APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA D.C. Civil No. 71-00538
Before Hunter, Garth and Higginbotham, Circuit Judges. Before Seitz, Chief Judge, Aldisert, Adams, Gibbons, Hunter, Weis, Garth, Higginbotham and Sloviter, Circuit Judges.
Author: Hunter; Higginbotham
This is the fifth published chapter in the long history of this litigation.*fn1 The factual history and procedural posture of the case were ably recited by Judge Garth in this court's October, 1978 opinion.*fn2 Here, we will briefly summarize that account and then supplement it with a recital of subsequent events leading to the instant appeal.
Plaintiffs, mothers of children who attend public schools in the General Braddock Area School District ("GBASD") in Allegheny County, Pennsylvania, filed a complaint on June 9, 1971, alleging that the consolidation of various school districts in that county had resulted in the creation of racially segregated schools.*fn3 The district court, in an opinion and order filed on May 15, 1973, held that the creation of the GBASD by the Pennsylvania State Board of Education and the Allegheny Intermediate Unit Board of School Directors was "an act of de jure discrimination in violation of the Fourteenth Amendment."*fn4 Defendants were given forty-five days to prepare and submit a comprehensive plan for school desegregation in the central part of eastern Allegheny County.*fn5
In September, 1973, defendants filed Plan "22-W" with the district court. The most prominent feature of the Plan was the consolidation of seven adjacent school districts, including GBASD, into two. The school districts affected by "22-W" were permitted to intervene to offer evidence on the Plan. In an order and memorandum opinion filed on May 7, 1975, the district court rejected Plan 22-W.*fn6 Defendants were ordered to submit another plan.
In September, 1975, the Commonwealth submitted a new plan, "Plan A," providing for the consolidation of General Braddock with neighboring school districts. On November 18, 1977, the district court denied the Commonwealth's motion for approval of Plan A even though it observed that the Plan involved a "more moderate realignment" of school boundaries than earlier plans.*fn7 The memorandum and order denying approval of the Plan also denied "any necessary injunctive order to implement such plan ... without prejudice to the right of any party to submit further plans or proposal in support thereof."*fn8
Plaintiffs appealed the district court's order withholding approval of Plan A to this court. We dismissed that appeal for want of appellate jurisdiction, noting that the district court's order was "neither a final order nor an appealable interlocutory order which can vest this Court with appellate jurisdiction." Hoots IV, 587 F.2d at 1342. In dismissing the appeal, however, we anticipated the speedy resolution of the dispute and the implementation of appropriate relief by the district court:
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, 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.
587 F.2d at 1351. (footnote omitted).
Following the dismissal of the appeal, appellants, on January 25, 1979, asked the district court to order the Commonwealth to submit within forty-five days a desegregation plan that was "interdistrict in character" involving either a redistricting of GBSAD, or "the tuitioning of current school-age students in General Braddock Area School District to appropriate surrounding school districts ....," or both. Appendix for Appellants at 235a.
On February 6, 1979, the district court held a status conference at which "a wide range of possible remedies (was) discussed and "argued," including district consolidation, the tuition plan and a newly proposed "upgrade" plan for the internal improvement of the quality of GBASD's schools. Application for Writ of Mandamus, Hoots v. Weber, No. 79-1474, at 7-8, reprinted in Appendix for Appellants at 243a-244a. No order was issued by the district court at the conference.
On April 16, 1979, plaintiffs filed an application for Writ of Mandamus requesting this court to order the district court to "direct the state defendants to submit another interdistrict plan which would involve the use of tuition as a technique to remedy the problem presented by C.A. No. 71-538." Application for Writ of Mandamus, Hoots v. Weber, No. 79-1474, at 2 reprinted in Appendix for Appellants at 23a. We denied the application on May 2, 1979, "(in) view of the answer of Chief Judge Weber, and specifically his statement that he plans to proceed promptly." Hoots v. Weber, No. 79-1474 (3d Cir. May 2, 1979), reprinted in Appendix for Appellants at 312a.
On May 17, 1979 the district court entered two orders: 1) it directed the Commonwealth to prepare and file a tuition voucher plan by August 15, 1979 for grades 7-12, or 10-12;*fn9 and 2) it added eight school districts as parties solely for the remedial phase of the case.*fn10 The newly joined school districts then filed motions to dismiss; and in response to that motion the court on June 12, 1979 ordered plaintiffs to brief the Milliken v. Bradley question of whether the named school districts could be included in a remedial plan.*fn11
The Commonwealth filed a proposed tuition plan and moved for its approval on September 10, 1979.*fn12 After a hearing on November 17, 1979, the district court denied the motion and orally ordered the Commonwealth to prepare a more detailed plan.
The Commonwealth filed its more detailed tuition plan on May 15, 1980 ("The Tuition Plan"). The plan provided that: 1) all the GBASD students in grades 7-12 would be transferred to eight surrounding school districts; 2) all the GBASD secondary schools would be closed; 3) all the students would be able to choose their new schools, subject to limitations on the number of students that would be assigned to each school district; 4) GBASD would pay the tuition of all of the transferred students on the basis of the average cost of educating a student in the receiving district; 5) only the GBASD students would be transported; and 6) there would be no transfer of elementary school students.*fn13
On May 22, 1980, the Commonwealth submitted a second plan, "a Metropolitan Desegregation Plan for General Braddock Area School District" ("The Metropolitan Plan"). Reprinted in Appendix for Appellants at 486a-516a. This plan called for the consolidation of GBASD with three surrounding school districts: Edgewood, Swissvale and Turtle Creek.*fn14
On June 6, 1980, GBASD filed its "upgrade plan." This plan provided for an intradistrict remedy: GBASD would improve the quality of its schools' programs and facilities in order to attract parochial school students back to the public schools. Reprinted in Appendix for Appellants at 475a-485a.
The district court ordered all parties to file their objections to the various plans by June 16, 1980. Appellants argued for the rejection of the Tuition Plan because of its exclusion of elementary school pupils. All but one of the school districts not included in the Metropolitan Plan argued for its adoption and for the rejection of the Tuition Plan. All of the school districts supported the upgrade plan; appellants opposed it.
On July 14, 1980, hearings commenced on the Tuition Plan.*fn15 The Commonwealth offered evidence supporting the Plan, arguing that it would offer a non-segregated education for all children in grades 7-12. The Commonwealth admitted that the plan did not address the elementary school grades, but expressed its willingness to consider modifications to the plan.*fn16 The Commonwealth rested on July 17, 1980. At the conclusion of the Commonwealth's case, plaintiffs (along with defendants East Allegheny, GBASD, Steel Valley, and West Mifflin school districts) orally moved for the rejection of the Tuition Plan. The motion was denied. Appendix for Appellants at 529a.
Plaintiffs then presented testimony critical of the Tuition Plan. The testimony centered on the inadequacy of the relief insofar as it did not provide for the desegregation of grades K-6. Plaintiffs' witnesses were critical of the plan's allocation of GBASD students among eight, rather than fewer, school districts. Plaintiffs also objected to shifting the entire burden of relief to GBASD.
On July 24, 1980 plaintiffs filed a written motion to reject the Tuition Plan and for an injunction setting a timetable to implement interdistrict relief beginning in the fall of 1980. On July 28, 1980, the district court orally denied the motion. Appendix for Appellants at 556a-560a. The plaintiffs then continued their presentation of evidence, which was not only critical of the Tuition Plan, but also urged the adoption of consolidation relief similar to the Metropolitan Plan.
On July 30, 1980, at the close of their case, plaintiffs once again filed a written motion asking the district court to reject the Tuition Plan and to grant an injunction providing for immediate relief in the form of a merger or consolidation plan, and for the imposition by the court of a timetable to implement such a plan beginning in mid-school year 1980-81. The district court denied the motion without prejudice.*fn17
On August 4, 1980 plaintiffs filed a notice of appeal from the district court's July 28 (oral) and July 30 (written) orders denying injunctive relief. An application for a writ of mandamus was filed on August 11, 1980. We granted plaintiffs' motion for expedited appeal on August 14, 1980. Hoots v. Commonwealth of Pennsylvania, No. 80-2116 (3d Cir. August 14, 1980). Subsequently, we denied the application for mandamus on September 9, 1980. Hoots v. Weber, No. 80-2124 (3d Cir. September 9, 1980).
Following the notice of appeal, the district court continued to take testimony on the Tuition Plan. At the conclusion of hearings on August 22, 1980, the district court requested briefing on two issues: 1) which school districts could be included, consistent with Milliken v. Bradley, in a remedial plan; and 2) whether the Tuition Plan, as a matter of law, failed to correct the constitutional violation. The court scheduled arguments on these issues for October 2, 1980, and noted that their resolution would determine the possibility of future hearings on either merger or upgrade plans.
Oral argument was held before this court on November 3, 1980. Subsequently, on November 20, 1980 we granted appellants' motion that the record be supplemented with all documents and transcripts of testimony and argument filed in the district court after July 30, 1980. We filed a second order to supplement the record on December 4, 1980.
The supplemented record reveals that on November 13, 1980 Judge Weber stated that he would schedule no further proceedings until this court ruled on the instant appeal. Further, he ordered that disposition of the matters briefed and argued on October 2, 1980 be stayed pending appeal.
The threshold question in this appeal is that of appellate jurisdiction. Appellants assert that Judge Weber's July 30, 1980 order is either final within the meaning of 28 U.S.C. § 1291 (1976),*fn18 or that the order comes within the class of appealable injunctive orders under 28 U.S.C. § 1292(a)(1) (1976).*fn19 The Commonwealth appellees "concede" jurisdiction under section 1292(a)(1) but challenge our jurisdiction under section 1291. Several school district appellees contest jurisdiction on either basis.
It is the duty of this court to examine its jurisdiction in every case, Mansfield, Coldwater & Lake Michigan Railway Company v. Swan, 111 U.S. 379, 4 S. Ct. 510, 28 L. Ed. 462 (1884); United States ex rel. Esola v. Groomes, 520 F.2d 830, 834 n.16 (3d Cir. 1975), notwithstanding any agreement among the litigants that such jurisdiction exists. United States v. Cities Service Company, 410 F.2d 662, 663 (1st Cir. 1969). Accordingly, we must examine the text of Judge Weber's July 30, 1980 order to see if it is appealable under either section 1291 or section 1292(a).
Appellants premise their claim of section 1291 jurisdiction, as they did in Hoots IV, on the Sixth Circuit's decision in Kelley v. Metropolitan Board of Education, 436 F.2d 856 (6th Cir. 1970).*fn20 We once again find this argument unpersuasive, and find that the district court's July 30 order was not a final decision within the meaning of section 1291. This circuit has consistently given a narrow definition to the class of final orders that are appealable. Hoots IV, 587 F.2d at 1347; Bachowski v. Usery, 545 F.2d 363, 373-74 (3d Cir. 1976). The July 30 order does not fall within this narrow class, and hence is not appealable under section 1291. A contrary finding would substantially erode the purpose of the final order doctrine. Bachowski, 545 F.2d at 373. See Hoots IV, 587 F.2d at 1346-48.
Appellants argue, in the alternative, that the July 30, 1980 order is appealable as a denial of an injunction under 28 U.S.C. § 1292(a)(1) (1976). They claim that the district court's denial of an injunction that would have afforded them merger or consolidation relief falls within the class of appealable interlocutory orders under section 1292(a)(1).
The July 30 order, on its face, denied injunctive relief to appellants. We have observed, however, that "literal characterization of an order as an injunction only begins the inquiry into appealability." Stateside Machinery Company, Ltd. v. Alperin, 526 F.2d 480, 482 (3d Cir. 1975); Rodgers v. United States Steel Corporation, 541 F.2d 365, 372 (3d Cir. 1976). We must look beyond the text of the order and read it in the context of the history and purpose of section 1292(a)(1). See Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 180-81, 75 S. Ct. 249, 251-52, 99 L. Ed. 233 (1955); Stewart-Warner Corporation v. Westinghouse Electric Corporation, 325 F.2d 822, 829-30 (2d Cir. 1963) (Friendly, J. dissenting), cert. denied 376 U.S. 944, 84 S. Ct. 800, 11 L. Ed. 2d 767 (1964). Appealability of interlocutory orders under section 1292(a)(1) developed because of a "need to permit litigants to effectually challenge interlocutory orders of serious, perhaps irreparable, consequence." Gardner v. Westinghouse Broadcasting Co., 437 U.S. 478, 480, 98 S. Ct. 2451, 2453, 57 L. Ed. 2d 364 (1978), quoting Baltimore Contractors, 348 U.S. at 181, 75 S. Ct. at 252.
We find that the July 30, 1980 order denying injunctive relief to appellants effective in the fall of 1980 was an interlocutory order of "serious, perhaps irreparable consequences" that vests this court with appellate jurisdiction under 28 U.S.C. § 1292(a)(1) (1976).*fn21 The district court denied the relief requested by appellants, and the denial had serious, if not irreparable consequences for GBASD school children who will now have to wait another year before enrolling in racially integrated schools. Although the trial court denied the motion for an injunction "without prejudice,"*fn22 the effect of the denial was to preclude any possibility of granting the relief sought by appellants. Thus the July 30, 1980 order is distinguishable from the order appealed in Hoots IV which did not deny any "element of the relief sought by plaintiffs" and "did not seek any injunction." Hoots IV, 587 F.2d at 1348 n.42.*fn23
Having decided that we have jurisdiction to review the district court's July 30, 1980 order, we begin our consideration of the merits by observing that our role as an appellate court is a limited one. As this court held in Evans v. Buchanan, 555 F.2d 373, 380 (3d Cir. 1977) (en banc), in school desegregation cases "(formulating) a realistic, practical, and effective remedy is a job peculiarly within the province of the trial court, whose position gives it a quantum advantage over an appellate court in weighing the "practicalities of the situation.' " In litigation as long and complex as this, the fashioning of relief should normally "be entrusted in large measure to the sound discretion of the District Court Judge who has lived with (it) for so many years." Gilmore v. City of Montgomery, 417 U.S. 556, 577, 94 S. Ct. 2416, 2427, 41 L. Ed. 2d 304 (1974) (Marshall, J. concurring).
Balanced against our deference to the trial court, however, is an affirmative obligation to ensure that de jure discrimination in public schools is remedied "forthwith." Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 14-15, 91 S. Ct. 1267, 1275, 28 L. Ed. 2d 554 (1971); See also Carter v. West Feliciana Parish School Board, 396 U.S. 290, 90 S. Ct. 608, 24 L. Ed. 2d 477 (1970); Alexander v. Holmes County Board of Education, 396 U.S. 19, 90 S. Ct. 29, 24 L. Ed. 2d 19 (1969); Green v. County School Board of New Kent County, 391 U.S. 430, 88 S. Ct. 1689, 20 L. Ed. 2d 716 (1968). Although the primary responsibility for remedying past discrimination rests with the school authorities, Green, 391 U.S. at 437-38, 88 S. Ct. at 1693-94, "in default by the school authorities of their obligation to proffer acceptable remedies, a district court has broad power to fashion a remedy that will assure a unitary school system." Swann, 402 U.S. at 16, 91 S. Ct. at 1276. See also Columbus Board of Education v. Penick, 443 U.S. 449, 458-61, 99 S. Ct. 2941, 2947-48, 61 L. Ed. 2d 666 (1979). The district court "has not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future." Green, 391 U.S. at 430 n.4, 88 S. Ct. 1689, 20 L. Ed. 2d 716 n.4, quoting Louisiana v. United States, 380 U.S. 145, 154, 85 S. Ct. 817, 822, 13 L. Ed. 2d 709 (1965). See also United States v. DeSoto Parish School Board, 574 F.2d 804, 811 (5th Cir.) cert. denied, 439 U.S. 982, 99 S. Ct. 571, 58 L. Ed. 2d 653 (1978). ("If the school board defaults in its duty, the responsibility of the District Court is equally clear and compelling: to use its broad and flexible equitable powers to implement a remedy.")
Striking the required balance in this case, we conclude that the formulation of an appropriate remedy lies within the sound discretion of the district court. Accordingly, we decline to grant appellants' request that we require the implementation of merger or consolidation relief. We also decline, at this time, to reject the concept of a tuition plan for GBASD. The primary duty to choose between these competing remedial plans rests with the district court. Regardless of the particular plan chosen by the district court, the remedy must be broad enough to completely eradicate the de jure discrimination found by the trial court in Hoots II. See Anderson v. Dougherty County Board of Education, 609 F.2d 225, 226 (5th Cir. 1980).
Although we hold that the duty to fashion a remedy is charged to the district court, we are nonetheless obligated to ensure that relief be implemented as promptly and as practicably as possible. Once before, we expressed our confidence that the parties would assist the trial court in reaching a speedy resolution of the remedial phase of this protracted case. But the vagaries of litigation, including a change in appellant's counsel and shifting litigation strategies and positions, have prevented this result. Accordingly, we are constrained to take affirmative steps to guarantee that relief will be implemented forthwith.
Our understanding of the posture of the case is that hearings have been completed on the Tuition Plan and that at least some testimony has been taken on the merits of consolidation or interdistrict relief.*fn24 The district court has taken briefs and heard arguments on the Milliken question, but has not yet ruled on which school districts can be included within an interdistrict remedial plan. On November 13, the district court suspended all further proceedings pending our decision.
We believe it to be essential that the district court afford relief to appellants that will be effective in the fall of 1981. Under no circumstances should a new school year begin in the fall of 1981 without an acceptable remedial plan in place.
Accordingly, we order the district court*fn25 to expedite its consideration of this case so that within ninety days*fn26 of the issuance of the mandate of this court it shall:
1) complete all hearings and necessary proceedings on the merits of the competing remedial plans for the desegregation of GBASD;
2) decide the Milliken v. Bradley issue of which school districts may be included within an interdistrict remedy; and
3) enter an appropriate final order granting appellants the relief to which they are entitled under the district court's order of May 15, 1973, such relief to be effective and implemented by the beginning of the first semester of the school year in the fall of 1981.
We are confident that with the cooperation of all parties, and with complete mobilization of the court's and the parties' efforts and resources in this compelling endeavor, this timetable may and will be achieved.
Therefore, we vacate the July 30, 1980 order of district court and remand for proceedings consistent with this opinion. The mandate of this court shall issue forthwith.
In their Petition for Rehearing, the appellees again claim, as the dissent did, that a 90 day time limit "is an unprecedented intrusion" upon a district court's power. Petition for Rehearing at 10. I vote to deny the petition for the reasons stated in my prior concurring opinion and in Judge Hunter's opinion. I also point out that this court has previously been willing, when dealing with corporate litigation, to impose a more rigid time limit on a district court judge than we have imposed in the present case. In Kohn v. American Metal Climax, Inc., 458 F.2d 255 (3d Cir.), cert. denied, 409 U.S. 874, 93 S. Ct. 120, 34 L. Ed. 2d 126, 93 S. Ct. 132 (1972), minority stockholders brought suit on April 8, 1970 to enjoin the amalgamation of their company and another corporation because the merger allegedly violated Section 10(b) of the Securities and Exchange Act of 1934, and Section Seven of the Clayton Act. The district court on August 12, 1970 preliminarily enjoined the amalgamation. In an order of August 31, this court amended a prior order staying the injunction, and directed that the district court "proceed promptly with the trial and disposition of this case on the merits so that it may enter its Final Judgment prior to October 29, 1970" that is, within 60 days of the court of appeals' order. The subsequent opinions of the district and appellate courts are reported at 322 F. Supp. 1331 (E.D.Pa. 1970) and 458 F.2d 255 (3d Cir. 1972). While parties may disagree on what is an appropriate time limit in a particular case, the power to impose some time limit is clear. Civil rights litigants have rights equal to corporate parties in assuring an expeditious disposition of their legal claims.
A. LEON HIGGINBOTHAM, Jr., Circuit Judge, concurring.
On June 9, 1971, Dorothy Hoots and other concerned parents of children attending public schools in the General Braddock Area School District (GBASD) in Allegheny County, Pennsylvania, filed a complaint challenging its racially segregated school system. On May 15, 1973, the district court held that the creation of the GBASD was "an act of de jure discrimination" in violation of the fourteenth amendment. Hoots v. Commonwealth of Pennsylvania, 359 F. Supp. 807, 823 (W.D.Pa.1973), (Hoots II ), appeal dismissed, 495 F.2d 1095 (3d Cir. 1974), cert. denied, 419 U.S. 884, 95 S. Ct. 150, 42 L. Ed. 2d 124 (1974). Almost seven years have since elapsed without the district court ordering any remedy. There have been numerous appeals during this period attempting, without success, to expedite the implementation of an effective remedy. Judge Hunter has dealt with this problem of unconscionable delay in a thoughtful and moderate opinion which imposes quite reasonable time limitations. I join Judge Hunter in the result.*fn1
I feel compelled to write separately, however, to emphasize my fundamental differences with the dissent of Judge Garth, who challenges the power and the wisdom of this court's imposing a 90-day timetable on the district court to choose a remedial plan. Despite the passage of 9 1/2 years since the filing of the original complaint, and the graduation of black students each year from a public school system held to be in violation of the United States Constitution, the dissent today claims that we are powerless to place any time limitations on the district court's consideration of possible remedial decrees. I find this view of the powerlessness of an appellate court contrary to judicial precedent and doctrine and a derogation of our judicial mandate to enforce the provisions of the Constitution. I know of no other judicial authority, and the dissent does not cite any, which has ever taken such a position. I reject it completely.
Judge Garth provides three reasons for refusing to impose a time limitation on the district court. First, he claims that an appellate court lacks the power under any circumstance to impose a timetable for decision on a district court judge. Second, he claims that even if we do possess such power, it is inadvisable as a matter of policy that we exercise it. He believes this is especially true in this case where, according to Judge Garth, the 9 1/2 year delay is not the responsibility of the district court judge. Finally, he claims that a 90-day requirement is too restrictive. I find his hypothetical and speculative arguments unpersuasive and divorced from the stark reality of this inexcusable 9 1/2 year delay.
THE POWER TO IMPOSE A ...