Oregon Advocacy Center et al v. Mink et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DISABILITY RIGHTS OREGON,1
METROPOLITAN PUBLIC DEFENDER
SERVICES, INC., and A.J. MADISON,
Plaintiffs,
v.
SEJAL HATHI, in her official capacity as Director
of the Oregon Health Authority, and JAMES
DIEGEL, in his official capacity as Interim
Superintendent of the Oregon State Hospital,
Defendants.
Case No.: 3:02-cv-00339-AN (lead)
3:21-cv-01637-AN
(consolidated)
OPINION AND ORDER
On June 6, 2025, this Court entered an opinion and order finding defendants in contempt
(the "June 6 Opinion and Order"). Defendants Dr. Sejal Hathi ("Dr. Hathi"), in her official capacity as
Director of the Oregon Health Authority, and James Diegel, in his official capacity as Interim
Superintendent of the Oregon State Hospital ("OSH"), appealed the June 6 Opinion and Order. On July 25,
2025, plaintiff Disability Rights Oregon ("DRO") moved to supplement the record on appeal. For the
reasons stated herein, DRO's motion is GRANTED.
BACKGROUND
These consolidated cases have a more than two-decades-long factual and procedural
background that is well set out in prior opinions and orders, including, most recently, the Court's June 6
Opinion and Order. See Op. & Order of June 6, 2025, ECF [604]. The following background focuses only
on those facts particularly pertinent to the subject motion.
These consolidated cases include (1) Oregon Advocacy Center et al v. Mink et al, No. 3:02-
1 Plaintiff Disability Rights Oregon ("DRO") is named on the docket as "Oregon Advocacy Center" and has been
referred to as both DRO and Oregon Advocacy Center since approximately January of 2023. The Court uses "DRO"
in this Opinion and Order.
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cv-00339-AN ("Mink"), filed in 2002; (2) Bowman v. Matteucci, No. 3:21-cv-01637-AN ("Bowman"), filed
in 2021 (together with Mink, "Mink-Bowman"); and (3) Legacy Health Systems v. Allen, No. 6:22-cv-
01460-AN, filed in 2022. After Bowman's filing in 2021, the parties in Mink-Bowman jointly moved to
consolidate both cases and to appoint Dr. Debra A. Pinals ("Dr. Pinals") as a Neutral Expert. Stipulated
Mot. to Appoint Neutral Expert, ECF [238]. The parties agreed that Dr. Pinals would provide
recommendations to address OSH's capacity issues and create a plan for both short- and long-term
compliance with the permanent injunction entered in 2002 in Mink (the "Permanent Injunction"). Id. at 1-
3. Now-Senior District Judge Michael J. Mosman, who then presided over Mink, granted the motion,
consolidated the cases, and appointed Dr. Pinals as Neutral Expert. See Order of December 21, 2021, ECF
[240]. In January and June of 2022, Dr. Pinals provided her first and second expert reports, to track
defendants' progress toward compliance with the Permanent Injunction. See Op. & Order of January 9,
2023, at 3. Following briefing, Judge Mosman entered a remedial order requiring the full implementation
of the recommendations made in Dr. Pinals' first and second reports. See Mins. of Proceedings of August
29, 2022, ECF [269]; Order of September 1, 2022, ECF [271]. Dr. Pinals has continued to provide
supplemental reports on a periodic basis.
Notwithstanding defendants' continued efforts and Dr. Pinals' involvement, defendants
have been, with little exception, persistently out of compliance with the Permanent Injunction since 2018.
Op. & Order of June 6, 2025, at 10. On January 7, 2025, DRO filed a motion for an order to show cause
why defendants should not be held in contempt (the "contempt motion"), seeking civil contempt sanctions
in the form of monetary fines and modification of the Court's remedial order then in effect to include
additional remedial measures aimed at effecting defendants' compliance with the Permanent Injunction.
DRO Contempt Mot., ECF [540]. Plaintiff Metropolitan Public Defender Services, Inc. ("MPD") filed a
partial joinder to the contempt motion, taking no position on the issues of contempt or sanctions but joining
in the request for modification of the Court's remedial order. MPD Resp. Partial Joinder to DRO Contempt
Mot., ECF [557].
On January 24, 2025, the Court held a status conference and heard testimony from former
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Interim Superintendent of the OHA, Dr. Sara Walker ("Dr. Walker"); then-Interim Superintendent of the
OHA, Kristine Kautz; OSH staff member Samantha Byers; and Dr. Pinals. See Mins. of Proceedings of
January 24, 2025, ECF [560]; Tr. of Proceedings of January 24, 2025, ECF [568]. On March 12 and 13,
2025, the Court held a two-day hearing (the "contempt hearing") on DRO's contempt motion and MPD's
partial joinder to the same. Mins. of Proceedings of March 12, 2025, ECF [584]; Mins. of Proceedings of
March 13, 2025, ECF [586]. During the contempt hearing, the Court heard argument from the parties and
the amici health systems; received evidence; and heard testimony from Dr. Pinals, Dr. Walker, Dr. Hathi,
and OHA Behavioral Health Director Ebony Clarke. See Mins. of Proceedings of March 12, 2025; Mins.
of Proceedings of March 13, 2025.
On May 5, 2025, consistent with her practice with past reports, Dr. Pinals submitted her
Eleventh Report to the Court in camera. The Eleventh Report provided then-up-to-date metrics regarding
defendants' progress toward compliance with the Permanent Injunction and presented additional
recommendations for remedial measures aimed at achieving compliance. Defendants also provided the
Court with a chart that denoted objections to certain, but not all, of the additional recommendations for
remedial measures.
On June 6, 2025, the Court granted the contempt motion, finding defendants in contempt,
ordering daily monetary sanctions until defendants reach compliance with the Permanent Injunction, and
modifying the remedial order then in effect to include certain of the additional remedial measures not
objected to by defendants. On June 17, 2025, defendants appealed. Notice of Appeal to the 9th Cir., ECF
[607]. Defendants then moved for a stay of the June 6 Opinion and Order, arguing that they "have
substantial basis for appeal" on the grounds that (1) the June 6 Opinion and Order "includes legal error
because in rejecting [defendants'] reasonable steps defense, [the Court] relied solely on information
provided to" it in camera after the conclusion of the contempt hearing; and (2) "several of [the] remedial
relief terms do not meet the requirements for injunctive relief[.]" Defs. Mot. for Stay, ECF [610], at 3. The
Court denied the motion for stay. Op. & Order of August 6, 2025, ECF [645].
On July 25, 2025, DRO filed the present motion to supplement the record on appeal,
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seeking to supplement the appellate record with Dr. Pinals' Eleventh Report. DRO Mot. to Suppl. R. on
Appeal ("DRO Mot."), ECF [641]. Defendants responded in opposition. Defs. Resp. Opp'n to DRO Mot.
("Defs. Resp."), ECF [648]. MPD has taken no position.
LEGAL STANDARD
Federal Rule of Appellate Procedure 10 governs the record on appeal. Regarding
corrections and modifications of the appellate record, Rule 10(e) provides in full:
"(e) Correction or Modification of the Record
(1) If any difference arises about whether the record truly discloses what occurred in
the district court, the difference must be submitted to and settled by that court and the
record conformed accordingly.
(2) If anything material to either party is omitted from or misstated in the record by
error or accident, the omission or misstatement may be corrected and a supplemental
record may be certified and forwarded:
(A) on stipulation of the parties;
(B) by the district court before or after the record has been forwarded; or
(C) by the court of appeals.
(3) All other questions as to the form and content of the record must be presented to
the court of appeals."
DISCUSSION
Supplementation of the record with the Eleventh Report is appropriate in this case under
Rule 10(e)(2). It has always been the Court's intention that the Eleventh Report be considered with the June
6 Opinion and Order and properly be before the appellate court. The Court linked to the Eleventh Report
on OHA's website, inadvertently believing this to be sufficient for the Eleventh Report to be in the appellate
record; to the extent it is insufficient, it is appropriate to correct the unintended omission by supplementing
the record now.
Supplementation here aligns with the weight of authority interpreting Rule 10(e), which
makes clear that the appellate record is intended to reflect that which was before the Court when it made its
decision. See United States v. Garcia, 997 F.2d 1273, 1278 (9th Cir. 1993) ("The district court may not
use Federal Rule of Appellate Procedure 10(e) to supplement the record with material not introduced or
with findings not made."); Kirshner v. Uniden Corp. of Am., 842 F.2d 1074, 1077 (9th Cir. 1988) (emphasis
in original) ("Papers submitted to the district court after the ruling that is challenged on appeal should be
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stricken from the record on appeal."); United States v. Walker, 601 F.2d 1051, 1055 (9th Cir. 1979) ("We
are here concerned only with the record before the trial judge when [the] decision was made."); Daly-
Murphy v. Winston, 837 F.2d 348, 351 (9th Cir. 1987) ("[N]ormally the reviewing court will not supplement
the record on appeal with material not considered by the trial court."); United States v. Ameline, 409 F.3d
1073, 1112 (9th Cir. 2005) (emphasis added) (collecting cases) ("Normally, documents or exhibits that
were not filed with the district court, admitted into evidence, nor considered by the district court cannot be
filed as part of the record," and "[m]otions to supplement the record generally are not granted by [the Ninth
Circuit] if the evidence was not considered by the trial court below."). Here, the Court received the Eleventh
Report more than a month prior to its entry of the June 6 Opinion and Order and thus had the Eleventh
Report before it—and in fact relied upon it—when making its decision. There is no dispute as to whether
the Court relied on the Eleventh Report in making its decision as to contempt; indeed, the thrust of
defendants' argument on appeal appears to be that it was improper for the Court to do so. As such, the
Court deems it appropriate to correct its oversight of the Eleventh Report's omission in the record by
supplementing the record now.
The vast majority of DRO and defendants' arguments concern whether supplementation
under Rule 10(e)(1) is appropriate. Having found that supplementation is proper under Rule 10(e)(2), the
Court need not reach these remaining arguments.
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CONCLUSION
For the reasons stated herein, plaintiff Disability Rights Oregon's ("DRO") Motion to
Supplement the Record on Appeal, ECF [641], is GRANTED.
IT IS SO ORDERED.
DATED this 5th day of December, 2025.
______________________
Adrienne Nelson
United States District Judge
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