United States District Court, W.D. Kentucky, Louisville
ALICIA M. PEDREIRA, et al. PLAINTIFF
SUNRISE CHILDREN'S SERVICES, INC., et al. DEFENDANTS
CHARLES R. SIMPSON III, SENIOR JUDGE UNITED STATES DISTRICT
matter came before the court on motion of Sunrise
Children's Services, Inc. f/k/a Kentucky Baptist Homes
for Children, Inc. (“Sunrise”) and Vicki Yates
Brown Glisson, Secretary of the Cabinet for Health and Family
Services, and John Tilley, Secretary of the Justice and
Public Safety Cabinet (collectively, the “Commonwealth
Defendants”), for reconsideration of the court's
December 22, 2016 Memorandum Opinion and Order. DN 573. The
court addressed the issues raised in the motion, save one, in
a Memorandum Opinion and Order entered March 17, 2017. DN
579. The court ordered that “the motions of the
defendants, Sunrise Children's Services, Inc., et
al., for reconsideration of the court's December 22,
2016 Memorandum Opinion and Order (DNs 573, 577) are
GRANTED. The court DENIES IN ALL
RESPECTS THE REQUEST TO VACATE THE DECEMBER 22, 2016
MEMORANDUM OPINION AND ORDER WITH THE EXCEPTION OF THE
QUESTION AS TO THE LEGALITY OF THE IMPLEMENTATION OF THE
SETTLEMENT AGREEMENT, AS AMENDED, WITHOUT MODIFICATION OF
EXISTING REGULTIONS.THIS EXCEPTED ISSUE IS HELD IN ABEYANCE
PENDING FURTHER BRIEFING AS FOLLOWS…”
DN 579, pp. 11-12. The court then set a briefing schedule
which has now concluded.
purposes of completeness, the court will restate some
action was remanded to this court by the United States Court
of Appeals for the Sixth Circuit. The Court of Appeals
returned the case for the explicit purpose of having this
court decide whether the agreement reached between the
plaintiffs and the Commonwealth Defendants to settle the
case, an agreement which it found was a consent decree, was
fair, reasonable and consistent with the public interest. The
Court of Appeals added the further directive that the court
consider its observation that “the consent decree
denie[d] Sunrise a chance to clear its name, ” and
“impose[d] the very reputational harm that Sunrise
sought to avoid by means of 15 years of litigation.”
Pedreira v. Sunrise Children's Services, Inc.,
802 F.3d 865, 872 (6th Cir.
a week after the denial of the plaintiffs' motion for
rehearing en banc by the Sixth Circuit, the parties entered
into a First Amendment to Settlement Agreement (hereinafter
“the Amendment”). The parties attempted to
address the Court of Appeals' concern that the Settlement
Agreement “single[d] out Sunrise by name for special
monitoring by the ACLU and Americans United.”
Id. Sunrise was the sole objector to the Settlement
Agreement at that time.
Amendment's “Recitals, ” the parties stated,
in part, that:
C. In light of this potential concern, the Parties desire to
amend the Settlement Agreement to eliminate any
“singl[ing] out” of or potential reputational
harm to Sunrise by uniformly applying the same monitoring
triggers and rules to all Agencies, as set forth in this
D. Further, in light of objections raised by Sunrise during
briefing concerning the Settlement Agreement, the Parties
desire to clarify that no new or modified administrative
regulations need to be enacted to comply with the Settlement
Amendment's “Agreement” section, the parties
agreed, in pertinent part, to:
Section 1. Modification of Section 3.
[Section 3 of the original agreement was deleted and replaced
with new language which we do not recite here].
Section 2. Approval of Settlement Agreement, as Amended;
Dismissal of Lawsuit.
[The parties agree to file a joint motion seeking the
court's approval of the Amendment, dismissal of the
action with prejudice, incorporation of the Amendment into
the order of dismissal, retention by the court of
jurisdiction to enforce the order, and to otherwise cooperate
as necessary to obtain relief].
Section 3. No regulatory changes needed.
Notwithstanding any references in the Settlement Agreement to
possible enactment of new or modified administrative
regulations, the Parties agree that the Commonwealth
Defendants do not need to enact or modify any administrative
regulations to comply with the Settlement Agreement.
[Section 6(b) remains in the text of the Settlement
Agreement, as amended, which requires the Commonwealth to
initiate the process of modifying any administrative
regulations necessary for the Commonwealth to comply with the
terms of the Settlement Agreement].
Section 4. No Effect Upon Other Terms of Settlement
Except as explicitly stated in this Amendment, all terms of
the Settlement Agreement shall remain in full force and
effect, and the Parties shall continue to comply with the
Settlement Agreement, as amended herein, including during the
pendency of any further proceedings in, or relating to
dismissal of, the Lawsuit.
[Apparently, to date, the Commonwealth continues to comply
with the terms of the original Settlement Agreement].
change in administration in Kentucky upon the election of
Governor Matthew G. Bevin yielded a change in approach to the
settlement of this action. The Commonwealth Defendants no
longer support the agreement forged with the plaintiffs.
Faced with the refusal of the Commonwealth Defendants to join
in a motion seeking approval of the amended agreement, the
plaintiffs moved unilaterally for voluntary dismissal of the
action with prejudice and approval of the Settlement
Agreement, as amended, as a consent decree. DN 552. This
motion, in and of itself was, we noted, a bit of an oxymoron,
as it sought entry of a consent decree to which only the
plaintiffs consent. Sunrise and the Commonwealth Defendants
each filed objections to the plaintiffs' motion. In any
event, the plaintiffs sought to hold the Commonwealth
Defendants to the terms of the Settlement Agreement, as
amended, and urged the court to reject the defendants'
many arguments in opposition to approval.
opinion entered in December, the court determined that the
Settlement Agreement, as amended, remains a viable proposed
consent decree in the case. The court intended to address at
a hearing, under the rubric of “fairness,
reasonableness, and consistency with the public interest,
” a number of the defendants' arguments raised in
opposition to the plaintiffs' motion for approval.
However, concerned that the court had disregarded some of its
arguments and dissatisfied with a number of the court's
findings, Sunrise filed a motion to reconsider the December
memorandum opinion and order. DN 573. Not unexpectedly, the
plaintiffs opposed Sunrise's motion. DN 576.
the Commonwealth Defendants filed their own response to
Sunrise's motion, joining in support and adopting in
toto the arguments made by Sunrise in its motion for
reconsideration. DN 577.
for the Cabinets, Justin D. Clark, signed the pleading on
behalf of the Commonwealth. He is counsel of record by virtue
of his entry of appearance on behalf of both Cabinets. DN
M. Steve Pitt and Chad Meredith, counsel from the Office of
the Governor, are now also counsel of record for the Cabinets
by virtue of the listing of their names as attorneys on this
pleading, per Local Rule 83.5(d).
court noted that the Cabinets are now amply represented and
purport to fully align themselves with the positions taken by
Sunrise in this case. This alignment with Sunrise is
diametrically opposed to the Commonwealth Defendants'
previous position throughout the life of the Settlement
Agreement and the Amendment.
Court determined that Mona Womack had the authority to bind
the Commonwealth Defendants to the Amendment and that the
agreement in its original form is no longer operative, as it
has been superseded by the Amendment. More specifically, by
its terms, the Amendment preserves most of the original
Settlement Agreement as written, altering and supplementing
it in certain respects. Herein, we refer to the amalgamated
document now in issue before the court as the
“Settlement Agreement, as amended.” The court
rejected the defendants' argument that the Settlement
Agreement, as amended, is unenforceable for lack of consent.
The court reasoned that the Commonwealth Defendants'
entry into the Amendment after the Court of Appeals
recited the reasons why the agreement was, in fact, a consent
decree (even though the agreement itself declares otherwise)
established that the Commonwealth Defendants thereby
knowingly agreed to entry of a consent decree. Further
support for this conclusion is the inclusion of Section 2 in
the Amendment which listed the relief to be sought from the
court. This list recited the factors which the Court of
Appeals found were defining features of a consent decree -
approval by the court, dismissal of the lawsuit with
prejudice, incorporation of the settlement agreement into the
order of dismissal, and retention by the court of
jurisdiction to enforce the order.
court determined that the Court of Appeals did not vacate the
original Settlement Agreement. Rather, the Court of Appeals
required this court to afford that agreement more intensive
scrutiny on remand.
concluded that consideration by this court of the Settlement
Agreement, as amended, is not beyond the mandate of the Court