finding that dismissal under Rule 41(b) requires that plaintiffs behave 4 of 8 egregiously
How later courts described this case
- finding that dismissal under Rule 41(b) requires that plaintiffs behave 4 of 8 egregiously
- the court noted that from 1974 to 1981, a period of six years, “the black citizens of Caddo Parish were heard from, either through the original named plaintiffs or otherwise, only once.”
Written by the judges who cited it.
The opinion
*223 JERRE S. WILLIAMS, Circuit Judge,
concurring:
I concur fully in the opinion of Judge Garwood for the majority of the Court. I add a few words to express my own views as to the relationship between that majority opinion and Judge Goldberg’s opinion in dissent.
I feel great sympathy for the anguish which my brother Goldberg reveals in his dissenting opinion. I simply wish to state why I do not feel that same anguish although I, along with all the members of the Court, is deeply concerned with enforcing the constitutional rights of minorities by eliminating racial discrimination in the public schools.
Judge Goldberg himself emphasizes that this case has now dragged along for almost eighteen years. There must be an opportunity to end such litigation some time. The critical question the Court had to deal with was whether that time had come in a detailed consent decree acquiesced in by most members of the community, white and black, and agreed to by the School Board, by the federal district judge, and by the United States Department of Justice, and publicized so that all concerned persons could react to it.
It is well to point out also that there had been ample earlier opportunity to appellant and others to participate in the judicial processes of this case. After our decision in Jones v. Caddo Parish School Board, 499 F.2d 914 (5th Cir.1974), those persons concerned about the racial integration of the Caddo Parish Schools took no further action to intervene. Rather than this lack of action being “inexplicable”, we obviously must assume that the failure to take further action and to allow the schools to continue in their then present form was a voluntary act on the part of those who had pursued the appeal to this Court. Phillips or others could have acted then. Further there is later a period of several years during which appellant and others could have sought intervention when the district court held the school system unitary — a decision set aside on petition of the United States Department of Justice.
But the most critical time involves the development of the current district court order which is here appealed. I emphasize that the posture of the case as it comes to this Court is one in which every attempt has been made to be fair to everyone, a final order has been entered, and now someone wants to reopen the case to start over again. Phillips was fully aware of the proposed settlement and submitted comments. The record reveals that Phillips had earlier been a participant in various aspects of the case. With the dominant forces in the community, both white and black, seemingly willing to accept the proposed settlement and the United States Department of Justice participating in the settlement, Phillips had no right to assume at that late hour that she could be confident that whatever suggestions she made would automatically become part of that order. The time for her intervention was of necessity the time while the proposed settlement was still pending. There was ample time then. If she had moved to intervene at that time, the law is clear that she would have been entitled to a hearing and a specific decision on her motion to intervene. But she waited until the matter was all over, until an eighteen year case was finally concluded, and then said that because she did not like the settlement she wanted to intervene, have it thrown out, and start over again with a class action. Her motion to intervene under these circumstances was not timely, and we properly so hold.
Finally, there should be a general observation. No such settlement can ever be expected to be satisfactory to everyone in a community. But, as I stated earlier, there must be a way to end these cases even though not everyone is satisfied. This record reveals that the district court with great care, as described in the majority opinion, brought about the final disposition of this case. There can properly be anguish for those who do not agree with the settlement. But there could also be anguish felt for this troubled community if after the many years of these proceedings and finally *224 a settlement, those who do disagree with it can upset the careful action of the community, the court, and the United States Government and start over again.
What may be the rights of appellant and others in a new and independent suit brought by them is not now before us. But the motion to intervene to set aside the settlement between the Caddo Parish School Board and the United States Department of Justice, approved by the district court, was not timely. The time for intervention was before settlement, not after.