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Consent Decree Not Final Judgment for Appeal

A consent decree addressing the rights of the institutionalized mentally retarded provided for the appointment of a monitor, to end on a date certain unless extended by court order. The court extended the term for three years.

The order is not a final judgment for appeal purposes. The fact that the consent decree "was a complex equitable decree rather than a simple money judgment, and that it was entered by consent, did not take it out of the class of final judgments." (1062) However, all "postfinal" orders are not final; "we try to treat the postjudgment proceeding as if it were a freestanding lawsuit, ... and to identify the final decision in the postjudgment proceeding and confine any further appeal under section 1291 to that decision." (1062) Sometimes that doesn't work; a proceeding could drag on for many years without generating a final order.
Some courts have used a concept of "pragmatic finality," but this court finds it unsatisfactory ("formless") and there are other ways to deal with the concern about "orders that have irrevocable consequences." This concern is adequately dealt with by mandamus and by the provision for appeal of orders granting, modifying, denying, etc., injunctions.

Mandamus does not lie here because extending the monitor was not an error so egregious as to warrant immediate appellate intervention. Appointment of special master, court expert, or monitor, "although it is an order to do rather than an order to pay, is deemed a procedural order, and procedural orders, though they often have the form of an injunction, are not classified as injunctions for purposes of section 1292(a)(1)." (1063) The same is true of the extension of the monitor's term; it did not extend an injunction because the appointment was not itself an injunction even if it appeared in an equitable decree. It did not modify an injunction because the injunction specifically provided for extension by the court. At 1064: "If the judge had a fit and extended the monitor's term to the year 3000, mandamus would be available to rein him in."

The defendants could obtain review in a case where, as here, they claim they are in compliance, by moving to dissolve the injunction entirely and appealing if the motion is denied. See: Bogard v. Wright, 159 F.3d 1060 (7th Cir. 1998).

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Related legal case

Bogard v. Wright