Davis v. Board of School Com'rs of Mobile County

Decision Date21 August 1975
Docket NumberNos. 74-3894,75-1312,74-4257 and 75-1827,s. 74-3894
Citation517 F.2d 1044
PartiesBirdie Mae DAVIS et al., Plaintiffs-Appellants, United States of America, Plaintiff-Intervenor, Edwin Foster, Plaintiff-Intervenor, v. BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY et al., Defendants-Appellees. James E. BUSKEY et al., Plaintiffs-Appellants, v. BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY et al., Defendants-Appellees. Birdie Mae DAVIS et al., Plaintiffs, United States of America, Plaintiff-Intervenor, James E. Buskey, Plaintiff-Intervenor-Appellant, v. BOARD OF SCHOOL COMMISSIONERS OF MOBILE COUNTY et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

J. Stanley Pottinger, Asst. Atty. Gen., Brian K. Landsberg, Walter K. Barnett, Judith E. Wolf, Attys., Civil Rights Div., Dept. of Justice, Washington, D. C., amicus curiae.

Victor T. Hudson, Abram L. Philips, Jr., Mobile, Ala., for defendants-appellees.

Appeals from the United States District Court for the Southern District of Alabama.

Before BELL, AINSWORTH and GODBOLD, Circuit Judges.

BELL, Circuit Judge:

This is the thirteenth appeal in the Mobile school case (Mobile XIII), which case began in 1963. 1 The questions presented are illustrative of problems encountered in winding down a school case. Some are important to the administration of final school desegregation decree. One centers on an effort to disqualify the district judge. The questions arise out of four separate appeals which we have consolidated.

The district court entered a consent order on July 9, 1971 adopting a "Comprehensive Plan for a Unitary School System" as formulated by the parties. That plan, and the district court consent order thereon, adopted the following requirement of Singleton v. Jackson Municipal Separate School District, 5 Cir. (en banc), 1970, 419 F.2d 1211:

"Staff members who work directly with children, and professional staff who work on the administrative level will be hired, assigned, promoted, paid, demoted, dismissed, and otherwise treated without regard to race, color, or national origin."

See also Carter v. West Feliciana Parish School Board, 5 Cir., 1970, 432 F.2d 875.

Jurisdiction of the district court continued over the matter as a class action. Meanwhile, this court held that the proper and orderly procedure to be followed by third parties in seeking to question deficiencies in the implementation of desegregation orders or for further relief in ongoing school cases is by petition to intervene. See Hines v. Rapides Parish School Board, 5 Cir., 1973, 479 F.2d 762; Lee v. Macon County Board of Education (Conecuh County), 5 Cir., 1973, 482 F.2d 1253. Thereafter in Mobile XI, we rejected the effort of the National Education Association to superimpose a class

action on behalf of the black school administrators and teachers in the system on the pending class action. National Education Association, supra, n. 1, 483 F.2d 1022 (NEA ). In doing so, we pointed to our prior decisions which required any complaint of discrimination within the scope of a pending school suit to be advanced by petition to intervene in that case.

I.

Undaunted by these decisions, counsel for the plaintiffs here proceeded to file two new class actions. One was filed on behalf of Edwin Foster, a black assistant school principal, and another on behalf of James E. Buskey, also a black assistant school principal. Each claimed discrimination in having been denied promotion to principal. The district court dismissed each suit with leave to intervene in Birdie Mae Davis. Each thereafter intervened but Buskey appeals nevertheless from the order of dismissal. This is No. 74-4257.

Two of the appeals are interlocutory and are brought under 28 U.S.C.A. § 1292(b). These are Nos. 75-1312 and 75-1827. 2 The appeals are from orders denying the motions of Foster and Buskey, respectively, to disqualify the district judge for bias under 28 U.S.C.A. § 144. 3

The other appeal, No. 74-3894, is by the original class in Birdie Mae Davis from an order of the district court refusing to issue an order to show cause why the defendant school board should not be held in contempt for failure to comply with the desegregation consent order relative to professional promotions.

As will be seen, we find no merit in these appeals and affirm as to each. We do give some direction to the district court with respect to the range of discovery to be allowed in the further proceedings in the Foster and Buskey cases on remand. 4 It is to be remembered that only their claims of discrimination in the refusal to promote them to the position of school principal are pending for resolution on the merits. All other matters before us are part of a procedural tangle.

II.

A brief chronology of the procedural events will assist in understanding our disposition of the several issues.

(A) The Foster suit, filed on January 25, 1974 as a "Complaint in Intervention", sought to maintain a class action consisting of "black persons holding degrees in Administration and Supervision who have been passed over for promotion solely by reason of their race and color". This complaint followed an earlier independent suit by Foster, filed October 5, 1973, which had been dismissed on the authority of NEA, supra, with leave being granted for him to intervene in the Birdie Mae Davis case.

(B) Interrogatories were served on March 15, 1974 by Mr. Foster on the school superintendent in an effort to develop detailed facts with respect to principals and assistant principals as well as the entire administrative and supervisory force of the Mobile school system.

(C) The district court set the matter for class action determination on February 22, 1974. No basis for maintaining such an action having been offered, the court entered an order on March 25, 1974 that the matter could not be maintained as a class action.

(D) On July 2, 1974, counsel for Foster moved to compel answers to the earlier filed interrogatories. A magistrate entered (E) There were two filings on July 19, 1974. The same interrogatories were served on the school superintendent on behalf of the Birdie Mae Davis class in the underlying suit by co-counsel for Foster (who, coincidentally, was one of counsel for the plaintiffs in Birdie Mae Davis and had only recently joined the Foster case as co-counsel for Foster). In addition, Foster moved for reconsideration of the order of July 15, 1974.

an order on July 8, 1974 requiring that the interrogatories be answered. Defendants moved for reconsideration and the district court, on July 15, 1974, entered an order denying the motion to compel answers with leave to Foster to file interrogatories germane to his complaint.

(F) On July 31, 1974, defendants moved for a protective order as to the Birdie Mae Davis interrogatories. On the same day, the district court entered an order denying the motion of Foster for reconsideration, and recited, as a basis for the order, that the court had not been made aware to date of any claim of discrimination other than the Foster claim. (It appears that the Buskey suit, hereafter discussed, had been filed on July 12, 1974. It was filed by co-counsel, also as a separate suit rather than as an intervention, and sought to maintain a class action on behalf of "all past, present and future Negro professional employees" of the school system.)

(G) On August 8, 1974, co-counsel for Foster, who is, as stated, one of the lawyers representing the Birdie Mae Davis class, attempted to reopen the Birdie Mae Davis case through the vehicle of a motion for an order to show cause why the defendants, collectively and separately, should not be held in contempt for failure to comply with that part of the earlier consent order of the court requiring appointment of the professional staff without regard to race or color. The motion was based on the Foster and Buskey claims.

(H) On August 16, 1974, the district court granted the motion of defendants for a protective order as to the Birdie Mae Davis interrogatories, and denied the motion for an order to show cause in that case.

(I) On August 23, 1974, counsel moved for reconsideration of the August 16, 1974 order entered in the Birdie Mae Davis phase of the litigation, or in the alternative that it be amended to strike therefrom statements which reflected on counsel with regard to his efforts and motive in seeking to avoid the class action and discovery orders in Foster by his use of the Birdie Mae Davis case.

This motion for reconsideration and to strike was supported by an affidavit from counsel in which he asserted that as attorney for the Birdie Mae Davis class, he had the solemn duty to insure that the consent order was being carried out and that he was, in effect, monitoring compliance with that order. He regarded the Foster and Buskey claims as establishing a need for monitoring.

(J) On September 20, 1974, the district court denied the motion for reconsideration and to strike. Notice of appeal from this order was filed on October 18, 1974. (No. 74-3894.)

(K) On September 27, 1974, the district court denied the motion of the school board for summary judgment in the Foster intervention.

(L) On the same day, Mr. Foster filed a motion under 28 U.S.C.A. § 144, supported by affidavit, to disqualify Judge Hand from his case on the basis that Judge Hand had "a personal bias or prejudice" against Foster and "other black parents, school children and school teachers in the Mobile school system as members of the plaintiff class". A copy of the affidavit is appended to this opinion and marked "A". The affidavit makes it clear that Foster's affidavit is based on his reading, at the request of his counsel, of an opinion of the same district judge rendered on August 29, 1974 in another case in which counsel appeared....

To continue reading

Request your trial
282 cases
  • United States v. Boffa, Crim. A. No. 80-36.
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Delaware)
    • February 19, 1981
    ...is self-enforcing on the part of a judge, it also may be asserted by a party by filing a motion to recuse. Davis v. Board of School Commissioners, 517 F.2d 1044, 1051 (C.A.5, 1975); Rapp v. Van Dusen, 350 F.2d 806, 809 (C.A.3, 1965). Section 455(a) is general in nature and does not rest on ......
  • Lindsey v. City of Beaufort, Civ. A. No. 3:93-1145-0
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • September 29, 1995
    ...Thus, to be legally sufficient, the person who makes and files the affidavit must be a "Party" to the proceeding. Davis v. Board of Sch. Comm'rs, 517 F.2d 1044 (5th Cir.1975), cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976); Pomeroy v. Merritt Plaza Nursing Home, Inc., 760 ......
  • U.S. v. Rosenberg, s. 85-5360
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • December 31, 1986
    ...Meester, 762 F.2d 867, 885 (11th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 579, 88 L.Ed.2d 562 (1985); Davis v. Board of School Commissioners, 517 F.2d 1044, 1051 (5th Cir.1975), cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976). Appellants argue that the district court's......
  • U.S. v. Conforte, s. 77-3956
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • April 29, 1980
    ...imposes a self-enforcing duty on the judge, but its provisions may be asserted also by a party to the action. Davis v. Board of School Comm'rs, 517 F.2d 1044, 1051 (5th Cir. 1975), cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 188 (1976). Recusal whenever a judge has a "personal bia......
  • Request a trial to view additional results
1 books & journal articles
  • Table of Cases
    • United States
    • James Publishing Practical Law Books Preparing for Trial in Federal Court
    • May 4, 2010
    ...Form 6-15, Form 6-16 Davis v. Bayless , 1995 WL 692991, *7 n.3 (5th Cir.), Form 7-39 Davis v. Bd. of School Comm’r of Mobile County , 517 F.2d 1044, 1051 (5th Cir. 1975), §7:30 Davis v. City and County of San Francisco , 976 F.2d 1536 (9th Cir. 1992)], FORM 7-46 Davis v. City of Ellensburg ......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT