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February 27, 1979

Mariel P. WEBER, Maryann B. Smith, Sandra Rapp, Kathleen Mills, Barbara A. McCrossan, Marilyn Khan, Linda Stulz, Marcia W. Brown, and Katherine Fishelis
SCHOOL DISTRICT OF PHILADELPHIA, Murray Bookbinder, Constance Clayton, Philadelphia Allied Action Committee, a/k/a Philadelphia Anti-Poverty Action Commission, Nate Williams, Philadelphia Federation of Teachers Local 3, American Federation of Teachers, AFL-CIO, Fred Digby, Joseph A. Califano, Jr., Secretary of Health, Education and Welfare, United States Department of Health, Education and Welfare

The opinion of the court was delivered by: LUONGO

Under the Headstart Follow Through Act, *fn1" Congress has authorized the Secretary of Health, Education and Welfare to designate and fund Headstart agencies in communities throughout the United States. 42 U.S.C. §§ 2928, 2928c (1976), As amended by Economic Opportunity Amendments of 1978, Pub.L. No. 95-568, §§ 10, 17, 92 Stat. 2430, 2439. Each Headstart agency then develops and administers a Headstart program aimed at providing "comprehensive health, nutritional, educational, social, and other services" to disadvantaged preschool children. 42 U.S.C. § 2928 (1976). The Headstart agency may also choose to delegate the responsibility for carrying out its Headstart program to one or more "delegate agencies." See generally 45 C.F.R. §§ 1303.1-1 to .2-1 (1977).

 Plaintiffs filed this complaint on July 12, 1978, naming as defendants the School District (rather than the Board), two of its officers, the Philadelphia Allied Action Committee (PAAC), which is the federally-designated Headstart agency for Philadelphia, a PAAC employee, the Philadelphia Federation of Teachers (plaintiffs' bargaining agent), the Department of Health, Education and Welfare (HEW), the Secretary of HEW, and an HEW official responsible for, Inter alia, the administration of the Headstart Follow Through Act in the Philadelphia area. The complaint asserts claims under the Civil Rights Act of 1871, 42 U.S.C. §§ 1983, 1985, 1986 (1976), the Headstart Follow Through Act, 42 U.S.C. §§ 2921-2933 (1976), As amended by Economic Opportunity Amendments of 1978, Pub.L. No. 95-568, §§ 10, 17, 92 Stat. 2430, 2439, the HEW regulations applicable to Headstart programs, various provisions of the United States Constitution and the Pennsylvania Constitution, and in count XII other aspects of Pennsylvania law. Plaintiffs seek compensatory and punitive damages, as well as declaratory and injunctive relief. Jurisdiction is based on 28 U.S.C. §§ 1331, 1343, 1361 (1976), and on the doctrine of pendent jurisdiction.

 Presently before me are motions filed by three groups of defendants. The School District defendants the School District and its officers argue that I should abstain from deciding the merits of plaintiffs' claims or, in the alternative, dismiss the complaint entirely. The Philadelphia Federation of Teachers (PFT) also seeks either abstention or dismissal of the complaint. Both the School District defendants and the PFT have relied on matters outside the pleadings in presenting their Rule 12(b)(6) motions, and so I shall treat those motions as motions for summary judgment under Rule 56. Fed.R.Civ.P. 12(b). Finally, the HEW defendants HEW itself, the Secretary, and a regional HEW official also seek either abstention or dismissal of the single count in which they are named. For the reasons set out in this opinion, I conclude that abstention is not warranted here, that plaintiffs lack standing to raise count I of the complaint, and that defendants' other motions should all be denied.


 The facts in this case, viewed in the light most favorable to plaintiffs, are as follows. When plaintiffs were hired by the School District as teachers for the District's Headstart program, they each held a bachelor's degree from an accredited college or university. None of them, however, held a Pennsylvania teaching certificate, and the School District did not require such a certificate as a condition of employment in that program. Complaint P 25. On April 11, 1977, the Board of Education of the School District of Philadelphia and the Philadelphia Federation of Teachers entered into a collective bargaining agreement that governed the terms and conditions of employment for Headstart teachers in the District's Headstart program. Exhibit E to Plaintiffs' Memorandum of Law (Document No. 10). By its terms, this agreement covered the two-year period from September 1, 1976 through August 31, 1978. This collective bargaining agreement did not require that Headstart teachers hold teaching certificates, but it specified that teachers who did hold such certificates would receive somewhat higher salaries than those who did not. Complaint PP 28-29. The agreement also provided, as already noted, that plaintiffs would remain in their teaching positions through the end of the two-year period so long as federal funding for the Headstart program was not curtailed. As a result, "plaintiffs justifiably expected that they would continue to be employed as (Headstart) teachers during the fiscal year ending June 30, 1978." Id. P 32.

 Sometime in July of 1977, each plaintiff received a letter from defendant Bookbinder, the Executive Director of Personnel and Labor Relations for the School District, stating that she was suspended without pay, effective June 30, 1977, and stating further that plaintiffs' suspensions were "due to budget limitations in the 1977-78 General Fund Operating Budget (of the School District), and the resulting curtailment of the educational program." Exhibit A to Complaint. At that time, federal Headstart funds had not been reduced, and plaintiffs' positions had not been dropped from the School District's Categorical Fund Budget, but were instead filled by other persons. Complaint PP 34, 36. Plaintiffs were suspended, without any prior or subsequent hearing, pursuant to an agreement among the School District, Bookbinder, the PFT, and certain other defendants. Moreover, plaintiffs were suspended simply because they lacked teaching certificates; the significance of the certification issue will emerge shortly.

 On September 19, 1977, the PFT instituted a grievance on plaintiffs' behalf. In the appropriate space on the grievance form, the PFT described the grievance as follows: "The Board improperly established separate seniority lists for certified and non-certified teachers with the Head Start Program and improperly utilized same for layoffs and recall." Exhibit A to PFT's Memorandum of Law (Document No. 11). On the same form, the PFT stated the desired remedy: "Certified and non-certified teachers with the Head Start Program shall be a single seniority list which shall be utilized for layoffs and recalls." Id. The School Board responded to plaintiffs' grievance on October 6, 1977, by stating in the appropriate space on the grievance form: "When teachers are to be suspended under the tenure act, all non-certified teachers must properly be suspended without pay before the suspension of certified teachers." Id. The School Board, which had determined for financial reasons to suspend some certified teachers employed in various public schools within the district, apparently believed that it could not do so until it first suspended all its non-certified teachers, including those employed in supplemental programs such as Headstart. Plaintiffs' grievance was processed without success, and the matter was then submitted to arbitration.

 In October of 1977, plaintiffs requested that Bookbinder and the School District supply them with certain information regarding the administration of the School District's Headstart program. This information related to the financial circumstances surrounding the decision to terminate plaintiffs. Although the Headstart Follow Through Act requires "reasonable public access to books and records of . . . agencies engaged in (Headstart) program activities or operations," 42 U.S.C. § 2928f(a) (1976), neither Bookbinder nor the School District has "provided plaintiffs with the requested information or access to the books and records containing it." Complaint P 41. Plaintiffs also sought to obtain from defendant Clayton, the Executive Director of Early Childhood Programs of the School District, certain other information bearing on the circumstances of their termination, but their request was again refused.

 In December of 1977, plaintiffs' counsel supplied the PFT with a list of documents and materials that "plaintiffs believed necessary to properly prepare and present their grievances and offered to meet and discuss the issues to be raised at arbitration." Id. P 49. Counsel for the PFT "replied that the PFT would not demand the information requested by plaintiffs and declined to meet with" plaintiffs' counsel. Id. Plaintiffs repeated their requests, but the PFT persisted in its position. Thus, the PFT "refused to obtain information from the School District . . . necessary for proper presentation of plaintiffs' grievances, refused to cooperate with plaintiffs' counsel in the exploration and presentation of issues involved in plaintiffs' grievances and in other ways failed to represent plaintiffs fairly and adequately." Id. P 50.

 In January of 1978, the School District and the PFT entered into an agreement in settlement of plaintiffs' grievances. Exhibit 4 to Exhibit A to Answer of Defendant PFT (Doc. No. 4). "This agreement was negotiated and executed without notice to or knowledge of the plaintiffs and their counsel by the PFT until at least February 17, 1978, when counsel for the plaintiffs contacted the PFT concerning it." Id. P 51. Although the agreement provided for a unified seniority list for certified and non-certified Headstart teachers the remedy originally sought in the grievance filed by the PFT it denied plaintiffs "various valuable job rights," including back pay for the period during which they had been suspended. Id.

 The agreement was expressly conditioned on the approval of the Commissioner of Basic Education of the Commonwealth of Pennsylvania. In a letter dated March 10, 1978, (Exhibit 7 to Exhibit A to Answer of Defendant PFT) the Commissioner refused to approve the agreement, stating that counsel for the School District had "made it clear" why the Commissioner's approval was being sought: the School District desired some assurance that it could include Headstart pupil attendance figures in its overall attendance reports and thus obtain state education subsidies computed on the basis of higher attendance figures without incurring the forfeitures usually imposed on school districts that employed uncertified teachers (such as plaintiffs). The Commissioner concluded: "I cannot approve the agreement because I cannot make such a guarantee." Following his refusal to approve the agreement, "the PFT refused to pursue" plaintiffs' grievances. Complaint P 56. Although a hearing before an arbitrator had earlier been scheduled, it was never held.

 In a letter dated March 23, 1978, another official in the Department of Education wrote to plaintiffs' counsel concerning the relationship between the federally-funded Headstart program and the certification requirements imposed by Pennsylvania law. He stated in part:

"The Bureau of Teacher Certification does issue an instructional certificate for Early Childhood Education. If a school district's pre-kindergarten program receives subsidy from the state, they must be staffed with properly certificated professionals. In the Philadelphia School District, pre-kindergarten programs do receive subsidy; therefore, Early Childhood Education certification is required.
Head Start programs, under the federal regulations, do not require certificated teachers. However, in order to obtain state subsidies the Philadelphia School District must comply with the School Code requirement to hire properly certificated professionals."
Exhibit 5 to Exhibit A to Answer of Defendant PFT.

 Finally, on August 21, 1978, the PFT filed in the Commonwealth Court of Pennsylvania a petition for a declaratory judgment. Exhibit A to Answer of Defendant PFT. This petition, which included a stipulation covering many of the facts recited herein, specifically sought a declaration as to the validity under Pennsylvania law of the proposed agreement in settlement of plaintiffs' grievances. After some initial procedural skirmishes, the matter is now proceeding in Commonwealth Court as a petition for review of administrative agency action, based on facts as stipulated by the PFT, the Board of Education of the School District of Philadelphia, and the Department of Education of the Commonwealth of Pennsylvania. See Document No. 15. The litigation is currently pending under the caption: Philadelphia Federation of Teachers v. Board of Education of the School District of Philadelphia, 51 Pa. Commw. 296, 414 A.2d 424.


 Judge Garth recently restated the criteria governing application of the Pullman abstention doctrine:

"The special circumstances generally prerequisite to the application of this doctrine are threefold. First, there must be uncertain issues of state law underlying the federal constitutional claims brought in the federal court. Second, these state law issues must be amenable to an interpretation by the state courts that would obviate the need for or substantially narrow the scope of the adjudication of the constitutional claims. And third, it must appear that an erroneous decision of state law by the federal court would be disruptive of important state policies. In addressing an abstention claim, a district court must first consider whether the particular case falls within the ambit of Pullman as defined by these criteria, and must then make a discretionary determination, based on the weight of these criteria and other relevant factors, as to whether abstention is in fact appropriate."
D'Iorio v. County of Delaware, 592 F.2d 681, 685-686 (3d Cir. 1978).

 In this case, more than in most, the Pullman doctrine is difficult to apply. It can safely be said that plaintiffs' procedural due process claim will turn on issues of state law, for they claim that they were each deprived of a "property" interest in continued employment, and "property" interests must be evaluated by reference to state law. Bishop v. Wood, 426 U.S. 341, 344, 96 S. Ct. 2074, 48 L. Ed. 2d 684 (1976). However, the parties have referred in passing to several possible sources of plaintiffs' asserted "property" interest, and each of these possible sources would implicate somewhat different issues of state law. Defendants' briefs in support of abstention speak rather vaguely about unclear issues of state law, and they fail to analyze the precise state-law issues actually raised by plaintiffs' claim of a "property" interest. Too, once the proper source of their asserted "property" interest is selected, and the underlying state-law issues are identified, the difficulty common to all Pullman cases will arise: are the underlying state law issues sufficiently unclear to justify abstention? See generally Frederick L. v. Thomas, 557 F.2d 373, 383 & n.61 (3d Cir. 1977); Field, Abstention in Constitutional Cases: The Scope of the Pullman Abstention Doctrine, 122 U.Pa.L.Rev. 1071, 1088 (1974) ("There is little judicial analysis . . . of how unclear state law must be, though without resolving that question we know little indeed about the scope of abstention.") (footnotes omitted); Developments in the Law Section 1983 and Federalism, 90 Harv.L.Rev. 1133, 1252-53 (1977). Finally, assuming that sufficient ambiguity exists in the state law, can it be said here (a) that one possible resolution of the state-law issues might obviate the need to reach the constitutional claim at all, or (b) that an erroneous reading of state law would be seriously disruptive of state programs or policies? These last questions are particularly difficult in view of the two most recent Pullman cases decided by the court of appeals. Compare D'Iorio v. County of Delaware, 592 F.2d 681, 691 & n.17 (3d Cir. 1978) With McKnight v. SEPTA, 583 F.2d 1229, 1241-42 (3d Cir. 1978).

 One other feature of this case calls for a prefatory comment. In urging Pullman abstention here, the moving defendants contend that the (assertedly) unclear state-law issues will probably be resolved by the Commonwealth Court of Pennsylvania in the litigation, mentioned earlier, now pending before that court. Their prediction may or may not prove accurate. But defendants are not simply asking for a stay of these proceedings until the Commonwealth Court renders a decision. See generally D. Currie, Federal Courts Cases and Materials 680-82 (1975) (collecting authorities). Instead, defendants seek full-blown Pullman abstention, whereby I would postpone the exercise of jurisdiction over plaintiffs' constitutional claims until such time as they secure a state-court decision on the underlying state-law issues. Were I to enter such an order, and were the Commonwealth Court for some reason not to address the unclear issues that underlie plaintiffs' claims, then plaintiffs presumably would be obliged to commence another state-court action in order to secure the needed decision on those underlying issues. Accordingly, the Pullman analysis here should not be premised on defendants' confident prediction that the Commonwealth Court will resolve the state-law issues. A decision by that tribunal would certainly mitigate some of the harshness of an abstention order, were abstention otherwise justified, See Frederick L. v. Thomas, 557 F.2d 373, 384 (3d Cir. 1977) (dictum), but the mere prospect of such a decision cannot suffice to justify abstention in the first instance.

 I turn now to plaintiffs' procedural due process claim. Plaintiffs mention three possible sources of their asserted "property" interest in continued employment: (1) the Public School Code of 1949, Pa. Stat. Ann., tit. 24, §§ 1-101 to 27-2702 (Purdon 1962 & Supp.1978), (2) portions of the Headstart Policy Manual, which are reprinted at 45 C.F.R. § 1304, Appendix B (1977), and (3) their collective bargaining agreement with the School District. I shall focus only on the collective bargaining agreement, which at this early stage in the proceedings appears to be the most substantial basis for the asserted "property" interest.

 Plaintiffs' reliance on their collective bargaining agreement implicates an underlying issue of state law, I. e., whether the School District had the power to grant plaintiffs any expectation of continued employment. If the collective bargaining agreement between the School District and the PFT represented an Ultra vires act on the part of the School District, then it arguably could not confer any "property" interest on any of the plaintiffs. Defendants seem to suggest that the question whether the School District had the power to grant plaintiffs this "property" interest is sufficiently unclear to warrant abstention. I cannot agree.

 Defendants rely on the rule articulated in Scott v. Philadelphia Parking Authority, 402 Pa. 151, 166 A.2d 278 (1960), and reaffirmed in Mahoney v. Philadelphia Housing Authority, 13 Pa. Commw. 243, 320 A.2d 459 (1974), Cert. denied, 419 U.S. 1122, 95 S. Ct. 806, 42 L. Ed. 2d 822 (1975). In Scott, the Supreme Court of Pennsylvania held that the nontenured managing director of the Philadelphia Parking Authority was an at-will employee, subject to summary dismissal, even though he had entered into a three-year employment contract with the Authority. The court reasoned that the Authority, as a public employer, had the right to summarily dismiss any nontenured employee, and that, Absent specific statutory authorization, it lacked the power to contractually "waive" that right. 402 Pa. at 154-58, 166 A.2d 278.

 In 1970, however, the General Assembly of Pennsylvania passed the Public Employee Relations Act, Act No. 195, 1970 Pa.Laws 563 (codified at Pa. Stat. Ann., tit. 43, §§ 1101.101-.2301 (Purdon Supp.1978)). Section 101 of the Act declares "that it is the public policy of this Commonwealth . . . to promote orderly and constructive relationships between all public employers and their employe(e)s." Pa. Stat. Ann., tit. 43, § 1101.101. That section goes on to say that

"the General Assembly has determined that the overall policy may best be accomplished by (1) granting to public employe(e)s the right to organize and choose freely their representatives; (2) Requiring public employers to negotiate and bargain with employe(e) organizations representing public employe(e)s and to enter into written agreements evidencing the result of such bargaining ; and (3) establishing procedures to provide for the protection of the rights of the public employe(e), the public employer and the public at large."
Id. (emphasis supplied).

 The balance of the Public Employee Relations Act (PERA) declares the right of public employees to organize and bargain collectively, Id. § 1101.401, establishes procedures for the certification of employees' bargaining representatives, Id. §§ 1101.701-.706, defines numerous unfair labor practices, Id. § 1101.1201, and authorizes the Pennsylvania Labor Relations Board to prevent or redress such unfair labor practices, Id. §§ 1101.1301-1306.

 The crucial question here is whether the passage of the PERA changed the rule announced in Scott, supra, at least with respect to plaintiffs. To state the issue more accurately: does the PERA authorize a public employer to enter into a collective bargaining agreement under which a nontenured public employee, who formerly (under Scott ) was an at-will employee, acquires a contractual entitlement to employment for a specified period of time? Surprisingly, the Supreme Court of Pennsylvania has not yet had occasion to face this question, and, in that sense at least, the issue is not yet settled.

 I do not believe, however, that this question is sufficiently unclear to warrant the invocation of Pullman. The obvious purpose of the PERA was to advance stability in public-sector labor relations through collective bargaining, and that purpose would scarcely be served if nontenured public employees covered by fixed-term collective bargaining agreements are still at-will employees, just as they were before the adoption of the PERA. Moreover, the Commonwealth Court of Pennsylvania recently held that "the PERA clearly contemplates that public employers may agree in a collective bargaining agreement to limit its (Sic ) otherwise unfettered power to dismiss employees at will." Commonwealth v. Franklin Township Mun. Sanitary Auth., 39 Pa. Commw. 10, 395 A.2d 606, 608 (1978) (citation omitted). The court quite properly distinguished its earlier decision in Mahoney v. Philadelphia Housing Authority, 13 Pa. Commw. 243, 320 A.2d 459 (1974), Cert. denied, 419 U.S. 1122, 95 S. Ct. 806, 42 L. Ed. 2d 822 (1975), which had affirmed the continued vitality of Scott despite the intervening enactment of the PERA. Mahoney, the employee in that case, was not even covered by a collective bargaining agreement, but rather sought to derive a "property" interest from a personnel policy that his employer the Philadelphia Housing Authority had unilaterally adopted. Thus, Mahoney's own claim obviously derived no support whatever from the PERA. See Covert v. Redevelopment Authority, 447 F. Supp. 270, 274-75 (M.D.Pa.1978) ("There is no indication that the legislature intended to change the previous law of Pennsylvania as it applies to public employees who are not included within collective bargaining agreements."). Accordingly, the Mahoney court did not have to decide whether a nontenured public employee could derive a "property" interest from a collective bargaining agreement authorized by the PERA. The Franklin Township court, on the other hand, has now answered that question in the affirmative.

 In light of my conclusion that the state-law issue just discussed is not so unclear as to justify Pullman abstention, I need not go on to consider whether abstention here would serve either of the values generally thought to be furthered by the Pullman doctrine: avoiding needless interference with legitimate state ...

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