U.S. v. East Baton Rouge Parish School Bd., 76-4102

Decision Date26 April 1979
Docket NumberNo. 76-4102,76-4102
Citation594 F.2d 56
PartiesUNITED STATES of America, Plaintiff-Appellant, v. EAST BATON ROUGE PARISH SCHOOL BOARD et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

Cheney C. Joseph, Jr., U. S. Atty., Baton Rouge, La., J. Stanley Pottinger, Asst. Atty. Gen., Gerald W. Jones, John P. MacCoon, Brian K. Landsberg, Marie E. Klimesz, Attys., Walter W. Barnett, Drew S Days, III, Asst. Atty. Gen., U. S. Dept. of Justice, Civil Rights Div., Washington, D. C., for plaintiff-appellant.

John F. Ward, Jr., Baton Rouge, La., for defendants-appellees.

Appeal from the United States District Court for the Middle District of Louisiana.

Before THORNBERRY, GODBOLD and HILL, Circuit Judges.

THORNBERRY, Circuit Judge:

In 1976 the United States brought suit under the Voting Rights Act, 42 U.S.C. §§ 1971(a), (c), 1973, and 1973j(d), 1 attacking the multi-member ward system of electing members of the East Baton Rouge Parish School Board. 2 Upon motion of the Board, the district judge dismissed the suit for failure to state a claim, 3 in that the United States was barred by a prior unsuccessful suit by private plaintiffs 4 from litigating the legality of the system and that the failure of the Attorney General to enter an objection to a change in the system submitted under § 5 of the Act, 42 U.S.C. § 1973c, estopped the United States from subsequent action. The United States appeals. We reverse and remand.

I.

The United States argues that the district court erred in applying res judicata arising from a prior suit brought by private plaintiffs. The United States asserts that since it was not a party to that prior litigation, it could not be bound. The district court rejected this argument, based upon his conclusion that the private plaintiffs and the United States were identical "for all practical purposes." We believe the district court concluded erroneously.

First, the district court's conclusion is directly contrary to the general principle of law that the United States will not be barred from independent litigation by the failure of a private plaintiff. See, e. g., City of Richmond v. United States, 422 U.S. 358, 95 S.Ct. 2296, 45 L.Ed.2d 245 (1975); Sam Fox Pub. Co. v. United States, 366 U.S. 683, 81 S.Ct. 1309, 6 L.Ed.2d 604 (1961); Restatement (Second) of Judgments § 85, Comment d (Tent. draft No. 2, April 15, 1975). Cf. Durfee v. Duke, 375 U.S. 106, 84 S.Ct. 242, 11 L.Ed.2d 186 (1963) (private action would not bind a state). This principle is based primarily upon the recognition that the United States has an interest in enforcing federal law that is independent of any claims of private citizens. In the present context the Supreme Court has characterized this as "the highest public interest in the due observance of all constitutional guarantees." United States v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4 L.Ed.2d 524 (1960). Also, any contrary rule would impose an onerous and extensive burden upon the United States to monitor private litigation in order to ensure that possible mishandling of a claim by a private plaintiff could be corrected by intervention. 5

Second, even assuming that the United States has no independent interest, the prior suit would not bar the present action. In United States v. Texas, 430 F.Supp. 920 (S.D.Tex.1977), a three-judge district court was faced with the same contention. The court, applying the analysis of Southwest Airlines Co. v. Texas International Airlines, Inc., 546 F.2d 84 (5 Cir.), Cert. denied, 434 U.S. 832, 98 S.Ct. 117, 54 L.Ed.2d 93 (1977), 6 found res judicata inapplicable because the prior private suits were not certified as class actions, and, therefore, the United States could represent the interests of members of the putative class who were not named plaintiffs in the previous suits. 430 F.Supp. at 926. Similarly, in the present case, although the private suit was brought as a class action, the trial judge did not certify a class prior to the dismissal. Res judicata, therefore, could not properly apply to members of the putative class, or, derivatively, to the United States. 7

II.

The district court also dismissed on the grounds of statutory preclusion, because the Attorney General entered no objection to a change in the system when the change was submitted to him pursuant to § 5 of the Act,42 U.S.C. § 1973c. 8 The crux of this argument is that once the Attorney General has precleared a plan under § 5, the United States has exhausted any interest in the plan and is barred from any subsequent suit. Even assuming that this principle is correct, 9 we do not believe that preclearance of a change in this election plan precludes the United States from challenging the total multi-member ward system.

Under § 5, if any covered political unit seeks to change any "voting qualification or prerequisite to voting, or standard, practice, or procedure," it must either seek a declaratory judgment in the D.C.Circuit or submit the change to the Attorney General for determination of whether the change has the purpose or the effect of diluting black votes. The scope of the § 5 inquiry is restricted to changes implemented after November 1, 1968. In the present case, the only change submitted was the addition of a twelfth seat on the Board. 10 The essential assumption of the Board's argument is that clearance of a change in a plan necessarily sanctions the total plan. This assumption, however, is not logically compelled. As the government asserted at oral argument, a change in a plan could pass muster under § 5 because the particular change did not exacerbate any existing dilution of black votes. Moreover, under the analysis of Beer v. United States, 425 U.S. 130, 96 S.Ct. 1357, 47 L.Ed.2d 629 (1976), the Attorney General could not have considered the validity of the underlying plan in preclearing the change. In Beer the Supreme Court held that there was no authority under § 5 to reject a proffered submission because of objections to elements of a pre-existing election plan that predated the operative statutory date. 11 In the present case, the multi-member district method had been established in 1946, and, therefore, the clearance of the proposed change could not have encompassed the pre-existing plan. 12

REVERSED AND REMANDED.

1 42 U.S.C. § 1971:

(a)(1) All citizens of the United States who are otherwise qualified by law to vote at any election by the people in any State, Territory, district, county, city, parish, township, school district, municipality, or other territorial subdivision, shall be entitled and allowed to vote at all such elections, without distinction of race, color, or previous condition of servitude; any constitution, law, custom, usage, or regulation of any State or Territory, or by or under its authority, to the contrary notwithstanding.

(c) Whenever any person has engaged or there are reasonable grounds to believe that any person is about to engage in any act or practice which would deprive any other person of any right or privilege secured by subsection (a) or (b) of this section, the Attorney General may institute for the United States, or in the name of the United States, a civil action or other proper proceeding for preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order. If in any such proceeding literacy is a relevant fact there shall be a rebuttable presumption that any person who has not been adjudged an incompetent and who has completed the sixth grade in a public school in, or a private school accredited by, any State or territory, the District of Columbia, or the Commonwealth of Puerto Rico where instruction is carried on predominantly in the English language, possesses sufficient literacy, comprehension, and intelligence to vote in any election. In any proceeding hereunder the United States shall be liable for costs the same as a private person. Whenever, in a proceeding instituted under this subsection any official of a State or subdivision thereof is alleged to have committed any act or practice constituting a deprivation of any right or privilege secured by subsection (a) of this section, the act or practice shall also be deemed that of the State and the State may be joined as a party defendant and, if, prior to the institution of such proceeding, such official has resigned or has been relieved of his office and no successor has assumed such office, the proceeding may be instituted against the State.

42 U.S.C. § 1973:

No voting qualification or prerequisite to voting, or standard practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.

42 U.S.C. § 1973j(d):

Whenever any person has engaged or there are reasonable grounds to believe that any person is about to engage in any act or practice prohibited by section 1973, 1973a, 1973b, 1973c, 1973e, 1973h, 1973i, or subsection (b) of this section, the Attorney General may institute for the United States, or in the name of the United States, an action for preventive relief, including an application for a temporary or permanent injunction, restraining order, or other order, and including an order directed to the State and State or local election officials to require them (1) to permit persons listed under this subchapter to vote and (2) to count such votes.

2 As presently constituted, the Board is divided geographically into three wards, with seven members elected from Ward 1 and three members from Ward 2, and two members from Ward 3.

3 Although characterizing this motion as for failure to state a claim was erroneous, we will review his action as a summary judgment since the district court considered matters outside the pleadings. See Moch v. East Baton Rouge Parish Sch. Bd., 548 F.2d 594 (5 Cir.), Cert. denied, 434 U.S. 859, 98 S.Ct. 183, 54 L.Ed.2d 132 (1977).

4 This suit was...

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