Greenhouse v. Greco
| Decision Date | 10 January 1977 |
| Docket Number | No. 75-2050,75-2050 |
| Citation | 544 F.2d 1302 |
| Court | U.S. Court of Appeals — Fifth Circuit |
| Parties | David GREENHOUSE et al., Plaintiffs-Appellants, v. Most Reverend Charles Pascal GRECO et al., Defendants-Appellees. |
Joseph R. Cooney, University Legal Serv., Washington, D.C., J. Harold Flannery, Lawyers' Committee for Civil Rights Under Law, Washington, D.C., Merle McClung, Harvard Center for Law & Education, Cambridge, Mass., George M. Strickler, Jr., New Orleans, La., Benjamin P. Lamberton, Washington, D.C., for plaintiffs-appellants.
Camille F. Gravel, Jr., Dan E. Melichar, Alexandria, La., for Greco, Wakeman, and others.
Marc Dupuy, Jr., Marksville, La., for Presentation Sch. Bd.
Donald E. Walter, U.S. Atty., Shreveport, La., Thomas Boerschinger, Dept. of Justice, Tax Div., Washington, D.C., for Connally, Walters, and others.
Scott P. Crampton, Asst. Atty. Gen., Tax Div., Gilbert E. Andrews, Chief, Appellate Sec., Leonard J. Henzke, Jr., Atty., Dept. of Justice, Washington, D.C., for Secretary of the Treasury & Comm. of Internal Revenue.
Brian K. Landsberg, Miriam R. Eisenstein, Attys., Dept. of Justice, Civil Rights Div., Washington, D.C., for Dept. of H.E.W. Secretary.
William S. Estabrook, III, Atty., Tax Div., Dept. of Justice, Washington, D.C., for Secretary of the Treasury and the Commissioner of Internal Revenue.
Appeal from the United States District Court for the Western District of Louisiana.
Before JONES, WISDOM and GODBOLD, Circuit Judges.
This case is in a procedural snarl that involves not mere niceties but the jurisdiction of this court. We remand to the district court with directions.
Plaintiffs' suit attempted to assert a class action for the purpose of ending alleged segregation and other racially discriminatory practices in the parochial schools in the Roman Catholic diocese of Alexandria, Louisiana. The diocese extends over 29 parishes in Louisiana. Plaintiffs resided in Natchitoches and Marksville, Louisiana, within the diocese but in separate parishes. There were three groups of defendants:
the "diocesan defendants": the Bishop of the diocese, the diocese itself, and the superintendent of the diocesan parochial schools.
the "Marksville defendants": the congregation of St. Joseph's, a civil corporation under Louisiana law, holding title to a substantially all-white parochial school in Marksville, sued as a class defendant representing other civil corporations holding title to the various parochial schools in the diocese.
the "federal defendants": the Secretary of HEW, the Secretary of the Treasury, and the Commissioner of Internal Revenue.
On August 2 and December 20, 1973, the district court entered orders which had the effect of narrowing the suit to the two parochial schools located in Marksville, one of which had been all-white and the other all-black. See Greenhouse v. Greco, 368 F.Supp. 736 (W.D.La., 1973). The court limited the plaintiff class to the 39 plaintiffs residing in Marksville and dismissed the four plaintiffs from Natchitoches. After evidence was taken concerning the authority of the Bishop, the court dismissed him, the diocese, and the diocesan superintendent of schools as defendants. It held that the congregation of St. Joseph's could only be sued on behalf of itself and not as a class defendant. It added as defendants a church congregation in Marksville and an order of nuns who own property on which one of the Marksville schools is located. These orders were not entered up as judgments.
Prior to December 20, 1973, the federal defendants had filed motions to dismiss. These motions had not been acted on when the court entered its order of December 20, 1973, and have never been acted on.
The court noted in the December 1973 order that plaintiffs intended to appeal to test the validity of the suit's being narrowed to the two schools in Marksville. 368 F.Supp. at 737. Plaintiffs did appeal, and this court dismissed the appeal. Greenhouse v. Greco, 496 F.2d 213 (C.A. 5, 1974). We pointed out that the denial of class action treatment was interlocutory and non-appealable, that part of the case was still pending in the district court, and that the denial of class action was not the "death knell" of the case.
Plaintiffs then made a motion to the district court in the form of a letter, which is set out in the margin. 1 The reference in the letter to the case's becoming moot refers to the fact that after this suit was filed the two segregated schools in Marksville had been paired. The court, on February 12, 1975, made the following minute entry:
The same day the court entered this judgment signed by the district judge:
Matters under consideration in this suit having been reduced to the two diocesan schools in Marksville, Louisiana; these schools having been fully integrated by the parties; there being no other issues pertaining to the Marksville parochial schools remaining before the Court; and the case therefore having become moot; it is
ORDERED, ADJUDGED AND DECREED that this matter be and it is hereby fully and finally dismissed.
The motions of the federal defendants still had never been acted upon.
March 10, 1975, plaintiffs filed the present appeal, again seeking to review the orders entered August 2 and December 20, 1973. On May 28, 1975, they were met at the threshold by a motion of the non-federal defendants to dismiss the appeal on the grounds that it is from a non-appealable consent judgment and that the cause is moot. The federal defendants, unsure of their status in this court, filed no brief until they were advised by the court that we might take up jurisdictional questions. Then they filed a lengthy and comprehensive brief on the question of the jurisdiction of the district court over the federal defendants. The problem is whether plaintiffs cut themselves off from their objective of appellate review by seeking, and obtaining, the judgment entered February 12, 1974.
The case was not moot on February 12, 1973. All parties seem to agree that the issues with respect to the Marksville schools had been mooted by their having been paired. With respect to the remainder of the suit, the issues against the diocesan defendants had been the subject of the August and December orders, but those orders were not "final orders." The issues with respect to the federal defendants had not been the subject of any orders. 2 The issues, insofar as they related to the entire diocese, were dormant but for want of a final order, not for mootness. Plaintiffs' effort to achieve finality was carried out through the erroneous means of having the court declare the entire case moot. At no time did plaintiffs request a Rule 54(b)...
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