Faulkner v. Jones
| Decision Date | 09 August 1995 |
| Docket Number | No. 94-1978,94-1978 |
| Citation | 66 F.3d 661 |
| Parties | Shannon Richey FAULKNER; United States of America, Plaintiffs-Appellees, v. James E. JONES, Jr., Chairman, Board of Visitors of The Citadel, the Military College of South Carolina; Carroll A. Campbell, Jr., Member of the Board of Visitors of The Citadel, the Military College of South Carolina; T. Easton Marchant, Member of the Board of Visitors of The Citadel, the Military College of South Carolina; Barbara S. Nielsen, Member of the Board of Visitors of The Citadel, the Military College of South Carolina; William F. Prioleau, Jr., Member of the Board of Visitors of The Citadel, the Military College of South Carolina; William E. Jenkinson, III, Member of the Board of Visitors of The Citadel, the Military College of South Carolina; Leonard C. Fulghum, Jr., Member of the Board of Visitors of The Citadel, the Military College of South Carolina; James M. Leland, Jr., Member of the Board of Visitors of The Citadel, the Military College of South Carolina; John A. McAllister, Jr., Member of the Board of Visitors of The Citadel, the Military College of South Carolina; David S. Boyd, Jr., Member of the Board of Visitors of The Citadel, the Military College of South Carolina; Julian G. Frasier, III, Member of the Board of Visitors of The Citadel, the Military College of South Carolina; James W. Bradin, Member of the Board of Visitors of The Citadel, the Military College of South Carolina; Larry J. Ferguson, Member of the Board of Visitors of The Citadel, the Military College of South Carolina; Steve D. Peper, Member of the Board of Visitors of The Citadel, the Military College of South Carolina; Wallace I. West, Jr., Director of Admissions and Recruiting at The Citadel, the Military College of South Carolina; Claudius E. Watts, III, President of The Citadel, the Military College of South Carolina, in their official capacities; State of South Carolina; The Citadel, the Military College of South Carolina; the Board of Visitors of The Citadel, the Military College of South Caroli |
| Court | U.S. Court of Appeals — Fourth Circuit |
Prior report: 51 F.3d 440.
Appellants filed a motion for recall and stay of the June 5, 1995 mandate in this case pending their filing of a petition for writ of certiorari in the Supreme Court.
The Court denies the motion.
Entered at the direction of Judge NIEMEYER with the concurrence of Judge HALL. Judge HAMILTON would grant the motion for the reasons stated separately and therefore dissents.
For well over a century, our nation's sons and daughters have enjoyed the unique benefits of publicly-funded single-gender education. Before this court should allow Shannon Faulkner to enter the Corps of Cadets at The Citadel, thereby trashing a venerable 152-year history of holistic education for young men at that institution, the Supreme Court of the United States should pass on this question. As Justice Scalia so cogently explained:
Whether it is constitutional for a State to have a men-only military school is an issue that should receive the attention of this Court before, rather than after, a national institution as venerable as the Virginia Military Institute is compelled to transform itself.
Virginia Military Institute v. United States, --- U.S. ----, 113 S.Ct. 2431, 124 L.Ed.2d 651 (1993) (). Because the issues raised in this case are of such profound importance, I would stay our mandate pending The Citadel's petition for writ of certiorari to the Supreme Court of the United States.
Now that the "rush" to file the majority's order has been accommodated, I have decided to expand my dissent to more fully address in some detail the posture in which the motion to stay our mandate was presented to this court.
Shannon Faulkner's admission into the Corps of Cadets at The Citadel has been mandated by default. Faulkner's admission is sanctioned by this court despite the fact that the constitutionality of the parallel program for the South Carolina Institute of Leadership for Women (SCIL) at Converse College has never been addressed on the merits by the district court or this court.
The majority cannot posit that it was the intention of this court's April 13, 1995, decision that Faulkner would be mandated admission into the Corps of Cadets by default of the district court to consider, in a timely fashion on the merits, the constitutionality of the SCIL. 1 The district court, with this court's approval, has done just that. By default, the majority permits the SCIL to be rejected at this juncture without any consideration on the merits with respect to whether it passes constitutional muster as prescribed in VMI II. The majority's refusal to recall the mandate and grant a stay, therefore, not only destroys the unique nature of The Citadel, but also detracts from the integrity of this court's process.
We have the inherent power to recall our mandate and issue a stay in order to protect the integrity of our process. See United States v. Holland, 1 F.3d 454, 455 (7th Cir.1993) (Ripple, J., in chambers); Zipfel v. Halliburton Co., 861 F.2d 565, 567 (9th Cir.1988). This authority to recall a mandate and issue a stay is to be exercised for " 'good cause' " or to " 'prevent injustice,' " id. (quoting Aerojet-General Corp. v. American Arbitration Ass'n, 478 F.2d 248, 254 (9th Cir.1973)), and should be exercised under "exceptional circumstances," Johnson v. Bechtel Assocs. Professional Corp., 801 F.2d 412, 416 (D.C.Cir.1986). If there was ever a case demonstrating "good cause," "injustice," or "exceptional circumstances," this is it. First, it cannot be gainsaid that The Citadel will suffer irreparable injury if a stay in this case is not granted--this court has repeatedly emphasized that single-gender education is pedagogically justified and educationally beneficial. See Faulkner II, 51 F.3d at 443 (majority opinion); id. at 453 (Hamilton, J.,...
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U.S. v. Jones, s. 96-2290
...South Carolina sought a stay from us in order to postpone Faulkner's entry into the Corps of Cadets, which we denied. See Faulkner v. Jones, 66 F.3d 661, 662 (4th Cir.), cert. denied, 516 U.S. 938, 116 S.Ct. 352, 133 L.Ed.2d 248 Faulkner joined the Corps of Cadets on August 12, 1995. Shortl......
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Payne v. Clarendon National Ins. Co., 98-6276
...first had to show that mandate ought to be recalled and then had to show that recalled mandate should be stayed); Faulkner v. Jones, 66 F.3d 661, 662 (4th Cir. 1995) (denying motion to recall and stay mandate). The parties have not cited any cases addressing a party's attempt to obtain a st......