247 F.3d 520 (3rd Cir. 2001), 00-1711, Powell v. Ridge

Docket Nº:00-1711
Citation:247 F.3d 520
Party Name:DAVID POWELL; SHELEAN PARKS; PATRICE EVERAGE; JULIA A. DAVIS; YVETTE BLAND; GERALDINE NEWTON; MARIA M. RIVERA; MARY E. MILLER; GREGORY LUZAK; CATHERHINE LUZAK; FU ZHEN XIE; BLACK CLERGY OF PHILADELPHIA AND VICINITY; PHILADELPHIA BRANCH NAACP; ASPIRA, INC. OF PENNSYLVANIA; PARENTS UNION FOR PUBLIC SCHOOLS; CITIZENS COMMITTEE ON PUBLIC EDUCATION IN P
Case Date:April 06, 2001
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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247 F.3d 520 (3rd Cir. 2001)

DAVID POWELL; SHELEAN PARKS; PATRICE EVERAGE; JULIA A. DAVIS; YVETTE BLAND; GERALDINE NEWTON; MARIA M. RIVERA; MARY E. MILLER; GREGORY LUZAK; CATHERHINE LUZAK; FU ZHEN XIE; BLACK CLERGY OF PHILADELPHIA AND VICINITY; PHILADELPHIA BRANCH NAACP; ASPIRA, INC. OF PENNSYLVANIA; PARENTS UNION FOR PUBLIC SCHOOLS; CITIZENS COMMITTEE ON PUBLIC EDUCATION IN PHILADELPHIA; PARENTS UNITED FOR BETTER SCHOOLS, INC.; DAVID W. HORNBECK, SUPERINTENDENT, THE SCHOOL DISTRICT OF PHILADELPHIA; FLOYD W. ALSTON, PRESIDENT, BOARD OF EDUCATION OF THE SCHOOL DISTRICT OF PHILADELPHIA; BOARD OF EDUCATION OF THE SCHOOL DISTRICT OF PHILADELPHIA; THE SCHOOL DISTRICT OF PHILADELPHIA; EDWARD G. RENDELL, MAYOR, CITY OF PHILADELPHIA; CITY OF PHILADELPHIA, PHILADELPHIA FEDERATION OF TEACHERS LOCAL 3; TED KIRSCH, PRESIDENT, GUARDIAN AD LITEM, INTERVENORS IN D.C.

v.

THOMAS J. RIDGE, GOVERNOR OF THE COMMONWEALTH OF PENNSYLVANIA; JAMES P. GALLAGHER, DR., CHAIRPERSON COMMONWEALTH OF PENNSYLVANIA STATE BOARD OF EDUCATION; EUGENE W. HICKOK, DR., SECRETARY OF EDUCATION; BARBARA HAFER, TREASURER; MATTHEW J. RYAN; ROBERT C. JUBELIRER; JESS M. STAIRS; JAMES J. RHOADES, INTERVENORS IN D.C., APPELLANTS

No. 00-1711

United States Court of Appeals, Third Circuit

April 6, 2001

Argued: January 18, 2001

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 98-CV-1223) District Judge: The Honorable Herbert J. Hutton

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John P. Krill, Jr., Esquire (Argued), Linda J. Shorey, Esquire, Julia M. Glencer, Esquire, Kirkpatrick & Lockhart, 240 North Third Street, Harrisburg, Pennsylvania 17101, Attorney for Appellants Matthew J. Ryan, Robert C. Jubelirer, Jess M. Stairs and James J. Rhoades

James J. Rodgers, Esquire, (Argued), Lynn R. Rauch, Esq., Dilworth, Paxson, Kalish, & Kauffman, 1735 Market Street, 3200 The Mellon Bank Center, Philadelphia, Pennsylvania 19103, Patricia A. Brannan, Esquire, Hogan & Hartson, 555 13th Street, N.W., Washington, D.C. 20004-1109, William T. Coleman, Jr., Esquire, Stephen J. Harburg, Esquire, O'Melveny & Myers, 555 13th Street, N.W., Suite 500 West, Washington, D.C. 20004, Attorneys for Appellees Shelean Parks, Yvette Bland, Gregory Luzak, Catherine Luzak, Fu Zhen Xie, Floyd W. Alston, President, Board of Education of the School District of Philadelphia, David W. Hornbeck, Superintendent, The School District of Pennsylvania, Board of Education School District, Philadelphia, and School District of Philadelphia

Michael Churchill, Esquire Public Interest Law Center of Philadelphia, 125 South 9th Street, Suite 700, Philadelphia, PA 19107 Attorneys for Appellees

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David Powell, Patrice Everage, Julia A. Davis, Geraldine Newton, Maria M. Rivera, Mary E. Miller, Black Clergy of Philadelphia and Vicinity, Philadelphia Branch NAACP, Aspira, Inc. of Pennsylvania, Parents Union for Public Schools, Citizens Committee on Public Education in Philadelphia, and Parents United for Better Schools, Inc.

Jane L. Istvan, Esquire, City of Philadelphia, Law Department, 1515 Arch Street, One Parkway, Philadelphia, PA 19102, Attorneys for Appellees Edward G. Rendell, Mayor, City of Philadelphia, and City of Philadelphia

Ralph J. Teti, Esquire, Willig, Williams & Davidson, 1845 Walnut Street, 24th Floor, Philadelphia, PA 19103, Attorneys for Appellees Philadelphia Federation of Teachers Local 3 and Ted Kirsch, President, Guardian ad litem

Edward F. Mannino, Esquire, Akin, Gump, Strauss, Hauer, & Feld, 2005 Market Street, One Commerce Square, Suite 2200, Philadelphia, PA 19103, Attorneys for Appellees Thomas Ridge, Governor of the Commonwealth of Pennsylvania, James P. Gallagher, Dr., Chairperson Commonwealth of Pennsylvania State Board of Education, Eugene W. Hickok, Dr., Secretary of Education and Barbara Hafer, Treasurer

Before: Roth, Barry, Circuit Judges and SHADUR,[*] District Judge

Barry, Circuit Judge

Appellants suggest that we recognize a for m of legislative immunity heretofore unknown in the law, one which can best be described as "partial legislative immunity." Thus, and it is not disputed, the immunity appellants assert would enable them to seek discovery, but not respond to it; take depositions, but not be deposed; and testify at trial, but not be cross examined. Moreover, appellants presumably believe that when they come upon an aspect of the litigation they find disagreeable, as they find the discovery order at issue here to be, they will be able to pursue an interlocutory appeal in this Court. We disagree, and will dismiss this interlocutory appeal for lack of jurisdiction.

I.

In March 1998, suit was filed by students and parents, organizations, school district and city officials of the City of Philadelphia, and the City itself (hereinafter "appellees") alleging that the formula used by the Commonwealth of Pennsylvania to allocate certain federal education monies violated the regulations adopted by the U.S. Department of Education implementing Title VI of the Civil Rights Act, 42 U.S.C. SS 2000d-2000d-7. See 34 C.F .R. S 100.3(b). More specifically, the complaint alleged that the Commonwealth's criteria and methods of funding public education yield racially discriminatory results in Philadelphia and other predominantly minority school districts. Injunctive and declaratory relief was sought against members of the state's executive branch, including the Governor, the Secretary of Education, the State Treasurer, and the Chair of the State Board of Education.

In early May 1998, several leaders of the Pennsylvania General Assembly (the "Legislative Leaders") moved to intervene in the suit, citing their financial and legal interests in the litigation and the need to "articulate to the Court the unique perspective of the legislative branch of the Pennsylvania government." App. at 48a.1

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That motion was unopposed, and was granted by the District Court. In their brief in support of intervention, the Legislative Leaders explicitly concurred in the motion to dismiss filed by the executive department defendants two days earlier; shortly thereafter, the legislators filed their own motion to dismiss or for judgment on the pleadings; and shortly after that, they filed yet another motion for judgment on the pleadings. The District Court dismissed the complaint for failure to state a claim. We reversed, emphasizing that the validity of appellees' claims could be tested only on a developed record and rejecting the Legislative Leaders' argument that plaintiffs lacked standing to maintain each count of their complaint. Powell v. Ridge, 189 F.3d 387 (3d Cir. 1999). Notably, we did not mention legislative immunity, be it partial or absolute, because it was, at least at that time, a non-issue. The Legislative Leaders and the executive branch defendants filed separate petitions for certiorari to the Supreme Court of the United States. Both petitions were denied. Ryan v. Powell, 528 U.S. 1046 (1999); Ridge v. Powell, 528 U.S. 1046 (1999).

The District Court, taking the cue from us, thereafter entered a scheduling order and appellees accordingly sought discovery from all defendants, both executive and legislative. The Legislative Leaders objected, asserting, for the first time, "legislative privilege." After a meeting between counsel for both sides, however, the Legislative Leaders agreed to search their files to determine what documents they possessed which would fall under the discovery requests. Ultimately they reported finding two boxes of documents, only 56 pages of which they deemed to be not privileged. Appellees then filed a Motion to Compel, which was granted, although because of a miscommunication between counsel, the Legislative Leaders' response to the motion was not received until after the District Court entered its order. That response, which included a multitude of objections to the discovery requests including "legislative privilege," was, however, considered by the Court in connection with the Legislative Leaders' motion for reconsideration. The Court gave the objections short shrift, finding that our prior decision stressed the "importance of Plaintiffs' ability to conduct discovery" and, in light of this "mandate," denied the motion for reconsideration. The Legislative Leaders have now appealed the order granting the Motion to Compel.2

II.

"As a general rule, discovery orders are not final orders of the district court for purposes of obtaining appellate jurisdiction under 28 U.S.C. S 1291." In re Ford Motor Co., 110 F.3d 954, 958 (3d

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Cir. 1997) (citing Hahnemann Univ. Hosp. v. Edgar, 74 F.3d 456, 461 (3d Cir. 1996)). The collateral order doctrine excepts from this prohibition a narrow range of interlocutory decisions. In re Montgomery County, 215 F.3d 367, 373 (3d Cir. 2000) (citing Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949)). To come within the doctrine, an interlocutory decision must conclusively determine the disputed issue, the issue must be completely separate from the merits of the action, and the decision must be effectively unreviewable on appeal from a final judgment. Id. (citing Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978)).

Just recently, in Bacher v. Allstate Ins. Co., 211 F.3d 52 (3d Cir. 2000), we discussed the applicability of the collateral order doctrine to discovery orders. In Bacher, the defendant insurance carrier contended that "sensitive" information regarding previous settlements ought to be privileged from discovery. Id. at 55. We found that in light of Cunningham v. Hamilton County, 527 U.S. 198 (1999), Digital Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863 (1994), and the approach taken by other courts of appeals -- which, we noted...

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