Hoots v. Commonwealth Of PennsylvaniaHoots v. Commonwealth Of Pennsylvania
Goehring, Rutter & Boehm, Thomas M. Rutter, Jr., Pittsburgh, Pa., for appellee Allegheny Intermediate Unit.
Allen C. Warshaw, Deputy Atty. Gen., J. Justin Blewitt, Jr., Deputy Atty. Gen., Chief, Civil Litigation, Robert P. Kane, Atty. Gen., Dept. of Justice, Harrisburg, Pa., for appellees Commonwealth of Pennsylvania, its Board of Education and W. Deming Lewis.
J. Robert Maxwell, Maxwell & Huss, Pittsburgh, Pa., for intervenor Churchill Area School District.
Before GIBBONS, HUNTER and GARTH, Circuit Judges.
OPINION OF THE COURT
GARTH, Circuit Judge.
Plaintiffs, mothers of children who attend public schools in the General Braddock School District in Allegheny County, Pennsylvania, brought this action on behalf of themselves and other parents of children attending those schools,1 alleging that the consolidation of various school districts in that county had created racially segregated schools. The district court, in an opinion and order filed on May 15, 1973, held that the creation of the General Braddock School District by the Pennsylvania State Board of Education was an act of de jure discrimination in violation of the fourteenth amendment.2 The defendants were ordered to prepare and submit to the court a plan for desegregation which was to include modifications in the boundary lines of the General Braddock School District and, “as appropriate, of adjacent and/or near-by school districts.”3 A plan designated as Plan “22-W” was submitted in 1973 but was rejected by the court after a hearing. Thereafter, in 1975, the Commonwealth filed a plan (Plan “A“) for the consolidation of the General Braddock School District with neighboring districts. In an opinion and order filed on November 18, 1977, the district court denied the Commonwealth‘s motion for approval of Plan A. The district court‘s order reads as follows:
And Now, November 18, 1977 the Motion of Defendant Commonwealth of Pennsylvania for approval of its Reorganization Plan (Plan A) filed September 30, 1975 in this matter (Docket No. 178) is hereby Denied and any necessary injunctive order to implement such plan is likewise Denied, without prejudice to the right of any party to submit further plans or proposals and evidence in support thereof. Any such plan involving the joinder or consolidation of school districts not now parties of record must be accompanied by the necessary joinder of such parties.
Because we hold that the district court‘s order of November 18, 1977 is neither a final order nor an appealable interlocutory order which can vest this Court with appellate jurisdiction, we are obliged to dismiss plaintiffs’ appeal.
I.
Prior to 1971, the area presently included in the General Braddock School District was served by the school districts of the Boroughs of Braddock, North Braddock and Rankin.4 In 1968, the Pennsylvania legislature, pursuant to its longstanding policy of consolidating school districts, enacted
After considering plans which would have consolidated the schools in the Boroughs of Braddock, North Braddock and Rankin with the school districts in neighboring municipalities which have predominantly white enrollments,8 the county board, on October 7, 1968, approved a plan which created the General Braddock School District as the school system for the three boroughs. The adjacent Turtle Creek and Swissvale Area School Districts and the nearby Edgewood School District were created under that plan as well. The state board approved the formation of the General Braddock School District on May 9, 1969, and the new district came into being on July 1, 1971.9
On June 9, 1971, the plaintiffs’ complaint in this action was filed. As thereafter amended, it alleged two causes of action under the equal protection clause of the fourteenth amendment and under
The district court found that the percentage of non-white enrollment was “much greater” in the General Braddock School District than in any of the surrounding districts or in almost any other district in Allegheny County.12 It further found that the school-age population of Braddock, North Braddock and Rankin was becoming increasingly non-white and that this trend had been accelerated by the establishment of the General Braddock School District.13 It was the court‘s conclusion that the defendants knew or should have been aware of these facts in 1968-1969, and that they must have known that the establishment of General Braddock as a school district would “perpetuate, exacerbate and maximize segregation of school pupils.”14 The district court found that the board‘s purpose in forming the General Braddock School District was not to further any educational goals but was “to satisfy the desires of as many of the surrounding municipalities as possible to be placed in a school district which did not include Braddock and Rankin.”15 The district court, after finding that the school district boundaries in the central eastern area of Allegheny County bore no rational relation to any legitimate purpose, thereupon concluded that “race was a factor, at least indirectly, in the formation of the school district composed of Braddock, North Braddock and Rankin.”16
Approximately one month after the May 15, 1973 Order had been entered and two years after the action had been commenced, two of the districts adjacent to the General Braddock district, Turtle Creek and Churchill, filed petitions to intervene as parties in interest. The district court denied the petitions but subsequently invited all districts (including Turtle Creek and Churchill) which would be directly affected by the Commonwealth‘s desegregation plans to intervene for the limited purpose of offering objections to those plans.19 Turtle Creek and Churchill again sought to intervene generally (as distinct from the limited intervention allowed by the court).20 Their petitions were denied, and each filed an appeal. This Court affirmed the district court‘s orders denying general intervention on the ground that, under NAACP v. New York,21 it was within the district court‘s discretion to deny petitions which had not been timely made.22
In compliance with the court‘s May 15, 1973 order,23 the Commonwealth defendants filed Plan “22-W” in September, 1973. That plan, among other features, would have abolished the General Braddock School District and created two new school districts. One district would have included the Borough of Rankin with other districts with predominantly white enrollments, and the other new district would have included the Braddock and North Braddock schools with still other surrounding districts. The school districts affected by this plan were permitted to intervene to offer evidence regarding Plan 22-W.24 In an order and memorandum opinion filed on May 7, 1975, the district court, after holding extensive hearings,25 rejected Plan 22-W. The defendants were then ordered to prepare another plan which would comport with the evidence adduced at the hearing by the parties and the intervening school districts.26
Thereafter, in September, 1975, the Commonwealth defendants submitted “Plan A“. Although, in the opinion of the district court, Plan A constituted a “more moderate realignment” of school district boundaries,27 the district court nonetheless denied the defendants’ motion for approval of the plan. In its opinion of November 18, 1977, the district court concluded that the plan “would not be in the best interests of the students in the present General Braddock area school system.”
The district court also questioned whether, under Milliken v. Bradley,28 it had the power to order the proposed relief. The district court expressed its belief that Milliken “raises doubts about the application of an inter-district remedy to districts that have not been full participants in all proceedings.” Accordingly, the district court required, in its order, that any school district included in a desegregation plan be joined as a necessary party.
The Order filed on November 18, 1977 thereupon denied the defendants’ motion for approval of Plan A. It further denied “any necessary injunctive order to implement such plan . . . without prejudice to the right of any party to submit further plans or proposals and evidence in support thereof.” It was from this order that the plaintiffs appealed.29
The jurisdiction of the courts of appeals normally is confined to the review of final orders,
A.
The plaintiffs argue that an order denying a motion for the approval of a desegregation plan should be regarded as final within the meaning of
While we do not rule that there could never be circumstances in which an order which stayed all proceedings in a school desegregation case would be a “final” denial of relief, we are faced here with circumstances which are far different from those which confronted the Sixth Circuit in Kelley. Kelley, it has been noted, involved an appeal from an order which stayed all proceedings for an indefinite time. In the present case, no stay has been decreed. However, we do not hold that the presence or absence of a final order turns on whether there has been a Formal order staying the proceedings. Rather, we observe that in Kelley the district court stayed the proceedings before any consideration had been given to the remedial plan before it. By contrast, here the district court has given full consideration to the plan and rejected it on the merits. The November 18, 1977 Order entered in this case interposes no bar to further proposals for relief. Moreover, that order, by its terms, does not require that there be any more delay than may be necessary for the parties to prepare an appropriate plan.34
In these circumstances, for us to hold that the district court‘s order of November 18, 1977 is a “final decision” would not be consistent with “our circuit‘s disinclination to expand the class of appealable final orders.”35 This circuit has adhered to the position that “expansive judge-made exceptions to the final judgment rule” do not, in the long run, serve the goal of speedy justice.36 To the extent that orders which are not final may be reviewed,
B.
Recognizing that the November 18, 1977 order is interlocutory, we would nevertheless have appellate jurisdiction under
For an interlocutory order to be appealable under
The only injunctive aspect of the May 15, 1973 order which later orders might conceivably have been deemed to have modified was its requirement that the Commonwealth defendants prepare and submit a plan for desegregation.43 Whether an order which merely commands the preparation of a remedial plan constitutes an injunction within the meaning of
In his discussion of Board of Public Instruction v. Braxton,46 a Fifth Circuit desegregation case, Judge Adams characterized the order which Braxton held to be appealable as one which dealt with “specific prohibited acts.”47 He noted that the court of appeals, which held this order to be reviewable under
We there held that when a district court has simply found segregation by a school board to be unconstitutional and has directed the board promptly to submit a plan for ending it, without any “injunction” other than the direction to file the plan, the decision is not appealable at that time.52
Frederick L. did not diverge from the instruction which Judge Adams discerned in the case law of other circuits. The portion of the Frederick L. order requiring the identification of learning disabled children was held to be appealable under
The construction given to
Taylor, in our view, is not at odds with our decision. Unlike the situation in that case, delaying the day for appellate review here will not clarify the questions on appeal. In Taylor the exact desegregation plans offered by the school board and ultimately to be adopted by the school district had the potential to alter in a material manner the issues that would be presented to the court of appeals. The determination that desegregation was necessary and that a remedial plan must be submitted provided only a skeletal outline for later adjudication.56
Under Frederick L. v. Thomas, the order of May 15, 1973 cannot be regarded as an injunction which would support appellate jurisdiction under
Even if we concluded otherwise and held that the May 15, 1973 order was an injunction, it is not evident to us in what respects it has been modified by the district court‘s November 18, 1977 order the order from which this appeal has been taken. That order does not specify the nature and scope of the desegregation remedy. Rather, it continues to look toward the future formulation of a decree which will afford the plaintiffs the relief to which they are entitled under the district court‘s original order. The November, 1977 order differs in but one respect from the previous orders entered in this case. Whereas the prior orders required the defendants to prepare a plan, the November, 1977 order invites “any party” to submit a plan. Even if it might be argued that the May 15, 1973 order constituted an injunction which, if modified, would support appellate jurisdiction, the fact remains that the defendants discharged their obligation when they submitted Plan A in September, 1975. Thus, having complied with the May 15, 1973 order, there was no longer any continuing obligation on the defendants which could be modified. Whether the court in its November 18, 1977 order should have imposed a new obligation on the defendants to prepare a plan is a matter pertaining to the merits of this appeal rather than a matter concerning the presence or absence of a modification of the earlier order.
Having concluded that the November 18, 1977 order is not appealable, we have no jurisdiction to review it and thus must dismiss the plaintiffs’ appeal. We are confident that, in light of the long history of this litigation and the sensitive, constitutional nature of the relief sought, the district court will require submission of a plan forthwith and certainly within the time limits of its original order,57 will expedite all further proceedings, and will give priority on its calendar to consideration and implementation of the plan. This being so, it would appear that an appropriate final order can be entered by year end which will grant plaintiffs the relief to which they are entitled under the district court‘s order of May 15, 1973.
The appeal will be dismissed.
GIBBONS, Circuit Judge, dissenting:
Ten years ago the Pennsylvania legislature enacted legislation1-1 which authorized county school boards to prepare, and the State Board of Education to approve, the reorganization and consolidation of school districts. Acting pursuant to that authority the Allegheny County school board prepared, and the Pennsylvania State Board of Education approved, the reorganization which brought the General Braddock School District into being on July 1, 1971. On June 9, 1971, before the General Braddock School District ever came into existence, several parents brought an action under
The majority, while it recites the procedural odyssey which produced the present state of inactivity, addresses none of these justifications for the lower court‘s order because it holds that we lack appellate jurisdiction. I conclude that we have appellate jurisdiction. Because none of the reasons relied upon by the district court justify its extraordinary change of position, I would reverse the judgment appealed from.
An order which has the effect of denying all relief for a violation of a constitutional right is a final decision within the meaning of
The first reason advanced by the district court for its about face on an interdistrict remedy is the absence of “broad based community support for such a remedy.” I would have thought that reliance upon community resistance to desegregation as a valid reason for denial of equitable relief was foreclosed as early as Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958). It is the district court‘s obligation to order an effective solution for de jure segregation. Green v. County School Board, 391 U.S. 430, 439, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968). Community resistance, even when manifested by white flight from a school system, cannot justify a less than effective solution. Monroe v. Board of Commissioners, 391 U.S. 450, 459, 88 S.Ct. 1700, 20 L.Ed.2d 733 (1968). The district court found community resistance to an effective remedy six years after the suit commenced. That resistance is unlikely to diminish six or sixty years hence. If community resistance is recognized as a valid reason for denying interdistrict relief, it can serve as a reason for denying such relief in perpetuity.
The district court also relied upon the failure of the affected community to propose a plan. The effect of this ruling, when combined with the court‘s failure to order the state authorities to submit a new plan, was to shift the burden of preparing a remedy for de jure segregation from the defendants, who were responsible for creation of the segregated district, and who have the technical and financial resources to remedy the violation, to the victims, who lack those resources.2-1 It is settled law that when intentional segregation has been found the responsibility for preparation of a remedial plan rests upon the school authorities and the district court, not upon the victims. E. g., Evans v. Buchanan (II), 582 F.2d 750, (3d Cir. 1978). Given the difficulty of preparing a satisfactory plan without the resources or expertise required to do so, the district court‘s contrary ruling creates a substantial risk that the lawsuit will be relegated to a permanent deep freeze.
In addition, the district court counted against the plan the fact that for General Braddock District it would have resulted in diminished control over its own schools. But that control exists only because of the alleged violation of the Fourteenth Amendment. If the passage of time has given the community a vested interest in control of the illegal district, each year that passes obviously will strengthen that interest, raising ever higher the bar to an effective remedy. Surely the district court‘s reliance upon this factor was impermissible.
Finally, the district court expressed its belief that Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974) (Milliken I ) “raises doubts about the application of an interdistrict remedy to districts that have not been full participants in all proceedings.” The court concluded, further, that the same districts must, under Milliken, be excluded from the remedy unless there is evidence of a deliberate, purposeful, segregative intent in their creation. Plainly this was a misreading of Milliken I. The limitations upon the equitable remedial powers of the federal courts outlined in that case clearly permit decrees reaching both districts which have committed acts of de jure discrimination, and districts in which significant segregative effects have occurred as a result of discriminatory acts committed elsewhere. Milliken v. Bradley, 418 U.S. at 744-45,
For me, this review of the effect of the lower court‘s order clearly indicates that it is appealable. The immediately relevant precedent is Kelley v. Metropolitan County Board of Education, 436 F.2d 856 (6th Cir. 1970), which held that a district court order entered in August, 1970, staying all proceedings on proposed desegregation remedies for the Nashville school system in order to await the Supreme Court‘s decisions in the 1971 school desegregation cases,4-1 was final under
On the facts, then, this appeal presents a stronger case for a finding of finality than did the appeal in Kelley. More important, the majority‘s argument against appealability wholly ignores the core of the Kelley opinion. As Judge Edwards wrote:
It is clear to us that the rights of school children to schooling under nondiscriminatory and constitutional conditions cannot be recaptured for any school semester lived under discrimination (sic) practices. Nor can any court thereafter devise an effective remedial measure. Therefore, we have no doubt that the District Court order of August 25, 1970, staying pupil integration proceedings for an indefinite time was final and appealable under
28 U.S.C. § 1291 .
436 F.2d at 862. Precisely the same type of continuing, irremediable injury that served to justify the finding of finality in Kelley is present in this case. With the passage of each year, another class graduates from a segregated school system and is forever deprived of effective relief. For example, of the sixteen named student plaintiffs in this case, nine have already graduated from a segregated school system.8-1 Five others will graduate by 1981,9-1 the year which, in light of the prior history of this case, we may view as a likely date for any new desegregation proposal. Eric Smith and Byron Knight, who were respectively in first grade and kindergarten in 1971, may, if they are lucky, see the implementation of some decree before they graduate from high school. Without appellate relief, the children of the students who graduated with the General Braddock School District‘s first class in 1972 are likely to be attending segregated kindergartens in that district before any steps are taken to remedy the violation of law to which their parents were subjected.
Read in this fashion, Kelley is consistent with the decisions of this court. Although this circuit has traditionally adopted a restrictive approach to finality, it has nevertheless allowed review of otherwise interlocutory orders where postponing review would effectively prevent vindication of an interest protected by federal law. In United States v. DiSilvio, 520 F.2d 247 (3d Cir.), cert. denied, 423 U.S. 1015, 96 S.Ct. 447, 46 L.Ed.2d 386 (1975), we held that a defendant in a criminal case could appeal from an order denying a motion to dismiss an indictment on double jeopardy grounds, because postponing review until after trial had the effect of destroying at least part of the substance of the constitutional rights being asserted. That approach to finality was approved in Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). Accord, United States v. Venable, No. 78-1224 (3d Cir. Sept. 22, 1978); United States v. Inmon, 568 F.2d 326 (3d Cir. 1977). In this case, for many class members, further delay threatens to destroy the entire right being asserted. It is no answer that in the dim and distant future other class members, perhaps still unborn, will be able to bring before us similar claims. There is no way that those plaintiffs can vindicate in any practical way the interests of litigants adversely affected by the district court order.
Similarly, when the interests of the federal government as a prosecutor are affected by a stay we have not hesitated to take a flexible approach to finality. In In re Grand Jury Proceedings, 525 F.2d 151 (3d Cir. 1975), the district court had stayed a federal grand jury investigation of criminal violations of the Clean Air Act in the steel industry pending the resolution of a parallel state court contempt proceeding involving the same alleged violations. This court held that the stay, though interlocutory, could be reviewed under
Three reasons usually are advanced for our resistance to entertaining appeals before the end of the entire case. The first is that interlocutory appeals often bring the legal issues to us in a posture in which they cannot be dealt with intelligibly. The second is that allowing interlocutory appeals produces delay. The third is our preoccupation with appellate caseloads. These reasons do not justify the dismissal of the instant appeal. I have found no difficulty in discussing, dissecting, and rejecting every reason relied upon by the district court in support of the order appealed from. On the record before us, where the very object of the appeal is to cure unconscionable delay which is causing irreparable harm, the majority‘s reference to “the goal of speedy justice” as a justification for dismissing it rings hollow. And as to caseload considerations, this is one of those cases in which our concern about the caseload must yield to our obligation to enforce the supremacy of federal law. There is no justification for dismissing this appeal.13-1
As early as 1848 the Supreme Court stated that the statutory requirement of finality, when applied to cases seeking equitable relief, should not be read “in (a) strict and technical sense, but (must be) given . . . a more liberal, and as we think, a more reasonable construction, and one more consonant to the intention of the legislature.” Forgay v. Conrad, 47 U.S. (6 How.) 201, 203, 12 L.Ed. 404 (1848). Chief Justice Taney recognized that when an interlocutory decree required the delivery of land and slaves from one party to another, the party deprived of their use and services was subjected to irreparable injury.
For the lands and slaves which they claim will be taken out of their possession and sold, and the proceeds distributed among the creditors of the bankrupt, before they can have an opportunity of being heard in court in defence of their rights. We think, upon sound principles of construction, as well as upon the authority of the cases referred to, that such is not the meaning of the acts of Congress.
Id. at 204. It is a nice irony that the final judgment rule could be construed to accommodate the interest of a master in the continued possession of his slave, but cannot, according to the majority, be construed to prevent the permanent loss to the class members in this case of the right to an education in a nonsegregated school.
I would vacate the judgment of the district court and would remand to the district court with directions to proceed forthwith with the selection and implementation of an interdistrict remedy submitted by the defendants. Given the majority‘s position in this appeal, I can only suggest that if plaintiffs’ future efforts to obtain from the district court an order meeting our rigid tests for appealability prove ineffective, they should consider resort to our mandamus jurisdiction.
The standards were adopted pursuant to
The standards are set out in the opinion of the district court, 359 F.Supp. at 812-137
Id. at 817-188 Id. at 8139Also named as parties in the amended complaint filed on July 30, 1971 were the Commonwealth of Pennsylvania, Edward Hallenberg (President of the Allegheny Intermediate Unit Board of School Directors), the Allegheny County Board of School Directors (the administrative body which was superseded in 1971 by the Allegheny Intermediate Unit Board of School Directors), and W. Deming Lewis (President of the Pennsylvania State Board of Education). In the original complaint filed on June 9, 1971, the school districts for the Boroughs of Braddock, Rankin and North Braddock and their presidents had also been named as defendants; they were deleted as parties in the amended complaint10
Hoots v. Pennsylvania, 359 F.Supp. 807, 823 (W.D.Pa.1973)11 359 F.Supp. at 816. Findings of fact were made regarding the racial composition of the General Braddock School District, id. at 814-16, including comparative data for the municipalities in the central eastern area of Allegheny County:12 Id. at 81513 Id. at 82314 Id. at 821. The district court made the following fact-finding:15 359 F.Supp. at 816-17 Id. at 82116ORDER
17 359 F.Supp. at 824-25 Id. at 82418The Churchill, Wilkinsburg, Swissvale and East Allegheny school districts subsequently intervened for the limited purpose of offering evidence and argument regarding the plans submitted by the Commonwealth defendants19
The Swissvale, East Allegheny, and Edgewood Area school districts also petitioned for intervention at that time; Edgewood‘s petition was subsequently withdrawn and the other petitions were denied20
413 U.S. 345, 93 S.Ct. 2591, 37 L.Ed.2d 648 (1973)21On May 19, 1972, eight months prior to the trial of this action, the Attorney General for the Commonwealth wrote to four of the school districts in the vicinity of General Braddock. The letter enclosed a copy of the plaintiffs’ amended complaint and urged the school districts to intervene, advising them that the relief which the plaintiffs had requested might alter the boundaries of their particular districts. When, prior to trial, the defendants moved to have the adjacent school districts joined as necessary parties under
The district court rejected the defendants’
Time for submission of the Commonwealth‘s plan had been extended until September 26, 1973 by order of the court dated July 12, 1973. The plan designated as Plan “22-W” was submitted to the court on September 26, 197323
See note 19 supra24
The court deferred its consideration of the plan until Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974) (Milliken I ), had been decided by the Supreme Court; after that opinion had been filed, briefs were submitted regarding its effect on the instant case25
The order required the defendants to:26
Under Plan A, Rankin would have been combined with Swissvale and Edgewood; North Braddock would have been combined with Turtle Creek, and Braddock would have been combined with Churchill. Alternative plans were submitted by some of the surrounding school districts; these too involved some form of linkage between the component schools of the General Braddock district and nearby districts27
418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974) (Milliken I)28Although the record does not reveal whether plaintiffs moved for the approval of Plan A as did the Commonwealth, the plaintiffs on November 7, 1975 did file a “Proposed Order of Court,” under the terms of which the court would have approved the Commonwealth‘s plan29
Section 1291 provides:30
Section 1292(a)(1) provides:31
436 F.2d at 86232 Gillespie v. United States Steel Corp., 379 U.S. 148, 152-53, 85 S.Ct. 308, 311, 13 L.Ed.2d 199 (1964), Quoting Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949)33The litigation in Kelley began fifteen years prior to the stay, a circumstance to which the court of appeals gave considerable weight. 436 F.2d at 85834
Bachowski v. Usery, 545 F.2d 363, 373 (3d Cir. 1976). See also Rodgers v. United States Steel Corp., 508 F.2d 152, 159 (3d Cir. 1975), Cert. denied, 423 U.S. 832, 96 S.Ct. 54, 46 L.Ed.2d 50 (1975) (“(T)his Court has always read Cohen as a narrow rather than an expansive exception to the final judgment rule“); Hackett v. General Host Corp., 455 F.2d 618 (3d Cir.), Cert. denied, 407 U.S. 925, 92 S.Ct. 2460, 32 L.Ed.2d 812 (1972)35 Bachowski v. Usery, 545 F.2d 363, 371 (3d Cir. 1976)36Section 1292(b) provides in pertinent part as follows:37
Bachowski v. Usery, 545 F.2d 363, 373 (3d Cir. 1976); Hackett v. General Host Corp., 455 F.2d 618, 623-24 (3d Cir.), Cert. denied, 407 U.S. 925, 92 S.Ct. 2460, 32 L.Ed.2d 812 (1972)38 Gillespie v. United States Steel Corp., 379 U.S. 148, 152-53, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964)39Judge Adams‘s opinion concludes with the following observation:40
See note 37 Supra41
Plaintiffs also contend that the November 18, 1977 order is an “interlocutory order of the district courts . . . refusing . . . (an) injunction.”
The denial of a motion for a preliminary injunction against further proceedings in an arbitration would seem at first blush to fall within the literal terms of § 1292(a)(1). But literalism has not been the approved canon of construction for the interlocutory appeals statute. Rather, the courts have looked to the presumed purpose of the 1891 exception to the historical rule prohibiting appeals from non-final judgments, and have classified as injunctions within the meaning of § 1292(a)(1) those interlocutory orders “of serious, perhaps irreparable consequence.” Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 181, 75 S.Ct. 249, 252, 99 L.Ed. 233 (1955). The literal characterization of an order as an injunction only begins the inquiry into appealability.
See also Rodgers v. United States Steel Corp., 541 F.2d 365, 372-73 (3d Cir. 1976).
The defendants’ motion of September 30, 1975 which gave rise to the November 18, 1977 order sought no more than the approval of Plan A. It did not seek any injunction to implement that plan (if approved). Hence, the inclusion in the November 18, 1977 order of the language, “and any necessary injunctive order to implement such plan is likewise denied,” was surplusage and, at best, incidental to the court‘s refusal to approve the defendants’ plan. For once the motion for approval of that plan had been denied, there was no need or occasion for the court to go further and rule on the implementation of a plan which it had determined was not to go into effect.
Moreover, the order expressly invited “any party to submit further plans or proposals and evidence in support thereof.” Therefore, read as an integrated whole, the November 18, 1977 order necessarily leads to the conclusion that it was never intended to and did not refuse a permanent injunction within the meaning of
In the May 15, 1973 order, the defendants were also enjoined from taking any actions which would impede formulation of a remedy. The order provided:
(6) Until said school desegregation plan is finally approved by this Court, defendants are hereby enjoined and restrained from taking any action, directly or indirectly, that may in any way limit or otherwise affect any school assignment options that could possibly be considered or proposed by any parties to this action.43
359 F.Supp. at 825. This injunctive aspect of the order cannot, however, support an appeal under § 1292(a)(1), because it is presently operative and has not been modified by any subsequent order of the district court 557 F.2d at 381 & n.4944 Id. at 379-8145 326 F.2d 616 (5th Cir.), Cert. denied, 377 U.S. 924, 84 S.Ct. 1223, 12 L.Ed.2d 216 (1964)46 Frederick L. v. Thomas, 557 F.2d 373, 380 (3d Cir. 1977). In Braxton, the district court enjoined certain practices, but deferred implementation of the order until “a plan to comply with these standards” had been submitted. Id. at 38047 Board of Public Instruction v. Braxton, 326 F.2d 616, 619 (5th Cir.), Cert. denied, 377 U.S. 924, 84 S.Ct. 1223, 12 L.Ed.2d 216 (1964)48 375 F.2d 158 (10th Cir.), Cert. denied, 387 U.S. 931, 87 S.Ct. 2054, 18 L.Ed.2d 993 (1967)49 Id. at 164. In light of the specificity of the order regarding the content of the plan to be submitted, one issue raised on appeal was whether the district court could interfere with the supervisory functions of the board of education. Id. at 16550 497 F.2d at 102951 Id. at 103052 557 F.2d at 38153 Id. at 381 n.4954 Id. at 38155 Id. at 380-81. Judge Adams distinguished the order found to be appealable in Frederick L. from the typical order to formulate a plan in a desegregation case: “Identification, unlike desegregation, knows no degrees.” Id. at 38156The order of May 15, 1973 provided for submission of a plan within forty-five days. Inasmuch as the plaintiffs now regard the Commonwealth‘s Plan A as affording appropriate relief, a common base apparently exists from which a remedy may be expeditiously fashioned57
Pub.L. 299, No. 150,
On December 23, 1974 the plaintiffs moved for the appointment of a consultant to prepare a plan for the court. To date no action has been taken on that ruling2-1
Studies of plan acceptability conducted in 1974 and submitted to the district court suggest that public opposition will be the inevitable concomitant of any effective desegregation plan. According to the study, every plan proposed (except the “free choice” tuition plan, which was unacceptable for other reasons) faced substantial public opposition either in the surrounding communities or in General Braddock District. (App. at 350-352a). It is unlikely that this situation has changed since that time. Hence, it could be argued that the district court‘s consensus requirement amounted to a holding that no relief would be allowed at all3-1
E. g., Swann v. Board of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971)4-1
The majority also implies that the fact that Kelley had been pending for 15 years distinguishes the two cases. Majority Opinion, supra, at 1347 n.34. For the reasons set out, infra, at n.7, I find this argument wholly unpersuasive5-1
See, e. g., Hoots v. Commonwealth of Pennsylvania, 359 F.Supp. 807, 814-15 (1973)6-1
The delay contemplated here is not more excusable than that in Kelley because this case has “only” been pending for seven years. Kelley involved the desegregation of a district with 95,000 students and a long history of racial segregation. 436 F.2d at 859 n.4. While precise comparisons are not possible, the case here involves a total student population much smaller than that involved in Kelley, and there is, of course, no history prior to 1971 of deliberate segregation. Furthermore, in Kelley, once the actual constitutional violation had been adjudicated, the remedy followed within two years. See Kelley v. Metropolitan County Bd. of Educ., 463 F.2d 732 (6th Cir.), cert. denied, 409 U.S. 1001, 93 S.Ct. 322, 34 L.Ed.2d 262 (1972). That delay is dwarfed by the probable seven or eight year delay of remedy that could result from the holding of non-appealability in this case7-1
In 1971, Ronald Knight was an eleventh grader. Loretta Knight was in tenth grade. Terrence Knight, Janelle Hoots and Tawanda Smith were all in ninth grade. Pamela Knight, Tevela Smith, and Joseph Smith were in seventh grade, and Lucinda Smith was a sixth grader. (App. at 17a-18a). Assuming that they were promoted in due course, all of these students have now graduated from high school8-1
Darryl Knight (fifth grade); Robert Smith (fourth grade); Jamie Hoots, Marc Knight, and Wesley Smith (second grade). (App. at 17a-18a)9-1
This, I take it, is the thrust of the majority‘s assertion that ” ‘the mere prospect of delay’ may not create appellate jurisdiction.” Majority Opinion, supra, at 134710-1
Cf. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 95 S.Ct. 1029, 43 L.Ed.2d 328 (1975), where Justice White listed as one of four exceptions to the rule of strict finality
situations where the federal claim has been finally decided, with further proceedings on the merits . . . to come, but in which later review of the federal issues cannot be had, whatever the ultimate outcome of the case.
420 U.S. at 481, 95 S.Ct. at 1039. For the students who have graduated from the General Braddock District, the federal claim that was first raised in 1971 can no longer be reviewed, regardless of the outcome of this case.11-1
The majority suggests that it might in some other more compelling desegregation case be prepared to hold that an otherwise interlocutory order was a final denial of relief. Majority Opinion, supra, at 1346. Cf. Hart v. Community School Bd., 497 F.2d 1027, 1031 (2d Cir. 1974) (stating that “there may be circumstances where failure to order a desegregation long overdue constitutes a denial of an injunction even though those formal words were not uttered“). They do not, however, satisfactorily explain why this appeal does not present the proper occasion for such a holding12-1
Since the order appealed from is final, and thus appealable under § 1291, it is unnecessary to join issue with the majority over its rejection of appellant‘s alternative contention that the effect of the order was to modify an injunction. See
Notes
situations where the federal claim has been finally decided, with further proceedings on the merits . . . to come, but in which later review of the federal issues cannot be had, whatever the ultimate outcome of the case.
420 U.S. at 481, 95 S.Ct. at 1039. For the students who have graduated from the General Braddock District, the federal claim that was first raised in 1971 can no longer be reviewed, regardless of the outcome of this case.
% Population in 1970 Black Total Black ------------------ ----- ----- ----- Braddock 3139 8682 36.16 North Braddock 1194 10838 11.02 Rankin 1351 3817 35.39 Chalfont 12 1370 .88 Churchill 5 4690 .11 East McKeesport 26 3233 .80 Braddock Hill 293 2494 11.75 East Pittsburgh 116 3006 3.85 Edgewood 66 5101 1.29 Forest Hills 26 9561 .27 North Versailles 1025 13416 7.64 Swissvale 567 13891 4.10 Turtle Creek 15 8308 .18 Wall 32 1265 2.53 Wilkins 49 8479 .56 Wilmerding 94 3218 2.92
“39. The school districts in the vicinity of Braddock and Rankin continually sought to avoid being included in a school district with Braddock and Rankin because of the high concentration of blacks within the Braddock and Rankin School Districts. These surrounding districts proposed to the County and State Boards mergers that would include almost any school districts in the vicinity other than Braddock and Rankin.”
ORDER
And now, this 15th day of May, 1973, this Court having found that the County and State Boards acted contrary to the Constitution in adopting the plan of organization of administrative units which combined Braddock, North Braddock and Rankin into a single school district, it is hereby ordered and directed that:
(1) Defendants Commonwealth of Pennsylvania, The Pennsylvania State Board of Education, and W. Deming Lewis shall prepare and submit to this Court within 45 days from the date of this Order a comprehensive plan of school desegregation for the central eastern area of Allegheny County to remedy the Constitutional violations found by this Court, which plan shall become final unless objected to by plaintiffs within 20 days after it is filed with the Court.
(2) Such plan shall meet the following standards:
(a) the plan shall alter the boundary lines of the General Braddock Area School District and, as appropriate, of adjacent and/or near-by school districts.
(b) the plan shall be an educationally sound and practical plan of desegregation that promises now and hereafter to achieve the greatest possible degree of desegregation within the public schools of the central eastern area of Allegheny County, taking into account the practicalities of the situation.
(c) the plan shall set forth the dates on which it shall go into effect, which dates shall be set as early as possible.
(3) Defendants Allegheny Intermediate Unit Board of School Directors, and Edward Hallenberg, its President, shall assist in the preparation of the plan in all respects within their special area of responsibility and to the fullest extent render the benefits of their expertise and knowledge of local facilities and resources so that the terms of this order may be carried out by the other Defendants.
(4) In preparing said desegregation plan it is anticipated that defendants will consider the factor of racial balance along with other educationally relevant criteria and that the plan submitted by defendants will be consistent with the policies of the Department of Public Instruction and Human Relations of Pennsylvania relating to school integration.
(5) Defendants shall give each school district whose boundaries may be altered by said school desegregation plan the opportunity to be heard prior to the adoption of a final plan.
(6) Until said school desegregation plan is finally approved by this Court, defendants are hereby enjoined and restrained from taking any action, directly or indirectly, that may in any way limit or otherwise affect any school assignment options that could possibly be considered or proposed by any parties to this action.
(7) This Court expressly retains complete and continuing jurisdiction to modify this final judgment and decree on its own motion or on motion of any party.
(8) This judgment and decree shall take effect immediately.
The district court rejected the defendants’
“. . . prepare and submit to this court and to the counsel for the parties to this action a comprehensive plan of school desegregation to remedy the constitutional violations found by this court to exist in the structure of the General Area Braddock School District (sic) in Allegheny County, Pennsylvania. In formulating such plan the Commonwealth, and its Departments and Agencies concerned with responsibility in this matter shall consider the evidence submitted by the various parties at the hearings held by the court on this matter and the alternative proposals advanced by various parties at such hearing. The Commonwealth shall further consider the factors of community acceptance, financial impact, the neighborhood school concept, and minimization of required transportation to effectuate the plan, the existence of present facilities and the planning of future facilities in the areas affected, as well as the other factors for determination of an acceptable plan that were developed in the hearing before this court on the subject.”
The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States, . . . except where a direct review may be had in the Supreme Court.
(a) The courts of appeals shall have jurisdiction of appeals from:
(1) Interlocutory orders of the district courts of the United States, . . . or of the judges thereof, granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court.
(b) When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order . . . .
The substance of the dispute here is highly significant, and immediate resolution would clarify an important aspect of federal law as well as possibly terminating a lengthy controversy. However, the wisdom of the final judgment rule lies in its insistance that we focus on systemic, as well as particularistic impacts. The appellate system has become increasingly overburdened and the future would appear to promise no relief from the continuous increase in case loads. Accordingly, it would seem to us to be a disservice to the Court, to litigants in general and to the idea of speedy justice if we were to succumb to enticing suggestions to abandon the deeply-held distaste for piecemeal litigation in every instance of temptation. Moreover, to find appealability in those close cases where the merits of the dispute may attract the deep interest of the court would lead, eventually, to a lack of principled adjudication or perhaps the ultimate devitalization of the finality rule as enacted by Congress.
The denial of a motion for a preliminary injunction against further proceedings in an arbitration would seem at first blush to fall within the literal terms of § 1292(a)(1). But literalism has not been the approved canon of construction for the interlocutory appeals statute. Rather, the courts have looked to the presumed purpose of the 1891 exception to the historical rule prohibiting appeals from non-final judgments, and have classified as injunctions within the meaning of § 1292(a)(1) those interlocutory orders “of serious, perhaps irreparable consequence.” Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 181, 75 S.Ct. 249, 252, 99 L.Ed. 233 (1955). The literal characterization of an order as an injunction only begins the inquiry into appealability.
See also Rodgers v. United States Steel Corp., 541 F.2d 365, 372-73 (3d Cir. 1976).
The defendants’ motion of September 30, 1975 which gave rise to the November 18, 1977 order sought no more than the approval of Plan A. It did not seek any injunction to implement that plan (if approved). Hence, the inclusion in the November 18, 1977 order of the language, “and any necessary injunctive order to implement such plan is likewise denied,” was surplusage and, at best, incidental to the court‘s refusal to approve the defendants’ plan. For once the motion for approval of that plan had been denied, there was no need or occasion for the court to go further and rule on the implementation of a plan which it had determined was not to go into effect.
Moreover, the order expressly invited “any party to submit further plans or proposals and evidence in support thereof.” Therefore, read as an integrated whole, the November 18, 1977 order necessarily leads to the conclusion that it was never intended to and did not refuse a permanent injunction within the meaning of
(6) Until said school desegregation plan is finally approved by this Court, defendants are hereby enjoined and restrained from taking any action, directly or indirectly, that may in any way limit or otherwise affect any school assignment options that could possibly be considered or proposed by any parties to this action.