterns of

denials of disability accommodations by written report,

following up where appropriate with another written report on

what steps might be taken to remedy the situation.

These minimal measures, consisting largely of

notifications, collection of data, and reports to county

officials, respect California’s division of authority. The

orders do not require that defendants compel the counties to

do anything; nor do the orders require any kind of punitive or

coercive action on the part of defendants if county officials

fail to comply with their state and federal duties.

Further, as a practical matter, the August 28 orders

impose only a minor and suitable burden on defendants.

Defendants are already heavily involved in the administration

of parole at the county and state levels. They concede, for

example, that they have responsibility for certain parolees

housed in county jails—life-term parolees and out-to-court

inmates. Defendants have never challenged the requirements

that they act to ensure that these parolees do not suffer

discrimination on account of their disabilities while housed in

county jails. It is not a significant burden for defendants to

apply the same tracking and grievance procedures to parolees

housed in county jails pursuant to § 3056. Moreover,

defendants’ agents and employees are working with and

inside the county facilities on a daily basis to ensure

compliance with state and federal law. By state law,

defendants must inform parolees of their rights, and therefore,

conduct in-person “notice of rights” interviews with each

ARMSTRONG V. BROWN 17

parolee who is placed in county jail on a parole hold.

§ 1203.2(b)(1) & (2). Thus, it is only a minimal additional

burden to determine whether each parolee is disabled and, if

so, to give him a grievance form.10

Accordingly, the August 28 orders are carefully tailored

to reflect the state’s division of internal authority. They do

not require defendants to interfere with the counties’

authority over parolees housed in county facilities pursuant to

§ 3056.11 Defendants remain responsible for taking certain

measures to ameliorate or avoid the admitted and ongoing

violations of plaintiffs’ rights under the ADA and

Rehabilitation Act, and those measures are fully consistent

with the counties’ exercise of their legal custody and

jurisdiction over the parolees.

III

We conclude that the August 28 orders neither conflict

with § 3056 nor require more of defendants than is

appropriate to assist in remedying the ADA and

Rehabilitation Act violations for which they bear

10

In the district court, defendants speculated that after local courts

assume responsibility for parole revocation hearings in July 2013, state

officers may no longer be participating in these in-person, notice-of-rights

meetings. Defendants do not press this point on appeal, as they instead

argue that the changes to § 3065 absolve the state of responsibility for

parolees (other than those with life sentences) while they are in county

facilities, period. Recent filings in the district court show that although

defendants’ agents are not currently serving petitions to revoke parole,

they do serve probable cause determination forms.

11

As the district court explained in the August 28 orders, the plaintiffs

sought only to enforce the provisions contained in the County Jail Plan,

not the enforcement required by the April order.

18 ARMSTRONG V. BROWN

responsibility. We therefore AFFIRM the remedial August

28 orders issued by the district court.

In No. 12-16018, the appeal is DISMISSED as moot.

In No. 12-17198, the orders of the district court are

AFFIRMED.

In both appeals, Plaintiffs-Appellees shall recover their

costs on appeal from Defendants-Appellants.