Case: 18-5680 Document: 32-2 Filed: 10/24/2018 Page: 1

No. 18-5680
FILED
UNITED STATES COURT OF APPEALS Oct 24, 2018
DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT

ALICIA M. PEDREIRA, et al., )

)
Plaintiffs-Appellants, )
)
v. ) ORDER
)
SUNRISE CHILDREN’S SERVICES, INC., fka )
Kentucky Baptist Homes for Children, Inc., et al., )
)
Defendants-Appellees. )

Before: NORRIS, SILER, and SUTTON, Circuit Judges.

In this action, taxpayers Alicia M. Pedreira, Paul Simmons, Johanna W.H. Van Wijk-Bos,

and Elwood Sturtevant (“the Taxpayers”) allege that the Commonwealth of Kentucky’s payments

to Sunrise Children’s Services, Inc.—a private religiously-affiliated organization providing

services to children in state custody—violate the Establishment Clause. The Taxpayers appeal a

district court’s interlocutory order denying entry of an amended settlement agreement as a consent

decree. Kentucky and Sunrise jointly move to dismiss for lack of jurisdiction, arguing that the

order is non-final and non-appealable. Relying on Carson v. American Brands, Inc., 450 U.S. 79

(1981), the Taxpayers respond that the order is immediately appealable. Kentucky and Sunrise

separately reply.

Generally, we only have jurisdiction to review final decisions of the district court. 28

U.S.C. § 1291. An exception to the general rule lies, however, for interlocutory orders that have:

(1) “the practical effect of refusing an injunction”; (2) threaten a “‘serious, perhaps irreparable
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consequence’”; and (3) “can be ‘effectually challenged’ only by immediate appeal.” Carson, 450

U.S. at 84 (citation omitted).

As an initial matter, Kentucky and Sunrise contend that the dismissal of a prior appeal of

the Taxpayers is the “law of the case” and precludes us from exercising jurisdiction over this

appeal. That dismissal does not preclude us from exercising jurisdiction over this appeal because

the procedural posture of the case is different: before, the Taxpayers were appealing the dismissal

of employment-discrimination claims; now, they are appealing a different order denying entry of

a consent decree.

Kentucky and Sunrise, correctly, do not dispute that the district court’s order has the

practical effect of refusing an injunction. But they do contend that the remaining criteria are

absent. To be appealable, the order must cause the Taxpayers an irreparable consequence. An

order denying entry of a consent order has an irreparable consequence if the movant “might lose

their opportunity to settle their case on the negotiated terms.” Carson, 450 U.S. at 86. An

irreparable consequence is not present if the district court’s rejection of the consent decree does

not foreclose renegotiation of the decree. See Grant v. Local 638, 373 F.3d 104, 108 (2d Cir.

2004). Here, the terms of the settlement agreement are beyond the relief sought in the complaint;

thus, regardless of who prevails on the merits, this relief will not be obtained. The district court’s

order did not prohibit renegotiation of the agreement. But Kentucky expressly reneged on the

terms of the settlement agreement, and it expressed its intent not to renegotiate the agreement on

similar terms in correspondence to the Taxpayers. On this record, the Taxpayers have shown an

irreparable consequence because they will lose the “bargain” they obtained through negotiation.

See Stovall v. City of Cocoa, 117 F.3d 1238, 1241 (11th Cir. 1997).

Finally, the Taxpayers must show that the denial of the proposed consent decree can only

be effectively challenged by an immediate appeal. Even if the Taxpayers prevail below, they will

not obtain the relief they seek—entry of the amended settlement as a consent decree—because
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they did not seek this relief in their complaint. Thus, the district court’s refusal to enter the consent

decree indicates that the remedial provisions sought in the agreement will never be entered.

The motion to dismiss is DENIED. This denial does not preclude the merits panel from

revisiting this jurisdictional issue. See Clark v. Adams, 300 F. App’x 344, 351 (6th Cir. 2008).

ENTERED BY ORDER OF THE COURT

Deborah S. Hunt, Clerk