United States Court of Appeals
For the First Circuit
No. 96-1443
EUGENE ANDERSON,
Plaintiff, Appellant,
v.
BOSTON SCHOOL COMMITTEE, ET AL.,
Defendants, Appellees.
No. 96-1578
EUGENE ANDERSON,
Plaintiff, Appellee,
v.
BOSTON SCHOOL COMMITTEE, ET AL.,
Defendants, Appellants.
ERRATA SHEET
ERRATA SHEET
The opinion of this Court issued on February 3, 1997, is
corrected as follows:
Page 19, delete the last sentence of the opinion. Replace it
with the following: Costs in No. 96-1443 awarded to the School
Committee and O'Neill.
United States Court of Appeals
For the First Circuit
No. 96-1443
EUGENE ANDERSON,
Plaintiff, Appellant,
v.
BOSTON SCHOOL COMMITTEE, ET AL.,
Defendants, Appellees.
No. 96-1578
EUGENE ANDERSON,
Plaintiff, Appellee,
v.
BOSTON SCHOOL COMMITTEE, ET AL.,
Defendants, Appellants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
Before
Selya, Circuit Judge,
Coffin, Senior Circuit Judge,
and Lynch, Circuit Judge.
Matthew Cobb with whom Paul F. Wood was on brief for Eugene
Anderson.
Michael C. Donahue with whom Malcolm Medley and Kevin S.
McDermott were on brief for Boston School Committee, et al.
February 3, 1997
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COFFIN, Senior Circuit Judge. These are two consolidated
appeals. One is brought by plaintiff Eugene Anderson, a Boston
public school teacher, contesting directed verdicts on all seven
claims he brought against his then principal, Thomas P. O'Neill,
Jr., and the Boston School Committee. In the other, the
defendants appeal from the district court's denial of sanctions
and an attorney's fee award. In the plaintiff's appeal, we
affirm the judgment. In the defendants' appeal, we deem this a
case where we feel we need the reasoning of the district court
and so remand.
I. Plaintiff's Appeal: The Merits
At this juncture, there are directed verdicts on seven
counts which are contested by plaintiff1, as well as several
evidentiary rulings. The litigation resulted in over 100 docket
entries from complaint to filing the notice of appeal and five
days of jury trial, at the end of which the court granted
1 The counts and the affected defendant(s) are as follows:
I. Racial discrimination (equal
protection), 42 U.S.C. 1983, against
O'Neill.
III. Racial discrimination, Title VII, 42
U.S.C. 2000e et seq., 1964 Civil
Rights Act, against the School
Committee.
IV. Racial discrimination, Mass. Gen. Laws ch. 151B,
against the School Committee.
V. Massachusetts Civil Rights Act, Mass.
Gen. Laws ch. 12, 11(H),(I)
against O'Neill.
VI. Libel and Slander, against O'Neill and
the School Committee.
VIII.Malicious Prosecution, against O'Neill.
IX. Intentional Infliction of Emotional
Distress, against O'Neill.
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defendants' motions for directed verdict. We have meticulously
reviewed both the transcript and the exhibits. The smoke now
dissipated, we are compelled to conclude that there is no longer
any discernible fire. In view of the fact that such ample
opportunity was afforded below to pursue all avenues in support
of the claims, we do not feel it incumbent on us to replay all of
the evidence. We shall content ourselves with a capsule summary
of events and a brief consideration of the viability of each
claim as of the end of the evidence.
Factual Background. Plaintiff, a black person,2 had been a
public school teacher for ten years when, in 1989, he drew an
assignment as an art teacher to the Solomon Lewenberg Middle
School in Mattapan, of which O'Neill was the principal. There
was an obvious miscommunication, for when plaintiff appeared,
O'Neill felt that there was no vacancy because another teacher,
Molloy, a white person, had already filled it. He sent plaintiff
back twice, but plaintiff finally was placed in the school, in
addition to Molloy, and given an adequate room, only to be
reassigned to a less satisfactory room shortly after.3 He also
had trouble obtaining adequate art supplies. Soon after arrival
at the school, plaintiff was asked to attend an orientation
meeting; when he arrived, O'Neill accused him of breaking a lock
2 The parties use both the terms "black" and "African
American;" we will use "black" here for the sake of ease.
3 The room had no storage closet, but did have an open
storage area. It was large, well-lighted by windows, and had a
wall length blackboard.
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at the art room. In fact, plaintiff said, there was a door hinge
without any lock on it. Apparently there were no consequences to
this incident.
Later in September and in October, O'Neill visited two of
plaintiff's art classes for 45 and 55 minutes and prepared
evaluations of his teaching. Plaintiff was criticized for his
lesson planning, classroom management, and maintaining a learning
environment, but was given satisfactory ratings for other factors
such as use of materials, treatment of students, and professional
cooperation Plaintiff responded vigorously to both evaluations.
O'Neill was on leave during the 1990-1991 school year during
which time Anderson had one satisfactory evaluation by another
superior. In September of 1991, when O'Neill had returned, he
summoned plaintiff to a formal hearing concerning an incident
when Anderson appeared at school, allegedly with alcohol on his
breath, detected by the assistant principal, Philogene, a black
person, by another superior, Giacalone, and by others. For this
he was given a warning. Later, in December of 1991 and January
of 1992, O'Neill issued two more evaluations, giving many
"unsatisfactory" ratings and noting that students in plaintiff's
class were using foul language, playing cards, and reading
comics.
Finally, on January 24, 1992, O'Neill was visited in his
office by three black girl students who wanted to talk to him
about Anderson's behavior. Two of them complained that plaintiff
had made sexual advances to them by touching them and by making
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inappropriate remarks. The third stated that she had observed
such conduct. They also said that he had made unwanted telephone
calls to them at home. O'Neill then consulted with the office of
the East Zone Superintendent of the Boston Public Schools,
Clifford B. Janey, the city's General Counsel, and the Department
of Safety. Janey, a black person, in turn instructed O'Neill to
conduct a full investigation. This was undertaken, although
there is no evidence detailing how it began, how the police were
involved, or what steps were taken. In early February, plaintiff
was relieved of his duties and transferred pending hearing and
resolution. A criminal complaint was later filed after a show
cause hearing. A bench trial in the spring of 1993 resulted in a
judgment of guilty, but later a jury trial in December resulted
in a not guilty verdict.
This suit was filed shortly thereafter.
Analysis:
Racial discrimination. We first consider the claims of
racial discrimination, which are embraced by Counts I (42 U.S.C.
1983), II (42 U.S.C. 2000e et seq.), and IV (Mass. Gen. Laws
ch. 151B). The striking fact about this case is that after all
of the discovery and five days of trial, no evidence of either
pretext or racially motivated discrimination was presented for
jury consideration. No conversations evidencing racial animus
were presented, nor any instances of unexplained more favorable
treatment of similarly situated whites. There was no evidence
that the accusations of lock breaking or of appearing at school
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under the influence of alcohol were racially motivated or even
initiated by Principal O'Neill. As for the evaluations, they
could possibly be viewed by a jury as stemming from too rigorous
a sense of management, order, and discipline, but there is no
racial innuendo in O'Neill's extensive notations, discussions,
and suggestions for improvement.
Indeed, plaintiff acknowledges all this in his motion for a
new trial, where, in arguing that the court erred in excluding
evidence of the subsequent in-house handling of sexual harassment
claims against two white school employees, he argued: "The
admission of this evidence would have provided the 'race' that
the Court was looking for at Directed Verdict." Unless the
exclusion of this evidence was reversible error, the charges of
racial discrimination must be held not to be supported by
evidence sufficient to reach a jury.
The evidence proffered was that, six months after the
complaints against plaintiff, two white Lewenberg School
employees were accused of inappropriate sexual conduct involving
female students. (A custodian was accused of kissing a student,
and a shop teacher was accused of telling a student, found
hiding under a stairway, that she would have to "kiss the
teacher" before she would be let out.) In both instances, the
complaints were handled without involving the police, through
meetings with the students, the employees, a parent, and a
guardian. Plaintiff argues that O'Neill's failure to call in the
police and to require signed statements, and his personal meeting
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with the students and parents contrasts sharply with what took
place after the complaints were lodged against plaintiff.
Plaintiff faces the considerable hurdle of establishing an
abuse of discretion by the district court in excluding the
evidence. That court's basic determination was that plaintiff
had not carried his burden of showing that the white employee
cases were "similarly situated" to that of plaintiff, in order to
lay a basis for the admission of the evidence. In the first
place there is no evidence that there was any precise policy that
mandated a specific course of action that in practice was applied
differently to whites and blacks. Certainly the manner in which
O'Neill sought and followed guidance in following up on the
complaints against plaintiff does not suggest any predisposition
to treat plaintiff any differently from anyone else found in his
predicament.
But, most pertinently, a simultaneous complaint by three
female students involving touching, suggestive remarks, and
observation of other such conduct, together with unwanted
telephone calls at home, would seem to involve a demonstrably
different order of magnitude than the solitary charges against
the two white employees. See Perkins v. Brigham & Women's Hosp.,
78 F.3d 747, 751 (1st Cir. 1996). Moreover, there is no
indication that any changes in approach had been invoked
subsequent to the January complaints. We conclude that the
district court did not exceed its discretion in excluding the
evidence.
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Libel and Slander. Plaintiff relies heavily on the four
performance evaluations made by O'Neill to make out a jury case
of defamation. But these, as well as statements concerning
plaintiff's breaking a lock and his "erratic" behavior, are
subject to the qualified privilege of an employer or supervisor
to monitor, discuss, and attempt to improve subordinates'
performance. Much of what plaintiff complains about was not
contested. Much was obviously the Principal's opinion as to what
was good or bad educational practice. But none of it could have
been found to have been knowingly false or in reckless disregard
of the truth. Judd v. McCormack, 535 N.E.2d 1284, 1289 (Mass.
App. Ct. 1989) (reversing for failure to direct a verdict even
though "tasteless and harsh" language was used); Bratt v.
International Business Machines Corp., 467 N.E.2d 126, 131-32
(Mass. 1984).
Massachusetts Civil Rights Act. Under Mass. Gen. Laws ch.
12, 11(H)(I), interference with rights of another "by threats,
intimidation or coercion" gives rise to a cause of action. These
predicate words have been sternly construed by the Massachusetts
Supreme Judicial Court. "Threat" involves an "intentional
exertion of pressure to make another fearful . . . of injury or
harm." "Intimidation" involves "putting in fear for the purpose
of compelling or deterring conduct." And "coercion" involves the
"application to another of such force, either physical or moral,
as to constrain him to do against his will something he would not
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otherwise have done." Planned Parenthood League of Massachusetts
v. Blake, 631 N.E.2d 985, 990 (Mass. 1994).
Nothing in the evidence remotely suggests pressures of these
magnitudes being brought to bear on plaintiff. Even his own
self-serving testimony on cross examination that one of the
complainants against him, April Allen, told him that O'Neill in
talking with her twice said that he had seen plaintiff touching
her, contrary to her own supposed belief, falls far short of
indicating any such pressure on her which could forcefully impact
on him.
Malicious Prosecution. Plaintiff contends that he has
fulfilled the two threshold requirements of malicious
prosecution: initiation of criminal proceedings with malice and
without probable cause, and termination of such proceedings in
his favor. He fails on both counts. First, there is no evidence
of precisely how the criminal proceedings were initiated. As the
Massachusetts Appeals Court noted in Ziemba v. Fo'cs'le, Inc.,
475 N.E.2d 1223, 1226 (Mass. App. Ct. 1985), even the act of
calling the police is not the equivalent of instituting criminal
proceedings. It may well be that such a decision was made by the
police themselves.
Equally important, the fact that the bench trial,
unimpeached by any evidence of perjury by defendant O'Neill (who
did not testify at either the show cause hearing or the bench
trial), or of subornation of perjury, resulted in a judgment of
guilty is a complete bar to the action. Della Jacova v. Widett,
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244 N.E.2d 580, 582 (Mass. 1969). It should not be necessary to
add that plaintiff's testimony of an alleged statement by his
accuser April Allen concerning O'Neill's supposed statements that
he had seen plaintiff lay hands on her, may not be dignified as
evidence of subornation of perjury.
Intentional Infliction of Emotional Distress. Again, the
Massachusetts Supreme Judicial Court has sharply circumscribed
the reach of this tort. In Sena v. Commonwealth, 629 N.E.2d 986,
994 (Mass. 1994) the court stated that to sustain a claim of
intentional infliction of emotional distress, a plaintiff must
show 1) that the defendant intended to cause, or should have
known that his conduct would cause, emotional distress; 2) that
the defendant's conduct was extreme and outrageous; 3) that the
defendant's conduct caused the plaintiff's distress; and 4) that
the plaintiff suffered severe distress. Id. (citing Agis v.
Howard Johnson Co., 355 N.E.2d 315, 318 (Mass. 1976). The Agis
court cited approvingly such language as "beyond all possible
bounds of decency" and "utterly intolerable in a civilized
community." 355 N.E.2d at 319. However one may view any of the
actions attributable to Principal O'Neill, one could not fairly
apply any of these rubrics to them.
Evidentiary Issues. Of the three evidentiary issues argued
by plaintiff, we have already disposed of one, the court's
exclusion of the evidence concerning the handling of the sex
harassment complaints against the two white employees. A second
involves the granting of defendant's motion in limine to exclude
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April Allen's statements about O'Neill's conversation with her.
But, as our above discussion reveals, the same testimony came in
on the cross examination of plaintiff. We see no need to revisit
in any detail what was already exposed.
The last claim is simply that the court excluded evidence
that early in 1992 O'Neill called into his office the proffered
witness, a former male student, and another who was accused of
improper conduct and made them sign statements he had prepared.
Plaintiff sees this incident as evidence of O'Neill's modus
operandi. But O'Neill is not alleged to have engaged in any such
conduct in this case; his supposed statements to April Allen of
what he said he saw are of an obviously different modus than
calling a student into his office and forcing the signing of a
previously prepared written statement. The evidence would have
little relevance, if any, but would have been freighted with
prejudice. The court did not abuse its discretion.
II. Defendants' Appeal: Fees and Sanctions
Principal O'Neill and the School Committee appeal from the
court's denial of their motions for sanctions under Fed. R. Civ.
P. 11 and 28 U.S.C. 1927 and for attorney's fees and costs under
42 U.S.C. 1988.
The procedural background is brief. In their answers to the
complaint, in early 1994, appellants invoked violation of Rule
11. Nothing transpired on the sanctions front until April of
1995, when appellants sent counsel for Anderson a letter
protesting the allegations and serving notice that, if trial were
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to take place, they would pursue their Rule 11 remedy. The next
event took place on February 27, 1996, shortly after the court
had directed the verdicts, when appellants filed a new Rule 11
motion. This, however, was filed without having waited for 21
days after service before filing, as required by c(1)(A) of the
rule. It was denied on March 15 and on March 18 an amended
motion, with additional allegations, was served; it was filed on
April 16, 1996. In mid-March motions were filed under 1927
and 1988. All were denied by the court without hearing or
comment in late March and early April.
Appellants base their claims for sanctions on what they term
unfounded and uninvestigated allegations of race discrimination
on the part of O'Neill; allegations of systemic
underrepresentation of blacks in Lewenberg School and elsewhere,
together with discriminatory policies and customs resulting from
reckless indifference on the part of the city and the School
Committee; misleading and erroneous damages evidence on the part
of Anderson; and allegations of false accusations of alcohol and
drug abuse, coercion of young female students, and perjury on the
part of O'Neill.
Anderson merely presents the same facts in haec verba from
his main brief, reargues that the district court was in error in
directing the verdicts, contends that he had established prima
facie cases on every count, and points out that he dismissed
claims for disparate impact and municipal (Monell) liability. He
cited no cases. He dismisses appellants' motions as
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"incomprehensible, not timely, violating every 'safe harbor' rule
known, and, generally, . . . a waste of everybody's time."
The questions which this background presented to the court
involved the procedural one of timeliness and undue delay of the
various motions and the substantive ones whether reasonable
inquiry was made by plaintiff's counsel, Ryan v. Clemente, 901
F.2d 177 (1st Cir. 1990), and whether claims were unfounded or
were so revealed as the case progressed. The motions also
implicitly involved the allocation of responsibility, if any
existed, between plaintiff and his counsel. The only question
which faces us at this juncture, however, is whether we have
enough basis to affirm, to modify, or to reverse.
We are therefore required to focus sharply on our own
precedents in order to determine whether the district court in
denying sanctions and fees in this case should have accompanied
those decisions with some explanation. We tread very carefully
in this area, for the district court is entitled not only to the
ordinary deference due the trial judge, and additional deference
in the entire area of sanctions, but extraordinary deference in
denying sanctions.
Appellants make the broad argument, based on a blanket
observation in Metrocorps, Inc. v. Eastern Mass. Junior Drum &
Bugle Corps Ass'n., 912 F.2d 1, 3 (1st Cir. 1990), that, whether
or not sanctions are ordered or denied, reasons must be given, if
meaningful review is to be had. In Metrocorps, sanctions were
sought because of a party's failure to comply with discovery
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requirements. Fed. R. Civ. P. 37, however, specifies that
sanctions may be avoided only if substantial justification is
shown. We held that "[t]he clear language of the rule imposes a
duty on the district court." Id. at 2. We also addressed the
alternative ground for sanctions, Rule 11, and cited Morgan v.
Massachusetts General Hospital, 901 F.2d 186, 195 (1st Cir.
1990), which in turn cited Carlucci v. Piper Aircraft Corp.,
Inc., 775 F.2d 1440, 1446-47 (11th Cir. 1985) for the general
proposition that a district court must state reasons so that a
meaningful review may be had. We then went on to say, "[i]f this
is the district court's burden when sanctions are imposed, it
follows naturally that a similar obligation exists where, as
here, sanctions are requested by one party, but denied by the
court." 901 F.2d at 195.
But Carlucci itself not only addressed the unexplained
positive imposition of sanctions, but a discovery sanction under
Fed. R. Civ. P. 37 limited to "reasonable expenses caused by the
failure" to obey an order. Understandably, the appellate court
felt it needed some basis on which to review the reasonableness
of the amount. Moreover, in Morgan, where the hospital's motion
for fees had been denied without reasons, we prefaced our
analysis with the observation that "From the record before us, we
are unable to determine the basis of the district court's denial"
of the motion. 901 F.2d at 195. We added that the fee decision
"must both be explained and be supported by the record." Id.
These statements, of course, were sufficient to have justified
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our action in requiring reasons, without resort to the Carlucci
blanket prescription.
Later, in the same year, in Figueroa-Ruiz v. Alegria, 905
F.2d 545, 549 (1st Cir. 1990), we remanded a case in which Rule
11 sanctions had been denied, because we found the decision to
be capable of bearing a number of meanings. We added:
While we do not hold that the district court must make
findings and give explanations every time a party seeks
sanctions under Rule 11, we do require a statement when
the reason for the decision is not obvious or apparent
from the record.
We then cited, with a see, Morgan.
Then came Metrocorps, with no reference to Figueroa-Ruiz.
Finally, in Witty v. Dukakis, 3 F.3d 517 (1st Cir. 1993), where
the district court had, early on, denied a fee application under
1988 as untimely, and later denied without opinion two
subsequent motions to revisit the issue, we said:
So long as a district court's reason for denying fees
or monetary sanctions is (1) well founded, (2)
sufficient to the stated end, and (3) apparent on the
face of the record, a reviewing tribunal will not
insist on unnecessary punctilio. (Citing, among others,
Figueroa-Ruiz and Morgan, but not Metrocorps.) Id. at
521.
We observed that it was "perfectly clear that the district
court's thinking had not changed" between the first and last two
decisions. Id.
From these precedents, we discern the continuing basic theme
that although the rationale for a denial of a motion for fees or
sanctions under Rule 11, 1927, or 1988 should be unambiguously
communicated, the lack of explicit findings is not fatal where
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the record itself, evidence or colloquy, clearly indicates one or
more sufficient supporting reasons. The occasional statements
referring to an inflexible requirement for explicit findings in
every case do not reflect our present considered judgment.
Reflection reveals that appellate review of denials of such
motions calls for somewhat more restraint than review of positive
actions imposing sanctions and shifting fees. In the latter
event the decision of the trial court is a relatively rare and
always deliberate event. In the former event, motions are often
perfunctorily made and generally denied. To require in run-of-
the-mill cases, where it is obvious that the conduct of a party
and his attorney was within the bounds of reason, decency, and
competence, that the trial court stop and frame specific findings
would be to add irresponsibly to its already considerable burden.
In this case, however, a number of factors coalesce to
convince us of the need for help from the district court. In the
first place, we need its assessment of the weight of arguments as
to untimeliness and undue delay in the pursuit of Rule 11
sanctions. We are also unable to ascertain without such help
whether "reasonable inquiry" was made of some of the charges
levied by plaintiff. Should available public records have
indicated an absence of systemic recklessness and discrimination
in the Boston school system? Were the alleged victims (Allen and
O'Connor) of plaintiff's advances interviewed? Why were they,
although present at the courthouse, not called as witnesses by
plaintiff? Similar questions are raised in our minds as to
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Stutman, the union representative, Philogene, who initiated the
complaint of alcohol abuse, other teachers, police and the
Department of Safety. Were plaintiff's explanations concerning
the missing tape consistent and credible?4
Finally, what weight should be given, if any, to prior
court-administered warnings to counsel. One was our own case,
Cummings v. Hanson, 1995 U.S.App.Vol.LEXIS 36978 (December 1995),
in which we affirmed sanctions against this plaintiff's attorney
for bringing a claim in the wrong forum and cautioned him against
repetition. And although the Massachusetts Appeals Court
decision in Doe v. Nutter, McClennen & Fish, 668 N.E.2d 1329,
1331 (41 Mass. App. Ct. 1996), affirming sanctions and awarding
double costs against plaintiff's counsel in the instant case for
a frivolous appeal, was issued subsequent to the actions of the
district court below in denying sanctions, both a Massachusetts
Superior Court justice and a single justice of the Massachusetts
Appeals Court had previously imposed sanctions against
plaintiff's attorney for filing suit against defendants although
he was aware that he did not have a viable cause of action.
In raising these points, we do not profess to have an
informed opinion. Indeed, that is why we feel it necessary to
remand the case so that the district court may review its
4 Anderson claimed at one point to possess a tape
recording of April Allen telling him that O'Neill was trying to
get him in trouble; however, Anderson was unable to produce the
tape, and indeed was inconsistent about the exact contents of the
tape as well as about the identities of those for whom he had
played it.
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decisions on the several motions for sanctions and fees, assess
any responsibility as between plaintiff and counsel, and make
known to us its reasons for the actions taken.
In the appeal on the merits (No. 96-1443), the judgment is
affirmed.
In the fee appeal (No. 96-1578), we adopt the procedure of
presently retaining jurisdiction and remanding to the district
court for the limited purpose of revisiting the motions for
sanctions and fees. Cf. United States v. Quinones, 26 F.3d 213,
219 (1st Cir. 1994).
The court may either (a) vacate the judgment and conduct
such proceedings as it deems necessary to reach a final
conclusion or (b) reaffirm the judgment previously imposed,
filing with the clerk of the district court its written
rationale. The court may, but need not, request written
submissions and/or argument from counsel and/or convene a hearing
for the purpose of deciding which course to pursue.
The district court shall notify the clerk of this court
within sixty days of the date hereof as to which option it
chooses. In the meantime, we retain appellate jurisdiction.
It is so ordered.
Costs in No. 96-1443 awarded to the School Committee and O'Neill.
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