893 F.2d 498 (2nd Cir. 1990), 534, United States v. Yonkers Bd. of Educ.

Docket Nº:534, Docket 89-6184.
Citation:893 F.2d 498
Party Name:UNITED STATES of America, Plaintiff, and Yonkers Branch-National Association for the Advancement of Colored People, Regina Ryer, a Minor, by her Mother and Next Friend Charlotte Ryer, on Behalf of Themselves, and all Individuals Similarly Situated, Plaintiffs-Intervenors-Appellees, v. YONKERS BOARD OF EDUCATION, Defendant-Appellee, City of Yonkers
Case Date:January 08, 1990
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 498

893 F.2d 498 (2nd Cir. 1990)

UNITED STATES of America, Plaintiff,

and

Yonkers Branch-National Association for the Advancement of

Colored People, Regina Ryer, a Minor, by her Mother and Next

Friend Charlotte Ryer, on Behalf of Themselves, and all

Individuals Similarly Situated, Plaintiffs-Intervenors-Appellees,

v.

YONKERS BOARD OF EDUCATION, Defendant-Appellee,

City of Yonkers and Yonkers Community Development Agency, Defendants,

and

U.S. Department of Housing and Urban Development, Samuel

Pierce, Secretary, Added-Defendants,

and

The State of New York; Mario Cuomo, as Governor of the

State of New York; The Board of Regents of the State of New

York; Martin C. Barell, R. Carlos Carballada, Adelaide L.

Sanford, Willard A. Genrich, Emlyn I. Griffith, Jorge L.

Battista, Lora Bradley Chodos, Louise P. Matteoni, Edward

Meyer, Floyd S. Linton, Salvadore Sclafini, Mimi Levin

Lieber, Shirley C. Brown, Norma Gluck, Thomas Frey and James

McCabe, Sr., in their official capacities as members of the

State Board of Regents; The Department of Education of the

State of New York; Thomas Sobol, as Commissioner of

Education in the State of New York and The Urban Development

Corporation of the State of New York and Vincent Tese, as

Director of the Urban Development Corporation,

Added-Defendants-Appellants.

No. 534, Docket 89-6184.

United States Court of Appeals, Second Circuit

January 8, 1990

Argued Oct. 25, 1989.

Page 499

Michael H. Sussman, Yonkers, N.Y., for plaintiffs-intervenors-appellees.

Elliot M. Mincberg, Washington, D.C. (Maurice Curran, Lawrence W. Thomas, Anderson, Banks, Moore, Curran & Hollis, Mount Kisco, N.Y., David S. Tatel, Steven J. Routh, Bethany E. Lorenz, Nancy J.

Page 500

Taylor, Hogan & Hartson, Washington, D.C., on the brief), for defendant-appellee.

Michael W. Sculnick, New York City (Vedder, Price, Kaufman, Kammholz & Day, New York City, on the brief), for defendant City of Yonkers.

Marion R. Buchbinder, Asst. Atty. Gen., New York City (Robert Abrams, Atty. Gen., State of N.Y., Lawrence S. Kahn, Deputy Sol. Gen., Harvey Golubock, Deputy First Asst. Atty. Gen., Stephen M. Jacoby, Asst. Atty. Gen., New York City, on the brief), for added-defendants-appellants.

Before OAKES, Chief Judge, KEARSE and ALTIMARI, Circuit Judges.

KEARSE, Circuit Judge:

Defendants State of New York ("State"), State agencies, and individual State officials (collectively the "State defendants") appeal from an interlocutory order of the United States District Court for the Southern District of New York, Leonard B. Sand, Judge, denying their motion to dismiss the claims asserted against them by plaintiffs Yonkers Branch of the National Association for the Advancement of Colored People, et al. (collectively "NAACP plaintiffs"), and defendant Yonkers Board of Education ("Board" or "Yonkers Board"), on the ground that, inter alia, the State defendants are immune from suit under the Eleventh Amendment to the Constitution. The district court ruled that the motion, which was addressed to the face of the pleadings, could not be granted because it raised factual issues. The State defendants urge us to reverse. The Board, joined by the NAACP plaintiffs, has moved to dismiss the appeal for lack of appellate jurisdiction. For the reasons below, we grant the motion to dismiss the appeal.

BACKGROUND

The present action was commenced by the United States against the Board, the City of Yonkers ("City"), and the Yonkers Community Development Agency in 1980, alleging housing and school segregation in violation of the Constitution and federal statutory law. The NAACP plaintiffs were granted leave to intervene and file an amended complaint, and the suit was certified as a class action. The State defendants were not then parties to the action.

After a lengthy trial, the district court found the original defendants liable, 624 F.Supp. 1276 (S.D.N.Y.1985), fashioned remedial orders, 635 F.Supp. 1538 and 1577 (S.D.N.Y.1986), and entered judgment accordingly. This Court affirmed the judgment of the district court in all respects. 837 F.2d 1181 (2d Cir.1987), cert. denied, 486 U.S. 1055, 108 S.Ct. 2821, 100 L.Ed.2d 922 (1988).

In September 1987, the Board moved to amend its answer to file a cross-claim against the State defendants; at about the same time, the NAACP plaintiffs moved to file a second amended complaint in order to assert claims against the State defendants. The apparent goal was to obtain funds from the State to assist in carrying out the district court's remedial orders. The district court held the motions in abeyance and directed the parties and the proposed State defendants to attempt to resolve the matter consensually. When the State remained unwilling, after more than a year of negotiations, to commit funds satisfactory to the...

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