Frederick L. v. Thomas

• Decision Date: 12 June 1978
• Docket Number: No. 77-1694,77-1694
• Citation: 578 F.2d 513
• Parties: FREDERICK L., a minor by his mother, Delores L., on behalf of himself and all other similarly situated, Delaware Valley Association for Children with Learning Disabilities (Intervening pltf. in D.C.) v. Arthur THOMAS, Individually and in his capacity as President of the Board of Education of Philadelphia, Mrs. Edward Oberholtzer, William Ross, Robert M. Sebastian, Augustus Baxter, Mrs. Lawrence Bonnin, Philip Davidoff, George Hutt, and Alec Washco, Jr., Individually and in their capacities as members of the Board of Education of Philadelphia, Matthew Costanzo, Individually and in his capacity as Superintendent of Schools of the School District of Philadelphia, Althea L. Cousins, Individually and in her capacity as Director of Pupil Personnel and Counseling of the School District of Philadelphia, Marechal-Neil E. Young, Individually and in her capacity as Associate Superintendent for Special Education of the School District of Philadelphia, and the School District of Philadelphia, the Commonwealth of Pennsylvania ex rel. Israel Packel, and John C. Pittenger (Applicants for Intervention in D.C.). Appeal of FREDERICK L.
• Court: U.S. Court of Appeals — Third Circuit

Page 513

578 F.2d 513

FREDERICK L., a minor by his mother, Delores L., on behalf

of himself and all other similarly situated,

Delaware Valley Association for Children

with Learning Disabilities

(Intervening pltf. in D.C.) v. Arthur THOMAS, Individually and in his capacity as President

of the Board of Education of Philadelphia, Mrs. Edward

Oberholtzer, William Ross, Robert M. Sebastian, Augustus

Baxter, Mrs. Lawrence Bonnin, Philip Davidoff, George Hutt,

and Alec Washco, Jr., Individually and in their capacities

as members of the Board of Education of Philadelphia,

Matthew Costanzo, Individually and in his capacity as

Superintendent of Schools of the School District of

Philadelphia, Althea L. Cousins, Individually and in her

capacity as Director of Pupil Personnel and Counseling of

the School District of Philadelphia, Marechal-Neil E. Young,

Individually and in her capacity as Associate Superintendent

for Special Education of the School District of

Philadelphia, and the School District of Philadelphia, the

Commonwealth of Pennsylvania ex rel. Israel Packel, and John

C. Pittenger (Applicants for Intervention in D.C.).

Appeal of FREDERICK L.

No. 77-1694.

United States Court of Appeals, Third Circuit.

Argued Feb. 17, 1978.

Decided June 12, 1978.

Stephen F. Gold, Community Legal Services, Inc., Philadelphia, Pa., for appellant.

John M. Elliott, Lawrence D. Berger, Philadelphia, Pa., for defendants-appellees; Dilworth, Paxson, Kalish, Levy & Kauffman, Philadelphia, Pa., Robert T. Lear, Asst. Counsel, School District of Philadelphia, of counsel.

Before GIBBONS and HUNTER, Circuit Judges, and STAPLETON, ^* District Judge.

OPINION OF THE COURT

STAPLETON, District Judge:

Frederick L. brought this civil rights action on behalf of himself and "all children attending public schools within the City of Philadelphia who have specific learning disabilities and who are deprived of education appropriate to their special needs". He asserted a right to relief under the First, Ninth and Fourteenth Amendments to the United States Constitution and under the Pennsylvania School Code. 24 Purd.Stat. §§ 13-1371, et seq. This Court previously affirmed holdings of the court below (1) that abstention on the issues presented by the class demand for injunctive relief would be inappropriate and (2) that the Pennsylvania School Code requires the defendants to identify learning disabled children and to provide them with an appropriate education. Frederick L. v. Thomas, 557 F.2d 373 (1977), affirming 419 F.Supp. 960 (E.D.Pa.1976). The defendants have been ordered to identify all learning disabled children and proceedings concerning further relief for the class are ongoing.

The present appeal is from an order staying further proceedings relating to Frederick L.'s individual claim for damages until he has presented his state law based damage claim to a court of the Commonwealth of Pennsylvania. This abstention decision was based on the District Court's view that (1) the plaintiff's damage claim posed an unclear issue of state law, that is, whether 24 Purd.Stat. § 13-1371 creates a private right of action for damages, (2) this issue involved a sensitive area of special state concern, (3) a decision by a state court in plaintiff's favor might obviate the necessity of deciding plaintiff's constitutionally based claims, and (4) any delay occasioned by affording the state court an opportunity to act would not irreparably injure the plaintiff. Relying on Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), the District Judge exercised his discretion in favor of abstention, but reserved jurisdiction so that the plaintiff's constitutional claims could be adjudicated in the District Court if that became necessary.

Plaintiff maintains that abstention was improper because, in his view, the constitutional questions are not "premised" on the pendent claim for damages, there is no unclear question of state law, resolution of the pendent claim will not avoid a decision on the constitutional claims, abstention in this context will not serve the policies underlying the abstention doctrine, and the request for abstention was untimely.

Before evaluating these contentions, we must first determine whether we have jurisdiction to conduct the review which the plaintiff seeks. He maintains that the lower court's abstention order is a "final" one under the collateral order doctrine and that, accordingly, jurisdiction lies under 28 U.S.C. § 1291. Primary reliance is placed on a footnote comment of the Supreme Court in Idlewild Bon Voyage Liquor Corp. v. Epstein. ¹ Additional support is said to exist in Professor Moore's treatise ² and a number of Circuit Court opinions which cite the Idlewild footnote. ³

The existence of Section 1291 jurisdiction in a situation of this kind is far more debateable than the plaintiff would have us believe. The per curiam opinion in Idlewild does make the following observation about an order implementing a decision to abstain:

The Court of Appeals properly rejected the argument that the order of the District Court "was not final and hence unappealable under 28 U.S.C. §§ 1291, 1292," pointing out that "(a)ppellant was effectively out of court".

But this statement was made in the context of a case in which the order appealed from constituted a denial of injunctive relief and appellate jurisdiction was clear under 28 U.S.C. § 1292(a). ⁴ In contrast, the order before us impacts only on a claim for monetary damages and, in this context, Idlewild is not controlling. Moreover, as a single panel of this Court, we would not consider ourselves free to premise jurisdiction on Idlewild's cryptic reference to Section 1291 without satisfactorily distinguishing the decisions of this Court in Cotler v. Inter-County Orthopaedic Ass'n, 526 F.2d 537 (3rd Cir. 1975) and Arny v. Philadelphia Transportation Co., 266 F.2d 869 (3rd Cir. 1959). In each instance, this Court held that an order staying a federal court suit until final resolution of a pending, related, state litigation was not appealable under Section 1291.

It is necessary, however, for us to pursue an analysis of Section 1291 and the collateral order doctrine. We are in agreement that appellate review should be available to one in plaintiff's position and that we may undertake that review pursuant to 28 U.S.C. § 1651. This Court held in Texaco, Inc. v. Borda, 383 F.2d 607 (3rd Cir. 1967) that "the remedy of mandamus . . . specifically extends to review of a trial court's grant, or refusal, of a stay of proceedings". 383 F.2d at 608. The Cotler decision and United States v. Mellon Bank N.A. ⁵ also support this view. ⁶

Turning to the merits, we believe this Court's original opinion in this case offers substantial guidance in evaluating plaintiff's first two grounds for relief. As he correctly points out, the "classic" case for application of the Pullman doctrine involves a constitutional attack on a state statute under circumstances where one possible construction of the statute would avoid or substantially alter the constitutional issue. But we recognized in our initial opinion that Pullman abstention is not limited to this classic case:

At the outset of our abstention analysis, we must take cognizance of the fact that the litigation at hand does not present an "orthodox" abstention situation. In a recent decision, the Supreme Court described Pullman cases as those where "a federal constitutional claim is premised" on an unclear state law issue. The constitutional issue in the instant case is not, in the strict sense, "premised" upon a state law question. This is so since the alleged constitutional defects in the District's educational programs will exist, theoretically, regardless of the interpretation placed upon the state statutes or regulations.

Nonetheless, we believe that the facts of this case place it within the general ambit of Pullman. The constitutional issue is accompanied by a pendent state law claim. And even though the two problems are not inextricably intertwined, resolution of the state law claim might make it unnecessary to confront the federal constitutional question. Further, an incorrect interpretation of state law might arguably interfere with important state policies.

557 F.2d 373 at 383.

The same observations are appropriate in the context of abstention on the issue of plaintiff's right to damages under the School Code. While it is not contended that a resolution of this issue one way or the other will eliminate or alter the constitutional issues, as a practical matter, a decision in plaintiff's favor on his state claim "might make it unnecessary to confront the federal constitutional question(s)." ⁷ Moreover, we agree with the trial judge that the implication of a right to damages for deficient performance of a state school system is a matter which would have a serious impact in an area of peculiar state interest.

Having concluded that the facts before us place this situation "within the general ambit of Pullman ", the remaining question is whether the trial judge abused his discretion in weighing the advantages and disadvantages of abstention and deciding to invoke the Pullman doctrine. As we stressed in our earlier opinion, such a decision must stand unless we conclude that there has been an abuse of discretion. We do not so conclude.

The trial court was correct in concluding that plaintiff's right to damages as a result of defendants' failure to comply with 24 Purd.Stat. § 13-1372(3) and (4) is not clear under existing Pennsylvania case law. As plaintiff concedes, there is no Pennsylvania case which considers whether a private party can predicate a cause of action at law on a breach of the School Code. Nor do we believe the outcome becomes any easier to predict when one states the issue in terms of whether plaintiff has a cause of action for negligence in which the standard of care would be defined by the...