UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Tamm and Robb, Circuit Judges, and Gordon,* District Judge, U.S. District Court for the Eastern District of Wisconsin.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GORDON
The district court dismissed the plaintiffs' complaint finding (among other grounds) that it failed to state a claim upon which relief could be granted, and this appeal followed. The complaint contains two separate counts.
The plaintiffs are the state of Georgia, its governor, its state board of education, its state superintendent of schools, and several parents. In their first cause of action, the plaintiffs complain that the defendants, the attorney general of the United States, and the secretary of the United States Department of Health, Education and Welfare have deprived the plaintiffs of their rights of due process, under the fifth amendment, and of their rights to equal protection of the laws, under the 14th amendment by pursuing certain policies and practices in connection with the enforcement of school desegregation.
In their second cause of action, it is alleged that the defendants have selectively discriminated against these plaintiffs by ignoring certain blatant conditions of school segregation in other geographical areas while pressing for compliance in the southern states. The plaintiffs claim that this "lopsided imposition of racial exclusions and quotas upon Southern children, parents, teachers and school districts alone" deprives the plaintiffs of their constitutional and statutory rights.
As a threshold defense, the defendants urge that the plaintiffs' action constitutes an impermissible collateral attack on the judgment of the court in United States v. State of Georgia et al. (N.D. Ga., No. 12972, decided December 17, 1969). There the district court enjoined the Georgia state board of education from disbursing public funds to those school districts which failed to establish that they had adopted satisfactory school desegregation plans. The decision of the northern district court of Georgia does not appear to have been published. The defendants in the instant case assert in their brief (at p. 8) that no appeal was taken by the defendants from that judgment, and that statement has not been contradicted by the plaintiffs. See, however, United States v. State of Georgia, 428 F.2d 377, 379 (5th Cir. 1970).
The plaintiffs maintain that the collateral attack rule does not apply in the case at bar because the parties here are not the same as those who were before the court in United States v. Georgia. In that case, the United States was a named party; in the instant case, the attorney general and the secretary of the Department of Health, Education and Welfare are parties. In addition, some of the plaintiffs in the present case were not before the court when it decided United States v. Georgia. It is surely arguable, however, that the same basic interests are amply represented in both cases, and that the technical variance in the identity of the parties is a matter of form, rather than of substance. It is also probable that the same essential issues which are raised in this case were implicit in United States v. Georgia.
In further support of their view that the collateral attack doctrine is inapplicable, the plaintiffs contend that the court's order in United States v. Georgia was void since it violated the United States Constitution. While the Georgia parties may have been entitled to appeal the decision of the federal court for the northern district of Georgia, we have no doubt that the latter court had jurisdiction; thus, the rule stated by the Supreme Court in Baltimore Steamship Co. v. Phillips, 274 U.S. 316, 325, 47 S. Ct. 600, 604, 71 L. Ed. 1069 (1927), would appear to be applicable:
"A judgment merely voidable because based on an erroneous view of the law is not open to collateral attack, but can be corrected only by a direct review and not by bringing another action upon the same cause."
In its order of May 5, 1970, the district court concluded that portions of the complaint constituted a collateral attack upon the earlier judgment; nevertheless, we have determined that we should advert to the merits of the issues raised upon this appeal rather than to sustain the arguably correct defense of collateral attack.
The thrust of count I of the complaint is the plaintiffs' contention that the defendants, as executives of the United States, are unconstitutionally and illegally imposing racial restraints ...