Spangler v. United States

• Decision Date: 28 August 1969
• Docket Number: No. 24101.,24101.
• Citation: 415 F.2d 1242
• Parties: Nancy Anne SPANGLER et al., Plaintiffs, v. UNITED STATES of America, Appellant-Intervenor, v. PASADENA CITY BOARD OF EDUCATION et al., Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

415 F.2d 1242 (1969)

Nancy Anne SPANGLER et al., Plaintiffs, v. UNITED STATES of America, Appellant-Intervenor, v. PASADENA CITY BOARD OF EDUCATION et al., Appellees.

No. 24101.

United States Court of Appeals Ninth Circuit.

August 28, 1969.

Gary J. Greenberg (argued), John N. Mitchell, Atty. Gen., U.S.A., Jerris Leonard, Asst. Atty. Gen., Civil Rights Div., David L. Norman, Deputy Asst. Atty. Gen., Merle W. Loper, Atty., Dept. of Justice, Washington, D. C., Wm. Matthew Byrne, Jr., U. S. Atty., James Stotter, Asst. U. S. Atty., Los Angeles, Cal., for appellant.

John P. Pollock (argued), of Pollock & Palmer, Boyko & Simmons, Los Angeles, Cal., for appellees.

Before MERRILL and CARTER, Circuit Judges, and THOMPSON,^* District Judge.

JAMES M. CARTER, Circuit Judge:

This case started out as a class action brought by negro students and parents of negro students to desegregate the three public high schools in Pasadena, California, and was brought on behalf of the plaintiffs "and of all similarly situated students enrolled in one of the three high schools." Before an answer had been filed by the Pasadena City Board of Education and the three members of the Board who were named defendants (hereafter the appellees), the United States moved to intervene as a party plaintiff under Sec. 902 of the Civil Rights Act of 1964, Pub.Law 88-352, Title IX § 902, Act of July 2, 1964, 78 Stat. 266, 42 U.S.C. § 2000h-2, and the motion was granted. In summary, the complaint in intervention of the United States brought into the case the entire Pasadena Public School system, containing 28 elementary, 5 junior high schools, 3 senior high schools and 2 special schools. The complaint in intervention prayed for an injunction, enjoining the appellees from discrimination upon the basis of race in the operation of the Pasadena School district and from failing to adopt and implement a plan for the elimination of discriminatory practices.

The appellees then moved to strike the allegations in the complaint in intervention, concerning the elementary, junior high schools and special schools, and the motion was granted. It is from this order that the government appeals. The district court added to its order, striking from the complaint in intervention, the statement that the order "is granted without prejudice to the right of the intervenor to urge the matter again."

THE QUESTIONS PRESENTED

This appeal presents the following questions:

1. Did the district court err in restricting the government's complaint in intervention under Sec. 902 to the scope of plaintiffs' complaint, thereby precluding the government from seeking relief from racial discrimination in the entire operation of the appellees' school system?

2. Is the district court's order, striking portions of the complaint in intervention, appealable?

I. DID THE COURT ERR IN STRIKING FROM THE COMPLAINT IN INTERVENTION?

The controversy turns around the meaning of the last sentence in Sec. 902 of the Civil Rights Act of 1964, 42 U.S.C. § 2000h-2, reading: "In such action the United States shall be entitled to the same relief as if it had instituted the action." The government cites legislative history to sustain its position. We do not find the legislative history to be too significant. "* * * This is a case for applying the canon of construction of the wag who said, when the legislative history is doubtful, go to the statute." Mr. Justice Frankfurter in Greenwood v. United States (1956) 350 U.S. 366 at 374, 76 S.Ct. 410 at 415, 100 L.Ed. 412.

We do not read this sentence as a restriction upon the rights of the United States to relief. The sentence certainly does not limit the United States, as the appellees contend, to the relief asked for by the plaintiff.

Had the Attorney General instituted an action in behalf of the United States under Sec. 407(a) of the Civil Rights Act of 1964, Public Law 88-352, Title IV § 407(a), Act of July 2, 1964, 78 Stat. 248, 42 U.S.C. § 2000c-6, he could have asked for complete relief involving the entire Pasadena School system. If the complaint first filed concerned only the high school system, it could have been amended as of right before answer filed, to claim relief as to the entire school system. We do not read the sentence as containing words of limitation upon the rights of the United States, but as broadly stating such rights.

The right to intervention by the United States as provided in Sec. 902 is an absolute and not a permissive one. There are two other intervention provisions contained in the Civil Rights Act of 1964. Sec. 204(a) allows the Attorney General to intervene in cases seeking injunction against denial of equal access to public accommodations and Sec. 706 (e) allows similar intervention in employment discrimination cases. Both sections provide that "the court may, in its discretion, permit" such intervention. No similar discretionary language appears in Sec. 902.

Our reading of Sec. 902 is consistent with other decisions in which the government has intervened under that statute. In Sanders v. Ellington (M.D.Tenn.1968) 288 F.Supp. 937, the private action sought to prevent a planned expansion of the University of Tennessee. The government's complaint in intervention additionally sought an order requiring state officers to formulate a plan that would desegregate the entire state system of higher education. The court refused to enjoin the expansion of the University of Tennessee, but granted the state-wide relief sought by the government under Sec. 902.

McGhee v. Nashville Special School District No. 1 (Civil Action No. 962, W.D.Ark. unreported) was a similar case. Private litigants sought the desegregation of the two independent but overlapping school districts in Arkansas, one serving negro students and the other serving white students. The United States was allowed to intervene under Sec. 902 and to add as defendants the school officials of three additional independent districts which overlapped each other, one of which overlapped one of the original districts and the second overlapped the first added district. The litigation continues on the merits, on an amended complaint in intervention despite the challenge by the defendants to the scope of the litigation as set forth in the government's amended complaint in intervention.

In Lee v. Macon County Board of Education (M.D.Ala.1967) 267 F.Supp. 458, 461, 475-478, aff. Wallace v. United States, 389 U.S. 215, 88 S.Ct. 415, 19 L.Ed.2d 422 (1967), the United States was allowed to intervene under Sec. 902 challenging the constitutionality of a state tuition grant law, although the original private plaintiffs had not challenged that statute. In addition, the private plaintiffs had sought relief only against the elementary and secondary schools on a state-wide basis. See, Lee v. Macon County Board of Education (M.D. Ala.1964) 231 F.Supp. 743, 755). The government requested and the court granted an order requiring the defendant state officers to implement plans for desegregation of all of the state's trade schools, vocational schools and colleges which were under the defendants' jurisdiction. Lee, supra, 267 F.Supp. at 461-462, 474-475.

A leading commentator, in referring to the intervenor with an absolute right to intervene, states, "It would be meaningless to give him an absolute right to intervene in order to protect his interests, if once in the proceedings he was barred from raising questions necessary for his own protection," 4 Moore's Fed. Practice, Par. 24.16(4), p. 117 (2d ed. 1968). Prior to the adoption of the F.R. Civ.P. in 1937, old equity Rule 37 barred an intervenor from raising issues which were not "subordinate" to the original parties' pleadings. No similar provision was carried over into the 1937 rules, and courts have not generally adhered to the old subordination doctrine. See, 4 Moore's Fed. Practice, Par. 24.16(1), pp. 108-112 (2d ed. 1968).

In Stewart-Warner Corp. v. Westinghouse Electric Corp. (2 Cir. 1963) 325 F.2d 822, cert. denied 376 U.S. 944, 84 S.Ct. 800, 11 L.Ed.2d 767 (1964), a district court dismissed an intervenor's counterclaims for patent infringement and unfair competition on the ground that they enlarged the issues involved in the main action. The court of appeals reversed, and said:

"The whole tenor and frame work of the Rules of Civil Procedure preclude application of a standard which strictly limits the intervenor to those defenses and counterclaims which the original defendant could himself have interposed. Where there exists a sufficiently close relationship between the claims and defenses of the intervenor and those of the original defendant to permit adjudication of all claims in one forum and in one suit without unnecessary delay — and to avoid as well the delay and waste of judicial resources attendant upon requiring separate trials — the district court is without discretion to deny the intervenor the opportunity to advance such claims. In the first instance, the district court\'s analysis must be accorded great weight. But where, as here, the record makes manifest the desirability of bringing the claims of all parties within the ambit of one litigation, we are compelled to reverse the district court\'s order." Id., p. 827.

Finally, the school board has an obligation to operate "a racially nondiscriminatory school system," Brown v. Board of Education (1955) 349 U.S. 294, 301, 75 S.Ct. 753, 99 L.Ed. 1083. A school board has the duty to take "whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch." Green v. County School Board (1968) 391 U.S. 430, 437-438, 88 S.Ct. 1689, 1694, 20 L.Ed.2d 716. Practically all of the Supreme Court decisions have required the desegregation of school systems and have not talked in terms of desegregating only the method of student assignment or only the high schools.¹ Brown v. Board of Education, supra; Green v. County School...