Newark, N.a.a.c.p. v. Town of Kearny, New Jersey

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 01-2595
NEWARK, N.A.A.C.P.; JERSEY CITY N.A.A.C.P.;
NEW JERSEY STATE CONFERENCE, N.A.A.C.P.; NATIONAL
ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE
Appellees
v.
TOWN OF KEARNY, NEW JERSEY,
Appellant
On Appeal from an Order Entered in
the United States District Court
for the District of New Jersey
D.C. Civil No. 89-CV-3235
District Judge: Hon. Katharine S. Hayden
Argued: April 11, 2002
Before: McKee, Fuentes, Circuit Judges, and Pogue, U.S. Court of
International Trade
(Opinion Filed: April 29, 2002)
Gregory J. Castano, Jr., Esq. (Argued)
Waters, McPherson, McNeill
300 Lighting Way
Secaucus, N.J. 07096
Attorney for Appellant
Joshua N. Rose, Esq. (Argued)
David L. Rose, Esq.
1320 19th St., N.W., Suite 601
Washington, D.C. 20036
Attorney for Appellees
OPINION OF THE COURT
McKee, Circuit Judge.
The Town of Kearny, New Jersey appeals an order the district court entered
pursuant to Kearny’s motion to dissolve a modified consent decree. Kearny originally
entered into that consent decree on January 3, 1992 with the National Association for the
Advancement of Colored People ("NAACP"), following a suit the latter filed over
Kearny’s hiring practices. For the reasons that follow, we conclude that we lack
jurisdiction over this appeal.
I.
As we write only for the parties, we need not reiterate the facts relevant to this
appeal except insofar as they may be helpful to our brief discussion of the issues. Under
28 U.S.C. 1291, "the courts of appeals. . . shall have jurisdiction over appeals from all
final decisions of the district courts[.]" 28 U.S.C. 1291 (2002). A final decision is one
which "terminates the litigation between the parties on the merits of the case and leaves
nothing to be done but to enforce by execution what has been determined." Richerson v.

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Jones, 551 F.2d 918, 922 (3d Cir. 1977), quoting St. Louis, Iron Mountain & S. Ry. Co.
v. S. Express Co., 108 U.S. 24, 28-29 (1883).
The Supreme Court has explained that this "final judgment rule"
was written into the first Judiciary Act and has been departed
from only when observance of it would practically defeat the
right to any review at all. . . . Congress from the very
beginning has, by forbidding piecemeal disposition on appeal
of what for practical purposes is a single controversy, set
itself against enfeebling judicial administration. Thereby is
avoided the obstruction to just claims that would come from
permitting the harassment and cost of a succession of separate
appeals from the various rulings to which litigation may give
rise, from its initiation to entry of judgment.
Cobbledick v. United States, 309 U.S. 323, 324-25 (1940) (internal citations omitted).
Similarly, in Bachowski v. Usery, 545 F.2d 363 (3d Cir. 1976), we noted that
"[t]he hostility towards piecemeal appeals expressed by the final judgment rule has a
strong basis in logic and practicality." Bachowski, 545 F.2d at 368. Forbidding appeals
of interlocutory orders not only "achieves significant savings in time and resources on
the part of litigants and courts[]" but also "deprive[s] litigants of a tool that could
possibly be used to harass parties with lesser resources, and [] drive them into
submission." Id. at 368-69.
Here, Kearny claims that the district court denied its motion to dissolve the
consent decree, and therefore, delivered a final judgment that is ripe for appellate
review. The NAACP, on the other hand, argues that we lack jurisdiction because the
district court merely deferred ruling on the motion, and thus did not render a final
decision on the merits.
Kearny’s motion to dissolve the consent decree consisted of a motion
accompanied by a letter and two certifications by Kimberly Bennett, the town’s EEO
Officer. At the ensuing hearing, the judge told Kearny’s counsel that the information in
the Bennett certifications was not organized or distilled in a manner that allowed her to
conduct a meaningful inquiry into whether Kearny had demonstrated "substantial
compliance" with the terms of the consent decree:
THE COURT: . . . . I am saying, as the Judge sitting
here, trying to do my best, the showing that was made was
not telling me the kinds of things that I would like to rest
findings on. It is a whole lot of undifferentiated stuff and
claims that we did what we had to do. My feeling is that you
folks have to decide, as the Town of Kearny, what you
believe . . ., tell[s] the story for me.
. . .
If all the information is in here, and your adversary
suggests it may be. Then it has to be brought down to size
and explained to me, how the compliance bore fruit,
irradiated [sic] any suggestion that there was a discriminatory
policy going on...
A3 060-061.
The judge summed up: "I am just saying, I can’t make a decision on what I have
here now, I just simply can’t." Id. at 061-062. The judge then informed the parties that
she was going to deny the motion without prejudice and she ordered Kearny to provide
the NAACP with more helpful information:
THE COURT: My ruling today is basically going to be
that, I am denying the application now. We will set some
time-frames for an exchange of material between the parties.
Meaning from the Town to the NAACP. And I am going to
be very very open about what you believe would be
appropriate to fill that gap that I am saying exists in terms of

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my ability to make a decision. But one of the things that I am
certainly going to want to know is, what the town said its
hires were in the intervening three and a half years to be
affected, which hires were affected by this consent decree.
. . . . But I don’t even have that basic information in
order to talk about substantial compliance.
Id. at 062-63.
The court also asked the parties to schedule a status conference once Kearny
provided the NAACP with the necessary materials. The judge assured Kearny that its
motion could be revisited at the status conference:
THE COURT: That is all you have to do. Talk to them.
Tell them that is what you are going to be telling me. And
then come and tell me, we’ll set down a status conference
date off the record. At that status conference date we’ll
determine what we do with your motion. Because I am not
denying it for all time. I am saying at the present time the
showing hasn’t been made. Everybody understand kind of
what I am doing here? I want to end this motion by denying
it. But I am not ending the inquiry.
Id. at 064.
Therefore, although the judge stated she was "denying" the motion, it is clear that
she did so in order to avoid keeping it open on her docket while Kearny collected the
necessary materials. See United States Securities and Exch. Comm’n v. Infinity Group
Co., 212 F.3d 180, 197 (3d Cir. 2000) ("Matters of docket control and scheduling are
within the sound discretion of the district court."). It is evident that the judge did not
deny the motion on the merits, or foreclose Kearny’s pursuit of relief. In fact, the judge
invited Kearny to speak to opposing counsel, schedule a meeting with the court, and
renew the motion once the parties gave her enough appropriate information that would
allow her to make an informed ruling. The judge told counsel:
THE COURT: If you give me that stuff I can do my job.
Right now it [the motion] is denied without prejudice to
renewing it again after we deal with the information
exchanged that we’ve talked about.
Id. at 066.
We have held that a court has the inherent power to enforce or modify a consent
decree in response to changed conditions. See Holland v. New Jersey Dep’t of
Corrections, 246 F.3d 267, 270 (3d Cir. 2001). A court’s broad equitable powers also
extend to lengthening the effective time period of a consent decree. See id. However, a
court cannot properly modify or dissolve a consent decree without making specific
findings of fact to support the exercise of its inherent equitable power. See id. at 271.
Such findings not only guide the exercise of the district court’s discretion, they also
facilitate appellate review. "[A] Court of Appeals should not be required to scour the
District Court’s records and transcripts, without specific guidance, in order to construct
specific findings of fact that support the District Court’s Order[.]" Id. at 285. Similarly,
the district court should not have to "scour" records and certifications without specific
guidance to determine if a party asking it to exercise its equitable powers is entitled to the
requested relief.
The practical effect of the court’s decision here was merely to defer ruling on the
merits of the motion until after Kearny’s exchange of materials with the NAACP and
with the court. The district court did not "terminate[] the litigation between the parties
on the merits of the case. . . ." Richerson, 551 F.2d at 922, quoting St. Louis, Iron
Mountain & S. Ry. Co., 108 U.S. at 28. Thus, it was not a final judgment.
Rather, the district court merely attempted to approach this litigation with an eye
toward having two parties that had already successfully negotiated a consent decree sit
down and discuss their differences under circumstances that would allow each to be fully
informed of the other’s position. The court further provided Kearny with an opportunity

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to renew the motion if the issue was not resolved through the discussions. Kearny chose
to take an appeal rather than follow the district judge’s practical and reasonable
instructions. Although Kearny’s desire to finally resolve this matter may be
understandable, it is clearly not an adequate basis to support our jurisdiction where no
final order exists. Inasmuch as there is no final judgment we will dismiss this appeal
without prejudice for lack of jurisdiction.
For the reasons outlined above, we will dismiss the appeal.
TO THE CLERK:
Please file the foregoing opinion.
By the Court
/s/ Theodore A. McKee
Circuit Judge

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