Dupuy, Belinda v. Samuels, Bryan ( 2006 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-1027
BELINDA DUPUY, et al.,
Plaintiffs-Appellants,
v.
BRYAN SAMUELS, Director, Illinois
Department of Children and
Family Services,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97 C 4199—Rebecca R. Pallmeyer, Judge.
____________
ARGUED SEPTEMBER 20, 2006—DECIDED OCTOBER 3, 2006
____________
Before POSNER, EASTERBROOK, and EVANS, Circuit Judges.
POSNER, Circuit Judge. This class action suit by parents,
now in its tenth year, challenges a range of practices by
Illinois’ child-welfare agency claimed to infringe parental
rights that are protected by the due process clause of the
Fourteenth Amendment; for background, see Dupuy v.
Samuels, 397 F.3d 493 (7th Cir. 2005). The present appeal is
from a preliminary injunction that the plaintiffs, who are the
appellants, contend does not go far enough; the defendant
has not cross-appealed. The plaintiffs are also attempting to
2 No. 06-1027
appeal from the judge’s class certification order, which they
contend defined the plaintiff class too narrowly. But their
time to appeal from that order has long expired. Fed. R. Civ.
P. 23(f).
The injunction of which the plaintiffs complain violates
Rule 65(d) of the civil rules, which requires that an injunc-
tion be a self-contained document rather than incorporate
by reference materials in other documents. The purpose is to
minimize disputes over what has been enjoined. Schmidt v.
Lessard, 414 U.S. 473 (1974) (per curiam); International
Longshoremen’s Ass’n v. Philadelphia Marine Trade Ass’n, 389
U.S. 64, 74-76 (1967); D. Patrick, Inc. v. Ford Motor Co., 8 F.3d
455, 461 (7th Cir. 1993); 11A Charles Alan Wright, Arthur R.
Miller & Mary Kay Kane, Federal Practice and Procedure §
2955 (2d ed. 1995); 13 Moore’s Federal Practice § 65.60, pp.
475-77 (13th ed. 2006). The Ninth Circuit allows incorpora-
tion by reference if the material thus incorporated is physi-
cally attached, as by stapling, to the injunction order. Reno
Air Racing Ass’n, Inc. v. McCord, 452 F.3d 1126, 1132-33 (9th
Cir. 2006); California v. Campbell, 138 F.3d 772, 783 (9th Cir.
1998). But there is no reason to complicate the administra-
tion of the rule by such an interpretation. There are times
when literal interpretation is best; this is one of them. The
Ninth Circuit’s approach would encourage just the kind of
mistake that the rule aims to prevent—the thoughtless
attachment of separately composed documents when if the
judge had integrated their contents into the injunction order
he might have realized that they would not cohere with the
rest of the order without changes.
Rule 65(d) is simple, clear, sensible, easily complied
with and not even new; we are distressed by the failure
of the parties and the district judge to have complied with
it in this case—a case that underscores the good sense of the
No. 06-1027 3
rule. What the parties and the district judge understand to
be the injunction begins with an opinion by the judge in
which she says that “the court approves the DCFS proposal,
with certain modifications, outlined below,” and the
“outline” follows. If the “certain modifications” were
literally an “outline,” there would be no injunction but
merely the sketch of one. But it is apparent that the
word “outlined” was used imprecisely; and likewise that
when the court, as one of its modifications, said vaguely
that “the court would add a statement to this effect . . .”
(emphasis added), it meant that the language that followed
was part of the injunction. Yet one of the “modifications”
modifies nothing; it says merely that “the court recom-
mends that the plan provide” etc.—and a recommenda-
tion cannot be an injunction.
Both sides are complicit in the violation of Rule 65(d),
having expressed no concern with the form of the injunc-
tion. But the appellants in addition violated 7th Cir. R.
30(d), which requires certification that the appendix contain
all materials required by Rule 30(a) to be included in the
appendix. For among the required materials are the judg-
ment, and the judgment in this case includes not only the
judge’s order modifying the defendant’s proposed injunc-
tion, Chicago & North Western Transportation Co. v. Railway
Labor Executives’ Ass’n, 908 F.2d 144, 149-50 (7th Cir. 1990),
but also those portions of that proposed injunction that the
judge (improperly) incorporated by reference. They do not
appear in the appellants’ appendix but instead are deeply
buried in the record; the lawyers could not find them when
asked for them at argument.
So Rule 65(d) was flouted. But a violation of the rule
does not deprive the appellate court of jurisdiction to review
the injunction (e.g., Combs v. Ryan’s Coal Co., 785 F.2d 970,
978 (11th Cir. 1986)) unless as a result of the violation it is so
4 No. 06-1027
unclear what the defendant is enjoined from doing that he
could not be punished for violating the injunction. For in
that event he would lack standing to challenge the injunc-
tion because, being unenforceable, it would place no burden
on him. He could thumb his nose at it with impunity.
Marseilles Hydro Power, LLC v. Marseilles Land & Water Co.,
299 F.3d 643, 646-47 (7th Cir. 2002); Chicago & North Western
Transportation Co. v. Railway Labor Executives’ Ass’n, supra,
908 F.2d at 149-50; see also Bates v. Johnson, 901 F.2d 1424,
1428 (7th Cir. 1990). “[A]n unenforceable order is no order
at all.” Marseilles Hydro Power, LLC v. Marseilles Land &
Water Co., supra, 299 F.3d at 647.
The power to review an injunction that violates Rule 65(d)
extends to any adequately clear materials clearly incorpo-
rated into the injunction by reference. Original Great Ameri-
can Chocolate Chip Cookie Co. v. River Valley Cookies, Ltd., 970
F.2d 273, 275-76 (7th Cir. 1992); cf. Abbott Laboratories v.
Unlimited Beverages, Inc., 218 F.3d 1238, 1241-42 (11th Cir.
2000). And that is this case. The core of the injunction is
clear enough to be enforceable; it requires the defendant to
provide informal administrative review of “safety plans.”
But there is tension between Original Great American
Chocolate Chip Cookie Co. v. River Valley Cookies, Ltd., supra,
and D. Patrick, Inc. v. Ford Motor Co., supra, which states that
an injunction that incorporates materials by refer-
ence cannot be enforced, though the court went on to find
that in any event the incorporated material—a settlement
agreement—was ambiguous. 8 F.3d at 461-62. D. Patrick did
not cite Great American, and its flat statement of unenforce-
ability, which is not limited to incorporation by reference
but embraces any injunction that violates Rule 65(d), is
inconsistent with the decisions holding that a violation of
the rule does not affect the jurisdiction of the reviewing
No. 06-1027 5
court as long as the obligations that the injunction imposes
on the defendant are clear enough that he can be punished
should he violate them.
D. Patrick justified its unorthodox position by quoting
from H.K. Porter Co. v. National Friction Products Corp., 568
F.2d 24, 27 (7th Cir. 1977), that “Rule 65(d) is no mere
extract from a manual of procedural practice. It is a page
from the book of liberty.” 8 F.3d at 461. Beware decision
by metaphor. What the court seems to have meant was
that it would be unjust to punish someone for violating
an injunction that he could not understand. It would be. But
Rule 65(d) is not needed to ward off that injustice; if the
injunction is unclear, the defendant cannot be punished for
violating it, Rule 65(d) or no Rule 65(d). The purpose of the
rule is to make sure that violations of injunctions are
punishable.
The lofty language of H.K. Porter is particularly inapt
when as in this case it is the plaintiff that is appealing
the injunction. For it is then much as if the plaintiff
were appealing from the denial of injunctive relief alto-
gether, which would present no problem under Rule 65(d).
The difference is that when there is an injunction and the
plaintiff is seeking additional relief, the need for that relief
is likely to depend on what relief the judge has already
granted, and to be able to form a precise and concise
understanding of that relief may require that the rule have
been complied with.
Enough said about the procedural issue. Let us turn to the
merits, and explain what a “safety plan” is.
If the State of Illinois “(1) has reason to believe that the
child cannot be cared for at home or in the custody of the
person responsible for the child’s welfare without endanger-
ing the child’s health or safety; and (2) there is not time to
6 No. 06-1027
apply for a court order . . . for temporary custody of the
child,” the state can take the child into “temporary protec-
tive custody” without additional process, 325 ILCS 5/5, but
there is a right to a judicial hearing within 48 hours. 705
ILCS 405/1-3, -5, 405/2-9(1), (3); In re John Paul J., 799 N.E.
2d 769, 776 (Ill. App. 2003). Other states have similar laws,
though often they require “reasonable cause” or “probable
cause” rather than “reason to believe,” Alyson Oswald,
Comment, “They Took My Child! An Examination of the
Circuit Split Over Emergency Removal of Children From
Parental Custody,” 53 Cath. U. L. Rev. 1161, 1183 n. 131
(2004), although it is doubtful whether there is any practical
difference among these formulas, any one of which should
satisfy the due process clause of the Fourteenth Amend-
ment. See, e.g., Berman v. Young, 291 F.3d 976, 983-84 (7th
Cir. 2002); Brokaw v. Mercer County, 235 F.3d 1000, 1010-11
(7th Cir. 2000); Doe v. Kearney, 329 F.3d 1286, 1294-95 (11th
Cir. 2003); Croft v. Westmoreland County Children & Youth
Services, 103 F.3d 1123, 1126-27 (3d Cir. 1997). Among the
liberties protected by that clause is the right of parents to the
custody of their children. Santosky v. Kramer, 455 U.S. 745,
753-54 (1982); Troxel v. Granville, 530 U.S. 57, 65 (2000)
(plurality opinion). But “when a child’s safety is threatened,
that is justification enough for action first and hearing
afterward.” Lossman v. Pekarske, 707 F.2d 288, 291 (7th Cir.
1983); see also Duchesne v. Sugarman, 566 F.2d 817, 825-26
(2d Cir. 1977).
But sometimes, in lieu of immediately removing the child
from its parents, the state will offer the parents the option of
agreeing to a “safety plan,” under which restrictions short
of removal are imposed pending completion of the state’s
investigation into abuse or neglect. The plan might require
that one of the parents leave the house where the child is
living, or that the parent keep out of the child’s presence
No. 06-1027 7
unless a designated family member is present as well, or
that the child be sent to live with other family members.
Although these curtailments of parental rights are less
extreme than removing the child from parental custody
altogether and sticking him in foster care, they may be
invasive enough to count as deprivations of liberty, thus
triggering the right to a hearing. The difference from the
standpoint of parental rights between removing the parent
from the child’s home and removing the child from the
home is not negligible, because in the first case the child
remains in his accustomed residence and often with one
of his parents. But it is not great enough to justify con-
cluding that there is no invasion of parental liberty in the
first case, Croft v. Westmoreland County Children & Youth
Services, supra, 103 F.3d at 1125-27, although the amount of
process that is constitutionally required may be less since
the deprivation is less. See Gottlieb v. County of Orange,
84 F.3d 511, 522 (2d Cir. 1996).
Critically, however, the decision to agree to a safety plan
is optional with the parents. If they think that if they turn
down the plan the state will not try to remove the child from
their custody, or that if it does they will prevail in the
prompt judicial hearing to which they are entitled on the
propriety of the removal, they will reject the plan. The
plan is thus a form of interim settlement agreement pending
the outcome of the investigation, as when a plaintiff in a suit
for restitution agrees not to move for immediate seizure of
assets held by the defendant if the latter agrees to place
them in judicial custody. It is not surprising that the safety-
plan program is not embodied in a statute or formal regula-
tion, but merely in internal directives of the Department of
Children and Family Services. It imposes no obligation on
anybody.
8 No. 06-1027
Which answers the plaintiffs’ argument that the Constitu-
tion entitles parents to a hearing before they are offered
the option of agreeing to such a plan. There is no right to a
hearing when no substantive right has been infringed or
is threatened with being infringed. The state does not force a
safety plan on the parents; it merely offers it. Parents are
entitled to a hearing if their parental rights are impaired,
and the offer of a settlement no more impairs those rights
than a prosecutor’s offer to accept a guilty plea impairs the
defendant’s right to trial by jury.
It is true that by refusing to agree to a safety plan, as by
refusing to plead guilty, a person may find himself in a
worse pickle than if he had accepted it. The plan might
be for the child’s father to move out of the house for a week.
If he refused, the state might decide to place the child in
foster care, and though if it did so he could demand a
judicial hearing, the judge’s ruling might go against him.
That is a dilemma implicit in any settlement process. If there
weren’t a downside to refusing to settle, there would be no
settlements.
Of course should the state violate the terms of the
safety plan and by doing so curtail parental rights beyond
what the parents had agreed to, they would be entitled by
the Constitution to a prompt hearing. But that is not the
complaint.
The plaintiffs are very wroth because, they say, the state
sometimes offers a safety plan on the basis of “mere
suspicion” of child abuse or neglect, rather than probable
cause or at least reasonable suspicion. But as mere suspi-
cion—some inarticulable hunch—is not a statutory ground
for actually removing a child from his parents’ custody
(Illinois law requires, as we know, that the state have reason
to believe that the child is in imminent danger), the parents
No. 06-1027 9
in such a case have only to thumb their nose at the offer and
the agency can do nothing but continue its investigation,
which it would do anyway. The plaintiffs complain that the
prospect of a hearing if the state removes a child is not
adequate because the hearing will not address the details of
the safety plan; it will deal exclusively with the validity of
the child’s removal from the home and therefore, the
plaintiffs insist, is inadequate. The argument is silly; a
plaintiff might as well say that a tort suit can’t be settled
without a hearing on the validity of the settlement that the
parties have reached. Because the safety plan is voluntary,
no hearing of any kind is necessary; hearings are required
for deprivations taken over objection, not for steps autho-
rized by consent.
It adds nothing to say as the plaintiffs do that they did not
really consent—that the state “coerces” agreement to safety
plans by threatening to remove the child from the parents’
custody unless they agree to the plan. It is not a forbidden
means of “coercing” a settlement to threaten merely to
enforce one’s legal rights. If you sue and before judgment
settle because the defendant is willing to settle on more
favorable terms than you expect to obtain from pressing the
suit to judgment, you’ve obtained a favorable settlement on
the basis of an implicit threat to litigate to an outcome that
would make the defendant worse off than if he settled; but
you have not infringed any right of his. Coercion is
objectionable—and when objectionable is more aptly
described as duress or extortion—only when illegal means
are used to obtain a benefit.
There is no evidence of that. The consent form that the
state gives parents requires them if they consent to state in
writing that they “understand that failure to agree to the
[safety] plan or to carry out the plan may result in a reas-
10 No. 06-1027
sessment of my home and possible protective custody
and/or referral to the State’s Attorney’s Office for a
court order to remove my children from my home.” This
just notifies the parents of the lawful measures that may
ensue from their failure to agree to a plan or, if they agreed
to it, from their violating the plan. There is no suggestion
that the agency offers a safety plan when it has no suspicion
at all of neglect or abuse, and even in that case the ordinary
prerequisite to a finding of duress—that the person have no
effective legal remedy against the threat, Zapata Hermanos
Sucesores, S.A. v. Hearthside Baking Co., 313 F.3d 385, 390 (7th
Cir. 2002); Oxxford Clothes XX, Inc. v. Expeditors Int’l, Inc.,
127 F.3d 574, 579 (7th Cir. 1997); Abbadessa v. Moore Business
Forms, Inc., 987 F.2d 18, 22-23 (1st Cir. 1993)—would be
missing, since if a child is actually taken, the parents have a
very prompt legal remedy. If the agency has even just a bare
suspicion, this may ripen in the course of the investigation
into cause to obtain a court order of removal, and that
possibility is all that the consent form should and does warn
the parents of.
We can’t see how parents are made worse off by being
given the option of accepting the offer of a safety plan. It
is rare to be disadvantaged by having more rather than
fewer options. If you tell a guest that you will mix him
either a martini or a manhattan, how is he worse off than
if you tell him you’ll mix him a martini? And yet the belief
that giving people more options makes them worse off is
common, especially in cases involving guilty pleas, as in our
recent case of United States v. Spilmon, 454 F.3d 657 (7th Cir.
2006). The defendant agreed to plead guilty and receive a
57-month sentence. As part of the plea agreement the
government dismissed charges against his wife. The defen-
dant moved to set aside the guilty plea on the ground that
he had been coerced to plead guilty by the realization that
No. 06-1027 11
otherwise his wife would be prosecuted. We affirmed the
denial of the motion. We said “it would be in no one’s
interest if a defendant could not negotiate for leniency for
another person. From the defendant’s standpoint the
purpose of pleading guilty is precisely to obtain a more
lenient outcome than he could expect if he went to trial.” Id.
at 658. In words equally applicable to this case, we added
that “suppose Spilmon were innocent, and knowing this but
wanting to convict him the government told him that unless
he pleaded guilty it would prosecute his wife—whom it also
knew to be innocent. The couple could of course reject the
package deal, hoping to be acquitted (being by hypothesis
innocent), but given the inherent uncertainties of the trial
process they might be afraid to do so, and the result would
be a plea of guilty that resulted in the conviction of an
innocent person (the husband). That would be a case of
duress—that is, of pressure exerted to obtain a result to
which the party applying the pressure had no right—and
likewise if the government threatened to prosecute the
defendant’s wife knowing that she was innocent. But it is
not duress to offer someone a benefit you have every right
to refuse to confer, in exchange for suitable consideration.”
Id. at 658-59 (emphasis added; citations omitted). To the
same effect, see United States v. Miller, 450 F.3d 270, 272-73
(7th Cir. 2006).
The fact that the safety-plan option is a boon to parents
may explain why, though similar options are offered by
other states, see, e.g., In re T.A., 631 S.E.2d 399, 400 (Ga.
App. 2006); In re M.G.T.-B, 629 S.E.2d 916, 917-19 (N.C. App.
2006), lawsuits challenging them have been rare—indeed
this is the first we’ve found. A safety plan seems a sensible,
perhaps indeed an unavoidable, partial solution to the
agonizingly difficult problem of balancing the right of
12 No. 06-1027
parents to the custody and control of their children with the
children’s right to be protected against abuse and neglect.
The plaintiffs point us to Doe v. Heck, 327 F.3d 492, 524-25
(7th Cir. 2003), which held, so far as bears on this case, that a
state agency violated the Constitution by threaten-
ing parents with removing their child from their custody
if they did not have their attorney call the agency within
24 hours. It was a threat the agency had no right to make.
The agency did not suspect the parents of child abuse. The
child had been spanked at school, and the agency was
investigating the school and wanted to interview the child
and the parents were not cooperating. The agency had a
right to interview the child, but there are procedures for
compelling such an interview, and threatening the parents
with the loss of their parental rights was not among the
authorized procedures. The case nicely illustrates the line
between a lawful threat and duress.
Croft v. Westmoreland County Children & Youth Services,
supra, another case on which the plaintiffs place heavy
weight, is closer to the present case, but still distinguishable.
The defendant’s caseworker, suspecting that a father was
abusing his child but having no objective basis for the
suspicion, gave the father an “ultimatum” that if he didn’t
leave the family home immediately the agency would place
the child in foster care. The court held the threat improper
on the ground that the caseworker did not have adequate
grounds for removing the child from the parents’ custody
even temporarily. The threat was not grounded in proper
legal authority. The coercion about which the plaintiffs
complain in this case does not include such ultimata; the
consent form informs the parents of the possibility that the
child will be removed—information that is in the nature of
a truism.
No. 06-1027 13
The trial on the merits of the plaintiffs’ challenge to the
administration of the safety plans is scheduled to begin
on October 16. Maybe they’ll be able to prove that the
state really does coerce agreement to its safety plans wrong-
fully by misrepresentations or other improper means. They
have not done so yet. On the record compiled so far, the
plaintiffs are entitled to no relief at all. It is only the state’s
decision not to file a cross-appeal that prevents us from
reversing the grant of the preliminary injunction, and that
instead requires that the injunction be
AFFIRMED.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—10-12-06