     Case: 12-30850        Document: 00512674560          Page: 1     Date Filed: 06/24/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                                               Fifth Circuit

                                                                             FILED
                                                                            June 24, 2014
                                        No. 12-30850                        Lyle W. Cayce
                                                                                 Clerk

THERESA D. THOMAS, on behalf of D. M. T., on behalf of E. J. T., on behalf
of V. A. T.; ALPHONSE FONTNETTE, on behalf of J. F.; BENJAMIN C.
ROY, on behalf of M. H., on behalf of K. H.,

                                                    Plaintiffs–Appellees,
v.

SCHOOL BOARD ST. MARTIN PARISH,

                                                    Defendant–Appellant.



                    Appeal from the United States District Court
                       for the Western District of Louisiana


Before OWEN and HAYNES, Circuit Judges, and LEMELLE,* District Judge.
PRISCILLA R. OWEN, Circuit Judge:
      St. Martin Parish School Board (the School Board) appeals the district
court’s denial of its motions to dismiss this desegregation case originally filed in
1965 by Theresa Thomas, on behalf of D.M.T., E.J.T., and V.A.T.; Alphonse
Fontnette, on behalf of J.F.; and Benjamin Roy, on behalf of M.H. and K.H.
(collectively, Plaintiffs). We affirm.




      *
          District Judge of the Eastern District of Louisiana, sitting by designation.
    Case: 12-30850     Document: 00512674560      Page: 2   Date Filed: 06/24/2014



                                  No. 12-30850

                                        I
      This case concerns the district court’s decision to revisit a school
desegregation case in which the last order prior to 2009 was entered in 1974 (the
1974 Order). In 1965, Plaintiffs filed a complaint under 42 U.S.C. § 1983
alleging that the School Board was operating a segregated school system (a “dual
system”) and seeking injunctive relief. In September 1965, the presiding judge,
Judge Richard Putnam, found that the School Board had engaged in intentional
discrimination in violation of the Equal Protection Clause of the Fourteenth
Amendment and ordered the immediate desegregation of all grades in the School
Board’s system. At the same time, the court approved the initial plan of
desegregation proposed by the School Board.
      In July 1969, the School Board proposed a new plan of desegregation. The
district court approved the plan at that time and issued an amended judgment
regarding the desegregation plan in December 1971. Over the next several
years, the district court received regular reports from the School Board reporting
the status of its desegregation effort, approved certain changes to the
desegregation plan requested by the parties, and made various other rulings.
      In July 1974, Judge Putnam issued an order directing the parties to file
briefs on several issues, including “[w]hether or not this school system has
achieved a unitary status, has maintained such status for a period of two years,
and the decree of th[e] Court should be dissolved” as of that time. The decree
that followed—the 1974 Order—stated, in pertinent part, as follows:
      II. The objective criteria filed by the Board and set out in the
      Board’s Policy Manual for Hiring and Promoting of faculty and staff
      members within and for said system may be continued in operation,
      subject to the conditions imposed upon defendants with regard to
      the future operations of the public school system . . . , and reserving
      to all parties the right to raise this issue within the two year period
      hereinafter stated in paragraph VI.



                                        2
    Case: 12-30850     Document: 00512674560      Page: 3    Date Filed: 06/24/2014



                                  No. 12-30850

      III. It is apparent from the record in this case, including the
      detailed plan for the operation of the St. Martin Parish public
      schools, and we so find and accordingly decree that the above named
      defendants have previously achieved a unitary school system and
      have operated as such for a period in excess of three (3) years prior
      to this date; accordingly, all detailed regulatory injunctions
      heretofore entered by this Court against said defendants are hereby
      dissolved.
      IV. Said defendants are hereby permanently enjoined from
      operating a dual public school system in the Parish of St. Martin,
      and from adopting any regulatory policies, practices or performing
      any acts in regard to said public school system in any aspect of its
      operations which are discriminatory as to any members of the
      student population, faculty or staff, or any of its employees, or which
      would deny any benefits to any of said persons or classes of persons,
      or others affected by said action, on grounds of race, religion, color
      or national origin.
      V. To insure compliance with the permanent injunction above set
      forth, defendants and their successors in office shall: (1) file with
      this Court on or before November 15, 1975 and November 15, 1976,
      the statistical data required by the “Hinds County Report,” fully
      detailed in United States v. Hinds County School Board, 433 F.2d
      618-19, Appendix B (5 Cir. 1970) [sic], with copies to all counsel of
      record, and (2) they shall henceforth comply with all regulations of
      the Department of Health, Education and Welfare [and, in short, all
      applicable laws].
      VI. This Court retains jurisdiction of this cause for a period of two
      years from this date. The matter shall be placed on the inactive
      docket of this Court, subject to being reopened on proper application
      by any party made within said period, or on the Court’s own motion
      should it appear that further proceedings are necessary.
This was the last order entered in the case prior to 2009.
      In 2009, the chief judge of the District Court for the Western District of
Louisiana noted sua sponte that the case remained on the court’s inactive docket
and assigned the case for further proceedings. In April 2010, the judge to which
the case was assigned observed that jurisdiction appeared to have lapsed in 1976
but invited the parties to notify the court if they disagreed with that conclusion.

                                        3
     Case: 12-30850            Document: 00512674560        Page: 4     Date Filed: 06/24/2014



                                          No. 12-30850

       Plaintiffs and the United States Department of Justice filed responses,
arguing that the 1974 order had not divested the court of jurisdiction as of 1976.
Plaintiffs also filed a motion to substitute named plaintiffs. The School Board
filed two motions to dismiss, both of which argued that the 1974 Order was a
final judgment that dismissed the case.
       After a hearing, the district court issued a memorandum order denying
both motions.1 The court reasoned that the characterization of the order was a
basic issue of subject matter jurisdiction. It held that “the [1974 Order] is not
sufficiently precise to constitute a final judgment finding that the school board
has remedied the vestiges of past segregation to the extent practical” and,
accordingly, that the “suit remains alive.” The court therefore denied the
motions to dismiss. This appeal followed.
                                                 II
       As an initial matter, we must consider our appellate jurisdiction. The
School Board has appealed the district court’s denial of its motions to dismiss,
which ordinarily does not constitute an immediately appealable order.2 The
School Board contends that appellate jurisdiction lies either under 28 U.S.C.
§ 1291, which grants appellate jurisdiction over “final decisions” of the district
court,3 or under 28 U.S.C. § 1292(a)(1), which grants appellate jurisdiction over
certain interlocutory orders related to injunctions.4                      We conclude that




       1
         In a separate order, the district court administratively denied the plaintiffs’ motion
to substitute named plaintiffs pending its resolution of the jurisdiction issue. The docket
reflects that the district court has not revisited this order. No substitution of plaintiffs has
yet occurred in the case.
       2
           See, e.g., Newball v. Offshore Logistics Int’l, 803 F.2d 821, 824 (5th Cir. 1986).
       3
           28 U.S.C. § 1291.
       4
           Id. § 1292(a)(1).

                                                 4
     Case: 12-30850        Document: 00512674560          Page: 5     Date Filed: 06/24/2014



                                        No. 12-30850

jurisdiction lies under § 1292(a)(1) and do not consider whether appellate
jurisdiction would otherwise lie under § 1291.
        Section 1292(a)(1) provides that courts of appeals shall have jurisdiction
over,
        [i]nterlocutory orders of the district courts of the United States, the
        United States District Court for the District of the Canal Zone, the
        District Court of Guam, and the District Court of the Virgin Islands,
        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. . . .5
This provision applies to orders that explicitly grant, continue, modify, refuse,
or dissolve injunctions or that refuse to dissolve or modify injunctions, as well
as to those that have the practical effect of doing so.6 In the latter circumstance,
however, appellate jurisdiction will lie only if the district court’s order “might
have a ‘serious, perhaps irreparable, consequence,’ and . . . can be ‘effectually
challenged’ only by immediate appeal.”7
        In this case, we conclude that although the district court’s order did not
explicitly refuse to dissolve an injunction, it had the practical effect of doing so.
In the district court, the School Board contended that the 1974 Order was a final
order that dismissed the case. Although the School Board did not express it in



        5
            Id.
        6
        E.g., Carson v. Am. Brands, Inc., 450 U.S. 79, 84 (1981); Hatten-Gonzales v. Hyde, 579
F.3d 1159, 1167 (10th Cir. 2009); McCoy v. La. State Bd. of Educ., 345 F.2d 720, 721 (5th Cir.
1965) (per curiam) (citing Ettelson v. Metro. Life Ins. Co., 317 U.S. 188 (1942)).
        7
         Carson, 450 U.S. at 84 (quoting Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176,
181 (1955)); accord McLaughlin v. Miss. Power Co., 376 F.3d 344, 352 (5th Cir. 2004) (“[A]fter
Gardner, ‘orders which . . . have the practical effect of denying an injunction, but do not do so
in explicit terms, are immediately appealable if the order threatens serious, perhaps
irreparable consequences and can be effectively challenged only by immediate appeal.’” (second
alteration in original) (quoting Sherri A.D. v. Kirby, 975 F.2d 193, 203 (5th Cir. 1992)));
Roberts v. St. Regis Paper Co., 653 F.2d 166, 170 (5th Cir. Unit B 1981) (applying Carson in
a case involving refusal to dissolve an injunction).

                                               5
     Case: 12-30850         Document: 00512674560         Page: 6     Date Filed: 06/24/2014



                                         No. 12-30850

so many words, the School Board implicitly argued that the injunction in the
1974 Order was—and, in any event, should be—dissolved. By holding that the
1974 Order was not a final order that dismissed the case, the district court’s
denial of the motions to dismiss had the practical effect of refusing to dissolve
the 1974 Order’s permanent injunction.8 Given the peculiar circumstances of
this nearly fifty-year-old case, the district court’s refusal also may have serious,
perhaps irreparable consequences for the School Board and can be effectually
challenged only by immediate appeal. Accordingly, we hold that appellate
jurisdiction lies under § 1292(a)(1).
                                               III
       We now turn to the issue of the district court’s jurisdiction. As the district
court correctly recognized, if the 1974 Order held that the School Board had met
its constitutional mandate to eliminate all vestiges of discrimination and
dismissed the case, then the district court would be without jurisdiction to
consider any new matters in the case.9 If not, then the case remains live.10
       Our analysis is governed by the Supreme Court’s decision in Board of
Education of Oklahoma City Public Schools v. Dowell,11 which dealt with a
similar issue to that posed by this case. In Dowell the district court entered an
order in 1977 titled “Order Terminating Case,” which provided as follows:
       The Court has concluded that [the desegregation plan] worked . . . .
       The School Board, under the oversight of the Court, has operated
       the Plan properly, and the Court does not foresee that the


       8
        See Roberts, 653 F.2d at 170 (“[D]efendants contended that all provisions of the decree
had expired; in essence, they asked the court to dissolve the injunction. In holding that the
decree continues to be viable, the court’s order had the practical effect of refusing to dissolve
the injunction.”).
       9
           See Lee v. Macon Cnty. Bd. of Educ., 584 F.2d 78, 81-82 (5th Cir. 1978).
       10
            See id.
       11
            498 U.S. 237 (1991).

                                                6
    Case: 12-30850         Document: 00512674560          Page: 7    Date Filed: 06/24/2014



                                         No. 12-30850

      termination of its jurisdiction will result in the dismantlement of
      the Plan or any affirmative action by the defendant to undermine
      the unitary system so slowly and painfully accomplished over the 16
      years during which the cause has been pending before this
      court . . . .
      The School Board, as now constituted, has manifested the desire
      and intent to follow the law. The court believes that the present
      members and their successors will now and in the future continue
      to follow the constitutional desegregation requirements.
      Now sensitized to the constitutional implications of its conduct and
      with a new awareness of its responsibility to citizens of all races, the
      Board is entitled to pursue in good faith its legitimate policies
      without the continuing constitutional supervision of this Court . . . .
      Jurisdiction in this case is terminated ipso facto subject only to final
      disposition of any case now pending on appeal.12
      The Supreme Court first observed that the order did not dissolve the
desegregation decree. The Court then explained that, because courts in the
1970s had been inconsistent in their use of the term “unitary,” it could not take
the order’s reference to the board’s achievement of a “unitary system” to mean
that the school board had met its constitutional obligations. Some courts “used
[the term] to identify a school district that has completely remedied all vestiges
of past discrimination,” which would mean that the district had met the mandate
of Brown v. Board of Education13 and its progeny.14 Other courts, however, used
the term “to describe any school district that has currently desegregated student
assignments, whether or not that status is solely the result of a court-imposed




      12
           Dowell, 498 U.S. at 241-42.
      13
           349 U.S. 294 (1955).
      14
           Dowell, 498 U.S. at 245 (citing Brown, 349 U.S. 294) (collecting cases).

                                               7
    Case: 12-30850           Document: 00512674560         Page: 8     Date Filed: 06/24/2014



                                          No. 12-30850

desegregation plan.”15 Under the latter usage, “a school district could be called
unitary and nevertheless still contain vestiges of past discrimination.”16
        In light of this ambiguity, the Court determined that the order was
“unclear with respect to what it meant by unitary and the necessary result of
that finding.”17 The Court therefore upheld the court of appeals’ conclusion that
“while the 1977 order . . . did bind the parties as to the unitary character of the
district, it did not finally terminate the . . . litigation.”18 In this regard, the Court
observed “that a school board is entitled to a rather precise statement of its
obligations under a desegregation decree,” and “[i]f such a decree is to be
terminated or dissolved, [plaintiffs] as well as the school board are entitled to a
like statement from the court.”19 Notably, the Court came to this conclusion
notwithstanding the 1977 order’s seemingly clear intention to terminate the
case.
        The decision in Dowell mandates the conclusion that the unitariness
finding in the 1974 Order is ambiguous and, therefore, that the 1974 Order did
not dismiss this case. The 1974 Order states that “[i]t is apparent from the
record in this case, including the detailed [desegregation] plan for the operation
of the St. Martin Parish public schools, and we so find and accordingly decree
that the above named defendants have previously achieved a unitary school
system and have operated as such for a period in excess of three (3) years prior
to this date.” As in Dowell, the meaning of this declaration is unclear. Although
it could mean that the School Board had remedied all vestiges of past


        15
             Id.
        16
             Id.
        17
             Id. at 246.
        18
             Id.
        19
             Id. (citing Pasadena City Bd. of Educ. v. Spangler, 427 U.S. 424 (1976)).

                                                 8
     Case: 12-30850           Document: 00512674560         Page: 9   Date Filed: 06/24/2014



                                             No. 12-30850

discrimination, it also is susceptible to being read as stating that the school
system was presently unitary but had not yet eliminated the vestiges of past
discrimination.20
         The School Board relies on the 1974 Order’s statement that the district
court would “retain[] jurisdiction of this cause for a period of two years” from the
date of the order and place the case on the inactive docket, “subject to being
reopened on proper application by any party made within said period, or on the
Court’s own motion.” The School Board contends that this provision had the
effect of dismissing the case as of 1976. However, in Dowell, the Supreme Court
concluded that an order expressly terminating jurisdiction is not by itself
effective to dismiss a desegregation case, nor does it transform an ambiguous
finding of unitariness into an unambiguous one.21 The cases cited by the School
Board, each of which involved an order explicitly dismissing the case,22 are not
to the contrary.
         At oral argument, the School Board sought to distinguish Dowell by noting
that the order in Dowell did not refer explicitly to any injunctions while the 1974
Order expressly dissolved “all detailed regulatory injunctions” entered against
the Board.           We are not persuaded.            Dissolving “all detailed regulatory
injunctions” does not qualify as a “rather precise statement” of the School
Board’s ongoing obligations. The 1974 Order also explicitly and implicitly refers
to the continuing existence of an injunction mandating conduct on the part of the

         20
              See United States v. State of Ga., Troup Cnty., 171 F.3d 1344, 1348-49 (11th Cir.
1999).
         21
              See Dowell, 498 U.S. at 246.
         22
         See United States v. Overton, 834 F.2d 1171, 1173-74 (5th Cir. 1987) (consent decree
provided for supervision of school district for three years, at which point the district would be
declared unitary and the case dismissed; at the end of three years, the district court entered
an order dismissing the case); Riddick ex rel. Riddick v. Sch. Bd. of the City of Norfolk, 784
F.2d 521, 525 (4th Cir. 1986) (district court received reports for several years and then entered
an order dismissing the case).

                                                  9
    Case: 12-30850         Document: 00512674560           Page: 10      Date Filed: 06/24/2014



                                         No. 12-30850

School Board. The 1974 Order imposed a permanent injunction barring the
School Board from returning to a segregated system and from adopting any
discriminatory policies or practices or performing discriminatory acts with
respect to any aspect of its operations. Paragraph two of the 1974 Order, which
held that the personnel policy adopted by the School Board could “be continued
in operation, subject to the conditions imposed upon defendants with regard to
the future operations of the public school system of St. Martin Parish,” also
suggests that the School Board remained subject to affirmative obligations. The
1974 Order’s inclusion of these provisions would have been anomalous if it had
found that the School Board had reached unitary status in the sense of
eliminating all vestiges of past discrimination.23
       Although in the absence of Dowell we may have been inclined to hold that
the 1974 Order was a final order that dismissed the case, Dowell requires the
conclusion that the 1974 Order is ambiguous. We accordingly affirm the district
court’s order denying the motion to dismiss for want of jurisdiction and remand
for further proceedings.
       We are confident that on remand, the district court will hew closely to the
other facets of Dowell’s holding. The Supreme Court held that decrees in school


       23
          See, e.g., Dowell, 498 U.S. at 248 (“The legal justification for displacement of local
authority by an injunctive decree in a school desegregation case is a violation of the
Constitution by the local authorities.”); Monteilh v. St. Landry Parish Sch. Bd., 848 F.2d 625,
629 (5th Cir. 1988) (observing, in holding that a 1971 declaration of that the district was
“unitary in its entirety” was not a final declaration on that subject, that declaration’s
“retention of jurisdiction would have been anomalous” if the district court actually had
declared that the district had reached unitary status); Lee v. Macon Cnty. Bd. of Educ., 584
F.2d 78, 81-82 (5th Cir. 1978) (“[T]he District Court entered its order on February 10, 1977,
finding the . . . the school system to be unitary in nature. . . . The court did not, however, enter
final judgment or dismiss the case, so we assume that it retained jurisdiction for purposes
other than receiving the reports.”); see also Troup Cnty., 171 F.3d at 1348 (“[A]lthough
vacating the more detailed earlier injunction, the 1973 Order issued a new permanent
injunction, imposing certain obligations on Troup County. The fact that the 1973 Order
imposed this permanent injunction upon Troup County is wholly inconsistent with an end to
federal jurisdiction over and supervision of the school district.”).

                                                10
    Case: 12-30850           Document: 00512674560        Page: 11   Date Filed: 06/24/2014



                                           No. 12-30850

desegregation cases “are not intended to operate in perpetuity,”24 and that
“[d]issolving a desegregation decree after the local authorities have operated in
compliance with it for a reasonable period of time properly recognizes that
‘necessary concern for the important values of local control of public school
systems dictates that a federal court’s regulatory control of such systems not
extend beyond the time required to remedy the effects of past intentional
discrimination.’”25 “[F]ederal supervision of local school systems was intended
as a temporary measure to remedy past discrimination.”26 The 1974 Order
clearly contemplated that the case would be dismissed in a matter of years, not
decades. The inquiry is “whether the vestiges of de jure segregation had been
eliminated as far as practicable.”27 As our court has recently affirmed, “‘[o]nce
the racial imbalance . . . due to the de jure violation has been remedied, the
school district is under no duty to remedy imbalance that is caused by
demographic factors.’”28
                                       *        *         *
       For the foregoing reasons, we AFFIRM the judgment of the district court
and REMAND for further proceedings consistent with this opinion.




       24
            Dowell, 498 U.S. at 248.
       25
        Id. (quoting Spangler v. Pasadena City Bd. of Educ., 611 F.2d 1239, 1245 n.5 (9th Cir.
1979) (Kennedy, J., concurring)).
       26
            Id. at 247-48.
       27
            Id. at 250.
       28
        Anderson v. Sch. Bd. of Madison Cnty., 517 F.3d 292, 299 (5th Cir. 2008) (quoting
Freeman v. Pitts, 503 U.S. 467, 494 (1992)).

                                               11
