No. 96-2994

 

Michael C. Liddell, a minor, *

by Minnie Liddell, his mother *

and next friend; Kendra *

Liddell, a minor, by Minnie *

Liddell, her mother and next *

friend; Minnie Liddell; *

Roderick D. LeGrand, a minor, *

by Lois LeGrand, his mother *

and next friend; Lois LeGrand; *

Clodis Yarber, a minor, by *

Samuel Yarber, his father and *

next friend; Samuel Yarber; *

Earline Caldwell; Lillie *

Caldwell; Gwendolyn Daniels; *

National Association for the *

Advancement of Colored People; *

United States of America; *

*

 Plaintiffs-Appellees; *

* Appeals from the United States

City of St. Louis, * District Court for the

* Eastern District of Missouri.

 Plaintiff; * 

* 

 v. * 

* 

The Board of Education of the *

City of St. Louis; Hattie R. *

Jackson, President, The Board *

of Education of the City of *

St. Louis; Rev. Earl E. Nance, *

Jr., a member of the Board of *

Education of the City of St. *

Louis; Renni B. Shuter, a *

member of the Board of Educ- *

ation of the City of St. Louis; *

Paula V. Smith, a member of *

the Board of Education of the *

City of St. Louis; Dr. Albert *

D. Bender, Sr., a member of the *

Board of Education of the City *

of St. Louis; Eddie G. Davis, *

a member of the Board of Educa- *

tion of the City of St. Louis; *

Dr. John P. Mahoney, a member *

of the Board of Education of *
2

the City of St. Louis; Marybeth *

McBryan, a member of the Board *

of Education of the City of St. *

Louis; Thomas M. Nolan, a *

member of the Board of Educa- *

tion of the City of St. Louis; *

William Purdy, a member of the *

Board of Education of the City *

of St. Louis; Robbyn G. Wahby, *

a member of the Board of Educa- *

tion of the City of St. Louis; *

Madye Henson Whithead, a member *

of the Board of Education of *

the City of St. Louis; *

Dr. Cleveland Hammonds, Jr., *

Superintendent of Schools for *

the City of St. Louis; *

*

 Defendants-Appellees; *

*

Ronald Leggett, St. Louis *

Collector of Revenue; *

*

Defendant; *

*

State of Missouri; Mel *

Carnahan, Governor of the *

State of Missouri; Jeremiah W. *

(Jay) Nixon, Attorney General; *

Bob Holden, Treasurer; Richard *

A. Hanson, Commissioner of *

Administration; Robert E. *

Bartman, Commissioner of *

Education; Missouri State *

Board of Education, and its *

members; Thomas R. Davis; *

Gary M. Cunningham; Sharon M. *

Williams; Peter F. Herschend; *

Jacqueline D. Wellington; *

Betty E. Preston; Russell V. *

Thompson; Rice Pete Burns; *

*

 Defendants-Appellants; *

*

Special School District of *

St. Louis County; Affton Board *

of Education; Bayless Board of *

Education; Brentwood Board of *

Education; Clayton Board of *

Education; Ferguson-Florissant *

Board of Education; Hancock *

Place Board of Education; *
3

Hazelwood Board of Education; *

Jennings Board of Education; *

Kirkwood Board of Education; *

LaDue Board of Education; *

Lindbergh Board of Education; *

Maplewood-Richmond Heights *

Board of Education; Mehlville *

Board of Education; Normandy *

Board of Education; Parkway *

Board of Education; Pattonville *

Board of Education; Ritenour *

Board of Education; Riverview *

Gardens Board of Education; *

Rockwood Board of Education; *

University City Board of *

Education; Valley Park Board of *

Education; Webster Groves Board *

of Education; Wellston Board of *

Education; St. Louis County; *

Buzz Westfall, County Execu- *

tive; James Baker, Director of *

Administration, St. Louis *

County, Missouri; Robert H. *

Peterson, Collector of St. *

Louis County "Contract *

Account," St. Louis County, *

Missouri; The St. Louis Career *

Education District; *

*

 Defendants-Appellees; *

*

St. Louis Teachers' Union, *

Local 420, AFT, AFL-CIO. *

*

 Intervenor Below-Appellee. *

 

No. 96-3630

 

Michael C. Liddell, a minor, *

by Minnie Liddell, his mother *

and next friend; Kendra *

Liddell, a minor, by Minnie *

Liddell, her mother and next *

friend; Minnie Liddell; *

Roderick D. LeGrand, a minor, *

by Lois LeGrand, his mother *

and next friend; Lois LeGrand; *

Clodis Yarber, a minor, by *

Samuel Yarber, his father and *
4

next friend; Samuel Yarber; *

Earline Caldwell; Lillie *

Caldwell; Gwendolyn Daniels; *

National Association for the *

Advancement of Colored People; *

United States of America; *

*

 Plaintiffs-Appellees; *

*

City of St. Louis, *

*

 Plaintiff; *

* 

 v. * 

* 

The Board of Education of the *

City of St. Louis; Hattie R. *

Jackson, President, The Board *

of Education of the City of *

St. Louis; Rev. Earl E. Nance, *

Jr., a member of the Board of *

Education of the City of St. *

Louis; Renni B. Shuter, a *

member of the Board of Educ- *

ation of the City of St. Louis; *

Paula V. Smith, a member of *

the Board of Education of the *

City of St. Louis; Dr. Albert *

D. Bender, Sr., a member of the *

Board of Education of the City *

of St. Louis; Eddie G. Davis, *

a member of the Board of Educa- *

tion of the City of St. Louis; *

Dr. John P. Mahoney, a member *

of the Board of Education of *

the City of St. Louis; Marybeth *

McBryan, a member of the Board *

of Education of the City of St. *

Louis; Thomas M. Nolan, a *

member of the Board of Educa- *

tion of the City of St. Louis; *

William Purdy, a member of the *

Board of Education of the City *

of St. Louis; Robbyn G. Wahby, *

a member of the Board of Educa- *

tion of the City of St. Louis; *

Madye Henson Whithead, a member *

of the Board of Education of *

the City of St. Louis; *

Dr. Cleveland Hammonds, Jr., *
5

Superintendent of Schools for *

the City of St. Louis; *

*

 Defendants-Appellees; *

*

Ronald Leggett, St. Louis *

Collector of Revenue; *

*

Defendant; *

*

State of Missouri; Mel *

Carnahan, Governor of the *

State of Missouri; Jeremiah W. *

(Jay) Nixon, Attorney General; *

Bob Holden, Treasurer; Richard *

A. Hanson, Commissioner of *

Administration; Robert E. *

Bartman, Commissioner of *

Education; Missouri State *

Board of Education, and its *

members; Thomas R. Davis; *

Gary M. Cunningham; Sharon M. *

Williams; Peter F. Herschend; *

Jacqueline D. Wellington; *

Betty E. Preston; Russell V. *

Thompson; Rice Pete Burns; *

*

 Defendants-Appellants; *

*

Special School District of *

St. Louis County; Affton Board *

of Education; Bayless Board of *

Education; Brentwood Board of *

Education; Clayton Board of *

Education; Ferguson-Florissant *

Board of Education; Hancock *

Place Board of Education; *

Hazelwood Board of Education; *

Jennings Board of Education; *

Kirkwood Board of Education; *

LaDue Board of Education; *

Lindbergh Board of Education; *

Maplewood-Richmond Heights *

Board of Education; Mehlville *

Board of Education; Normandy *

Board of Education; Parkway *

Board of Education; Pattonville *

Board of Education; Ritenour *

Board of Education; Riverview *

Gardens Board of Education; *

Rockwood Board of Education; *

University City Board of *
 Liddell v. Missouri, 731 F.2d 1294 (8th Cir. 1984). 1

6

Education; Valley Park Board of *

Education; Webster Groves Board *

of Education; Wellston Board of *

Education; St. Louis County; *

Buzz Westfall, County Execu- *

tive; James Baker, Director of *

Administration, St. Louis *

County, Missouri; Robert H. *

Peterson, Collector of St. *

Louis County "Contract *

Account," St. Louis County, *

Missouri; The St. Louis Career *

Education District; *

*

 Defendants-Appellees; *

*

St. Louis Teachers' Union, *

Local 420, AFT, AFL-CIO. *

*

 Intervenor Below-Appellee. *

 

Submitted: January 13, 1997

 Filed: January 28, 1997

 

Before MCMILLIAN, HEANEY, and FAGG, Circuit Judges.

 

HEANEY, Circuit Judge.

In 1984, this court, sitting en banc, affirmed an order of the United

States District Court for the Eastern District of Missouri approving a

settlement agreement to integrate the St. Louis School District. Since

1

then, as elements of the plan have been implemented, over eighteen appeals

have been before this court, usually on questions relating to the

responsibility of the State of Missouri to fund various aspects of the

plan.
7

In October 1991, the State moved the district court to declare the

St. Louis School District unitary. This motion was resisted by the

plaintiffs, the United States, and the St. Louis Board of Education. No

response was filed by the State. In May 1992, the State filed a new motion

requesting partial unitary status. Later that month, the district court

held that the State's request was premature but permitted the State to

answer certain discovery requests stating that the possibility existed that

a declaration of unitary status might be appropriate in the future.

In November 1993, the State filed an amended motion for unitary

status. It informed the court that it would be prepared to present its

evidence in support of the motion within nine to twelve months. Most

parties again responded that the motion was still premature. In October

1994, the State asked the district court to set a date for a hearing on its

motion. In February 1995, the district court granted the State's request

and scheduled a hearing for September of that year. The hearing was later

rescheduled for March 1996 to accommodate the schedules of the twenty

parties to the case.

In November 1996, the State filed a motion with the district court

to terminate promptly an element of the desegregation program that permits

black students residing in the St. Louis School District to voluntarily

transfer to a suburban school, requires the State to fund such transfers,

and also permits limited voluntary transfers of suburban students to the

St. Louis School District. The motion was "conditional," as the State

requested the court to consider the motion only if it did not enter an

order finding that the St. Louis School District had achieved a unitary

status. The motion provoked varied responses, including that the

plaintiffs and the United States urged the court to appoint a settlement

coordinator to attempt to resolve the litigation, and the City Board asked

that the pending hearing on unitary status be postponed.
8

In February, the district court denied the State's conditional motion

as having been improvidently filed and not ripe for adjudication. The

court stated:

The Court agrees with plaintiffs that the best resolution

of this case would be an agreed-upon plan for ending

Court supervision of the St. Louis Public Schools. The

Court[,] however[,] is reluctant to continue the hearing.

It may well be that the possibility for settlement will

be greater following the hearing, at which time the

appointment of a Settlement Coordinator would be

appropriate and beneficial.

Liddell, G(1939)96, at 2 (E.D. Mo. Feb. 15, 1996). The State did not

appeal the district court's order denying its motion.

The court held an evidentiary hearing on the State's unitary status

motion from March 4 through March 26, 1996. The court has yet to decide

that motion. Following the hearing, the court entered an order on April

23, 1996 stating that the preferred conclusion of the case would be an

agreed-upon plan for ending court supervision of the St. Louis Public

Schools. It determined that a serious settlement effort under the

direction of the settlement coordinator, Dr. William H. Danforth, should

be undertaken. It ordered the parties to participate in good faith in the

negotiations. It stayed the post-hearing briefing schedule and ordered

that all components of the settlement agreement then in force should

continue in effect. Liddell, G(2062)96 (E.D. Mo. April 23, 1996).

The State then filed a motion to alter or amend the court's order

appointing Dr. Danforth, arguing that the settlement director should not

be authorized to make recommendations to the court as to the disposition

of the case, that only twenty-five days should be allowed for negotiations,

and raising several other objections.

On June 26, 1996, the court ruled that the negotiations would be

confidential from the court and outside parties, that the
9

coordinator would not recommend to the court how the case should be

resolved, and rejected the time limit for negotiations proposed by the

State expressing confidence that the settlement coordinator would proceed

with all due diligence. Liddell, G(2134)96 (E.D. Mo. June 26, 1996).

On July 24, 1996, the State appealed the two district court orders.

The State also sought to stay the interdistrict components of the present

desegregation remedy pending appeal of the order appointing the settlement

coordinator. The State sought alternative remedies limiting its

obligations under the desegregation plan. The district court denied the

motions for the stay pending appeal on August 14, 1996. Liddell, G(2175)96

(E.D. Mo. Aug. 14, 1996). This court and Justice Thomas as circuit judge

denied substantially similar motions for a stay pending appeal on

August 23, 1996 and August 30, 1996, respectively. On October 1, 1996, the

State appealed district court order G(2175)96 denying the State's motion

for a stay pending appeal. All three appeals have been consolidated by

this court.

We dismiss all three appeals. The appeals from orders G(2062)96 and

G(2134)96 are interlocutory and relate to settlement procedures and case

management. They cannot be characterized as appeals from orders denying

an injunction. Thus, these appeals are not within the purview of 28 U.S.C.

§ 1292(a)(1). A district court, particularly in school desegregation

cases, has broad discretion to control its docket and has the necessary

flexibility to shape remedies that adjust public and private needs.

Milliken v. Bradley, 433 U.S. 267, 288 (1977); Brown v. Board of Educ., 349

U.S. 294, 300 (1955). 

With respect to district court order G(2175)96, the denial of a stay

pending appeal is not an appealable order. The State argues that the

district court erred because it effectively denied its motion for unitary

status. We disagree. The district court has
10

yet to rule on the State's unitary status motion. The district court in

this case has not refused to rule on the State's motion that the St. Louis

School District be declared unitary. It has simply postponed post-hearing

briefing and deferred final ruling on this matter. We cannot review a

matter that has not been ruled on by the district court. We lack

jurisdiction over the State's claim that the district court has erroneously

denied its motion for unitary status. 

For the foregoing reasons, we dismiss the State's appeals.

A true copy.

Attest:

 CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.