Wyatt Ex Rel. Rawlins v. Rogers

United States Court of Appeals,

Eleventh Circuit.

Nos. 95-6637, 95-6875.

Ricky WYATT, By and Through his Aunt and Legal Guardian, Mrs.

W.C. RAWLINS, Jr.; Glenda Brandner, By and Through her husband and

legal guardian, Wolfgang Brandner; David S. Schoel, By and Through

his father and legal guardian, J. Fred Schoel, Jr.; D.A.R. Peyman,

Dr., for himself and all others similarly situated; Joseph L.

Moudry, for himself and all others similarly situated; et al.,

Plaintiffs-Appellees,

Diane Martin; Mary Beth Parker; William Smith; Adelia Keebler;

Michael Guins, et al., Plaintiffs-Intervenors-Appellees,

v.

Virginia ROGERS, as Commissioner of Mental Health and the State

of Alabama Mental Health Officer; James F. Reddoch, Jr., Director,

Bryce Hospital; John T. Bartlett, Searcy Hospital; Kay V.

Greenwood, North Alabama Regional Hospital; Dr. Larry L. Latham,

Greil Memorial Psychiatric Hospital; et al., Defendants-

Appellants,

United States of America, Amicus.

Aug. 8, 1996.

Appeals from the United States District Court for the Middle

District of Alabama. (No. CV-70-T-3195-N), Myron H. Thompson, Chief

Judge.

Before TJOFLAT, Chief Judge, and RONEY and CAMPBELL*, Senior

Circuit Judges.

TJOFLAT, Chief Judge:

I.

This case began on October 23, 1970, when patients at Bryce

Hospital, a state-run institution for the mentally ill in

Tuscaloosa, Alabama, filed suit in the United States District Court

for the Middle District of Alabama against the commissioner and

deputy commissioner of the Alabama Department of Mental Health and

*

Honorable Levin H. Campbell, Senior U.S. Circuit Judge for

the First Circuit, sitting by designation.

Mental Retardation ("DMH/MR"), the members of the Alabama Mental

Health Board, the governor of Alabama, and Alabama's probate

judges.1 These patients alleged that the conditions at Bryce

Hospital were such that they had been deprived of their rights

under the United States Constitution.2

1

Since the beginning of the litigation, the parties and the

courts have treated this case as a class action, even though the

district court has failed to certify a plaintiff class. See,

e.g., Wyatt v. Stickney, 325 F.Supp. 781, 782 (M.D.Ala.1971)

("This is a class action.... The plaintiffs sue on behalf of

themselves and on behalf of other members of their respective

classes."); Wyatt v. Aderholt, 503 F.2d 1305, 1306 (5th

Cir.1974) ("The guardians of patients ... brought this class

action on behalf of their wards and other civilly committed

patients."). One of the issues on appeal is the propriety of the

district court's "recertification" of a plaintiff class. See

infra part IV.

2

The lawsuit was filed after staff members at Bryce Hospital

and other DMH/MR institutions were discharged as a result of a

state "budgetary crisis." These discharged staff members joined

the Bryce Hospital patients as party plaintiffs and sought

reinstatement to their positions. Both groups of plaintiffs

sought to

redress the deprivation, under color of laws and

statutes of the State of Alabama, of rights,

privileges, and immunities secured by the Fifth, Eighth

and Fourteenth Amendments to the Constitution of the

United States, providing for equal rights of all

persons within the jurisdiction of the United States.

The patients alleged that the staff reductions would

have two harmful consequences. First, patients

involuntarily committed to Bryce Hospital would not receive

the care that Alabama law required that they receive. Such

lack of care, it was alleged, would deprive the patients of

"due process" because the patients would be subjected to

what amounted to penal confinement. Second, the staff

reductions and consequent lack of adequate treatment

programs would have "serious and irreparable consequences"

for the patients at Bryce Hospital. The patients asked the

district court to enter a permanent injunction ordering the

defendants to "insure and direct that no present course of

mental health treatment and service now being given to

plaintiffs ... shall in any way be interrupted, changed, or

interfered with." The patients also sought an injunction

that would end further involuntary commitment of patients to

On March 12, 1971, following a hearing on the plaintiffs'

application for preliminary injunctive relief, the district court

found that patients at Bryce Hospital were being denied their

"constitutional right to receive such individual treatment as will

give each of them a realistic opportunity to be cured or to improve

his or her mental condition."3 Wyatt v. Stickney, 325 F.Supp. 781,

Bryce Hospital.

The discharged staff members alleged that they had a

right under Alabama law to remain in their jobs, that their

discharge violated their due process right to

pre-termination hearings, and that the defendants had other

means of meeting the budgetary crisis aside from cutting

staff. They sought an injunction that would require the

defendants to "rescind" all staff terminations at Bryce

Hospital. These staff members subsequently abandoned their

claims and withdrew from the case, leaving the patients as

the only plaintiffs. See Wyatt, 325 F.Supp. at 782 n. 1.

In 1974, the former Fifth Circuit described the

patients' complaint and the subsequent amendment to that

pleading as follows:

The original complaint did not allege that

treatment levels at Bryce had been inadequate before

the [staff] terminations. For reasons not entirely

clear from the record before us, however, the focus of

the litigation soon shifted from the effects of the

[staff] terminations to questions of the overall

adequacy of the treatment afforded at the Alabama state

mental hospitals. On January 4, 1971, the plaintiffs

amended the complaint to add prayers that the

defendants be enjoined from operating Bryce "in a

manner that does not conform to constitutional

standards of delivering adequate mental treatment to

its patients"; that the [c]ourt order defendants to

prepare a "comprehensive constitutionally acceptable

plan to provide adequate treatment in any state mental

health facility"; and that the court declare that

patients confined to a state mental health facility are

entitled to "adequate, competent treatment."

Wyatt v. Aderholt, 503 F.2d 1305, 1308 (5th Cir.1974).

3

The district court did not explicitly state what

constitutional provision formed the basis for its ruling. The

court found that "[t]o deprive any citizen of his or her liberty

784 (M.D.Ala.1971). The court ordered the defendants to devise,

and to submit to the court for approval, a plan to bring the

hospital into compliance with constitutional standards of care.

Several months after the district court's decision, the

plaintiffs were given leave to amend their complaint to include

allegations of constitutionally inadequate treatment at a second

state-run hospital for the mentally ill, Searcy Hospital, in Mt.

Vernon, Alabama, and at Partlow State School and Hospital, a

state-run institution for mentally retarded persons in Partlow,

Alabama.4 Following this amendment, the court's order of March 12,

1971, was made applicable to the Searcy and Partlow facilities.

After the defendants failed to formulate "minimum medical and

constitutional standards" for the operation of the three

institutions, the district court, on April 13, 1972, established

what would become known as the "Wyatt standards," which set forth

several specific requirements for the adequate treatment of both

mentally ill and mentally retarded individuals.5 The court

upon the altruistic theory that the confinement is for humane

therapeutic reasons and then fail to provide adequate treatment

violates the very fundamentals of due process." Wyatt, 325

F.Supp. at 785.

4

As noted in the text, supra, when this suit was brought,

the plaintiffs were patients at Bryce Hospital, not Searcy

Hospital or Partlow State School and Hospital. Some of the

patients were subsequently transferred to Searcy and Partlow (or

were eligible for such transfer) and thus had standing to

complain of the conditions at those institutions. The amended

complaint alleged that the three institutions were being operated

in a "[c]onstitutionally impermissible manner which results in

scientifically and medically inadequate care," but did not cite

any specific provision of the Constitution.

5

The Wyatt standards were designed to meet what the district

court called the three "fundamental conditions for adequate and

effective treatment": "(1) a humane psychological and physical

enjoined the defendants to implement the standards. See Wyatt v.

Stickney, 344 F.Supp. 373, 378-86 (M.D.Ala.1972) (Bryce and Searcy

Hospitals); Wyatt v. Stickney, 344 F.Supp. 387, 394-407

(M.D.Ala.1972) (Partlow State School and Hospital).6 The former

Fifth Circuit affirmed the district court's injunctions in 1974.

Wyatt v. Aderholt, 503 F.2d 1305 (5th Cir.1974). It upheld under

the Due Process Clause of the Fourteenth Amendment the plaintiffs'

constitutional right to treatment and affirmed the standards that

were promulgated by the district court. In 1975, the district

court, with the agreement of the parties, amended its 1972

injunctions to apply the Wyatt standards to all DMH/MR facilities.7

environment, (2) qualified staff in numbers sufficient to

administer adequate treatment and (3) individualized treatment

plans." See Wyatt v. Stickney, 334 F.Supp. 1341, 1343

(M.D.Ala.1971).

6

In the order pertaining to Bryce and Searcy Hospitals, the

court reiterated its earlier holding that civilly committed

mentally ill persons have a constitutional right to treatment.

In the order pertaining to Partlow State School, the court

outlined a "constitutional right to habilitation" for civilly

committed mentally retarded individuals so as to "give each of

[these persons] a realistic opportunity to lead a more useful and

meaningful life and to return to society." Wyatt, 344 F.Supp. at

390.

7

The 1975 order changed the definitions of "institution" and

"hospital" in the Wyatt standards to include "any other centers,

homes, and facilities—public or private—to which [mentally ill,

emotionally disturbed, or mentally retarded] persons are assigned

or transferred for residence" by the DMH/MR. The definition of

"residents" in the standards applicable to facilities for the

mentally retarded was changed to include "all persons who are now

confined and all persons who may be confined at ... any other

institution as hereinabove defined for the care, treatment, and

habilitation of the mentally retarded." In the standards

applicable to facilities for the mentally ill, the definition of

"patients" was changed to include "all persons who are now

confined and all persons who may in the future be confined at ...

any other "hospital' as hereinabove defined for the care,

custody, and treatment of the mentally ill or emotionally

disturbed." See Wyatt v. Hardin, Civ. A. No. 3195-N, 1975 WL

The defendants failed to comply with the Wyatt standards, and

in 1979, the governor of Alabama moved the district court to place

Alabama's mental health and mental retardation system into

receivership. See Wyatt v. Ireland, Civ. A. No. 3195-N, 1979 WL

48253 (M.D.Ala. Oct. 25, 1979). On January 15, 1980, the court

appointed the governor receiver of all DMH/MR institutions.

On March 9, 1981, the plaintiffs moved the court to force the

defendants to comply with the 1972 injunctive orders by ordering

them to provide "sufficient funds" to the DMH/MR so that it could

satisfy the Wyatt standards. The plaintiffs did not seek

enforcement of the court's injunctive orders by using equity's

time-honored procedures for obtaining the enforcement of an

injunction. Rather, as they have done throughout this case, they

simply asked the court to "do something" to make the defendants

comply with the Wyatt standards.8 On May 18, 1981, the defendants,

33692 (M.D.Ala. Feb. 28, 1975). Although the court's injunctions

now reached private facilities in which DMH/MR placed patients,

no private facility was made a defendant in the action.

8

Precedent dictates that a plaintiff seeking to obtain the

defendant's compliance with the provisions of an injunctive order

move the court to issue an order requiring the defendant to show

cause why he should not be held in contempt and sanctioned for

his noncompliance. See Newman v. State of Alabama, 683 F.2d

1312, 1318 (11th Cir.1982), cert. denied, 460 U.S. 1083, 103

S.Ct. 1773, 76 L.Ed.2d 346 (1983). In his motion, the plaintiff

cites the provision(s) of the injunction he wishes to be

enforced, alleges that the defendant has not complied with such

provision(s), and asks the court, on the basis of his

representation, to order the defendant to show cause why he

should not be adjudged in contempt and sanctioned. If the court

is satisfied that the plaintiff has made out a case for an order

to show cause, it issues the order to show cause. The defendant,

following receipt of the order, usually files a response, either

confessing his noncompliance or presenting an excuse, or "cause,"

therefor. The dispute is thereafter resolved at a show cause

hearing, with the issues to be decided at the hearing framed by

the show cause order and the defendant's response.

in response to the plaintiffs' motion, moved the court to modify

its 1972 injunctive orders to eliminate the Wyatt standards and to

substitute accreditation by the Joint Commission on Accreditation

of Healthcare Organizations ("JCAHO") as the standard of

constitutionally acceptable care at DMH/MR institutions. The

At the hearing, if the plaintiff establishes the

defendant's noncompliance with the court's injunctive order

and the defendant presents no lawful excuse for his

noncompliance, the court usually adjudges the defendant in

civil contempt and imposes a sanction that is likely to

prompt the defendant's compliance with the injunction.

One sanction might be to incarcerate ... the

defendant[ ].... While a federal court is always

reluctant to coerce compliance with its decrees by

incarcerating a state official, if that official is in

contempt there can be no doubt of the court's authority

to do so. State officials are not above the law.

Another sanction might be to fine the recalcitrant

official. "Civil contempt may ... be punished by a

remedial fine, which compensates the party who won the

injunction for the effects of his opponent's

noncompliance.... If [a state official] refuses to

adhere to a court order, a financial penalty may be the

most effective means of insuring compliance." [Hutto

v. Finney, 437 U.S. 678, 691, 98 S.Ct. 2565, 2573, 57

L.Ed.2d 522 (1978).]

Newman, 683 F.2d at 1318 (citation omitted).

In seeking to enforce the court's injunctions in this

case, the plaintiffs have not resorted to the traditional

means of enforcing injunctions described above. Nor has the

court issued orders to show cause, calling upon the

allegedly recalcitrant defendants to explain why they have

not complied with the injunctive provisions in question.

Consequently, the hearings that the district court has

convened to consider the plaintiffs' motions for enforcement

have amounted for the most part to status conferences in

which the court is briefed, sometimes through testimony, on

the current conditions at DMH/MR institutions. This may

account for the court's failure to rule on the plaintiffs'

1981 motion to ensure compliance with the court's 1972

injunctive orders and, as well, the plaintiffs' 1993 motion,

described in the text, infra, to enforce the consent decree

entered in 1986.

plaintiffs opposed the substitution. In 1983, the court held a

hearing on both the defendants' and plaintiffs' 1981 motions, but

did not rule on them.

The parties eventually negotiated a settlement, and submitted

it in the form of a consent decree, which the district court

approved on September 22, 1986. See Wyatt v. Wallis, Civ. A. No.

3195-N, 1986 WL 69194 (M.D.Ala. Sept. 22, 1986). Among other

things, the decree (1) removed the Alabama mental health and mental

retardation system from receivership; (2) dismissed from the case

all defendants except the commissioner of mental health and mental

retardation and the individual directors of the DMH/MR

institutions; (3) continued in effect the Wyatt standards; (4)

enjoined the defendants to "continue to make substantial progress

in achieving compliance with" the Wyatt standards; and (5)

enjoined the defendants to seek and maintain JCAHO accreditation at

all DMH/MR institutions.

On December 20, 1990, patients at the Thomasville Adult

Adjustment Center in Thomasville, Alabama, moved the district court

for leave to intervene in the litigation as plaintiffs.9 In their

proposed complaint, the intervenors alleged that the defendants had

violated the Wyatt standards and that certain unconstitutional

conditions existed at Thomasville.10 The intervenors sought a

9

Patients at Thomasville were already members of the

plaintiff "class," as defined by the Wyatt standards. See Wyatt,

Civ. A. No. 3195-N (M.D.Ala. Feb. 28, 1975) (changing the

definition of "hospital" in the Wyatt standards specifically to

include the Thomasville Adult Adjustment Center).

10

Among other things, the intervenors claimed that

"Alabama's indeterminate involuntary civil confinement of the

mentally ill violate[d] the Due Process Clause of the Fourteenth

permanent injunction barring further admissions to the Center until

the defendants complied with the Wyatt standards at that

institution. The court granted the Thomasville patients' motion to

intervene on January 25, 1991, and, in October of that year, held

a bench trial on their claims. The district court has yet to rule

on this matter.11

II.

On January 18, 1991, before the district court ruled on the

Thomasville patients' motion to intervene, the defendants,

acknowledging that they were not in compliance with all of the

Wyatt standards at DMH/MR institutions, nonetheless moved the

district court to terminate the 1986 consent decree and to dismiss

the case. On April 19, 1991, the defendants, apparently as an

alternative measure, moved the court to modify the consent decree

by deleting or modifying several of the Wyatt standards. Early in

1993, while these motions were still pending, the plaintiffs moved

the district court for "a finding that the defendants are violating

the 1986 Consent Decree" and for "contempt sanctions for

Amendment" because the state did not limit the length of the

confinement and the DMH/MR failed to provide for periodic

adversarial post-commitment reviews of such confinement. See

Wyatt v. King, 773 F.Supp. 1508, 1511 (M.D.Ala.1991). On July

22, 1991, the district court granted the intervenors relief on

this claim, declaring Alabama's "indeterminate involuntary civil

commitment of the mentally ill" unconstitutional and ordering

periodic adversarial post-commitment reviews. Id. at 1517-18.

11

The defendants have petitioned this court for a writ of

mandamus compelling the district court to rule on the

intervenors' claim of unconstitutional conditions at Thomasville.

See In re Fetner, No. 95-6879 (11th Cir. filed Oct. 23, 1995).

This court stayed the petition pending the resolution of the

instant appeals.

defendants' violations."12 The court ordered that the defendants'

and the plaintiffs' motions be heard together at an evidentiary

hearing.13

The hearing was held from March 13 to May 16, 1995. On the

first day of the hearing, the court announced at a meeting in

chambers that, in response to deposition testimony describing

unsafe living conditions at the Eufaula Adolescent Center in

Eufaula, Alabama, it was considering entering preliminary

injunctive relief on behalf of the patients at Eufaula. On April

17, the plaintiffs formally moved the court to provide such relief,

and on July 11, the court entered a preliminary injunction

enjoining the defendants from "failing to take immediate and

affirmative steps to provide for the safety and protection from

abuse of all resident children at the Eufaula Adolescent Center, as

12

Unlike their previous motion to enforce the district

court's injunctive orders, see supra note 8, on this occasion

plaintiffs' motion alleged that the defendants were violating the

1986 consent decree and sought a contempt adjudication and

sanctions. Like the previous motion, however, the motion failed

to allege, with specificity sufficient to inform the defendants,

which injunctive provisions the defendants were purportedly

violating.

On the same day that they filed the above motion, the

plaintiffs moved the court for leave to amend their

complaint to assert a claim for declaratory and injunctive

relief on the ground that the defendants were violating

provisions of the newly enacted Americans with Disabilities

Act of 1990, Pub.L. No. 101-336, 104 Stat. 328. In effect,

the plaintiffs sought leave to bring an entirely new

lawsuit. The claims under the Americans with Disabilities

Act were unrelated to the case at hand, but the district

court granted the motion to amend.

13

With respect to the plaintiffs' motion that the defendants

be held in contempt for violating the 1986 consent decree, the

court did not determine whether the motion was sufficient to

warrant the issuance of an order to show cause, see supra note 8;

rather, the court simply scheduled an evidentiary hearing.

required by [the Wyatt standards]." Wyatt v. Poundstone, 892

F.Supp. 1410, 1423 (M.D.Ala.1995). The court further ordered the

defendants to submit a plan to the court to "address and resolve

immediately the severe and pervasive safety problems and abuse of

resident children at Eufaula Adolescent Center." Id. at 1423-24.

The defendants appeal the preliminary injunction in No. 95-6637,

contending that the district court abused its discretion in

ordering the relief it granted. After the appeal was taken, the

district court, on September 15, 1995, approved a one-year remedial

plan for Eufaula.

The Eufaula Adolescent Center is now closed; there are no

patients residing at the facility. Further, it appears that the

state is not likely to reopen Eufaula prior to September 15, 1996,

the date on which the defendants' plan (and thus the preliminary

injunction) expires. The appeal is therefore moot.14

III.

On August 17, 1995, a month after the entry of the preliminary

injunction, the defendants moved the district judge to disqualify

himself from the case, alleging (1) that the judge has acted in a

manner "in which his impartiality might reasonably be questioned,"

14

On August 1, 1995, the defendants asked the district court

to stay the preliminary injunction pending this appeal; the

district court denied their request a week later. After the

DMH/MR announced that it was closing Eufaula, the district court

stayed the preliminary injunction because it found "the need for

the preliminary injunction ... is moot." Wyatt v. Fetner, Civ.

A. No. 3195-N (M.D.Ala. Mar. 22, 1996). (The district court also

informed this court that upon remand of this appeal it will

dissolve the preliminary injunction.) The defendants have

appealed the stay order, Wyatt v. Fetner, No. 96-6279 (11th Cir.

filed Mar. 22, 1996); we dismiss this appeal as moot in a

separate unpublished opinion.

28 U.S.C. § 455(a); and (2) that "in private practice he served as

lawyer in the matter in controversy," 28 U.S.C. § 455(b)(2).15 On

October 3, 1995, the judge denied the motion. The defendants

appeal this denial in No. 95-6875.

An interlocutory appeal does not lie from the denial of a

motion to disqualify a district judge. See United States v.

Gregory, 656 F.2d 1132, 1136 (5th Cir. Unit B Sept. 1981); In re

Corrugated Container Antitrust Litig., 614 F.2d 958, 960-61 (5th

Cir.), cert. denied, 449 U.S. 888, 101 S.Ct. 244, 66 L.Ed.2d 114

(1980).16 The defendants contend, however, that an order denying

a motion to disqualify is appealable if it is pendent to a final or

otherwise appealable order. See Stewart v. Baldwin County Bd. of

Educ., 908 F.2d 1499, 1509 (11th Cir.1990) ("Pendent jurisdiction

is properly exercised over nonappealable decisions of the district

15

Section 455 provides:

(a) Any justice, judge, or magistrate of the United

States shall disqualify himself in any proceeding in which

his impartiality might reasonably be questioned.

(b) He shall also disqualify himself in the following

circumstances:

(1) Where he has a personal bias or prejudice

concerning a party, or personal knowledge of disputed

evidentiary facts concerning the proceeding;

(2) Where in private practice he served as lawyer

in the matter in controversy, or a lawyer with whom he

previously practiced law served during such association

as a lawyer concerning the matter, or the judge or such

lawyer has been a material witness concerning it.

28 U.S.C. § 455(a), (b)(1)-(2).

16

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th

Cir.1981) (en banc), this court adopted as binding precedent all

decisions of the former Fifth Circuit handed down prior to

October 1, 1981.

court when the reviewing court already has jurisdiction over one

issue in the case."); see also Swint v. Chambers County Comm'n, --

- U.S. ----, ---- & n. 2, 115 S.Ct. 1203, 1209 & n. 2, 131 L.Ed.2d

60 (1995) (discussing the doctrine of "pendent appellate

jurisdiction"). Here, the defendants claim that the district

court's denial of the motion to disqualify is pendent to and

appealable with its order granting the plaintiffs preliminary

injunctive relief at Eufaula, which the defendants appeal in No.

95-6637.

The appeal of the preliminary injunction is moot. See supra

part II. Thus, even were the unappealable disqualification order

pendent to the appealable preliminary injunction, the denial of the

motion to disqualify is no longer pendent to any reviewable order.

The court's order would be reviewable on a petition for a writ of

mandamus. See Corrugated Container, 614 F.2d at 961 n. 4.

Defendants have not submitted such a petition, however, and we

decline on our own initiative to treat their appeal of the court's

order as a mandamus petition.17 We therefore have no jurisdiction

to review the district court's order denying the defendants' motion

to disqualify.

IV.

On December 22, 1994, the defendants moved the district court

to "recertify" or modify the plaintiff class, or, in the

17

The defendants have petitioned for a writ of mandamus to

disqualify the district judge from the case of Lynch v. Evans,

Civ. A. No. 74-T-89-N (M.D.Ala.), another longstanding case

concerning Alabama's mental health system. The petition, In re

Fetner, No. 95-6728 (11th Cir. filed Sept. 5, 1995), was

consolidated with these appeals for oral argument. We dismiss

the petition as moot in a separate unpublished opinion.

alternative, to "decertify" the class, because a plaintiff class

had never been certified in the case.18 On October 3, 1995, the

same day the court denied the defendants' motion to disqualify the

district judge, the court denied the motion to decertify the

plaintiff class. At the same time, the court "recertified" the

plaintiff class.19 See Wyatt v. Poundstone, Civ. A. No. 3195-N

(M.D.Ala. Oct. 3, 1995). In No. 95-6875, the defendants appeal the

district court's refusal to decertify the plaintiff class and its

recertification of that class.

Class recertification orders are not final orders within the

meaning of 28 U.S.C. § 1291; as such, they are ordinarily not

appealable. See Coopers & Lybrand v. Livesay, 437 U.S. 463, 468-

69, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978); Elster v.

Alexander, 608 F.2d 196, 197 (5th Cir.1979); Knox v. Amalgamated

Meat Cutters & Butchers Workmen, 520 F.2d 1205, 1206 (5th

Cir.1975). Likewise, 28 U.S.C. § 1292(a) does not provide for

interlocutory appellate review of such orders. The defendants

contend that the recertification order, like the court's denial of

the motion to disqualify, is appealable because it is pendent to

the appealable order granting preliminary injunctive relief. As we

18

See supra note 1. The defendants also contended that the

plaintiff class should be decertified because the named

plaintiffs' claims had become moot. The district court, however,

allowed a new group of plaintiffs whose claims are not moot (the

Hanna class) to "intervene" in the case, essentially substituting

them for the Wyatt plaintiffs.

19

The plaintiff class is now defined as "mentally-ill and

mentally-retarded individuals who live in hospitals, centers,

facilities, or homes, public or private, to which the individual

has been assigned or transferred to by the [DMH/MR]." Wyatt v.

Poundstone, Civ. A. No. 3195-N (M.D.Ala. Oct. 3, 1995).

have explained, see supra part III, because the preliminary

injunction is moot, the recertification order is no longer pendent

to any reviewable order. We therefore have no jurisdiction to

review the district court's order refusing to decertify the

plaintiff class and recertifying that class.

V.

In conclusion, the appeal of the preliminary injunction

entered on July 11, 1995, is DISMISSED as moot (No. 95-6637), and

the appeal of the district court's orders of October 3, 1995, is

DISMISSED for lack of appellate jurisdiction (No. 95-6875). All

outstanding motions before this court pertaining to these appeals

are hereby DENIED as moot.

SO ORDERED.