Filed: August 8, 1997

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 96-1507

(CA-94-1911-MJG)

Vaughn G., etc., et al,

Plaintiffs - Appellees,

versus

Walter G. Amprey, etc., et al,

Defendants - Appellants.

ORDER

The Court amends its opinion filed July 8, 1997, as follows:

On page 3, first paragraph, line 5 -- the word "degrees" is

corrected to read "decrees."

For the Court - By Direction

/s/ Patricia S. Connor

Clerk
UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

VAUGHN G., by his mother and next

friend, Diane G.; SAMMY J., by his

mother and next friend, Pauline J.;

MARVIN J., by his mother and next

friend, Gloria S.; JERRY L., by his

grandmother and next friend, Lillian

L.; JESSE W., by his mother and

next friend, Lena S., on behalf of

themselves and all others similarly

situated; DALE C., by his mother

and next friend, Linda W.; VERDON

No. 96-1507

W., by his mother and next friend,

Rosalyn P.; MICHAEL P., by his

mother and next friend, Katherine

P.; NANCY S. GRASMICK,

Plaintiffs-Appellees,

v.

WALTER G. AMPREY, Superintendent

of Public Instruction; MAYOR AND

CITY COUNCIL OF BALTIMORE;

BALTIMORE CITY PUBLIC SCHOOLS,

Defendants-Appellants.

Appeal from the United States District Court

for the District of Maryland, at Baltimore.

Marvin J. Garbis, District Judge.

(CA-84-1911-MJG)

Argued: June 2, 1997

Decided: July 8, 1997
Before MURNAGHAN and LUTTIG, Circuit Judges, and TILLEY,

United States District Judge for the Middle District of North

Carolina, sitting by designation.

_________________________________________________________________

Vacated by unpublished per curiam opinion. Judge Luttig joins only

in the judgment.

_________________________________________________________________

COUNSEL

ARGUED: Abbey Gail Hairston, ALEXANDER, APONTE &

MARKS, L.L.P., Silver Spring, Maryland; Paul Mark Sandler, FREISHTAT & SANDLER, Baltimore, Maryland, for Appellants. Jo Ann

Grozuczak Goedert, OFFICE OF THE ATTORNEY GENERAL,

Baltimore, Maryland, for Appellees. ON BRIEF: Koteles Alexander,

ALEXANDER, APONTE & MARKS, L.L.P., Silver Spring, Maryland; Joseph John Coppola, FREISHTAT & SANDLER, Baltimore,

Maryland; John M. Bryson, II, Edward C. Schweitzer, Jr., SHAW,

PITTMAN, POTTS & TROWBRIDGE, Washington, D.C., for

Appellants. Valerie G. Cloutier, OFFICE OF THE ATTORNEY

GENERAL, Baltimore, Maryland; Winifred De Palma, Baltimore,

Maryland; Lesie Seid Margolis, Steven Ney, MARYLAND DISABILITY LAW CENTER, Baltimore, Maryland; Edward I. Koren,

Washington, D.C., for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

The present case is the product of almost a decade long struggle

between special education students in Baltimore City and the Balti-

 2
more City Public School ("BCPS") system. Special education students in Baltimore City sued the BCPS alleging that special education

students were not being provided sufficient services as required by

federal and state law. The parties have entered into several consent

decrees regarding BCPS's failure to comply with the law. The first

was entered in 1988, and the parties have entered additional decrees

as BCPS continues to be in noncompliance with federal law.

The 1992 decree required BCPS to create a computer tracking system to measure compliance with BCPS's timeliness in providing special education services. In addition, a court monitor was appointed to

monitor compliance with the 1992 decree.

In addition, the district court maintained jurisdiction over the case

to ensure compliance with the decree. Under the decree, educationally

handicapped children in Baltimore City could petition the District

Court for enforcement of the decree.

In 1994, BCPS was still not in compliance with the consent decree.

The parties entered into a Stipulation and Order which created a Management Oversight Team ("MOT") which consisted of the State

Superintendent of the Maryland State Department of Education

("MSDE"), Plaintiffs, and BCPS. The MOT was given the "authority

to make, review and direct all decisions affecting compliance with the

consent decree." If the MOT could not agree, the dispute would be

submitted to the district court.

In April 1995, the parties entered into more consent decrees in

which BCPS agreed it was still not in compliance. It further agreed

to develop a new computer system. In addition, BCPS established the

position of Administrator of Special Education which had the powers

of the Superintendent with respect to special education.

Some employees in the Management Information Systems ("MIS")

department objected to developing a new computer system, and the

director of MIS refused to implement a new system. The Plaintiffs

and the Maryland Department of the Education sought to fire the MIS

director. The BCPS Superintendent refused. The issue was brought

before the district court as required by the consent decree. Before the

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district court ruled, BCPS agreed to remove the director of MIS and

replace him with a person approved by all of the parties.

On March 6, 1996, the district court, sua sponte, without providing

any notice to BCPS, issued a Cease and Desist Order. The order

states:

It appearing that a basis exists for such an Order:

1. Defendants Walter G. Amprey, Individually and as

Superintendent [o]f The Baltimore City Schools, Baltimore City Public Schools, their respective agents and

employees and all acting in concert with them shall,

forthwith, cease and desist from threatening, intimidating, harassing or interfering with in any way the Court

Monitor and all Management Information Systems personnel in connection with the performance of their

duties relating to this Court's Orders and Decrees. . . .

The district court refused to provide BCPS with any information

regarding what "basis exists."

On March 27, 1996, the district court held a conference at which

time Plaintiffs presented evidence regarding a possible violation of

the court's order with regard to the new MIS director. The district

court ordered discovery into the possible violation.

The BCPS filed a Motion for Reconsideration and Stay of Proceedings requesting that the district court reconsider its order. The district

court denied BCPS's request, but acknowledged that the order was

issued sua sponte without notice. The district court also indicated that

it had received a sealed affidavit and determined that the affidavit

warranted the order. The court refused to disclose any information

regarding the affidavit on confidentiality grounds.

The district court stated that Defendants were not entitled to notice

and an opportunity to be heard since the order merely restated the

obligations of the parties under orders and decrees already in force.

Moreover, it stated that since the current order does not change the

 4
status quo it is not the type of equitable relief to which procedural due

process protections apply. BCPS appealed.

On April, 30, 1997, the district court rescinded the order because

Walter Amprey was no longer Superintendent of Baltimore City

Schools. The district court specified that the rescission was not nunc

pro tunc. The Plaintiffs moved to dismiss arguing that the claim was

now moot. However, since the order was not nunc pro tunc this Court

denied the motion to dismiss.

DISCUSSION

BCPS alleges that the district court's order violated due process,

and Rule 65 of the Federal Rules of Civil Procedure, because the

order was issued without notice or an opportunity to be heard. Since

we resolve the issue on statutory grounds, we need not reach the

alleged constitutional violation.

Rule 65 governs the proper procedure for issuing preliminary

injunctions and restraining orders. Rule 65(a)(1) provides that "no

preliminary injunction shall be issued without notice to the adverse

party." Moreover, Rule 65(d) provides that

Every order granting an injunction and every restraining

order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by

reference to the complaint or other document, the act or acts

sought to be restrained; and is binding only upon the parties

to the action . . . .

Rule 65(d) applies to all "equitable decree[s] compelling obedience

under the threat of contempt." International Longshoremen's Ass'n,

Local 1291 v. Philadelphia Marine Trade Ass'n, 389 U.S. 64, 75

(1967); NLRB v. Heck's, Inc., 388 F.2d 668, 670 (4th Cir. 1967)

(cease and desist order of NLRB must conform to Rule 65(d)). Therefore, since the Cease and Desist Order subjects BCPS and its employees to contempt it is an injunction under Rule 65.

Plaintiffs argue that Rule 65 does not apply because the March 6,

1996 order was simply a restatement of previous orders. However,

 5
this argument fails for several reasons. First, when the district court

withdrew the order on April 30, 1997 it specified that "[t]his action

is not nunc pro tunc to the issuance of the said Cease and Desist

Order." The Cease and Desist Order thus still had binding effect from

the date of entry until it was rescinded. The State of Maryland could

still assert that BCPS violated the order from March 6, 1996 to April

30, 1997 and, if it did so, BCPS might be subject to contempt for any

violation during that period.

In addition, the Cease and Desist Order was the basis for a possible

contempt action by the court. The court ordered discovery into allegations that people may have violated the March 6, 1996 order. If the

court believed that contempt proceedings could exist based on the

March 6, 1996 Order, the Plaintiffs cannot now argue that the Order

did not have binding effect.

Once we determine that Rule 65 applies in the instant case, we

must determine whether the district court's action violated the rule.

The court has strictly applied the terms of Rule 65 and has stated that

the "terms are mandatory and must be observed in every instance."

Alberti v. Cruise, 383 F.2d 268, 271-72 (4th Cir. 1967).

Since the Cease and Desist Order is an injunction for purposes of

Rule 65, the district court must provide notice to the parties. The only

exception in Rule 65 is for temporary restraining orders, and there is

no assertion by any of the parties that the Cease and Desist order was

a temporary restraining order. Therefore, the district court violated

Rule 65 and should have provided notice to the parties before issuing

the Cease and Desist Order.

Furthermore, in Consolidation Coal Co. v. Disabled Miners of So.

W. Va., 442 F.2d 1261 (4th Cir. 1971), the court examined the issuance of an ex parte preliminary injunction issued without notice. The

court determined that "[t]his was manifestly error, because Rule

65(a)(1) is explicit that `[n]o preliminary injunction shall be issued

without notice.'" Id. at 1269, citing Fed. R. Civ. Proc. 65(a)(1).

Plaintiffs argue that the "practicalities and peculiarities" of the case

warrant issuance of the order without notice. Specifically, they argue

that "[g]iven the history of BCPS resistance, obstruction, and retalia-

 6
tion directed at cooperative staff, the District Judge ha[d] a basis for

limiting the information provided to the parties." It may be true that

BCPS has not been cooperative, but the proper course would have

been to hold BCPS or its Superintendent in contempt. The present

case is certainly not exceptional enough to warrant an exception to

Rule 65.1

Furthermore, the district court's action also violated subsection (d)

of Rule 65. Rule 65(d) requires that the Cease and Desist Order set

out in specific terms the reasons for its issuance.

The district court failed to set out in "specific terms" the reason for

its issuance. It simply stated that "a basis exists" for the order. Later,

the court informed the parties that a secret affidavit existed which justified the order. We grant deference to the district court in its factual

findings regarding the federal rules, but the district court must provide

the Court with some information to review its actions. The district

court has failed to do so in the instant case.

The district court abused its discretion in issuing a Cease and

Desist Order, without notice to the parties, and without setting forth

the reasons for the order. The order is thus vacated.2

VACATED

_________________________________________________________________

1 We recognize that the district court has exercised considerable

patience and restraint regarding BCPS's continued violations of consent

decrees; however, BCPS's disgraceful conduct does not excuse the issuance of an injunction without notice.

2 We note that the district court already rescinded the order, but it did

so "not nunc pro tunc." Thus the order is only in force from March 6,

1996 to April 30, 1997. We hold that the order was invalid and therefore

was not properly in force during the above period.

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