Roy Fisher v. Tucson Unified School District

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 23, 2020
• Docket: 18-16982
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUL 23 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS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

* 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,

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