Anderson v. City of Boston, 00-1731

• Decision Date: 08 February 2001
• Docket Number: No. 00-1731,00-1731
• Citation: 244 F.3d 236
• Parties: (1st Cir. 2001) NICHOLAS ANDERSON, ET AL., Plaintiffs, Appellants, v. CITY OF BOSTON, ET AL., Defendants, Appellees. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 236

244 F.3d 236 (1st Cir. 2001) NICHOLAS ANDERSON, ET AL., Plaintiffs, Appellants,
v.
CITY OF BOSTON, ET AL., Defendants, Appellees. No. 00-1731 United States Court of Appeals For the First Circuit Heard February 8, 2001
Decided April 5, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S. District Judge]

Page 237

Robert J. Roughsedge, with whom Chester Darling and Michael Williams, were on brief, for appellants.

Frances S. Cohen, with whom Merita A. Hopkins, Corporation Counsel of the City of Boston, Adam N. Lewis, Peter N. Kochansky and Hill & Barlow, were on brief, for appellees.

Before Torruella, Chief Judge, Boudin and Stahl, Circuit Judges.

TORRUELLA, Chief Judge.

Appellants are five school-age children who live in Boston, Massachusetts.

Page 238

In combination with five other children and an advocacy group, Boston's Children First, they brought suit, claiming that the Boston elementary school assignment program denied them their preferred school assignments based on their race, in violation of federal and state law. Boston's Children First v. City of Boston, 98 F. Supp. 2d 111, 112 (D. Mass. 2000). Each plaintiff sought declaratory and injunctive relief, as well as compensatory or nominal damages. Id. The district court held that because the five appellant children did not apply to change schools prior to the 1999-2000 school year, they could not be said to suffer any injury requiring injunctive relief, and therefore lacked standing to sue for such relief. Id. at 114. Accordingly, the district court granted defendants' motion to dismiss as it related to appellants' claims for injunctive relief. Id. Appellants then appealed to this Court. Because we lack jurisdiction to entertain this interlocutory appeal, we must dismiss without addressing the merits.¹

A

Appellants argue first that this Court has jurisdiction pursuant to 28 U.S.C. § 1292(a)(1), which provides for appellate jurisdiction of "[i]nterlocutory orders . . . granting, continuing, modifying, refusing or dissolving injunctions . . . ." They suggest that the district court's dismissal of their claims for injunctive relief, based on the determination that they lacked standing, amounted to a refusal of an injunction appealable pursuant to § 1292(a)(1).

Orders in which the district court expressly denies a request for injunctive relief are immediately appealable as of right under § 1292(a)(1). Casas Office Machs. v. Mita Copystar Am., Inc., 42 F.3d 668, 673 (1st Cir. 1994) (quoting Morganstern v. Wilson, 29 F.3d 1291, 1294 (8th Cir. 1994)). When the order only has the "practical effect" of denying an injunction, however, the denial must have a "serious, perhaps irreparable, consequence," and be "effectually challenged only by immediate appeal." Id.; see also Carson v. American Brands, Inc., 450 U.S. 79, 84 (1981) (setting forth this test). This narrow scope given to § 1292(a)(1) stems from the "general congressional policy against piecemeal review," as well as Congress's intent to "carve out only a limited exception to the final-judgment rule." Carson, 450 U.S. at 84.

This Court has held that the dismissal of some claims for injunctive relief when other claims remain pending does not "expressly" deny an injunction. Plymouth County Nuclear Info. Comm., Inc. v. Boston Edison Co., 655 F.2d 15, 16-17 (1st Cir. 1981) (striking claims for injunctive relief because they were preempted by federal legislation); see also Hutchinson v. Pfeil, 105 F.3d 566, 569 (10th Cir. 1997) (partial summary judgment against plaintiff who sought injunctive relief); Gamboa v. Chandler, 101 F.3d 90, 91 (9th Cir. 1996) (same); Cuomo v. Barr, 7 F.3d 17, 19 (2d Cir. 1993) (partial summary judgment on claims for injunctive relief); Woodard v. Sage Prods., Inc., 818 F.2d 841, 845 (Fed.

Page 239

Cir. 1987) (partial summary judgment in favor of several defendants).

The district court's determination that the five appellants lacked standing to seek injunctive relief does have the "practical effect" of denying an injunction, because it has "erected a 'legal barrier' foreclosing any meaningful future consideration of a formal application" for injunctive relief by these particular appellants. Plymouth Nuclear, 655 F.2d at 17. This Court may therefore only premise its jurisdiction on a showing that appellants face "serious, perhaps irreparable, harm" upon the denial of immediate review. Carson, 450 U.S. at 84. The procedural history of the instant litigation, specifically appellants' failure to pursue appellate (or other) review of the district court's earlier denial of a preliminary injunction, points against a finding of serious harm. Plymouth Nuclear, 655 F.2d at 17-18 (holding that the failure to appeal from or move for reconsideration of a previous denial of a preliminary injunction makes interim relief a "dead issue," and is indicative of a lack of serious harm). In this case, appellants' motion for a preliminary injunction was denied on August 10, 1999, nine months before the order appealed here issued. See Boston's Children First v. City of Boston, 62 F. Supp. 2d 247, 248 (D. Mass. 1999); cf. Plymouth Nuclear, 655 F.2d at 17-18 (eighteen months between denial of preliminary injunction and dismissal of claims for permanent injunctive relief). There was no appeal from the denial of interim relief,² nor was a motion for reconsideration filed. Plymouth Nuclear, 655 F.2d at 17-18; Samayoa v. Chicago Bd. of Educ., 783 F.2d 102, 104 (7th Cir. 1986) (failure to appeal denial of preliminary relief indicative of lack of urgency). Appellants also failed to seek other avenues of interlocutory appeal, such as a separate final judgment on the dismissed claims pursuant to Federal Rule of Civil Procedure 54(b) or certification for an interlocutory appeal under 28 U.S.C. § 1292(b). Barr, 7 F.3d at 20 (failure to pursue all available courses of interlocutory appeal supports an inference that serious harm does not exist).

Appellants seek to distinguish Plymouth Nuclear by arguing that their failure to press their...