Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 76-C-4768-Hubert L. Will, Judge.
Before Wood and Cudahy, Circuit Judges and Grant, Senior District Judge.*fn*
Two distinct issues, relating to separate claims are presented for resolution on this appeal. The first issue is whether the district court properly invoked the doctrine of primary jurisdiction to stay proceedings on a claim by the United States alleging noncompliance by Cook County, Illinois corrections officials with conditions of grants from the Law Enforcement Assistance Administration (LEAA), pending completion of administrative proceedings by LEAA pursuant to 42 U.S.C. § 3757.*fn1 The second issue is whether the United States has standing to bring an action to vindicate the Eighth and Fourteenth Amendment rights of inmates at the Cook County Department of Corrections (the "inmates"). We hold that the district court's invocation of the doctrine of primary jurisdiction with respect to the government's contractual claim was in error and we remand the question of the government's standing to litigate the inmates' Eighth and Fourteenth Amendment rights to the district court in light of the recently enacted "Civil Rights of Institutionalized Persons Act", Pub.L. No. 96-247 (1980).
There has been no trial on the merits or other evidentiary hearing in this case, and the basic facts relevant to this appeal are essentially undisputed. The underlying subject of the lawsuit is the Cook County Department of Corrections, a detention facility owned and operated by Cook County, Illinois, principally for the housing of persons awaiting trial in the criminal courts of Cook County. The Department of Corrections has the capacity to hold more than 5,000 persons at a time, and approximately 60,000 persons are incarcerated there each year. Over the years, the Department has applied for and received federal funds from LEAA, pursuant to 42 U.S.C. § 3701 et seq. Those funds have been used for the construction of correctional facilities and the implementation of correctional programs.
The United States' original complaint in this action, filed December 29, 1976, alleged that conditions at the Department of Corrections, including overcrowding, inadequate sanitation and inadequate visitation opportunities, constituted systemic violations of the Eighth and Fourteenth Amendment rights of individuals incarcerated there. Named as defendants in the complaint were the sheriff of Cook County, the Executive Director of the Cook County Department of Corrections, the President and members of the Cook County Board of Commissioners, the Director of the Illinois Department of Corrections and the State of Illinois.*fn2 The defendants were alleged to exercise various responsibilities over the operation and administration of Cook County's correctional facilities.
The defendants subsequently moved to dismiss the complaint on the ground, inter alia, that, in the absence of express statutory authority, the United States lacked standing to bring an action to vindicate the Eighth and Fourteenth Amendment rights of third persons. The district court expressed an initial view that the United States was without authority to bring this type of suit, but held its final ruling on the motion to dismiss in abeyance pending appeal to the Fourth Circuit of United States v. Solomon, 419 F. Supp. 358 (D.Md.1976), another case involving the United States' standing to bring civil rights actions. The district court also gave the United States leave to amend its complaint in order to plead facts sufficient to state a claim upon which relief could be granted.
On October 12, 1977, the Fourth Circuit ruled that the United States was without standing to bring a Fourteenth Amendment action on behalf of patients in state mental hospitals. United States v. Solomon, 563 F.2d 1121 (4th Cir. 1977). Soon thereafter, on November 10, 1977, the government filed an amended complaint in this action. The amended complaint contained the original and two new constitutional claims for relief,*fn3 and added claims for breach of the contractual conditions pursuant to which Cook County had received construction funds from LEAA, and claims alleging that inmates were being housed on the basis of race in violation of 42 U.S.C. § 3766. The defendants again moved for dismissal on various grounds. By order of January 26, 1979, the district court, relying primarily on the Fourth Circuit's decision in Solomon, dismissed the constitutional claims asserted by the United States. It reaffirmed its earlier view that, in the absence of specific statutory authority, the United States lacked standing to sue to redress alleged deprivations of Eighth and Fourteenth Amendment rights of third persons. The district court also decided to stay proceedings on the government's contractual claims, ordering that those claims initially be adjudicated in administrative proceedings, which the government was directed to bring before LEAA pursuant to 42 U.S.C. § 3757. As to the allegations of racial discrimination, the court ruled that the United States had successfully stated a cause of action. Finding no just reason for delay, the court stated that its order, insofar as it disposed of the contractual and constitutional claims, would constitute a final judgment under Fed.R.Civ.P. 54(b).
The United States then appealed the district court's stay of its contractual claim and dismissal of its constitutional claim to this court. We address those actions in turn.
We address as a threshold issue the question whether the primary jurisdiction stay entered as to the government's contractual claim is a final order vesting this court with appellate jurisdiction. 28 U.S.C. § 1291. It is well established in this circuit that abstention stays, issued in contemplation of the initiation of proceedings in the state courts, are appealable orders. Miller-Davis Co. v. Illinois State Toll Highway Authority, 567 F.2d 323, 325 (7th Cir. 1977); Vickers v. Trainor, 546 F.2d 739, 741 (7th Cir. 1976); Drexler v. Southwest Dubois School Corporation, 504 F.2d 836, 838 (7th Cir. 1974) (en banc); but see Calvert Fire Insurance Co. v. Honorable Hubert L. Will, 560 F.2d 792 (7th Cir. 1977), rev'd, 437 U.S. 655, 98 S. Ct. 2552, 57 L. Ed. 2d 504 (1978). Defendants contend, however, that an abstention stay, or at least the one issued in Drexler, supra, is of a different genre than the sort of "primary jurisdiction" stay issued in this case, because the Drexler stay involved "hotly contested" legal issues not implicated here. But we fail to see how the warmth of the legal disagreement in Drexler in any way vitiates that case's precedential value. Moreover, defendants have not suggested that the mercury was rising uncontrollably in Miller-Davis or Vickers, cited above, in which this court also held abstention stays to be appealable orders.
The stay issued below, expressly denominated a final judgment by the district court pursuant to Fed.R.Civ.P. 54(b), has put the government "effectively out of court". Idlewild Bon Voyage Liquor Corporation v. Epstein, 370 U.S. 713, 715 n. 2, 82 S. Ct. 1294, 1296, 8 L. Ed. 2d 794 (1962). We thus consider it to ...