O'Burn v. Shapp

70 F.R.D. 549, 1976 U.S. Dist. LEXIS 16571, 13 Empl. Prac. Dec. (CCH) 11,620, 12 Fair Empl. Prac. Cas. (BNA) 407
CourtDistrict Court, E.D. Pennsylvania
DecidedFebruary 19, 1976
DocketCiv. A. Nos. 75-619, 75-631
StatusPublished
Cited by39 cases

This text of 70 F.R.D. 549 (O'Burn v. Shapp) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
O'Burn v. Shapp, 70 F.R.D. 549, 1976 U.S. Dist. LEXIS 16571, 13 Empl. Prac. Dec. (CCH) 11,620, 12 Fair Empl. Prac. Cas. (BNA) 407 (E.D. Pa. 1976).

Opinion

MEMORANDUM AND ORDER

CLIFFORD SCOTT GREEN, District Judge.

Presently pending before the Court are the defendants’ and intervening defendants’ motions to dismiss the original and amended complaints and the plaintiffs’ response thereto presented at the oral argument on this matter.1 Also pending before the Court is plaintiffs’ request for the convening of a three-judge court. The above captioned actions are so-called “reverse discrimination” cases against the named state officials, filed by several non-minority2 individuals, who are unsuccessful non-minority applicants for entry into the Pennsylvania State Police and present non-minority members of the State Police; the other plaintiff is an organization, the Conference of State Police Lodges of the Fraternal Order of Police. Plaintiffs allege that the defendants are discriminating against them by hiring and promoting members of minority groups through the use of racial quotas in violation of the United States Constitution and the Constitution of the Commonwealth of Pennsylvania.3 For the reasons hereinafter stated, we grant the motions to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure for lack of jurisdiction over the subject matter and we deny the request for the convening of a three-judge court.

The issues presented in the above-captioned actions arise out of a consent decree entered in a prior action in this Court captioned Bolden et al. v. Pennsylvania State Police et al., C.A. 73—2604 (E.D.Pa. June 21, 1974). As noted by the Third Circuit in its prior decision in these actions, “the eligibility criteria currently in effect, and which were in effect when the individual plaintiffs . . . made employment application to the State Police were established as interim standards under . . . ” the con[551]*551sent decree entered in Bolden.4 We specifically note that the Oburn plaintiffs have attached a copy of the Bolden consent decree to their complaint and thereby adopted it by reference as part of their pleading. With respect to the Lutz plaintiffs and their action, we take judicial notice of the prior Bolden action. Burns v. Board of School Com’rs of City of Indianapolis, Inc., 302 F.Supp. 309 (S.D.Ind.1969), aff’d per curiam, 437 F.2d 1143 (7th Cir. 1971); Commonwealth of Pennsylvania v. Brown, 373 F.2d 771 (3d Cir. 1967).

The Bolden litigation is a suit brought by a Black member of the Pennsylvania State Police to remedy past racial discriminatory employment and promotion policies of the State Police. The parties in Bolden drafted a consent decree, subsequently entered as the judgment in the matter, which contained a specific hiring and promotion goal for minorities. Plaintiffs in their complaints allege that the hiring and promotion procedures mandated by the Bolden consent decree are the result of an interpretation of a state statute, 71 P.S. § 251.5 In addition, the Oburn plaintiffs allege, in the alternative, that if the Bolden procedures are not an interpretation of 71 P.S. § 251, the effect of the consent decree is to have ruled the statute to be unconstitutional without the convening of a three-judge court in violation of 28 U.S.C. §§ 2281 and 2284. Plaintiffs allege that this Court has jurisdiction over the instant actions under 28 U.S.C. §§ 1331, 1343(3) and 1343(4). Finally, plaintiffs in their prayer for relief seek: (1) a permanent injunction against the use of the hiring and promotion procedures mandated by Bolden, (2) a permanent injunction against the implementation of the Bolden consent decree and (3) a declaratory judgment that the Bolden hiring and promotion procedures are unconstitutional.

The procedural history of the Bolden, Oburn and Lutz cases is the following. The Bolden suit was adjudicated on June 21, 1974 in this Court in the Eastern District of Pennsylvania. The Oburn case, now pending before us, was filed originally on January 3, 1975 in the United States District Court for the Middle District of Pennsylvania and transferred to this Court pursuant to the defendants’ motion on February 28, 1975. The Lutz case, also presently pending before us, was filed originally on March 4, 1975 in the United States District Court for the Middle District of Pennsylvania and transferred to this Court pursuant to the defendants’ motion on March 4, 1975.

Defendants move to dismiss the complaints and the amended complaints on the grounds inter alia that (1) the instant suits constitute an improper collateral attack on the consent decree approved in Bolden; (2) one of the named plaintiffs, the Conference of State Police Lodges of the Fraternal Order of Police, lacks standing to attack the Bolden consent decree; and (3) the instant suits have failed to state a claim upon which relief can be granted. Intervening defendants move to dismiss the instant actions on the grounds inter alia that (1) the complaint and amended complaint fail to state a claim upon which relief can be granted because of the collateral nature of the proceedings and the failure of the plaintiffs to assert a legally cognizable interest [552]*552susceptible to judicial protection; (2) the amended complaint alleging fraud fails to state a claim upon which relief can be granted; (3) plaintiff, the Conference of State Police Lodges of the Fraternal Order of Police, and plaintiffs, Clifford P. Art-man, Stanley Komosinsky and Matthew Chabel, are barred from prosecuting the Oburn action by the principles of collateral estoppel; and (4) plaintiff, the Conference of State Police Lodges, lacks standing to sue because by prosecuting the Oburn action it has breached its duty of fair representation owed to all its members. At the oral argument plaintiffs opposed defendants’ and intervening defendants’ motions to dismiss, in essence, on the ground that plaintiffs are strangers to the Bolden litigation who have not had, as stated by their counsel, “a meaningful hearing”.

While the plaintiffs have continually asserted during the various hearings in these matters that the instant suits are separate and apart from the Bolden litigation, their complaints and the relief requested therein reveal with clarity that the instant actions are a collateral attack upon the Bolden consent decree. Though plaintiffs originally asserted that the instant actions were grounded upon an attack on a state statute, any doubts as to the validity of this claim were removed with the filing of plaintiffs’ amended complaint. The Oburn and Lutz plaintiffs have now amended their complaints by alleging that the Bolden consent decree should be set aside as a fraud upon the court.

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Bluebook (online)
70 F.R.D. 549, 1976 U.S. Dist. LEXIS 16571, 13 Empl. Prac. Dec. (CCH) 11,620, 12 Fair Empl. Prac. Cas. (BNA) 407, Counsel Stack Legal Research, https://law.counselstack.com/opinion/oburn-v-shapp-paed-1976.