Case: 14-60542 Document: 00513253430 Page: 1 Date Filed: 10/30/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 14-60542
Fifth Circuit
FILED
October 30, 2015
UNITED STATES OF AMERICA, Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
CYNTHIA FLETCHER, A minor, by Rev. Artis Fletcher, as next friend, and
Gloria Jean Barnes and David Barnes, minors, by Rev. Theotis Smith, as
next friend, suing in their own behalf and on behalf of all others similarly
situated,
Intervenor-Plaintiff-Appellant
v.
STATE OF MISSISSIPPI,
Defendant
SIMPSON COUNTY SCHOOL DISTRICT,
Intervenor-Defendant-Appellee
Appeal from the United States District Court
for the Southern District of Mississippi
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Before STEWART, Chief Judge, and BARKSDALE and PRADO, Circuit
Judges.
CARL E. STEWART, Chief Judge:
This case involves a lengthy history of desegregation litigation between
the United States, Intervenor-Defendant-Appellee Simpson County School
District (the “District”), and Intervenors-Plaintiffs-Appellants (the
“Intervenors”), a class representing current and future students attending the
District’s schools. In 2013, the District moved for unitary status in the only
area of its school system remaining under federal supervision: faculty and staff
assignments. The United States and the Intervenors objected. After a two-
day hearing and post-hearing submissions, the district court denied unitary
status based on the District’s noncompliance with the court’s desegregation
order. Both the District and the Intervenors moved for reconsideration, and
the district court denied both motions. The Intervenors now appeal the district
court’s order denying unitary status and order denying reconsideration. We
conclude that the Intervenors lack standing to appeal and, therefore, DISMISS
the Intervenors’ appeal without regard to the merits.
I.
Although we do not reach the merits of the decisions below, a general
overview of the history of this case is necessary to understand the narrow issue
we resolve today. For over forty years, the District has been under a federal
court order to desegregate its schools. In July 1970, the United States sued
the State of Mississippi and several of its school districts, including the
District, alleging each had violated the Fourteenth Amendment by operating
school systems that discriminated based on race. On August 11, 1970, the
district court entered its first desegregation order (the “1970 Order”) approving
a school desegregation plan and obligating the District to follow procedures
designed to end discrimination in faculty and staff assignments, student
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transfers, transportation, school construction and site selection, and school
activities. The 1970 Order also required the District to submit bi-annual
reports to the court, including, inter alia, information related to the racial
composition of the District’s students and teachers.
In June 1982, Intervenors Cynthia Fletcher, Gloria Barnes, and David
Barnes, then minor students attending the District’s schools, and their
representatives filed a class action complaint against the District for failing to
comply with the 1970 Order. The Intervenors alleged that the District had
continued to maintain segregated schools by allowing white students to attend
schools outside of their designated geographical zone thereby creating
disproportionate ratios of black to white students within certain zones. The
Intervenors also alleged that the District continued to discriminate in
employment decisions, student discipline, and student placement in special
education and gifted-student programs.
In August 1983, after negotiations between the United States, the
Intervenors, and the District, the district court entered a second desegregation
order (the “1983 Consent Decree”) outlining further procedures the District
was to follow to end discrimination in its schools. Notably, with respect to
employment practices, the 1983 Consent Decree required the District to
advertise available positions, use standard employment forms, use objective
rating criteria to review applications and score interviewees, and offer
available positions to the highest-scoring applicant regardless of race. The
1983 Consent Decree further required the District to provide the United States
and the Intervenors with notice of any proposed change to the District’s
employment procedures at least sixty days before the District formally adopted
the change. Finally, the 1983 Consent Decree broadened the District’s bi-
annual reporting requirements to include, inter alia, the racial composition of
job applicants, new hires, and demoted, terminated, or non-renewed employees
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and any action taken by the District that was inconsistent with the 1983
Consent Decree, “includ[ing], for example, any effort to hire or promote an
individual who is not the most qualified person available for the position being
filled.”
In 2001, the District moved for unitary status for the first time since
federal supervision began in 1970. The United States responded, only
objecting to a declaration of unitary status in the area of faculty and staff
assignments; the Intervenors did not respond or otherwise object. Absent an
objection from the United States or the Intervenors and based on its
independent review of the evidence, the district court granted unitary status
in all areas except faculty and staff assignments. The court denied unitary
status in faculty and staff assignments based on the District’s
acknowledgement that it had violated the 1983 Consent Decree regarding
certain employment issues. This court affirmed the district court’s decision on
appeal. United States v. Mississippi, 211 F. App’x 296 (5th Cir. 2006).
On April 5, 2011, on the United States and the District’s joint motion,
and with no objection from the Intervenors, the district court entered a third
desegregation order (the “2011 Consent Decree”), which generally embraced
the employment procedures in the 1983 Consent Decree, but further specified
the mechanics by which the District was to make employment decisions in
several respects. Under the 2011 Consent Decree, the District’s Human
Resources Director was required to review and numerically score written job
applications based on certain objective criteria. The District’s Superintendent
or a school’s principal was required to interview the highest-scoring applicant
as well as any other “applicant[] with a score higher than that of the lowest-
scoring applicant selected for an interview,” unless certain exceptions applied.
Interviewed applicants received a second numerical score based on certain
subjective criteria. The subjective interview score was added to the objective
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application score, and the District was required to offer the position to the
applicant with the highest composite score unless “a legitimate negative reason
exists not to hire the applicant.” 1
Before the District offered a position to a lower-scoring applicant, it was
required to provide the United States and the Intervenors with all application
materials related to the position in question and a statement explaining why
the District had chosen not to offer the position to the highest-scoring
applicant. The United States and the Intervenors could then object in writing. 2
In the absence of a written objection, the District’s decision to hire the lower-
scoring applicant became final. However, if the United States or the
Intervenors timely objected, the District was required to provide the United
States and the Intervenors with the opportunity to object in the district court.
In November 2011, the United States moved to enjoin the District from
violating the terms of the 2011 Consent Decree, alleging that, on at least
nineteen occasions, the District had hired individuals that were not the
highest-scoring applicant without providing the United States with an
opportunity to object. In January 2012, the district court granted the motion
based on the District’s admission that it had not satisfied the notice
1 The 2011 Consent Decree provides some examples of “legitimate reasons” for the
District not to hire the highest-scoring applicant: “Such a negative reason would exist, for
instance, if upon checking references the applicant receives negative comments such as
needing improvement or unacceptable performance, if the applicant has provided false or
misleading information about his or her certifications or about any other information on the
job application, if the applicant does not satisfy the criminal background/child abuse registry
check required by state law, or if the applicant has been terminated or non-renewed for good
cause from any previous job or position. The District may not, however, fail to hire the
highest overall-rated applicant only because it favors a lower-rated applicant.”
2 The Intervenors could also object to the District’s hiring of a highest-scoring
applicant if that applicant did not also have the highest objective application score.
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requirements in the 2011 Consent Decree. The district court extended the
term of the 2011 Consent Decree to October 15, 2012. 3
On January 30, 2013, the District moved for unitary status in the
remaining area of faculty and staff assignments. The United States did not
object. Despite a long absence from the litigation, the Intervenors filed an
objection challenging whether the District had complied with court orders and
seeking discovery and a public hearing. The district court denied the
Intervenors’ discovery requests but granted the Intervenors’ request for a
hearing. Several days later, the court entered an order setting a hearing on
the District’s motion, outlining the requirements for providing notice of the
hearing to the community, and establishing a process for community members
to submit objections to the District’s motion.
During the public objections period, the district court received over 500
objections to the District’s motion. A large number of these objections were
generic in form or merely stated “I object.” However, some objectors detailed
specific hiring or termination incidents and were permitted to testify to those
incidents over the course of a two-day fairness hearing in January 2014. At
the conclusion of the fairness hearing, the court held the District’s motion in
abeyance pending the filing of proposed findings of fact and conclusions of law
by the United States, the Intervenors, and the District. In these filings, both
the United States and the Intervenors requested, inter alia, that the court
3 At oral argument, counsel for the District made several confounding statements
suggesting that the district court entered a new consent decree in 2012 and that this “2012
Consent Decree” is at issue in this appeal. As counsel later clarified, the district court’s
January 2012 order merely extended the term of the 2011 Consent Decree without alteration
or modification. See Opinion and Order at 3, United States v. Mississippi, No. 3:70-cv-4706-
WHB-LRA (S.D. Miss. Jan. 10, 2012), ECF No. 48 (“The term of the Consent Decree entered
by the Court on April 5, 2011, is hereby extended up to and including October 15, 2012.”
(internal citation omitted)).
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appoint an independent monitor to oversee the District’s compliance with the
2011 Consent Decree.
On April 30, 2014, the district court denied unitary status based on the
District’s failure to comply with the 2011 Consent Decree, citing, as one
example of noncompliance, the District’s modification of its Interview Guide
and Assessment forms without first providing the United States and the
Intervenors with notice of the proposed change. The court therefore extended
the 2011 Consent Decree to March 15, 2015, at which time the District could
again move for unitary status. 4 The court denied as unwarranted the
Intervenors’ and the United States’ requested amendments to the 2011
Consent Decree, including the request for a court-appointed monitor.
The District and the Intervenors each moved for reconsideration of the
district court’s order denying unitary status. The District argued that only the
employment provisions of the 2011 Consent Decree that the court found the
District to have violated should be extended and requested that the court limit
future objections to unitary status to that basis. The Intervenors challenged
the court’s legal analysis and evidentiary determinations. The court disagreed
with both parties’ contentions and denied the motions for reconsideration.
The Intervenors timely appealed the district court’s order denying
unitary status and order denying reconsideration. 5
II.
Ordinarily, our review of this appeal would be guided by well-established
desegregation principles. Following the Supreme Court’s decisions in Brown I
and Brown II, school districts were charged with an “affirmative duty to . . .
4 After this court heard oral arguments, the District again moved for full unitary
status on September 17, 2015. Soon thereafter, the district court stayed the District’s motion
pending our resolution of this appeal.
5 The United States is not a party to this appeal.
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convert” their segregated education systems into “a unitary system in which
racial discrimination would be eliminated root and branch.” Green v. Cty. Sch.
Bd. of New Kent Cty., Va., 391 U.S. 430, 435–38 (1968). This affirmative duty,
and the federal court supervision it required, was not intended to exist in
perpetuity. See Bd. of Educ. of Okla. City Pub. Sch., Indep. Sch. Dist. No. 89,
Okla. Cty., Okla. v. Dowell, 498 U.S. 237, 247–48 (1991). Instead, “the ultimate
objective . . . [is] to return school districts to the control of local authorities . . .
[once] shown that the school district has attained the requisite degree of
compliance.” Freeman v. Pitts, 503 U.S. 467, 489–90 (1992).
“The ultimate inquiry in determining whether a school district is unitary
is whether (1) the school district has complied in good faith with desegregation
orders for a reasonable amount of time, and (2) the school district has
eliminated the vestiges of prior de jure segregation to the extent practicable.”
Anderson v. Sch. Bd. of Madison Cty., 517 F.3d 292, 297 (5th Cir. 2008)
(footnote omitted). The compliance prong requires a school district to show
that it has consistently complied with the court’s desegregation orders in good
faith. Id. A school district has eliminated the vestiges of past discrimination
to the extent practicable when it has made “every reasonable effort . . . to
eradicate segregation and its insidious residue.” Id. at 298 (quoting Ross v.
Houston Indep. Sch. Dist., 699 F.2d 218, 227–28 (5th Cir. 1983)).
To demonstrate that it is unitary with respect to faculty and staff
assignments, a school district must establish that its “current employment
practices [are] non-discriminatory and in compliance with constitutional
standards” and that “the adverse effects of any earlier, unlawful employment
practices . . . have been adequately remedied.” Fort Bend Indep. Sch. Dist. v.
City of Stafford, 651 F.2d 1133, 1140 (5th Cir. 1981). This court has also
required a showing that the racial composition of a school’s faculty and staff
does “not indicate that the school is intended for either African-American or
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white students.” Anderson, 517 F.3d at 303. We have cautioned, however,
“that these requirements do not establish an arbitrary racial quota.” Id.
Notwithstanding these desegregation guideposts, this case comes before
us with an unusual procedural posture—the Intervenors, not the District,
appeal the district court’s denial of unitary status. See, e.g., E.E.O.C. v. Chi.
Club, 86 F.3d 1423, 1431 (7th Cir. 1996) (“It is unusual, although not
impermissible, for a party to appeal from a judgment in which it prevailed.”).
This wrinkle raises the “threshold question” of whether the Intervenors have
standing to appeal the district court’s favorable rulings. Zente v. Credit Mgmt.,
L.P., 789 F.3d 601, 603–04 (5th Cir. 2015).
“It is a central tenet of appellate jurisdiction that a party who is not
aggrieved by a judgment of the district court has no standing to appeal it.” 6
Ward v. Santa Fe Indep. Sch. Dist., 393 F.3d 599, 603 (5th Cir. 2004). “A party
who receives all that he has sought generally is not aggrieved by the judgment
affording the relief and cannot appeal from it.” Deposit Guar. Nat’l Bank,
Jackson, Miss. v. Roper, 445 U.S. 326, 333 (1980); cf. Forney v. Apfel, 524 U.S.
266, 271 (1998) (“[T]his Court also has clearly stated that a party is ‘aggrieved’
and ordinarily can appeal a decision ‘granting in part and denying in part the
remedy requested.’” (quoting United States v. Jose, 519 U.S. 54, 56 (1996) (per
curiam))). Moreover, because appellate courts review judgments, not opinions,
see Ward, 393 F.3d at 603, “[a] party may not appeal from a judgment or decree
in his favor, for the purpose of obtaining a review of findings he deems
erroneous which are not necessary to support the decree.” Roper, 445 U.S. at
335 (quoting Elec. Fittings Corp. v. Thomas & Betts Co., 307 U.S. 241, 242
6This “rule is one of federal appellate practice, however, derived from the statutes
granting appellate jurisdiction and the historic practices of the appellate courts; it does not
have its source in the jurisdictional limitations of Art. III.” Deposit Guar. Nat’l Bank,
Jackson, Miss. v. Roper, 445 U.S. 326, 333–34 (1980).
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(1939)); see also Mathias v. WorldCom Techs., Inc., 535 U.S. 682, 684 (2002)
(per curiam).
However, a prevailing party has standing to appeal if he can
demonstrate that he was aggrieved by a favorable judgment. Ward, 393 F.3d
at 603–04. “Courts have recognized a handful of situations in which a party
may be sufficiently aggrieved by a favorable judgment to appeal it, such as
where the judgment itself contains prejudicial language on issues immaterial
to the disposition of the case, where collateral estoppel may harm the party in
future proceedings, or where the party will suffer financial loss as a result of
the judgment.” Conwill v. Greenberg Traurig, L.L.P., 448 F. App’x 434, 436–
37 (5th Cir. 2011) (collecting cases). Similarly, courts have permitted
prevailing parties to appeal unfavorable findings that may have an adverse
future effect. See Camreta v. Greene, 131 S. Ct. 2020, 2030–33 (2011) (holding,
in the limited context of qualified immunity, that a prevailing party may
challenge an adverse finding that has a “significant future effect on the conduct
of public officials”); but see Mathias, 535 U.S. at 684 (dismissing prevailing
parties’ appeal seeking review “of uncongenial findings not essential to the
judgment and not binding upon them in future litigation”).
Neither party to this appeal raised the issue of the Intervenors’ appellate
standing in their initial briefs. The court sua sponte raised the issue and
ordered the parties to file supplemental briefing addressing “whether and on
what ground(s) Plaintiffs-Intervenors have standing to appeal the district
court’s denial of unitary status.” In their supplemental brief, the Intervenors
contend that they have standing to appeal because the district court’s orders
did not afford them with the complete relief requested and contain findings
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and language that adversely affect them in future unitary proceedings. We
address each of these arguments in turn. 7
A.
The Intervenors first contend that they have standing to appeal because
the district court’s April 30 order did not afford them all of the relief they
requested. The district court granted the Intervenors’ principal request—a
denial of unitary status—but denied their additional requests that the District
remain under court supervision for two years and that the 2011 Consent
Decree be amended to provide for a court-appointed consultant responsible for
monitoring the District’s employment practices.
In the ordinary case, the district court’s decision to afford the Intervenors
with some, but not all, of the relief requested might well be sufficient to allow
the Intervenors to appeal. See, e.g., Forney, 524 U.S. at 271–72. However, the
Intervenors have not challenged the district court’s denial of this additional
relief on appeal. The Intervenors make no mention of the additional relief in
their initial brief. Moreover, in their supplemental brief directed at the issue
of standing, the Intervenors make no argument that the district court erred in
denying the additional relief. The Intervenors may not rely on this requested
relief to establish standing when they have not challenged the district court’s
denial on appeal. Cf. id. at 271 (allowing a prevailing party that received
“some, but not all, of the relief she requested” to appeal a lower court’s order
“insofar as it denies her the relief she has sought.” (emphasis added)). Were we
7 As a preliminary matter, we note that the Intervenors make no argument that the
district court’s order denying reconsideration provides a basis for standing separate and
apart from the court’s order denying unitary status. Accordingly, the Intervenors have
waived any such argument. See, e.g., T.L. James & Co. v. Traylor Bros., Inc., 294 F.3d 743,
750 (5th Cir. 2002) (“It is well-settled that when a party fails to brief an issue, it cannot be
considered on appeal.”). The Intervenors’ standing arguments focus exclusively on the
district court’s order denying unitary status, and our analysis will do the same.
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to conclude otherwise, we would be placed in the untenable position of
reviewing the district court’s decision to deny the Intervenors additional relief
absent any argument from the Intervenors as to why that relief was
warranted. Accordingly, we decline to hold that the Intervenors have standing
to appeal on this basis.
B.
The Intervenors next contend that they have standing to appeal because
the district court’s April 30 order adversely affects them in future unitary
proceedings. Specifically, the Intervenors contend that the district court
necessarily concluded that the District had eliminated the vestiges of de jure
segregation; limited its holding as to the District’s non-compliance with court
orders to the narrow employment forms violation identified in the April 30
order; and precluded the Intervenors from raising certain objections and
evidence in future unitary proceedings. Essentially, the Intervenors contend
that certain language in the district court’s order, viewed in isolation and left
open to interpretation, could conceivably be conclusive or collaterally estop
them in the future and would, in turn, adversely affect their ability to challenge
future motions for unitary status. We disagree.
Our review of the Intervenors’ contentions must begin with the axioms
that appellate courts review judgments, not opinions, see, e.g., Ward, 393 F.3d
at 603, and that a party may not appeal a favorable ruling “for the purpose of
obtaining a review of findings he deems erroneous which are not necessary to
support the decree.” Roper, 445 U.S. at 335 (quoting Elec. Fittings, 307 U.S.
at 242). Here, the Intervenors do not appeal from any judgment of the district
court; rather, they challenge an interlocutory order that unequivocally denies
unitary status. Even then, the Intervenors wisely do not challenge the
interlocutory order’s favorable outcome. Instead, the Intervenors acknowledge
that their principal dissatisfaction lies with the district court’s explanation for
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denying unitary status. 8 Although the challenged statements may be less than
friendly to the Intervenors, they are not essential to the court’s denial of
unitary status, and, as we explain today, we see no reason to conclude that
they will have any preclusive or adverse effect in the future. 9 It is well-
established that the Intervenors may not appeal for the sole purpose of seeking
a more favorable opinion from the district court. See, e.g., Ward, 393 F.3d at
603–04 (collecting cases and concluding that “because the plaintiffs are not
seeking a modification of the judgment but only a modification of the opinion,
they have no standing to appeal”).
The Intervenors contend that they have standing to appeal based on a
number of cases, each of which is inapposite. In Electrical Fittings, the district
court entered judgment for the defendant based on non-infringement of the
8 The Intervenors’ arguments on appeal focus on isolated statements in the district
court’s order denying unitary status. See Opinion and Order at 10, United States v.
Mississippi, No. 3:70-cv-4706-WHB-LRA (S.D. Miss. April 30, 2014), ECF No. 196 (“The
Court additionally finds that the District has shown, by the preponderance of the evidence,
that it has eliminated the vestiges of prior de jure segregation to the extent practicable.”); id.
(“[U]nitary status must nevertheless be denied because the District has not shown that it has
fully complied with the express terms of the 2011 Consent Decree. For example, under the
terms of the 2011 Consent Decree, the District is not permitted to modify any of the Interview
Guide and Assessment Forms . . . without first providing the [United States] and Intervenors
a written description of the proposed changes . . . .”); id. at 14 (“Any objections to unitary
status would need to be based on actions or decision taken by the District during the time
period following the January 2014 fairness hearing.”).
9 In their supplemental brief, the Intervenors repeatedly express a fear that language
in the district court’s order denying unitary status may collaterally estop them in future
unitary proceedings, but make little, if any, attempt to explain how this fear may come to
fruition. We see no basis to conclude that nonessential matters resolved in the district court’s
order denying unitary status could collaterally estop the Intervenors in the future. See, e.g.,
Klamath Strategic Inv. Fund ex rel. St. Croix Ventures v. United States, 568 F.3d 537, 546
(5th Cir. 2009) (“[A]n interlocutory ruling will only have collateral estoppel effect in
subsequent litigation if the ultimate judgment in the case was dependent upon the
interlocutory ruling.”); see also 18 Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 4402 (2d ed. 2015) (“It is insufficient for the invocation of [collateral estoppel]
that some question of fact or law in a later suit was relevant to a prior adjudication between
the parties; the contested issue must have been litigated and necessary to the judgment
earlier rendered.”).
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plaintiff’s patent, but found that the patent itself was valid. See 307 U.S. at
241–42. The appellate court dismissed the appeal, concluding that the
erroneous finding of patent validity was nonessential to the judgment and
would not estop the defendants in the future. Id. at 242. The Supreme Court
reversed, reasoning that the finding of patent validity, “though . . . immaterial
to the disposition of the cause, [stood] as an adjudication of one of the issues
litigated.” Id. Thus, “the petitioners were entitled to have this portion of the
decree eliminated,” and the appellate court should have “entertain[ed] the
appeal, not for the purpose of passing on the merits, but to direct the
reformation of the decree.” Id.
Electrical Fittings is distinguishable from this case in that, here, the
Intervenors ask the court to reform statements in an interlocutory order rather
than explanations that appear on the face of a judgment. See In re DES Litig.,
7 F.3d 20, 25 (2d Cir. 1993); see also Klamath Strategic Inv. Fund ex rel. St.
Croix Ventures v. United States, 568 F.3d 537, 546 (5th Cir. 2009); Envtl. Prot.
Info. Ctr., Inc. v. Pac. Lumber Co., 257 F.3d 1071, 1075 (9th Cir. 2001) (citing
Elec. Fittings, 307 U.S. at 242, and stating “[w]e have, however, strictly
interpreted ‘decree’ to mean ‘judgment’”). Moreover, the Intervenors do not ask
the court to revisit any issue necessarily litigated and decided against them in
the interlocutory ruling at issue. 10 See Roper, 445 U.S. at 335 n.7. Rather, the
Intervenors ask the court to entertain their appeal for the sole purpose of
10 The Electrical Fittings Court was not at all clear as to its reasons for allowing the
prevailing party to appeal. See Elec. Fittings, 307 U.S. at 242. In Roper, the Court clarified
the Electrical Fittings holding, noting that the petitioners there were allowed to appeal the
district court’s error “because there had been an adverse decision on a litigated issue, they
continued to assert an interest in the outcome of that issue, and for policy reasons this Court
considered the procedural question of sufficient importance to allow an appeal.” See Roper,
445 U.S. at 335 n.7.
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revisiting ancillary reasoning and language with which they disagree.
Electrical Fittings does not require this court to indulge such a request.
The plaintiffs also rely on Deposit Guaranty National Bank, Jackson,
Mississippi v. Roper, 445 U.S. 326 (1980). In that case, the Court allowed class-
action plaintiffs to appeal the district court’s denial of class certification
notwithstanding the court’s judgment in the plaintiffs’ favor. See id. at 327–
31, 334. The Court highlighted the plaintiffs’ ongoing interest in shifting legal
expenses to other class litigants and held that “[i]n an appropriate case, appeal
may be permitted from an adverse ruling collateral to the judgment on the
merits at the behest of the party who has prevailed on the merits, so long as
that party retains a stake in the appeal satisfying the requirements of Art. III.”
Id. at 334 & n.6; see also Camreta, 131 S. Ct. at 2030 (citing Roper, 445 U.S. at
336 n.7, and stating “[o]n the few occasions when we have departed from [the
principle that appellate courts review judgments, not opinions], we have
pointed to a policy reason . . . of sufficient importance to allow an appeal by the
winner below” (internal alteration, citation, and quotation marks omitted)); In
re DES Litig., 7 F.3d at 25 n.5. Here, the Intervenors make no argument that
the district court’s rulings affect the financial consequences of the litigation
and have not identified any other legitimate policy reasons for allowing an
appeal at this stage of the litigation. Thus, the Intervenors have not
established why standing is appropriate under Roper.
Nor can the Intervenors show standing under Aetna Casualty & Surety
Co. v. Cunningham, 224 F.2d 478 (5th Cir. 1955). There, plaintiff sought to
recover from defendant on two separate claims—fraud and indemnification.
Id. at 479. The district court entered judgment for the plaintiff on the
indemnification claim but ruled against the plaintiff on the fraud claim. Id.
Despite receiving a favorable ruling, this court allowed the plaintiff to appeal
based on the plaintiff’s assertion that a judgment on the alternative fraud
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claim would be more preferable in bankruptcy. Id. at 480. In so concluding,
we noted “judgment[s] may have different qualities and legal consequences
dependent on the claim on which it is based” and highlighted the reality that
the indemnification and fraud claims were “separate and distinct.” Id. We
went on to hold “that when, as a practical matter, the denial of any one claim
results in the plaintiff not getting the relief to which it claims to be entitled,
whether in the amount or in the quality of the judgment, it has a right to be
heard on appeal.” Id. at 480–81.
The Intervenors contend that Aetna provides standing in this case
because the Intervenors raised a number of “separate and distinct” violations
of the 2011 Consent Decree before the district court and “in essence, the
District Court ruled against Plaintiff-Intervenors on all but the issue of use of
forms.” Thus, the Intervenors contend, “[t]he District Court’s opinion and
order is adverse to Plaintiff-Intervenors on the other violations raised.”
We disagree with the Intervenors’ reading of the district court’s April 30
order. In discussing the District’s non-compliance with the 2011 Consent
Decree, the district court used the phrase “for example,” which indicates that
the court’s conclusion was not based upon the one violation discussed. See, e.g.,
The American Heritage Dictionary of the English Language 637 (5th ed. 2011)
(defining “example” as “[o]ne that is representative of a whole” and “for
example” as “[a]n illustrative instance”). By citing only one illustrative
example of the District’s non-compliance in the April 30 order, the district court
did not rule against the Intervenors as to all but the specific violation
referenced, limit the scope of future unitary proceedings, or otherwise dilute
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the quality of the decision the Intervenors received—a denial of unitary
status. 11 Thus, Aetna is of no moment.
At oral argument, counsel for the Intervenors stated that Department of
Defense, Office of Dependents Schools v. Federal Labor Relations Authority, 879
F.2d 1220 (4th Cir. 1989), was the best case in support of the Intervenors’
standing argument. Department of Defense involved a procedural framework
that is not applicable to the situation here. See id. at 1221. Moreover, the
Intervenors’ reliance on the Fourth Circuit’s analysis is otherwise unavailing.
There, the Fourth Circuit held that an agency had standing to appeal a
favorable dismissal based on an adverse legal premise underlying the
dismissal—that the agency’s head had no power to review and disapprove of
certain collective bargaining agreements. Id. at 1220–22. The court
specifically noted that, if the agency was denied standing to appeal, it would
be harmed to the extent it had to suffer a long appeals process before it could
seek judicial review of the adverse legal premise. Id. at 1221–22. In a practical
11 The district court’s treatment of the District’s motion for reconsideration further
supports our conclusion that the court did not implicitly rule against the Intervenors as to all
but the specific violation referenced or otherwise limit the scope of future unitary inquiries.
On reconsideration, the District requested that the court limit future unitary inquiries to the
specific employment forms issue identified in the court’s order denying unitary status. The
court denied this request, reasoning that:
As understood by the Court, Fifth Circuit precedent requires that the District
comply, in good faith, with all of the terms of the 2011 Consent Decree for a
reasonable amount of time before it can be declared unitary in the areas of
faculty and staff assignments. The District has not, to date, satisfied this
burden, and has been given another opportunity to show that it can, and will,
abide by the Orders of this Court as written. Accordingly, because the Court
does not believe the District can satisfy the necessary burden of proof for
obtaining unitary status through piecemeal compliance, the Court finds no
basis for either reconsidering or clarifying the Opinion and Order by which the
Motion for Unitary Status was denied.
See Opinion and Order at 5–6, United States v. Mississippi, No. 3:70-cv-4706-WHB-LRA (S.D.
Miss. July 8, 2014), ECF 204 (emphasis in original).
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sense, the court held that this meant that the agency was “aggrieved” so as to
have standing to appeal. See id.
The Intervenors contend that Department of Defense is analogous here
because the district court’s April 30 order rejected the Intervenors’ proof of the
District’s violations of the 2011 Consent Decree beyond the specific violation
referenced and limited future objections to unitary status to violations
occurring after the January 2014 fairness hearing. Based on this
interpretation, the Intervenors contend that the April 30 order could preclude
appellate review of the district court’s evidentiary determinations as to pre-
2014-fairness-hearing violations. Again, we disagree.
Based on our reading and counsel for the District’s representations at
oral argument, we do not interpret the district court’s April 30 order as
foreclosing the Intervenors from offering evidence of pre-fairness hearing
violations in future unitary proceedings, otherwise limiting the scope of future
unitary proceedings, or barring appellate review of the district court’s
evidentiary determinations. As counsel for the District conceded at oral
argument, we expect that the Intervenors will have a full and fair opportunity
in future unitary proceedings to offer evidence that the District has failed to
eliminate the vestiges of de jure segregation or to comply in good faith with the
court’s desegregation order, whether that evidence be based on alleged
violations considered at the January 2014 fairness hearing or occurring
thereafter. Should the district court reject the Intervenors’ evidence and grant
unitary status at some time in the future, this court will remain open to hear
the Intervenors’ appellate arguments, including those, if appropriate, that
challenge determinations made in the April 30 order. For now, however, we
decline to accept the Intervenors’ invitation to jumpstart the appellate process
in the face of the district court’s order unequivocally denying unitary status.
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No. 14-60542
III.
Having considered the Intervenors’ arguments, we conclude that they
are not sufficiently aggrieved and therefore lack standing to appeal the district
court’s orders. We therefore DISMISS the Intervenors’ appeal without regard
to the merits.
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