Deal v. Cincinnati Board of Education
| Citation | 91 S.Ct. 1630,402 U.S. 962,29 L.Ed.2d 128 |
| Decision Date | 03 May 1971 |
| Docket Number | No. 5210,5210 |
| Parties | Tina DEAL v. CINCINNATI BOARD OF EDUCATION |
| Court | United States Supreme Court |
On petition for writ of certiorari to the United States Court of Appeals of the Sixth Circuit.
The petition for a writ of certiorari is denied since it was untimely filed.
The court below held in this school segregation case that the 'district court correctly excluded evidence of alleged racial discrimination in the public and private housing markets.'
I would remand this case so that that evidence can be made part of the record and the lower courts can rule on the issues of de jure and de facto segregation of the races that are presented.
It is true that this petition arrived one working day after a time extension granted by Mr. Justice White expired. Unlike some types of cases where the time for filing is prescribed by our rules,1 Congress has stated that 28 U.S.C. § 2101(c). (Italics added.)
The question here is whether a petition arriving at the Clerk's Office one day after the statutory period expires is jurisdictionally barred from a determination on the merits. Mr. Justice BLACK has pointed out that early cases under the predecessor sections to § 2101 (c) 'made clear that this Court had power to waive the time requirement of these provisions under appropriate circumstances.' Teague v. Regional Commissioner of Customs, 394 U.S. 977, 982, 89 S.Ct. 1457, 22 L.Ed.2d 756 (dissenting opinion). And in Ray v Pierson (No. 94, October Term, 1966), 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288, we decided on the merits a cross-petition for certiorari that was substantially out of time under § 2101(c).2 We offered no explanation.3 Even under the companion sections to § 2101(c) our practice has not been consistent. We have dismissed for failure to file appeals in the time set by Congress, e. g., Ward v. Winstead, 400 U.S. 1019, 91 S.Ct. 587, 27 L.Ed.2d 630, while not always dismissing for untimely docketing under our rules even though the time limitations were also set by Congress, e. g., United Public Workers v. Mitchell, 330 U.S. 75, 84-86, 67 S.Ct. 556, 91 L.Ed. 754.
Naturally, past inconsistencies are no justification for overturning a congressional bar if one exists. But one does not exist in this case. The statute states a petition 'for review shall be taken or applied for' within certain specified times. That phrase is not free from ambiguity. What constitutes applying for review? A majority of the Court apparently feel it is receipt of the petition for certiorari by the Clerk's Office. Teague, supra. Yet I can see no reason why mailing or other transmission to this Court shall not be construed as an application for relief within the meaning of the time provisions of § 2101(c). When two potential interpretations of a statute are possible, we should not adopt a technical rule, much like common-law pleading, solely to defeat claims.
Petitioner here did not use the mails, but I believe the situation is analogous. The following appears from a motion to proceed in forma pauperis and from an affidavit of counsel for petitioner: Up until two days before the time extension was to expire he was led to believe by was to expire he was led to believe by a third party that the petitioner...
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Lau v. Nichols
...92 S.Ct. 233, 30 L.Ed.2d 186 (1971); Deal v. Board of Education, 419 F.2d 1387, 1388 (6th Cir. 1969), cert. denied, 402 U.S. 962, 91 S.Ct. 1630, 29 L.Ed.2d 128 (1971), and 369 F.2d 55, 62 (6th Cir. 1966), cert. denied, 389 U.S. 847, 88 S. Ct. 39, 19 L.Ed.2d 114 (1967); Johnson v. School Dis......
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Oliver v. Michigan State Bd. of Ed.
...F.Supp. 572 (S.D.Ohio 1965); Deal v. Cincinnati Bd. of Educ. (Deal II), 419 F.2d 1387 (6th Cir. 1969), cert. denied, 402 U.S. 962, 91 S.Ct. 1630, 29 L.Ed.2d 128 (1971). In Bradley v. Milliken, 484 F.2d 215 (6th Cir. 1973), rev'd sub nom., Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41......
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Bronson v. BD. OF EDUCATION, ETC.
...19 L.Ed.2d 114 (1967); Deal v. Cincinnati Board of Education, 419 F.2d 1387 (6th Cir. 1969) (Deal II), cert. denied, 402 U.S. 962, 91 S.Ct. 1630, 29 L.Ed.2d 128 (1971). Therein, Judge Peck had found that the Cincinnati Board of Education was not liable or legally responsible for the racial ......
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Bronson v. Board of Ed. of City School Dist. of Cincinnati, 75--1244
...brought to this court once again. In affirming Deal II, Deal v. Board of Education, 419 F.2d 1387 (1969), cert. denied, 402 U.S. 962, 91 S.Ct. 1630, 29 L.Ed.2d 128 (1971), we upheld the findings that there was a high correlation between the distribution of Negro pupils throughout the school......
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Practice Before the Supreme Court of the United States
...Practice 271 n. 2. [FN30]. See 28 U.S.C. s2101(c). [FN31]. Sup. Ct. R. 13.3. [FN32]. See, e.g., Deal v. Cincinnati Board of Education, 402 U.S. 962 (1974) (petition jurisdictionally out of time even though airline lost the papers); Teague v. Commissioner of Customs, 394 U.S. 977 (1969) (pet......