United States District Court, D. Maryland
THE COALITION FOR EQUITY AND EXCELLENCE IN MARYLAND HIGHER EDUCATION, et al.
MARYLAND HIGHER EDUCATION COMMISSION, et al.
CATHERINE C. BLAKE, District Judge.
Plaintiff The Coalition for Equity and Excellence in Maryland Higher Education and named individuals associated with the organization ("the Coalition") sued the State of Maryland, the Maryland Higher Education Commission, and its officers in their official capacities (collectively, "the State") alleging violations of Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment. After a bench trial, the court issued an opinion containing findings of fact and conclusions of law ("the Ruling"), and holding that under United States v. Fordice, 505 U.S. 717 (1992), unnecessary program duplication within Maryland's system of higher education continues to have segregative effects for which the State has no sound educational justification. Coal. for Equity & Excellence in Md. Higher Educ. v. Md. Higher Educ. Comm'n, 977 F.Supp.2d 507 (D. Md. 2013). At the court's suggestion, the parties then engaged in mediation to determine an appropriate remedy. That mediation recently culminated without the parties having reached an agreement. The State has now moved for a certificate of appealability as to the Ruling, to stay the remainder of the case, and for an extension of time to respond to the Coalition's remedial proposal. For the reasons that follow, the court will grant the motion for a certificate of appealability, deny the motion to stay, and grant the motion for an extension.
The Ruling, issued on October 7, 2013, examined three policies of the Maryland system of higher education allegedly traceable to the era of de jure segregation: (1) limited institutional missions of historically black institutions of higher education ("HBIs") as compared to traditionally white institutions ("TWIs"); (2) operational funding deficiencies at HBIs; and (3) unnecessary program duplication between HBIs and TWIs. The court found that the Coalition failed to prove that "any current operational funding or mission related policy or practice" was traceable to the de jure era, but succeeded in proving that the State had "failed to eliminate the traceable de jure era policy of unnecessary program duplication for Maryland's HBIs." Coal. for Equity & Excellence, 977 F.Supp.2d at 524. The court "strongly suggest[ed] that the parties enter mediation to attempt to generate a suitable plan to address" the problem of unnecessary program duplication, id. at 544, and on October 31, 2013, they agreed to mediation with Judge Paul Grimm, (Letter to Counsel, ECF No. 385). Mediation commenced in January 2014 and continued for over a year. Despite Judge Grimm's substantial efforts, however, the parties were unable to agree on an appropriate plan.
On May 4, 2015, one day before the Coalition's proposed remedies were due to be filed, the State moved to certify an interlocutory appeal of the Ruling. In a separate motion filed that same day, the State moved to stay all proceedings other than those related to the motion to certify and to stay all proceedings if the court ultimately granted that motion. The Coalition filed its proposed remedies on May 5, 2015. On May 15, 2015, the State moved for an extension of time to respond to the Coalition's proposed remedies. The Coalition then filed oppositions to each of the State's motions. On May 27, 2015, the court issued a letter indicating that the motion for an extension would be granted, at least in part, depending on the resolution of the other pending motions.
I. Motion to Certify Interlocutory Appeal
"The Interlocutory Appeals Act of 1958, 28 U.S.C. § 1292(b), was enacted to meet the recognized need for prompt review of certain nonfinal orders." Coopers & Lybrand v. Livesay, 437 U.S. 463, 474 (1978) (footnote omitted); see also Kennedy v. Villa St. Catherine, Inc., No. PWG-09-3021, 2010 WL 9009364, at *1 (D. Md. June 16, 2010) (noting that the "purpose behind the exception" to the normal appeals process "is to avoid unnecessary litigation" (citation omitted)). Section 1292(b) provides, in full, as follows:
When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order.
28 U.S.C. § 1292(b). Thus, certification of an interlocutory appeal under § 1292(b) is appropriate where a district court makes an order, and "(1) the order to be appealed involves a controlling question of law; (2) there is substantial ground for difference of opinion on that question of law; and (3) an immediate appeal from the order may materially advance the ultimate termination of the litigation." In re Microsoft Corp. Antitrust Litig., 274 F.Supp.2d 741, 741 (D. Md. 2003). But interlocutory appeal under § 1292(b) is the exception, not the rule. Accordingly, it "should be used sparingly, " Myles v. Laffitte, 881 F.2d 125, 127 (4th Cir. 1989), and the party seeking its application must persuade the court that "exceptional circumstances justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment." Coopers & Lybrand, 437 U.S. at 475 (citation omitted).
The State argues that all the requirements of § 1292(b) are met here, and interlocutory review is appropriate. The Coalition responds that this case is not "exceptional, " the Ruling is not an "order" within the meaning of § 1292(b), that section's other requirements are not met, and the State unreasonably delayed the filing of its motion to certify. I agree with the State.
A. Whether This Case Presents Exceptional Circumstances
Interlocutory review under § 1292(b) is limited to exceptional circumstances. Coopers & Lybrand, 437 U.S. at 475. As the State notes, the Ruling "constitute[d] the first time since the early 1990s that any district court in the United States has had occasion to issue a ruling on liability in a case involving issues of desegregation in public higher ...