Roy Fisher v. Tucson Unified School District ( 2020 )

FILED
NOT FOR PUBLICATION
JUL 23 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROY FISHER; et al., No. 18-16982
Plaintiffs, D.C. No. 4:74-cv-00090-DCB
UNITED STATES OF AMERICA,
MEMORANDUM*
Intervenor-Plaintiff,
and
MARIA MENDOZA, Individually and on
behalf of Stephen Mendoza,
Plaintiff-Appellant,
v.
TUCSON UNIFIED SCHOOL
DISTRICT,
Defendant-Appellee.
ROY FISHER; et al., No. 18-16983
Plaintiffs-Appellants, D.C. No. 4:74-cv-00090-DCB
and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
MARIA MENDOZA, Individually and on
behalf of Stephen Mendoza; EDWARD A.
CONTRERAS,
Plaintiffs,
UNITED STATES OF AMERICA,
Intervenor-Plaintiff,
v.
TUCSON UNIFIED SCHOOL
DISTRICT,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Argued and Submitted July 13, 2020
San Francisco, California
Before: WARDLAW and IKUTA, Circuit Judges, and TAGLE,** District Judge.
The Tucson Unified School District (the School District) appealed, and the
Fisher and Mendoza plaintiffs cross-appealed, from the district court’s
interlocutory order granting partial unitary status in response to the Special
Master’s 2016-17 Annual Review. We dismissed the School District’s appeal for
**
The Honorable Hilda G. Tagle, United States District Judge for the
Southern District of Texas, sitting by designation.
2
lack of jurisdiction, see Fisher v. Tucson Unified Sch. Dist., No. 18-16926, 2019
WL 4954613, at *1 (9th Cir. July 29, 2019), and we now dismiss the plaintiffs’
cross appeals for the same reason.
The district court’s order is not immediately appealable under 28 U.S.C.
§ 1292(a)(1) because it does not have the “practical effect” of modifying the
Unitary Status Plan. Carson v. Am. Brands, Inc., 450 U.S. 79, 83 (1981). The
Unitary Status Plan expressly permits a grant of partial unitary status, so the
district court’s exercise of its authority to do so did not modify the plan. See
Thompson v. Enomoto, 815 F.2d 1323, 1327 (9th Cir. 1987). The district court’s
order did not “substantially alter[]” the parties’ legal relationship, Cunningham v.
David Special Commitment Ctr., 158 F.3d 1035, 1037 (9th Cir. 1998), because the
district court retained plenary jurisdiction to “enforce every term” of the Unitary
Status Plan and did not relieve the School District of any of its obligations under
the plan, including its responsibility to comply with the notice-and-request-for-
approval provisions. Moreover, the district court confirmed that the purpose of its
order was to inform the community that the School District had made progress in
implementing the Unitary Status Plan, not to modify the plan.
We acknowledge the plaintiffs’ argument that the district court’s order had
the effect of shifting the burden of proof from the School District, Fisher v. Tucson
3
Unified Sch. Dist., 652 F.3d 1131, 1135 (9th Cir. 2011), to the plaintiffs to show
the School District’s non-compliance in those areas for which the court granted
partial unitary status. Nevertheless, this effect (if any) does not rise to the level of
a “serious, perhaps irreparable, consequence,” Carson, 450 U.S. at 84 (citation
omitted), because the School District will retain the ultimate burden of proving its
entitlement to full unitary status, see Fisher, 652 F.3d at 1135.
We therefore lack jurisdiction over the plaintiffs’ interlocutory cross
appeals, see Carson, 450 U.S. at 83, and do not reach the merits of the plaintiffs’
challenges to the district court’s order.
DISMISSED.1
1
Appellee’s Motion to Strike Argument in Reply Brief (ECF No. 45) is
DENIED AS MOOT.
4