Blue v. Dist. of Columbia Pub. Sch.

• Decision Date: 29 August 2014
• Docket Number: No. 12–7122.,12–7122.
• Citation: 764 F.3d 11
• Parties: Ayanna BLUE, Appellant v. DISTRICT OF COLUMBIA PUBLIC SCHOOLS, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

764 F.3d 11

Ayanna BLUE, Appellant

v.DISTRICT OF COLUMBIA PUBLIC SCHOOLS, et al., Appellees.

No. 12–7122.

United States Court of Appeals, District of Columbia Circuit.

Argued May 9, 2014.

Decided Aug. 29, 2014.

Appeal from the United States District Court for the District of Columbia (No. 1:10–cv–01504).

Natalie A. Baughman argued the cause for appellant. With her on the briefs was Scott D. Gilbert. Mark A. Packman entered an appearance.

Carl J. Schifferle, Assistant Attorney General, Office of the Attorney General for the District of Columbia, argued the cause for appellees. With him on the brief were Irvin B. Nathan, Attorney General, Todd S. Kim, Solicitor General, and Loren L. AliKhan, Deputy Solicitor General.

Before: GARLAND, Chief Judge, and SRINIVASAN and PILLARD, Circuit Judges.

Opinion for the Court filed by Circuit Judge PILLARD.

PILLARD, Circuit Judge:

Robert Weismiller, a 57–year–old teacher at a public high school for emotionally disturbed teens, started a sexual relationship with his 18–year–old student, Ayanna Blue, in the fall of 2008. Weismiller had been fired repeatedly from other area schools for inappropriate sexual contact with students, yet the District of Columbia hired him to teach emotionally vulnerable youths. In the chaotic and poorly supervised school at which he taught, Weismiller preyed on Blue, and within five months she was pregnant with his child. Blue sued Weismiller and the District of Columbia for damages from violations of her constitutional, statutory, and common-law rights arising out of Weismiller's actions.¹

In this appeal, Blue now seeks review of the district court's order granting the District's motion to dismiss. Blue's appeal is premature, however, because this case lacks a final judgment within the meaning of 28 U.S.C. § 1291, and no exception to that rule applies. Accordingly, we dismiss for lack of appellate jurisdiction.

I

The District of Columbia created the Transition Academy at Shadd (Shadd) as a special school for emotionally disturbed students. But the school was under-resourced and poorly run, with uncertified teachers, inadequate classrooms, and a lack of supervision and control so pervasive it was described as “unsafe for any student.” Education experts and District political leaders described the school as an “extreme disappointment,” a “failure,” and a “disaster.” Into this precarious setting the District hired Robert Weismiller, a man with a record of unlawful sexual contact with children at area schools. Before he joined the Shadd faculty, Weismiller had moved from school to school in the Washington D.C. area (the complaint lists nine different schools over more than three decades), had unlawful sexual relationships with at least four of his students, and was repeatedly fired for misconduct.

Ayanna Blue was a student at Shadd in the fall of 2008. While Blue was enrolled in Weismiller's class, he began to make sexual advances toward her. He told her, “If I were 30 years younger, I would marry you.” He flirted with her, gave her his personal phone number, called her at home, and frequently drove her home from school in his car. Faculty and staff observed Weismiller spending time alone with Blue in the classroom almost every day, sometimes with the lights off. Weismiller had intercourse with Blue in the classroom and in his car. It was an open secret at Shadd that Weismiller and Blue were having sex.

Shadd personnel knew that Weismiller's conduct toward Blue was inappropriate. Several Shadd employees remarked on how much time the two spent alone together.Rumors spread that they were having sex. An aide reports that he told Weismiller not to allow Blue in his classroom when the aide was there; another opined that he would not let an emotionally disturbed young woman spend so much time alone with a male teacher who was not her counselor. A teacher sought to “investigate” by going into Weismiller's classroom at lunch a few times in an effort to observe the two together, but apparently took no further steps. In December 2008, Blue told school personnel that she thought she was pregnant. They sent her to the school's health office for a pregnancy test. That test result was negative, but only a few months later, by early 2009, Blue was pregnant. The District investigated, found no reason to conclude that Weismiller had done anything wrong, and declined to fire or discipline him.

Blue sued the District and Weismiller for compensatory and punitive damages arising out of the school's and Weismiller's treatment of her. Against the District she raised claims for negligent hiring and retention, and violation of her right to freedom from sex discrimination in education under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681. Against both the District and Weismiller she claimed violations of her constitutional right to equal protection and bodily integrity under 42 U.S.C. § 1983, and breach of fiduciary duty and intentional infliction of emotional distress in violation of District of Columbia law.

The District, but not Weismiller, moved to dismiss, and the district court granted that motion, dismissing Blue's claims. Blue v. Dist. of Columbia, 850 F.Supp.2d 16, 38 (D.D.C.2012). Blue's Section 1983 claims failed for want of factual allegations that her harms resulted from a District custom, policy, or practice, id. at 23–31 (relying on Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)), and the Title IX claims foundered on the absence of allegations that an appropriate District official had actual knowledge of Weismiller's conduct, id. at 31–36. Blue's claims against the District for violations of District of Columbia law failed because Blue did not comply with the District of Columbia's sovereign immunity waiver statute, D.C.Code § 12–309, which requires that suits against the District be preceded by advance written notice to the Mayor, which Blue failed to provide.²

Following the district court's order dismissing claims against the District, Blue moved that court to enter final judgment against the District pursuant to Federal Rule of Civil Procedure 54(b). The court declined to do so while the claims against Weismiller remained unresolved because, according to the district court, “the issues [raised by the legal claims against each defendant] are largely intertwined and could thus result in piecemeal appeals.” J.A. 60.

Seven months later, Blue entered a joint stipulation of dismissal with Weismiller under Federal Rule of Civil Procedure 41(a)(1)(A)(ii), agreeing that “this action shall be dismissed without prejudice, subject to a tolling agreement entered between the Parties.” J.A. 61–62. The docket reflects a Minute Order entered the same day that reads: “Pursuant to the parties' joint stipulation of Dismissal, the Court ORDERS that the case against DefendantWeismiller is DISMISSED WITHOUT PREJUDICE.” J.A. 8.

Blue now appeals the district court's order dismissing her claims against the District.

II.

In order to establish that we have jurisdiction over her appeal, Blue must show that she appeals from a final order of the district court. Our appellate jurisdiction under 28 U.S.C. § 1291 is generally limited to review of “final decisions.” A decision is not final unless it “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Van Cauwenberghe v. Biard, 486 U.S. 517, 521–22, 108 S.Ct. 1945, 100 L.Ed.2d 517 (1988) (quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945)). The final judgment rule means that “a party must ordinarily raise all claims of error in a single appeal following final judgment on the merits.” Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981). The rule serves the policy of the federal courts, dating from the Judiciary Act of 1789, disfavoring piecemeal appellate review. That policy protects the district court's independence, prevents multiple, costly, and harassing appeals, and advances efficient judicial administration. See Cunningham v. Hamilton Cnty., 527 U.S. 198, 203–04, 119 S.Ct. 1915, 144 L.Ed.2d 184 (1999). The district court here has not denominated any order in this case as final and appealable.

The difficulty for Blue is that she has not appealed her claims against both defendants, but only the order dismissing her claims against the District, while she relies on a voluntary dismissal and tolling agreement to hold her claims against Weismiller for later resolution. The finality of any order, like Blue's, that adjudicates fewer than all of the claims, or claims against fewer than all of the parties, is determined by Federal Rule of Civil Procedure 54(b). According to that Rule:

[A]ny order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities.

Fed.R.Civ.P. 54(b). Under the terms of Rule 54(b), the order from which Blue seeks to appeal is non-final and so non-appealable because it did not adjudicate the claims against Weismiller.

Rule 54(b) has two exceptions of potential relevance here. First, if the district court finds that there is no reason for delay and that entry of final judgment is warranted, it may enter final judgment on fewer than all the claims. Second, if the plaintiff voluntarily dismisses the remaining claims, she can in some circumstances thereby finalize the district court proceedings for purposes of appeal. We consider in turn each of these exceptions as they relate to Blue's appeal.

A.

The district court has authority under Rule 54(b) to “direct entry of a final judgment” as to less than the entire case by making an express determination “that there is no just...