# Missouri v. Jenkins/Opinion of the Court

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The United States District Court for the Western District of Missouri imposed an increase in the property taxes levied by the Kansas City, Missouri, School District (KCMSD) to ensure funding for the desegregation of KCMSD's public schools. We granted certiorari to consider the State of Missouri's argument that the District Court lacked the power to raise local property taxes. For the reasons given below, we hold that the District Court abused its discretion in imposing the tax increase. We also hold, however, that the modifications of the District Court's order made by the Court of Appeals do satisfy equitable and constitutional principles governing the District Court's power.
* In 1977, KCMSD and a group of KCMSD students filed a complaint alleging that the State of Missouri and surrounding school districts had operated a segregated public school system in the Kansas City metropolitan area. The District Court realigned KCMSD as a party defendant, School Dist. of Kansas City v. Missouri, 460 F.Supp. 421 (WD Mo.1978), and KCMSD filed a cross-claim against the State, seeking indemnification for any liability that might be imposed on KCMSD for intradistrict segregation. After a lengthy trial, the District Court found that KCMSD and the State had operated a segregated school system within the KCMSD. Jenkins v. Missouri, 593 F.Supp. 1485 (1984).
The District Court thereafter issued an order detailing the remedies necessary to eliminate the vestiges of segregation and the financing necessary to implement those remedies. Jenkins v. Missouri, 639 F.Supp. 19 (1985). The District Court originally estimated the total cost of the desegregation remedy to be almost $88 million over three years, of which it expected the State to pay $67,592,072 and KCMSD to pay $20,140,472. Id., at 43-44. The court concluded, however, that several provisions of Missouri law would prevent KCMSD from being able to pay its share of the obligation. Id., at 44. The Missouri Constitution limits local property taxes to $1.25 per $100 of assessed valuation unless a majority of the voters in the district approve a higher levy, up to $3.25 per $100; the levy may be raised above $3.25 per $100 only if two-thirds of the voters agree. Mo. Const., Art. X, §§ 11(b), (c). The "Hancock Amendment" requires property tax rates to be rolled back when property is assessed at a higher valuation to ensure that taxes will not be increased solely as a result of reassessments. Mo. Const., Art. X, § 22(a); Mo.Rev.Stat. § 137.073.2 (1986). The Hancock Amendment thus prevents KCMSD from obtaining any revenue increase as a result of increases in the assessed valuation of real property. "Proposition C" allocates one cent of every dollar raised by the state sales tax to a schools trust fund and requires school districts to reduce property taxes by an amount equal to 50% of the previous year's sales tax receipts in the district. Mo.Rev.Stat. § 164.013.1 (Supp.1988). However, the trust fund is allocated according to a formula that does not compensate KCMSD for the amount lost in property tax revenues, and the effect of Proposition C is to divert nearly half of the sales taxes collected in KCMSD to other parts of the State.
The District Court believed that it had the power to order a tax increase to ensure adequate funding of the desegregation plan, but it hesitated to take this step. It chose instead to enjoin the effect of the Proposition C rollback to allow KCMSD to raise an additional $4 million for the coming fiscal year. The court ordered KCMSD to submit to the voters a proposal for an increase in taxes sufficient to pay for its share of the desegregation remedy in following years. Jenkins v. Missouri, 639 F.Supp., at 45.
The Court of Appeals for the Eighth Circuit affirmed the District Court's findings of liability and remedial order in most respects. Jenkins v. Missouri, 807 F.2d 657 (1986) (in banc). The Court of Appeals agreed with the State, however, that the District Court had failed to explain adequately why it had imposed most of the cost of the desegregation plan on the State. Id., at 684, 685. The Eighth Circuit ordered the District Court to divide the cost equally between the State and KCMSD. Id., at 685. We denied certiorari. Kansas City, Missouri, School Dist. v. Missouri, 484 U.S. 816, 108 S.Ct. 70, 98 L.Ed.2d 34 (1987).
Proceedings before the District Court continued during the appeal. In its original remedial order, the District Court had directed KCMSD to prepare a study addressing the usefulness of "magnet schools" to promote desegregation. Jenkins v. Missouri, supra, at 34-35. A year later, the District Court approved KCMSD's proposal to operate six magnet schools during the 1986-1987 school year. The court again faced the problem of funding, for KCMSD's efforts to persuade the voters to approve a tax increase had failed, as had its efforts to seek funds from the Kansas City Council and the state legislature. Again hesitating to impose a tax increase itself, the court continued its injunction against the Proposition C rollback to enable KCMSD to raise an additional $6.5 million. App. 138-142.
In November 1986, the District Court endorsed a marked expansion of the magnet school program. It adopted in substance a KCMSD proposal that every high school, every middle school, and half of the elementary schools in KCMSD become magnet schools by the 1991-1992 school year. It also approved the $142,736,025 budget proposed by KCMSD for implementation of the magnet school plan, as well as the expenditure of $52,858,301 for additional capital improvements. App. to Pet. for Cert. 120a-124a.
The District Court next considered, as the Court of Appeals had directed, how to shift the cost of desegregation to KCMSD. The District Court concluded that it would be "clearly inequitable" to require the population of KCMSD to pay half of the desegregation cost, and that "even with Court help it would be very difficult for the KCMSD to fund more than 25% of the costs of the entire remedial plan." Id., at 112a. The court reasoned that the State should pay for most of the desegregation cost under the principle that " 'the person who starts the fire has more responsibility for the damages caused than the person who fails to put it out,' " id. at 111a, and that apportionment of damages between the State and KCMSD according to fault was supported by the doctrine of comparative fault in tort, which had been adopted by the Missouri Supreme Court in Gustafson v. Benda, 661 S.W.2d 11 (1983). The District Court then held that the State and KCMSD were 75% and 25% at fault, respectively, and ordered them to share the cost of the desegregation remedy in that proportion. To ensure complete funding of the remedy, the court also held the two tortfeasors jointly and severally liable for the cost of the plan. App. to Pet. for Cert. 113a.
Three months later, the District Court adopted a plan requiring $187,450,334 in further capital improvements. 672 F.Supp. 400, 408 (WD Mo.1987). By then it was clear that KCMSD would lack the resources to pay for its 25% share of the desegregation cost. KCMSD requested that the District Court order the State to pay for any amount that KCMSD could not meet. The District Court declined to impose a greater share of the cost on the State, but it accepted that KCMSD had "exhausted all available means of raising additional revenue." Id., at 411. Finding itself with "no choice but to exercise its broad equitable powers and enter a judgment that will enable the KCMSD to raise its share of the cost of the plan," ibid., and believing that the "United States Supreme Court has stated that a tax may be increased if 'necessary to raise funds adequate to . . . operate and maintain without racial discrimination a public school system,' " id., at 412 (quoting Griffin v. Prince Edward County School Bd., 377 U.S. 218, 233, 84 S.Ct. 1226, 1234, 12 L.Ed.2d 256 (1964)), the court ordered the KCMSD property tax levy raised from $2.05 to $4.00 per $100 of assessed valuation through the 1991-1992 fiscal year. 672 F.Supp., at 412-413. KCMSD was also directed to issue $150 million in capital improvement bonds. Id., at 413. A subsequent order directed that the revenues generated by the property tax increase be used to retire the capital improvement bonds. App. to Pet. for Cert. 63a.
The State appealed, challenging the scope of the desegregation remedy, the allocation of the cost between the State and KCMSD, and the tax increase. A group of local taxpayers (Clark Group) and Jackson County, Missouri, also appealed from an order of the District Court denying their applications to intervene as of right. A panel of the Eighth Circuit affirmed in part and reversed in part. 855 F.2d 1295 (1988). With respect to the would-be intervenors, the Court of Appeals upheld the denial of intervention. Id., at 1316-1317. The scope of the desegregation order was also upheld against all the State's objections, id., at 1301-1307, as was the allocation of costs, id., at 1307-1308.
Turning to the property tax increase, the Court of Appeals rejected the State's argument that a federal court lacks the judicial power to order a tax increase. The Court of Appeals agreed with the District Court that Griffin v. Prince Edward County School Bd., supra, 377 U.S., at 233, 84 S.Ct., at 1234, had established the District Court's authority to order county officials to levy taxes. Accepting also the District Court's conclusion that state law prevented KCMSD from raising funds sufficient to implement the desegregation remedy, the Court of Appeals held that such state-law limitations must fall to the command of the Constitution. 855 F.2d, at 1313.
Although the Court of Appeals thus "affirm[ed] the actions that the [District] [C]ourt has taken to this point," id., at 1314, it agreed with the State that principles of federal/state comity required the District Court to use "minimally obtrusive methods to remedy constitutional violations." Ibid. The Court of Appeals thus required that in the future, the District Court should not set the property tax rate itself but should authorize KCMSD to submit a levy to the state tax collection authorities and should enjoin the operation of state laws hindering KCMSD from adequately funding the remedy. The Court of Appeals reasoned that permitting the school board to set the levy itself would minimize disruption of state laws and processes and would ensure maximum consideration of the views of state and local officials. Ibid.
The judgment of the Court of Appeals was entered on August 19, 1988. On September 16, 1988, the State filed with the Court of Appeals a document styled "State Appellants' Petition for Rehearing En Banc." App. 489-502. Jackson County also filed a "Petition . . . for Rehearing by Court En Banc," id., at 458-469, and Clark Group filed a "Petition for Rehearing En Banc with Suggestions in Support." Id., at 470-488. On October 14, 1988, the Court of Appeals denied the petitions with an order stating as follows: "There are now three petitions for rehearing en banc pending before the Court. It is hereby ordered that all petitions for rehearing en banc are denied." App. to Pet. for Cert. 53a. The mandate of the Court of Appeals issued on October 14.
On December 31, 1988, 78 days after the issuance of the order denying rehearing and 134 days after the entry of the Court of Appeals' judgment, Jackson County presented to this Court an application for extension of time in which to file a petition for certiorari. The Clerk of this Court returned the application to Jackson County as untimely. App. 503. According to the Clerk, the 90-day period in which Jackson County could petition for certiorari began to run on August 19, 1988, and expired on November 17, 1988. The Clerk informed Jackson County that although the timely filing of a "petition for rehearing" with the Court of Appeals tolls the running of the 90-day period, the filing of a "petition for rehearing en banc" does not toll the time.
On January 10, 1989, the Clerk of the Eighth Circuit issued an order amending the order of October 14, 1988. The amended order stated:
"This Court's mandate which was issued on October 14,
1988, is hereby recalled.
"There are three (3) petitions for rehearing with suggestions for rehearing en banc pending before the Court. It is hereby ordered that the petitions for rehearing and the petitions for rehearing with suggestions for rehearing en banc are denied.
"This order is entered nunc pro tunc effective October
14, 1988. The Court's mandate shall now issue forthwith." Id., at 513 (emphasis added).
The State, Jackson County, and Clark Group filed petitions for certiorari within 90 days of the October 14, 1988, order. The State's petition argued that the remedies imposed by the District Court were excessive in scope and that the property tax increase violated Article III, the Tenth Amendment, and principles of federal/state comity. We denied the petitions of Jackson County and Clark Group. 490 U.S. 1034, 109 S.Ct. 1931, 104 L.Ed.2d 403 (1989). We granted the State's petition, limited to the question of the property tax increase, but we requested the parties to address whether the petition was timely filed. 490 U.S. 1034, 109 S.Ct. 1930, 104 L.Ed.2d 402 (1989).
We deal first with the question of our own jurisdiction. Title 28 U.S.C. § 2101(c) requires that a petition for certiorari in a civil case be filed within 90 days of the entry of the judgment below. This 90-day limit is mandatory and jurisdictional. We have no authority to extend the period for filing except as Congress permits. Unless the State's petition was filed within 90 days of the entry of the Court of Appeals' judgment, we must dismiss the petition.
Since Department of Banking of Nebraska v. Pink, 317 U.S. 264, 63 S.Ct. 233, 87 L.Ed. 254 (1942), it has been the consistent practice of the Court to treat petitions for rehearing timely presented to the Courts of Appeals as tolling the start of the period in which a petition for certiorari must be sought until rehearing is denied or a new judgment is entered on the rehearing. As was explained in Pink, "[a] timely petition for rehearing . . . operates to suspend the finality of the . . . court's judgment, pending the court's further determination whether the judgment should be modified so as to alter its adjudication of the rights of the parties." Id., at 266, 63 S.Ct., at 234. To put the matter another way, while the petition for rehearing is pending, there is no "judgment" to be reviewed. Cf. Zimmern v. United States, 298 U.S. 167, 169, 56 S.Ct. 706, 707, 80 L.Ed. 1118 (1936); Leishman v. Associated Wholesale Electric Co., 318 U.S. 203, 205, 63 S.Ct. 543, 544, 87 L.Ed. 714 (1943).
But as respondents point out, it has also been our consistent practice to treat suggestions for rehearing in banc presented to the United States Courts of Appeals that do not also include petitions for rehearing by the panel as not tolling the period for seeking certiorari. Our Rule 13.4 now expressly incorporates this practice. See n. 13, supra. This practice rests on the important distinction between "petitions for rehearing," which are authorized by Rule 40(a) of the Federal Rules of Appellate Procedure, and "suggestions for rehearing in banc," which are permitted by Rule 35(b). In this case, the State styled its filing as a "Petition for Rehearing En Banc." There is technically no provision for the filing of a "Petition for Rehearing En Banc" in the Rules of Appellate Procedure. A party may petition for rehearing before the panel under Rule 40, file a suggestion for a rehearing in banc under Rule 35, or do both, separately or together. The State's filing on its face did not exactly comport with any of these options. If the filing was no more than a suggestion for rehearing in banc, as respondents insist, the petition for certiorari was untimely. But if, as the State argues, its papers qualified for treatment as a petition for rehearing within the meaning of Rule 40 as well as a suggestion for rehearing in banc under Rule 35, the 90-day period for seeking certiorari began on October 14, 1988, and the State's petition for certiorari was timely filed.
Though the matter is not without difficulty, we conclude that the State has the better of the argument. It appears to us that the Court of Appeals interpreted and actually treated the State's papers as including a petition for rehearing before the panel. If the Eighth Circuit had regarded the State's papers as only a suggestion for rehearing in banc, without a petition for panel rehearing as well, Rules 35(c) and 41(a) of the Federal Rules of Appellate Procedure would have required the court to issue its mandate within 21 days of the entry of the panel's judgment. The Court of Appeals did not issue the mandate within 21 days of the panel's judgment but issued it only upon its October 14 order denying the State's petition. Nor did the Court of Appeals issue an order extending the time for the issuance of the mandate, as it may do under Rule 41(a).
Respondents insist that the Eighth Circuit routinely withholds the mandate during the pendency of a suggestion for rehearing in banc even without the order contemplated by Rule 41(a) and point us to United States v. Samuels, 808 F.2d 1298, 1299 (1987), where the Chief Judge of that court wrote separately respecting the denial of rehearing in banc to emphasize that the Eighth Circuit has done so. The Court of Appeals may not on every occasion have observed the technicalities of Rules 35(c) and 41(a), but we cannot conclude from the respondents' submission that the Eighth Circuit has engaged in a systematic practice of ignoring those formalities. We presume that the Eighth Circuit withheld the mandate because, under Rule 41(a), it must do so when a petition for panel rehearing is pending.
It is true that the Eighth Circuit's original October 14 order stated that there were three "petitions for rehearing en banc pending before the Court" and that all "petitions for rehearing en banc" were denied. Only after this Court's Clerk informed Jackson County that its application for extension of time was untimely did the Court of Appeals amend its October 14 order nunc pro tunc to state that there were "petitions for rehearing with suggestions for rehearing en banc pending before the Court" and that those "petitions for rehearing . . . with suggestions for rehearing en banc" were denied. Respondents argue that the original order is more probative of the Eighth Circuit's contemporaneous treatment of the State's petition, and they contend that order clearly does not treat the petition as requesting panel rehearing. They insist that the Eighth Circuit cannot, post hoc, amend its order to make it appear that it took an action which it never took.
The Court of Appeals of course cannot make the record what it is not. The time for applying for certiorari will not be tolled when it appears that the lower court granted rehearing or amended its order solely for the purpose of extending that time. Cf. Wayne United Gas Co. v. Owens-Illinois Glass Co., 300 U.S. 131, 137, 57 S.Ct. 382, 385, 81 L.Ed. 557 (1937); Conboy v. First National Bank of Jersey City, 203 U.S. 141, 145, 27 S.Ct. 50, 52, 51 L.Ed. 128 (1906); Credit Co. v. Arkansas Central R. Co., 128 U.S. 258, 261, 9 S.Ct. 107, 108, 32 L.Ed. 448 (1888). But, as we see it, that is not what happened in this case: the Eighth Circuit originally entered an order denying the "petitions for rehearing en banc" because the papers filed with the court were styled as "petitions for rehearing en banc." When it was subsequently brought to the Eighth Circuit's attention that it had neglected to refer to those papers in its order as petitions for rehearing with suggestions for rehearing in banc, the court amended its order nunc pro tunc to ensure that the order reflected the reality of the action taken on October 14. The Eighth Circuit surely knows more than we do about the meaning of its orders, and we accept its action for what it purports to be.
The Eighth Circuit, unlike other Circuits, does not have a published practice of treating all suggestions for rehearing in banc, no matter how styled, as containing both petitions for panel rehearing and suggestions for rehearing in banc. Cf. Gonzalez v. Southern Pacific Transportation Co., 773 F.2d 637, 639 (CA5 1985); Eleventh Circuit Rule 35-6. Respondents argue that accepting the Eighth Circuit's interpretation of its October 14 order in this case risks confusion in future cases and invites the lower courts to pick and choose between those parties whose "petitions for rehearing in banc" they view favorably and wish to give additional time for seeking review in this Court, and those whose petitions they wish to give no such aid.
We share respondents' concern about the stability and clarity of jurisdictional rules. It is undoubtedly desirable to have published rules of procedure giving parties fair warning of the treatment afforded petitions for rehearing and suggestions for rehearing in banc. Regular adherence to published rules of procedure best promotes the principles of fairness, stability, and uniformity that those rules are designed to advance. But in the end we accept the Eighth Circuit's interpretation of its October 14 order and will not assume that its action in this case is not in accord with its regular practice.
We turn to the tax increase imposed by the District Court. The State urges us to hold that the tax increase violated Article III, the Tenth Amendment, and principles of federal/state comity. We find it unnecessary to reach the difficult constitutional issues, for we agree with the State that the tax increase contravened the principles of comity that must govern the exercise of the District Court's equitable discretion in this area.
It is accepted by all the parties, as it was by the courts below, that the imposition of a tax increase by a federal court was an extraordinary event. In assuming for itself the fundamental and delicate power of taxation the District Court not only intruded on local authority but circumvented it altogether. Before taking such a drastic step the District Court was obliged to assure itself that no permissible alternative would have accomplished the required task. We have emphasized that although the "remedial powers of an equity court must be adequate to the task, . . . they are not unlimited," Whitcomb v. Chavis, 403 U.S. 124, 161, 91 S.Ct. 1858, 1878, 29 L.Ed.2d 363 (1971), and one of the most important considerations governing the exercise of equitable power is a proper respect for the integrity and function of local government institutions. Especially is this true where, as here, those institutions are ready, willing, and-but for the operation of state law curtailing their powers-able to remedy the deprivation of constitutional rights themselves.
The District Court believed that it had no alternative to imposing a tax increase. But there was an alternative, the very one outlined by the Court of Appeals: it could have authorized or required KCMSD to levy property taxes at a rate adequate to fund the desegregation remedy and could have enjoined the operation of state laws that would have prevented KCMSD from exercising this power. 855 F.2d, at 1314; see infra, at 52. The difference between the two approaches is far more than a matter of form. Authorizing and directing local government institutions to devise and implement remedies not only protects the function of those institutions but, to the extent possible, also places the responsibility for solutions to the problems of segregation upon those who have themselves created the problems.
As Brown v. Board of Education, 349 U.S. 294, 299, 75 S.Ct. 753, 755-756, 99 L.Ed. 1083 (1955), observed, local authorities have the "primary responsibility for elucidating, assessing, and solving" the problems of desegregation. See also Milliken v. Bradley, 433 U.S. 267, 281, 97 S.Ct. 2749, 2757, 53 L.Ed.2d 745 (1977). This is true as well of the problems of financing desegregation, for no matter has been more consistently placed upon the shoulders of local government than that of financing public schools. As was said in another context, "[t]he very complexity of the problems of financing and managing a . . . public school system suggests that 'there will be more than one constitutionally permissible method of solving them,' and that . . . 'the legislature's efforts to tackle the problems' should be entitled to respect." San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 42, 93 S.Ct. 1278, 1301, 36 L.Ed.2d 16 (1973) (quoting Jefferson v. Hackney, 406 U.S. 535, 546-547, 92 S.Ct. 1724, 1731-1732, 32 L.Ed.2d 285 (1972)). By no means should a district court grant local government carte blanche, cf. Swann v. Charlotte-Mecklenburg Bd. of Education, 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971), but local officials should at least have the opportunity to devise their own solutions to these problems. Cf. Sixty-seventh Minnesota State Senate v. Beens, 406 U.S. 187, 196, 92 S.Ct. 1477, 1483, 32 L.Ed.2d 1 (1972) (per curiam ).
The District Court therefore abused its discretion in imposing the tax itself. The Court of Appeals should not have allowed the tax increase to stand and should have reversed the District Court in this respect. See Langnes v. Green, 282 U.S. 531, 541-542, 51 S.Ct. 243, 247, 75 L.Ed. 520 (1931).
We stand on different ground when we review the modifications to the District Court's order made by the Court of Appeals. As explained supra, at 43, the Court of Appeals held that the District Court in the future should authorize KCMSD to submit a levy to the state tax collection authorities adequate to fund its budget and should enjoin the operation of state laws that would limit or reduce the levy below that amount. 855 F.2d, at 1314.
The State argues that the funding ordered by the District Court violates principles of equity and comity because the remedial order itself was excessive. As the State puts it, "[t]he only reason that the court below needed to consider an unprecedented tax increase was the equally unprecedented cost of its remedial programs." Brief for Petitioners 42. We think this argument aims at the scope of the remedy rather than the manner in which the remedy is to be funded and thus falls outside our limited grant of certiorari in this case. As we denied certiorari on the first question presented by the State's petition, which did challenge the scope of the remedial order, we must resist the State's efforts to argue that point now. We accept, without approving or disapproving, the Court of Appeals' conclusion that the District Court's remedy was proper. See Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 215, 67 S.Ct. 752, 754, 91 L.Ed. 849 (1947).
The State has argued here that the District Court, having found the State and KCMSD jointly and severally liable, should have allowed any monetary obligations that KCMSD could not meet to fall on the State rather than interfere with state law to permit KCMSD to meet them. Under the circumstances of this case, we cannot say it was an abuse of discretion for the District Court to rule that KCMSD should be responsible for funding its share of the remedy. The State strenuously opposed efforts by respondents to make it responsible for the cost of implementing the order and had secured a reversal of the District Court's earlier decision placing on it all of the cost of substantial portions of the order. See 807 F.2d, at 684-685. The District Court declined to require the State to pay for KCMSD's obligations because it believed that the Court of Appeals had ordered it to allocate the costs between the two governmental entities. See 672 F.Supp., at 411. Furthermore, if the District Court had chosen the route now suggested by the State, implementation of the remedial order might have been delayed if the State resisted efforts by KCMSD to obtain contribution.
It is true that in Milliken v. Bradley, 433 U.S., at 291, 97 S.Ct., at 2763, we stated that the enforcement of a money judgment against the State did not violate principles of federalism because "[t]he District Court . . . neither attempted to restructure local governmental entities nor . . . mandat[ed] a particular method or structure of state or local financing." But we did not there state that a district court could never set aside state laws preventing local governments from raising funds sufficient to satisfy their constitutional obligations just because those funds could also be obtained from the States. To the contrary, 42 U.S.C. § 1983, on which respondents' complaint is based, is authority enough to require each tortfeasor to pay its share of the cost of the remedy if it can, and apportionment of the cost is part of the equitable power of the District Court. Cf. Milliken v. Bradley, supra, at 289-290, 97 S.Ct., at 2761-2762.
We turn to the constitutional issues. The modifications ordered by the Court of Appeals cannot be assailed as invalid under the Tenth Amendment. "The Tenth Amendment's reservation of nondelegated powers to the States is not implicated by a federal-court judgment enforcing the express prohibitions of unlawful state conduct enacted by the Fourteenth Amendment." 433 U.S., at 291, 97 S.Ct., at 2762. "The Fourteenth Amendment . . . was avowedly directed against the power of the States," Pennsylvania v. Union Gas Co., 491 U.S. 1, 42, 109 S.Ct. 2273, 2303, 105 L.Ed.2d 1 (1989) (SCALIA, J., concurring in part and dissenting in part), and so permits a federal court to disestablish local government institutions that interfere with its commands. Cf. New York City Bd. of Estimate v. Morris, 489 U.S. 688, 109 S.Ct. 1433, 103 L.Ed.2d 717 (1989); Reynolds v. Sims, 377 U.S. 533, 585, 84 S.Ct. 1362, 1393-1394, 12 L.Ed.2d 506 (1964).
Finally, the State argues that an order to increase taxes cannot be sustained under the judicial power of Article III. Whatever the merits of this argument when applied to the District Court's own order increasing taxes, a point we have not reached, see supra, at 53, a court order directing a local government body to levy its own taxes is plainly a judicial act within the power of a federal court. We held as much in Griffin v. Prince Edward County School Bd., 377 U.S., at 233, 84 S.Ct., at 1234, where we stated that a District Court, faced with a county's attempt to avoid desegregation of the public schools by refusing to operate those schools, could "require the [County] Supervisors to exercise the power that is theirs to levy taxes to raise funds adequate to reopen, operate, and maintain without racial discrimination a public school system. . . ." Griffin followed a long and venerable line of cases in which this Court held that federal courts could issue the writ of mandamus to compel local governmental bodies to levy taxes adequate to satisfy their debt obligations. See, e.g., Louisiana ex rel. Hubert v. Mayor and Council of New Orleans, 215 U.S. 170, 30 S.Ct. 40, 54 L.Ed. 144 (1909); Graham v. Folsom, 200 U.S. 248, 26 S.Ct. 245, 50 L.Ed. 464 (1906); Wolff v. New Orleans, 103 U.S. 358, 26 L.Ed. 395 (1881); United States v. New Orleans, 98 U.S. 381, 25 L.Ed. 225 (1879); Heine v. Levee Commissioners, 19 Wall. 655, 657, 22 L.Ed. 223 (1874); City of Galena v. Amy, 5 Wall. 705, 18 L.Ed. 560 (1867); Von Hoffman v. City of Quincy, 4 Wall. 535, 18 L.Ed. 403 (1867); Board of Commissioners of Knox County v. Aspinwall, 24 How. 376, 16 L.Ed. 735 (1861).
The State maintains, however, that even under these cases, the federal judicial power can go no further than to require local governments to levy taxes as authorized under state law. In other words, the State argues that federal courts cannot set aside state-imposed limitations on local taxing authority because to do so is to do more than to require the local government "to exercise the power that is theirs." We disagree. This argument was rejected as early as Von Hoffman v. City of Quincy, supra. There the holder of bonds issued by the city sought a writ of mandamus against the city requiring it to levy taxes sufficient to pay interest coupons then due. The city defended based on a state statute that limited its power of taxation, and the Circuit Court refused to mandamus the city. This Court reversed, observing that the statute relied on by the city was passed after the bonds were issued and holding that because the city had ample authority to levy taxes to pay its bonds when they were issued, the statute impaired the contractual entitlements of the bondholders, contrary to Art. I, § 10, cl. 1, of the Constitution, under which a State may not pass any law impairing the obligation of contracts. The statutory limitation, therefore, could be disregarded and the city ordered to levy the necessary taxes to pay its bonds.
It is therefore clear that a local government with taxing authority may be ordered to levy taxes in excess of the limit set by state statute where there is reason based in the Constitution for not observing the statutory limitation. In Von Hoffman, the limitation was disregarded because of the Contract Clause. Here, the KCMSD may be ordered to levy taxes despite the statutory limitations on its authority in order to compel the discharge of an obligation imposed on KCMSD by the Fourteenth Amendment. To hold otherwise would fail to take account of the obligations of local governments, under the Supremacy Clause, to fulfill the requirements that the Constitution imposes on them. However wide the discretion of local authorities in fashioning desegregation remedies may be, "if a state-imposed limitation on a school authority's discretion operates to inhibit or obstruct the operation of a unitary school system or impede the disestablishing of a dual school system, it must fall; state policy must give way when it operates to hinder vindication of federal constitutional guarantees." North Carolina Bd. of Education v. Swann, 402 U.S. 43, 45, 91 S.Ct. 1284, 1286, 28 L.Ed.2d 586 (1971). Even though a particular remedy may not be required in every case to vindicate constitutional guarantees, where (as here) it has been found that a particular remedy is required, the State cannot hinder the process by preventing a local government from implementing that remedy.
Accordingly, the judgment of the Court of Appeals is affirmed insofar as it required the District Court to modify its funding order and reversed insofar as it allowed the tax increase imposed by the District Court to stand. The case is remanded for further proceedings consistent with this opinion.
It is so ordered.

## Notes

* ↑ This litigation has come to us once before, on the collateral issue of attorney's fees. Missouri v. Jenkins, 491 U.S. 274, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989).
* ↑ The complaint originally alleged that the defendants had caused interdistrict segregation of the public schools. After KCMSD was realigned as a defendant, a group of students filed an amended complaint that also alleged intradistrict segregation. The District Court certified a plaintiff class of present and future KCMSD students.
* ↑ The District Court also found that none of the alleged discriminatory actions had resulted in lingering interdistrict effects and so dismissed the suburban school districts and denied interdistrict relief.
* ↑ KCMSD was ordered to improve the quality of the curriculum and library, reduce teaching load, and implement tutoring, summer school, and child development programs. The cost of these remedies was to be borne equally by the State and KCMSD. 639 F.Supp., at 28, 31-33. The District Court ordered an extensive capital improvement program to rehabilitate the deteriorating physical plant of KCMSD, the cost of which was estimated as at least $37 million, of which $27 million was to be contributed by the State. Id., at 39-41. The District Court also required the defendants to encourage voluntary interdistrict transfer of students. No cost was placed on the interdistrict transfer program, but the State was ordered to underwrite the program in full. Id., at 38-39. The District Court further ordered the State to fund fully other portions of the desegregation program intended to reduce class size and to improve student achievement. Id., at 30, 33.
* ↑ KCMSD voters approved a levy of $3.75 per $100 in 1969, but efforts to raise the tax rate higher than that had consistently failed to obtain the approval of two-thirds of the voters, and the District Court found it unlikely that a proposal to raise taxes above $3.75 per $100 would receive the voters' approval. Id., at 44.
* ↑ "Magnet schools," as generally understood, are public schools of voluntary enrollment designed to promote integration by drawing students away from their neighborhoods and private schools through distinctive curricula and high quality. See Price & Stern, Magnet Schools as a Strategy for Integration and School Reform, 5 Yale L. & Policy Rev. 291 (1987).
* ↑ The District Court authorized $12,972,727 for operation of the six magnet schools and $12,877,330 for further capital improvements at those schools. Jenkins v. Missouri, 639 F.Supp., at 53-55.
* ↑ The district court also imposed a 1.5% surcharge on the state income tax levied within the KCMSD. 672 F.Supp. 400, 412 (WD Mo.1987). The income tax surcharge was reversed by the Eighth Circuit. 855 F.2d 1295, 1315-1316 (1988). Respondents did not cross-petition to challenge this aspect of the Court of Appeals' judgment, so the surcharge is not before us.
* ↑ The Court of Appeals also relied on Circuit precedent suggesting that a District Court could order a property tax increase after exploring every other fiscal alternative. Id., at 1310-1311; see Liddell v. Missouri, 731 F.2d 1294 (in banc), cert. denied, 469 U.S. 816, 105 S.Ct. 82, 83 L.Ed.2d 30 (1984); United States v. Missouri, 515 F.2d 1365 (in banc), cert. denied sub nom. Ferguson Reorganized School Dist. R-2 v. United States, 423 U.S. 951, 96 S.Ct. 374, 46 L.Ed.2d 288 (1975).
* ↑ The Court of Appeals rejected the argument that such an injunction would violate the Tax Injunction Act, 28 U.S.C. § 1341, as the injunction would require the collection of additional taxes, not inhibit the collection of taxes. 855 F.2d, at 1315. Accord, Appling County v. Municipal Electric Authority of Georgia, 621 F.2d 1301, 1304 (CA5), cert. denied, 449 U.S. 1015, 101 S.Ct. 574, 66 L.Ed.2d 474 (1980).
* ↑ Chief Judge Lay dissented from the resolution of the property tax issue. He argued that as the State and KCMSD were jointly and severally liable for the cost of the desegregation remedy, the District Court should have allowed any amount that KCMSD was unable to pay to fall on the State rather than require the tax increase. 855 F.2d, at 1318.
* ↑ As we discuss infra, at 45, 28 U.S.C. § 2101(c) requires that a petition for certiorari in a civil case be filed within 90 days after the entry of the judgment sought to be reviewed. Section 2101(c) also permits a Justice of this Court, "for good cause shown," to grant an extension of time for the filing of a petition for certiorari in a civil case for a period not exceeding 60 days. In civil cases, applications for extension of time must be presented during the original 90-day period. This Court's Rule 30.2.
* ↑ This practice is now reflected in this Court's Rule 13.4: "[I]f a petition for rehearing is timely filed in the lower court by any party in the case, the time for filing the petition for a writ of certiorari . . . runs from the date of the denial of the petition for rehearing or the entry of a subsequent judgment. A suggestion made to a United States court of appeals for a rehearing in banc . . . is not a petition for rehearing within the meaning of this Rule." The practice does not extend to petitions for rehearing seeking only to correct a formal defect in the judgment or opinion of the lower court. In such cases, of which Pink was one, "no . . . alteration of the rights [is] asked, and the finality of the court's first order [is] never suspended." 317 U.S., at 266, 63 S.Ct., at 234. See also FTC v. Minneapolis-Honeywell Regulator Co., 344 U.S. 206, 73 S.Ct. 245, 97 L.Ed. 245 (1952).
* ↑ A petition for rehearing is designed to bring to the panel's attention points of law or fact that it may have overlooked. Fed.Rule App.Proc. 40(a). The panel is required to consider the contentions in the petition for rehearing, if only to reject them. Rehearing in banc is a discretionary procedure employed only to address questions of exceptional importance or to maintain uniformity among Circuit decisions. Fed.Rule App.Proc. 35(a). As the Reporter for the Advisory Committee drafting the Rules has observed: "[A] party who desires a hearing or rehearing in banc may 'suggest' the appropriateness of such a hearing. . . . The term 'suggest' was deliberately chosen to make it clear that a party's sole entitlement is to direct the attention of the court to the desirability of in banc consideration. A suggestion is neither a petition nor a motion; consequently, it requires no disposition by the court." Ward, The Federal Rules of Appellate Procedure, 28 Federal B.J. 100, 110-111 (1968); see also Moody v. Albemarle Paper Co., 417 U.S. 622, 625, 94 S.Ct. 2513, 2515, 41 L.Ed.2d 358 (1974) (per curiam ); Shenker v. Baltimore & Ohio R. Co., 374 U.S. 1, 5, 83 S.Ct. 1667, 1670, 10 L.Ed.2d 709 (1963); Western Pacific Railroad Case, 345 U.S. 247, 258-259, 73 S.Ct. 656, 661-662, 97 L.Ed. 986 (1953). Consequently, Rule 35(c) specifically provides that the filing of a suggestion for rehearing in banc, unlike a petition for rehearing, "shall not affect the finality of the judgment of the court of appeals or stay the issuance of the mandate."
* ↑ We note that the Federal Rules of Appellate Procedure and 28 U.S.C. § 46(c) (which provides the courts of appeals with authority to sit in banc) speak of rehearing in banc, not en banc.
* ↑ Although respondents do not agree that the Eighth Circuit so treated the State's papers, they do not argue the Court of Appeals lacked the power to treat the State's "Petition for Rehearing En Banc" as a petition for panel rehearing, even if it was intended subjectively and could be read objectively as only a suggestion for rehearing in banc. Furthermore, parties frequently combine a petition for rehearing and a suggestion for rehearing in banc in one document incorrectly labeled as a "petition for rehearing in banc," see Advisory Committee's Notes on Fed.Rule App.Proc. 35, 28 U.S.C.App., p. 491, and the Eighth Circuit may have believed, because of the label on the State's papers, that the State intended its filing to be read as containing both. Other Circuits routinely treat documents so labeled as containing only suggestions for rehearing in banc. See, e.g., United States v. Buljubasic, 828 F.2d 426 (CA7 1987).
* ↑ Rule 35(c) explicitly states that the pendency of a suggestion for rehearing in banc shall not "affect the finality of the judgment of the court of appeals or stay the issuance of the mandate." Rule 41(a) requires the mandate of the Court of Appeals to issue "21 days after the entry of judgment unless the time is shortened or enlarged by order," but provides that a timely petition for panel rehearing "will stay the mandate until disposition of the petition unless otherwise ordered by the court." This case thus stands in contrast to United States v. Buljubasic, supra, where the Court of Appeals allowed the mandate to issue even though the appellant had filed a "Petition for Rehearing En Banc." In that case, the Court of Appeals treated the "Petition" as only a suggestion for rehearing in banc and allowed the mandate to issue, as it was required to do under Rule 35(c).
* ↑ The Court of Appeals "affirm[ed] the actions that the court has taken to this point," but detailed "the procedures which the district court should use in the future." 855 F.2d, at 1314. The Court of Appeals' discussion of the procedures to be used in the future was not dictum, for the court had before it the State's appeal from the entire funding order of the District Court.
* ↑ See Tr. of Oral Arg. 14. This suggestion was also made by the judge dissenting below and by Clark Group. See 855 F.2d, at 1318 (Lay, C.J., concurring and dissenting); Brief for Icelean Clark et al. as Amici Curiae 25-26.
* ↑ The old cases recognized two exceptions to this rule, neither of which is relevant here. First, it was held that federal courts could not by writ of mandamus compel state officers to release funds in the state treasury sufficient to satisfy state bond obligations. The Court viewed this attempt to employ the writ of mandamus as a ruse to avoid the Eleventh Amendment's bar against exercising federal jurisdiction over the State. See Louisiana v. Jumel, 107 U.S. 711, 720-721, 2 S.Ct. 128, 135-136, 27 L.Ed. 448 (1883). This holding has no application to this case, for the Eleventh Amendment does not bar federal courts from imposing on the States the costs of securing prospective compliance with a desegregation order, Milliken v. Bradley, 433 U.S. 267, 290, 97 S.Ct. 2749, 2762, 53 L.Ed.2d 745 (1977), and does not afford local school boards like KCMSD immunity from suit, Mt. Healthy City Bd. of Education v. Doyle, 429 U.S. 274, 280-281, 97 S.Ct. 568, 572-573, 50 L.Ed.2d 471 (1977). Second, it was held that the writ of mandamus would not lie to compel the collection of taxes when there was no person against whom the writ could operate. See Meriwether v. Garrett, 102 U.S. 472, 501, 26 L.Ed. 197 (1880); id., at 515 (Field, J., concurring in judgment) ("[W]hen the law is gone, and the office of the collector abolished, there is nothing upon which the courts can act"); cf. Wolff v. New Orleans, 103 U.S. 358, 368, 26 L.Ed. 395 (1881) (distinguishing Meriwether, supra ). This exception also has no application to this case, where there are state and local officials invested with authority to collect and disburse the property tax and where, as matters now stand, the District Court need only prevent those officials from applying state law that would interfere with the willing levy of property taxes by KCMSD.
* ↑ United States v. County of Macon, 99 U.S. 582, 25 L.Ed. 331 (1879), held that mandamus would not lie to force a local government to levy taxes in excess of the limits contained in a statute in effect at the time the City incurred its bonded indebtedness, for the explicit limitation on the taxing power became part of the contract, the bondholders had notice of the limitation and were deemed to have consented to it, and hence no contractual remedy was unconstitutionally impaired by observing the statute. County of Macon has little relevance to the present case, for KCMSD's obligation to fund the desegregation remedy arises from its operation of a segregated school system in violation of the Constitution, not from a contract between KCMSD and respondents.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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