                                               Filed:    August 8, 1997


                  UNITED STATES COURT OF APPEALS

                      FOR THE FOURTH CIRCUIT



                             No. 96-1507
                          (CA-94-1911-MJG)



Vaughn G., etc., et al,

                                              Plaintiffs - Appellees,

         versus

Walter G. Amprey, etc., et al,

                                             Defendants - Appellants.




                             O R D E R


    The Court amends its opinion filed July 8, 1997, as follows:

    On page 3, first paragraph, line 5 -- the word "degrees" is
corrected to read "decrees."
                                      For the Court - By Direction



                                         /s/ Patricia S. Connor

                                                        Clerk
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

VAUGHN G., by his mother and next
friend, Diane G.; SAMMY J., by his
mother and next friend, Pauline J.;
MARVIN J., by his mother and next
friend, Gloria S.; JERRY L., by his
grandmother and next friend, Lillian
L.; JESSE W., by his mother and
next friend, Lena S., on behalf of
themselves and all others similarly
situated; DALE C., by his mother
and next friend, Linda W.; VERDON
                                               No. 96-1507
W., by his mother and next friend,
Rosalyn P.; MICHAEL P., by his
mother and next friend, Katherine
P.; NANCY S. GRASMICK,
Plaintiffs-Appellees,

v.

WALTER G. AMPREY, Superintendent
of Public Instruction; MAYOR AND
CITY COUNCIL OF BALTIMORE;
BALTIMORE CITY PUBLIC SCHOOLS,
Defendants-Appellants.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.
Marvin J. Garbis, District Judge.
(CA-84-1911-MJG)

Argued: June 2, 1997

Decided: July 8, 1997
Before MURNAGHAN and LUTTIG, Circuit Judges, and TILLEY,
United States District Judge for the Middle District of North
Carolina, sitting by designation.

_________________________________________________________________

Vacated by unpublished per curiam opinion. Judge Luttig joins only
in the judgment.

_________________________________________________________________

COUNSEL

ARGUED: Abbey Gail Hairston, ALEXANDER, APONTE &
MARKS, L.L.P., Silver Spring, Maryland; Paul Mark Sandler, FRE-
ISHTAT & SANDLER, Baltimore, Maryland, for Appellants. Jo Ann
Grozuczak Goedert, OFFICE OF THE ATTORNEY GENERAL,
Baltimore, Maryland, for Appellees. ON BRIEF: Koteles Alexander,
ALEXANDER, APONTE & MARKS, L.L.P., Silver Spring, Mary-
land; Joseph John Coppola, FREISHTAT & SANDLER, Baltimore,
Maryland; John M. Bryson, II, Edward C. Schweitzer, Jr., SHAW,
PITTMAN, POTTS & TROWBRIDGE, Washington, D.C., for
Appellants. Valerie G. Cloutier, OFFICE OF THE ATTORNEY
GENERAL, Baltimore, Maryland; Winifred De Palma, Baltimore,
Maryland; Lesie Seid Margolis, Steven Ney, MARYLAND DIS-
ABILITY LAW CENTER, Baltimore, Maryland; Edward I. Koren,
Washington, D.C., for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

The present case is the product of almost a decade long struggle
between special education students in Baltimore City and the Balti-

                    2
more City Public School ("BCPS") system. Special education stu-
dents in Baltimore City sued the BCPS alleging that special education
students were not being provided sufficient services as required by
federal and state law. The parties have entered into several consent
decrees regarding BCPS's failure to comply with the law. The first
was entered in 1988, and the parties have entered additional decrees
as BCPS continues to be in noncompliance with federal law.

The 1992 decree required BCPS to create a computer tracking sys-
tem to measure compliance with BCPS's timeliness in providing spe-
cial education services. In addition, a court monitor was appointed to
monitor compliance with the 1992 decree.

In addition, the district court maintained jurisdiction over the case
to ensure compliance with the decree. Under the decree, educationally
handicapped children in Baltimore City could petition the District
Court for enforcement of the decree.

In 1994, BCPS was still not in compliance with the consent decree.
The parties entered into a Stipulation and Order which created a Man-
agement Oversight Team ("MOT") which consisted of the State
Superintendent of the Maryland State Department of Education
("MSDE"), Plaintiffs, and BCPS. The MOT was given the "authority
to make, review and direct all decisions affecting compliance with the
consent decree." If the MOT could not agree, the dispute would be
submitted to the district court.

In April 1995, the parties entered into more consent decrees in
which BCPS agreed it was still not in compliance. It further agreed
to develop a new computer system. In addition, BCPS established the
position of Administrator of Special Education which had the powers
of the Superintendent with respect to special education.

Some employees in the Management Information Systems ("MIS")
department objected to developing a new computer system, and the
director of MIS refused to implement a new system. The Plaintiffs
and the Maryland Department of the Education sought to fire the MIS
director. The BCPS Superintendent refused. The issue was brought
before the district court as required by the consent decree. Before the

                    3
district court ruled, BCPS agreed to remove the director of MIS and
replace him with a person approved by all of the parties.

On March 6, 1996, the district court, sua sponte, without providing
any notice to BCPS, issued a Cease and Desist Order. The order
states:

        It appearing that a basis exists for such an Order:

        1. Defendants Walter G. Amprey, Individually and as
        Superintendent [o]f The Baltimore City Schools, Balti-
        more City Public Schools, their respective agents and
        employees and all acting in concert with them shall,
        forthwith, cease and desist from threatening, intimidat-
        ing, harassing or interfering with in any way the Court
        Monitor and all Management Information Systems per-
        sonnel in connection with the performance of their
        duties relating to this Court's Orders and Decrees. . . .

The district court refused to provide BCPS with any information
regarding what "basis exists."

On March 27, 1996, the district court held a conference at which
time Plaintiffs presented evidence regarding a possible violation of
the court's order with regard to the new MIS director. The district
court ordered discovery into the possible violation.

The BCPS filed a Motion for Reconsideration and Stay of Proceed-
ings requesting that the district court reconsider its order. The district
court denied BCPS's request, but acknowledged that the order was
issued sua sponte without notice. The district court also indicated that
it had received a sealed affidavit and determined that the affidavit
warranted the order. The court refused to disclose any information
regarding the affidavit on confidentiality grounds.

The district court stated that Defendants were not entitled to notice
and an opportunity to be heard since the order merely restated the
obligations of the parties under orders and decrees already in force.
Moreover, it stated that since the current order does not change the

                     4
status quo it is not the type of equitable relief to which procedural due
process protections apply. BCPS appealed.

On April, 30, 1997, the district court rescinded the order because
Walter Amprey was no longer Superintendent of Baltimore City
Schools. The district court specified that the rescission was not nunc
pro tunc. The Plaintiffs moved to dismiss arguing that the claim was
now moot. However, since the order was not nunc pro tunc this Court
denied the motion to dismiss.

DISCUSSION

BCPS alleges that the district court's order violated due process,
and Rule 65 of the Federal Rules of Civil Procedure, because the
order was issued without notice or an opportunity to be heard. Since
we resolve the issue on statutory grounds, we need not reach the
alleged constitutional violation.

Rule 65 governs the proper procedure for issuing preliminary
injunctions and restraining orders. Rule 65(a)(1) provides that "no
preliminary injunction shall be issued without notice to the adverse
party." Moreover, Rule 65(d) provides that

        Every order granting an injunction and every restraining
        order shall set forth the reasons for its issuance; shall be spe-
        cific in terms; shall describe in reasonable detail, and not by
        reference to the complaint or other document, the act or acts
        sought to be restrained; and is binding only upon the parties
        to the action . . . .

Rule 65(d) applies to all "equitable decree[s] compelling obedience
under the threat of contempt." International Longshoremen's Ass'n,
Local 1291 v. Philadelphia Marine Trade Ass'n, 389 U.S. 64, 75
(1967); NLRB v. Heck's, Inc., 388 F.2d 668, 670 (4th Cir. 1967)
(cease and desist order of NLRB must conform to Rule 65(d)). There-
fore, since the Cease and Desist Order subjects BCPS and its employ-
ees to contempt it is an injunction under Rule 65.

Plaintiffs argue that Rule 65 does not apply because the March 6,
1996 order was simply a restatement of previous orders. However,

                    5
this argument fails for several reasons. First, when the district court
withdrew the order on April 30, 1997 it specified that "[t]his action
is not nunc pro tunc to the issuance of the said Cease and Desist
Order." The Cease and Desist Order thus still had binding effect from
the date of entry until it was rescinded. The State of Maryland could
still assert that BCPS violated the order from March 6, 1996 to April
30, 1997 and, if it did so, BCPS might be subject to contempt for any
violation during that period.

In addition, the Cease and Desist Order was the basis for a possible
contempt action by the court. The court ordered discovery into allega-
tions that people may have violated the March 6, 1996 order. If the
court believed that contempt proceedings could exist based on the
March 6, 1996 Order, the Plaintiffs cannot now argue that the Order
did not have binding effect.

Once we determine that Rule 65 applies in the instant case, we
must determine whether the district court's action violated the rule.
The court has strictly applied the terms of Rule 65 and has stated that
the "terms are mandatory and must be observed in every instance."
Alberti v. Cruise, 383 F.2d 268, 271-72 (4th Cir. 1967).

Since the Cease and Desist Order is an injunction for purposes of
Rule 65, the district court must provide notice to the parties. The only
exception in Rule 65 is for temporary restraining orders, and there is
no assertion by any of the parties that the Cease and Desist order was
a temporary restraining order. Therefore, the district court violated
Rule 65 and should have provided notice to the parties before issuing
the Cease and Desist Order.

Furthermore, in Consolidation Coal Co. v. Disabled Miners of So.
W. Va., 442 F.2d 1261 (4th Cir. 1971), the court examined the issu-
ance of an ex parte preliminary injunction issued without notice. The
court determined that "[t]his was manifestly error, because Rule
65(a)(1) is explicit that `[n]o preliminary injunction shall be issued
without notice.'" Id. at 1269, citing Fed. R. Civ. Proc. 65(a)(1).

Plaintiffs argue that the "practicalities and peculiarities" of the case
warrant issuance of the order without notice. Specifically, they argue
that "[g]iven the history of BCPS resistance, obstruction, and retalia-

                    6
tion directed at cooperative staff, the District Judge ha[d] a basis for
limiting the information provided to the parties." It may be true that
BCPS has not been cooperative, but the proper course would have
been to hold BCPS or its Superintendent in contempt. The present
case is certainly not exceptional enough to warrant an exception to
Rule 65.1

Furthermore, the district court's action also violated subsection (d)
of Rule 65. Rule 65(d) requires that the Cease and Desist Order set
out in specific terms the reasons for its issuance.

The district court failed to set out in "specific terms" the reason for
its issuance. It simply stated that "a basis exists" for the order. Later,
the court informed the parties that a secret affidavit existed which jus-
tified the order. We grant deference to the district court in its factual
findings regarding the federal rules, but the district court must provide
the Court with some information to review its actions. The district
court has failed to do so in the instant case.

The district court abused its discretion in issuing a Cease and
Desist Order, without notice to the parties, and without setting forth
the reasons for the order. The order is thus vacated.2

VACATED




_________________________________________________________________

1 We recognize that the district court has exercised considerable
patience and restraint regarding BCPS's continued violations of consent
decrees; however, BCPS's disgraceful conduct does not excuse the issu-
ance of an injunction without notice.

2 We note that the district court already rescinded the order, but it did
so "not nunc pro tunc." Thus the order is only in force from March 6,
1996 to April 30, 1997. We hold that the order was invalid and therefore
was not properly in force during the above period.

                     7
