Full opinion text
OPINION OF THE COURT JAMES HUNTER, III, Circuit Judge. This is the fifth published chapter in the long history of this litigation. The factual history and procedural posture of the case were ably recited by Judge Garth in this court’s October, 1978 opinion. Here, we will briefly summarize that account and then supplement it with a recital of subsequent events leading to the instant appeal. I. Plaintiffs, mothers of children who attend public schools in the General Braddock Area School District (“GBASD”) in Allegheny County, Pennsylvania, filed a complaint on June 9,1971, alleging that the consolidation of various school districts in that county had resulted in the creation of racially segregated schools. The district court, in an opinion and order filed on May 15, 1973, held that the creation of the GBASD by the Pennsylvania State Board of Education and the Allegheny Intermediate Unit Board of School Directors was “an act of de jure discrimination in violation of the Fourteenth Amendment.” Defendants were given forty-five days to prepare and submit a comprehensive plan for school desegregation in the central part of eastern Allegheny County. In September, 1973, defendants filed Plan “22-W” with the district court. The most prominent feature of the Plan was the consolidation of seven adjacent school districts, including GBASD, into two. The school districts affected by “22-W” were permitted to intervene to offer evidence on the Plan. In an order and memorandum opinion filed on May 7, 1975, the district court rejected Plan 22-W. Defendants were ordered to submit another plan. In September, 1975, the Commonwealth submitted a new plan, “Plan A,” providing for the consolidation of General Braddock with neighboring school districts. On November 18, 1977, the district court denied the Commonwealth’s motion for approval of Plan A even though it observed that the Plan involved a “more moderate realignment” of school boundaries than earlier plans. The memorandum and order denying approval of the Plan also denied “any necessary injunctive order to implement such plan . .. without prejudice to the right of any party to submit further plans or proposal in support thereof.” Plaintiffs appealed the district court’s order withholding approval of Plan A to this court. We dismissed that appeal for want of appellate jurisdiction, noting that the district court’s order was “neither a final order nor an appealable interlocutory order which can vest this Court with appellate jurisdiction.” Hoots IV, 587 F.2d at 1342. In dismissing the appeal, however, we anticipated the speedy resolution of the dispute and the implementation of appropriate relief by the district court: We are confident that, in light of the long history of this litigation and the sensitive, constitutional nature of the relief sought, the district court will require submission of a plan forthwith and certainly within the time limits of its original order, will expedite all further proceedings, and will give priority on its calendar to consideration and implementation of the plan. This being so, it would appear that an appropriate final order can be entered by year end which will grant plaintiffs the relief to which they are entitled under the district court’s order of May 15, 1973. 587 F.2d at 1351. (footnote omitted). Following the dismissal of the appeal, appellants, on January 25, 1979, asked the district court to order the Commonwealth to submit within forty-five days a desegregation plan that was “interdistrict in character” involving either a redistricting of GBSAD, or “the tuitioning of current school-age students in General Braddock Area School District to appropriate surrounding school districts .....” or both. Appendix for Appellants at 235a. On February 6, 1979, the district court held a status conference at which “a wide range of possible remedies [was] discussed and “argued,” including district consolidation, the tuition plan and a newly proposed “upgrade” plan for the internal improvement of the quality of GBASD’s schools. Application for Writ of Mandamus, Hoots v. Weber, No. 79-1474, at 7-8, reprinted in Appendix for Appellants at 243a-244a. No order was issued by the district court at the conference. On April 16, 1979, plaintiffs filed an application for Writ of Mandamus requesting this court to order the district court to “direct the state defendants to submit another interdistrict plan which would involve the use of tuition as a technique to remedy the problem presented by C.A. No. 71-538.” Application for Writ of Mandamus, Hoots v. Weber, No. 79-1474, at 2 reprinted in Appendix for Appellants at 23a. We denied the application on May 2,1979, “[i]n view of the answer of Chief Judge Weber, and specifically his statement that he plans to proceed promptly.” Hoots v. Weber, No. 79-1474 (3d Cir. May 2, 1979), reprinted in Appendix for Appellants at 312a. On May 17, 1979 the district court entered two orders: 1) it directed the Commonwealth to prepare and file a tuition voucher plan by August 15, 1979 for grades 7-12, or 10-12; and 2) it added eight school districts as parties solely for the remedial phase of the case. The newly joined school districts then filed motions to dismiss; and in response to that motion the court on June 12, 1979 ordered plaintiffs to brief the Milliken v. Bradley question of whether the named school districts could be included in a remedial plan. The Commonwealth filed a proposed tuition plan and moved for its approval on September 10, 1979. After a hearing on November 17,1979, the district court denied the motion and orally ordered the Commonwealth to prepare a more detailed plan. The Commonwealth filed its more detailed tuition plan on May 15, 1980 (“The Tuition Plan”). The plan provided that: 1) all the GBASD students in grades 7-12 would be transferred to eight surrounding school districts; 2) all the GBASD secondary schools would be closed; 3) all the students would be able to choose their new schools, subject to limitations on the number of students that would be assigned to each school district; 4) GBASD would pay the tuition of all of the transferred students on the basis of the average cost of educating a student in the receiving district; 5) only the GBASD students would be transported; and 6) there would be no transfer of elementary school students. On May 22,1980, the Commonwealth submitted a second plan, “a Metropolitan Desegregation Plan for General Braddock Area School District” (“The Metropolitan Plan”). Reprinted in Appendix for Appellants at 486a-516a. This plan called for the consolidation of GBASD with three surrounding school districts: Edgewood, Swiss-vale and Turtle Creek. On June 6, 1980, GBASD filed its “upgrade plan.” This plan provided for an intradistrict remedy: GBASD would improve the quality of its schools’ programs and facilities in order to attract parochial school students back to the public schools. Reprinted in Appendix for Appellants at 475a-485a. The district court ordered all parties to file their objections to the various plans by June 16, 1980. Appellants argued for the rejection of the Tuition Plan because of its exclusion of elementary school pupils. All but one of the school districts not included in the Metropolitan Plan argued for its adoption and for the rejection of the Tuition Plan. All of the school districts supported the upgrade plan; appellants opposed it. On July 14,1980, hearings commenced on the Tuition Plan. The Commonwealth offered evidence supporting the Plan, arguing that it would offer a non-segregated education for all children in grades 7-12. The Commonwealth admitted that the plan did not address the elementary school grades, but expressed its willingness to consider modifications to the plan. The Commonwealth rested on July 17, 1980. At the conclusion of the Commonwealth’s case, plaintiffs (along with defendants East Allegheny, GBASD, Steel Valley, and West Mifflin school districts) orally moved for the rejection of the Tuition Plan. The motion was denied. Appendix for Appellants at 529a. Plaintiffs then presented testimony critical of the Tuition Plan. The testimony centered on the inadequacy of the relief insofar'as it did not provide for the desegregation of grades K-6. Plaintiffs’ witnesses were critical of the plan’s allocation of GBASD students among eight, rather than fewer, school districts. Plaintiffs also objected to shifting the entire burden of relief to GBASD. On July 24,1980 plaintiffs filed a written motion to reject the Tuition Plan and for an injunction setting a timetable to implement interdistrict relief beginning in the fall of 1980. On July 28, 1980, the district court orally denied the motion. Appendix for Appellants at 556a-560a. The plaintiffs then continued their presentation of evidence, which was not only critical of the Tuition Plan, but also urged the adoption of consolidation relief similar to the Metropolitan Plan. On July 30, 1980, at the close of their case, plaintiffs once again filed a written motion asking the district court to reject the Tuition Plan and to grant an injunction providing for immediate relief in the form of a merger or consolidation plan, and for the imposition by the court of a timetable to implement such a plan beginning in mid-school year 1980-81. The district court denied the motion without prejudice. On August 4,1980 plaintiffs filed a notice of appeal from the district court’s July 28 (oral) and July 30 (written) orders denying injunctive relief. An application for a writ of mandamus was filed on August 11,1980. We granted plaintiffs’ motion for expedited appeal on August 14, 1980. Hoots v. Commonwealth of Pennsylvania, No. 80-2116 (3d Cir. August 14, 1980). Subsequently, we denied the application for mandamus on September 9, 1980. Hoots v. Weber, No. 80-2124 (3d Cir. September 9, 1980). Following the notice of appeal, the district court continued to take testimony on the Tuition Plan. At the conclusion of hearings on August 22, 1980, the district court requested briefing on two issues: 1) which school districts could be included, consistent with Milliken v. Bradley, in a remedial plan; and 2) whether the Tuition Plan, as a matter of law, failed to correct the constitutional violation. The court scheduled arguments on these issues for October 2,1980, and noted that their resolution would determine the possibility of future hearings on either merger or upgrade plans. Oral argument was held before this court on November 3, 1980. Subsequently, on November 20, 1980 we granted appellants’ motion that the record be supplemented with all documents and transcripts of testimony and argument filed in the district court after July 30,1980. We filed a second order to supplement the record on December 4, 1980. The supplemented record reveals that on November 13, 1980 Judge Weber stated that he would schedule no further proceedings until this court ruled on the instant appeal. Further, he ordered that disposition of the matters briefed and argued on October 2, 1980 be stayed pending appeal. II. The threshold question in this appeal is that of appellate jurisdiction. Appellants assert that Judge Weber’s July 30, 1980 order is either final within the meaning of 28 U.S.C. § 1291 (1976), or that the order comes within the class of appealable injunctive orders under 28 U.S.C. § 1292(a)(1) (1976). The Commonwealth appellees “concede” jurisdiction under section 1292(a)(1) but challenge our jurisdiction under section 1291. Several school district appellees contest jurisdiction on either basis. It is the duty of this court to examine its jurisdiction in every case, Mansfield, Coldwater & Lake Michigan Railway Company v. Swan, 111 U.S. 379, 4 S.Ct. 510, 28 L.Ed. 462 (1884); United States ex rel. Esola v. Groomes, 520 F.2d 830, 834 n.16 (3d Cir. 1975), notwithstanding any agreement among the litigants that such jurisdiction exists. United States v. Cities Service Company, 410 F.2d 662, 663 (1st Cir. 1969). Accordingly, we must examine the text of Judge Weber’s July 30, 1980 order to see if it is appealable under either section 1291 or section 1292(a). Appellants premise their claim of section 1291 jurisdiction, as they did in Hoots IV, on the Sixth Circuit’s decision in Kelley v. Metropolitan Board of Education, 436 F.2d 856 (6th Cir. 1970). We once again find this argument unpersuasive, and find that the district court’s July 30 order was not a final decision within the meaning of section 1291. This circuit has consistently given a narrow definition to the class of final orders that are appealable. Hoots IV, 587 F.2d at 1347; Bachowski v. Usery, 545 F.2d 363, 373-74 (3d Cir. 1976). The July 30 order does not fall within this narrow class, and hence is not appealable under section 1291. A contrary finding would substantially erode the purpose of the final order doctrine. Bachowski, 545 F.2d at 373. See Hoots IV, 587 F.2d at 1346-48. Appellants argue, in the alternative, that the July 30, 1980 order is appealable as a denial of an injunction under 28 U.S.C. § 1292(a)(1) (1976). They claim that the district court’s denial of an injunction that would have afforded them merger or consolidation relief falls within the class of appealable interlocutory orders under section 1292(a)(1). The July 30 order, on its face, denied injunctive relief to appellants. We have observed, however, that “literal characterization of an order as an injunction only begins the inquiry into appealability.” Stateside Machinery Company, Ltd. v. Alperin, 526 F.2d 480, 482 (3d Cir. 1975); Rodgers v. United States Steel Corporation, 541 F.2d 365, 372 (3d Cir. 1976). We must look beyond the text of the order and read it in the context of the history and purpose of section 1292(a)(1). See Baltimore Contractors, Inc. v. Bodinger, 348 U.S. 176, 180-81, 75 S.Ct. 249, 251-52, 99 L.Ed. 233 (1955); Stewart-Warner Corporation v. Westinghouse Electric Corporation, 325 F.2d 822, 829-30 (2d Cir. 1963) (Friendly, J. dissenting), cert. denied 376 U.S. 944, 184 S.Ct. 800, 11 L.Ed.2d 767 (1964). Appealability of interlocutory orders under section 1292(a)(1) developed because of a “need to permit litigants to effectually challenge interlocutory orders of serious, perhaps irreparable, consequence.” Gardner v. Westinghouse Broadcasting Co., 437 U.S. 478, 480, 98 S.Ct. 2451, 2453, 57 L.Ed.2d 364 (1978), quoting Baltimore Contractors, 348 U.S. at 181, 75 S.Ct. at 252. We find that the July 30, 1980 order denying injunctive relief to appellants effective in the fall of 1980 was an interlocutory order of “serious, perhaps irreparable consequences” that vests this court with appellate jurisdiction under 28 U.S.C. § 1292(a)(1) (1976). The district court denied the relief requested by appellants, and the denial had serious, if not irreparable consequences for GBASD school children who will now have to wait another year before enrolling in racially integrated schools. Although the trial court denied the motion for an injunction “without prejudice,” the effect of the denial was to preclude any possibility of granting the relief sought by appellants. Thus the July 30, 1980 order is distinguishable from the order appealed in Hoots IV which did not deny any “element of the relief sought by plaintiffs” and “did not seek any injunction.” Hoots IV, 587 F.2d at 1348 n.42. III. Having decided that we have jurisdiction to review the district court’s July 30, 1980 order, we begin our consideration of the merits by observing that our role as an appellate court is a limited one. As this court held in Evans v. Buchanan, 555 F.2d 373, 380 (3d Cir. 1977) (en banc), in school desegregation cases “[fjormulating a realistic, practical, and effective remedy is a job peculiarly within the province of the trial court, whose position gives it a quantum advantage over an appellate court in weighing the ‘practicalities of the situation.’ ” In litigation as long and complex as this, the fashioning of relief should normally “be entrusted in large measure to the sound discretion of the District Court Judge who has lived with [it] for so many years.” Gilmore v. City of Montgomery, 417 U.S. 556, 577, 94 S.Ct. 2416, 2427, 41 L.Ed.2d 304 (1974) (Marshall, J. concurring). Balanced against our deference to the trial court, however, is an affirmative obligation to ensure that de jure discrimination in public schools is remedied “forthwith.” Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 14-15, 91 S.Ct. 1267, 1275, 28 L.Ed.2d 554 (1971); See also Carter v. West Feliciana Parish School Board, 396 U.S. 290, 90 S.Ct. 608, 24 L.Ed.2d 477 (1970); Alexander v. Holmes County Board of Education, 396 U.S. 19, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969); Green v. County School Board of New Kent County, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968). Although the primary responsibility for remedying past discrimination rests with the school authorities, Green, 391 U.S. at 437-38, 88 S.Ct. at 1693-94, “in default by the school authorities of their obligation to proffer acceptable remedies, a district court has broad power to fashion a remedy that will assure a unitary school system.” Swann, 402 U.S. at 16, 91 S.Ct. at 1276. See also Columbus Board of Education v. Penick, 443 U.S. 449, 458-61, 99 S.Ct. 2941, 2947-48, 61 L.Ed.2d 666 (1979). The district court “has not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future.” Green, 391 U.S. at 438 n.4, 88 S.Ct. 1694 n.4, quoting Louisiana v. United States, 380 U.S. 145, 154, 85 S.Ct. 817, 822, 13 L.Ed.2d 709 (1965). See also United States v. DeSoto Parish School Board, 574 F.2d 804, 811 (5th Cir.) cert. denied, 439 U.S. 982, 99 S.Ct. 571, 58 L.Ed.2d 653 (1978). (“If the school board defaults in its duty, the responsibility of the District Court is equally clear and compelling: to use its broad and flexible equitable powers to implement a remedy.”) Striking the required balance in this case, we conclude that the formulation of an appropriate remedy lies within the sound discretion of the district court. Accordingly, we decline to grant appellants’ request that we require the implementation of merger or consolidation relief. We also decline, at this time, to reject the concept of a tuition plan for GBASD. The primary duty to choose between these competing remedial plans rests with the district court. Regardless of the particular plan chosen by the district court, the remedy must be broad enough to completely eradicate the de jure discrimination found by the trial court in Hoots II. See Anderson v. Dougherty County Board of Education, 609 F.2d 225, 226 (5th Cir. 1980). Although we hold that the duty to fashion a remedy is charged to the district court, we are nonetheless obligated to ensure that relief be implemented as promptly and as practicably as possible. Once before, we expressed our confidence that the parties would assist the trial court in reaching a speedy resolution of the remedial phase of this protracted case. But the vagaries of litigation, including a change in appellant’s counsel and shifting litigation strategies and positions, have prevented this result. Accordingly, we are constrained to take affirmative steps to guarantee that relief will be implemented forthwith. Our understanding of the posture of the case is that hearings have been completed on the Tuition Plan and that at least some testimony has been taken on the merits of consolidation or interdistrict relief. The district court has taken briefs and heard arguments on the Milliken question, but has not yet ruled on which school districts can be included within an interdistrict remedial plan. On November 13, the district court suspended all further proceedings pending our decision. We believe it to be essential that the district court afford relief to appellants that will be effective in the fall of 1981. Under no circumstances should a new school year begin in the fall of 1981 without an acceptable remedial plan in place. Accordingly, we order the district court to expedite its consideration of this case so that within ninety days of the issuance of the mandate of this court it shall: 1) complete all hearings and necessary proceedings on the merits of the competing remedial plans for the desegregation of GBASD; 2) decide the Milliken v. Bradley issue of which school districts may be included within an interdistrict remedy; and 3) enter an appropriate final order granting appellants the relief to which they are entitled under the district court’s order of May 15,1973, such relief to be effective and implemented by the beginning of the first semester of the school year in the fall of 1981. We are confident that with the cooperation of all parties, and with complete mobilization of the court’s and the parties’ efforts and resources in this compelling endeavor, this timetable may and will be achieved. IV. Therefore, we vacate the July 30, 1980 order of district court and remand for proceedings consistent with this opinion. The mandate of this court shall issue forthwith. . There have been four previous published opinions: Hoots v. Commonwealth of Pennsylvania, 334 F.Supp. 820 (W.D.Pa.1971) (Hoots I) (denying defendants’ motion to dismiss for failure to state a cause of action); Hoots v. Commonwealth of Pennsylvania, 359 F.Supp. 807 (W.D.Pa.1973) (Hoots II) (holding that the creation of the General Braddock School District by the Pennsylvania State Board of Education was an act of de jure discrimination in violation of the fourteenth amendment); Hoots v. Commonwealth of Pennsylvania, 495 F.2d 1095 (3d Cir.), cert. denied 419 U.S. 884, 95 S.Ct. 150, 42 L.Ed.2d 124 (1974) (Hoots III) (dismissing appeals from district court’s denial of school districts’ petitions to intervene); and Hoots v. Commonwealth of Pennsylvania, 587 F.2d 1340 (3d Cir. 1978) (Hoots IV) (dismissing appeal from order denying approval of a remedial plan for lack of appellate jurisdiction). In addition we have denied plaintiffs’ applications for writ of mandamus on two occasions. Hoots v. Weber, No. 79-1474 (3d Cir. May 2, 1979); Hoots v. Weber, No. 80-2124 (3d Cir. Sept. 9, 1980). . Hoots IV, 587 F.2d 1340 (3d Cir. 1978). . The original complaint is reprinted in Appendix for Appellants at 17a-32a. An amended complaint filed on July 30, 1971, is reprinted in Appendix for Appellants at 45a-62a. . Hoots II, 359 F.Supp. at 823. . Hoots II, 359 F.Supp. at 824-25. . Reprinted in Appendix for Appellants at 203a-207a. . The plan would have consolidated seven school districts into three. See Hoots IV, 587 F.2d at 1345 n.27. . Reprinted in Appendix for Appellants at 208a-215a. . The district court’s memorandum order observed: [i]t now appears to the Court that the most workable plan would be a tuition voucher plan which would enable all students of the General Braddock Area School system to achieve a quality education free from the effects of the segregation pattern now existing, by the adoption of a tuition voucher plan available to all the General Braddock Area students above the elementary school level, making use of the physical plants and facilities, and the variety of educational programs offered by nearby school districts. Appendix for Appellant at 313a. . The following school districts were added: Turtle Creek Area School District; Edgewood School District; West Mifflin School District; Steel Valley School District; East Allegheny School District; Swissvale Area School District; Churchill Area School District; and Gateway School District. Appendix for Appellants at 316a. . Milliken v. Bradley, 418 U.S. 717, 744-745, 94 S.Ct. 3112, 3126-3127, 41 L.Ed.2d 1069 (1974), discussed “the validity of a remedy mandating cross-district or interdistrict consolidation to remedy a condition of segregation found to exist in only one district:” The controlling principle consistently expounded in our holdings is that the scope of the remedy is determined by the nature and extent of the constitutional violation .... Before the boundaries of separate and autonomous school districts may be set aside by consolidating the separate units for remedial purposes or by imposing a cross-district remedy, it must first be shown that there has been a constitutional violation within one district that produces a significant segregative effect in another district. Specifically, it must be shown that racially discriminatory acts of the state or local school districts, or of a single school district have been a substantial cause of interdistrict segregation .... without any interdistrict violation and inter-district effect, there is no constitutional wrong calling for an interdistrict remedy. . On August 3, 1980, the Commonwealth had moved for an extension of the August 15, 1980 deadline for submission of its plan. The motion was unopposed and was granted on August 7, 1980. . Excerpts from the Commonwealth’s May 15, 1980 plan are reprinted in Appendix for Appellants at 358a-474a. . On August 4, 1980, the Commonwealth moved to withdraw the Metropolitan Plan from the district court’s consideration. The court has not ruled on this motion. Transcript of Oral Argument, Hoots v. Commonwealth of Pennsylvania, No. 80-2116, at 92, 639 F.2d 972 (3d Cir. 1980). . There is some dispute between the parties as to the scope of the July and August district court hearings. At the conclusion of oral argument, we requested the parties to submit letters addressing the question of whether the hearings were limited to consideration of the Tuition Plan or whether they also included consideration of interdistrict consolidation plans as well. We have reviewed the submissions by the parties and believe that the trial court intended to limit the hearings to the question of whether it should adopt the Tuition Plan. Although the court received some evidence concerning the advisability of implementing interdistrict consolidation relief, the Tuition Plan remained the primary focus of the hearings. . The district court left open the possibility that it might order the Commonwealth to modify the plan to include grades K-6. Transcript, Hoots v. Commonwealth of Pennsylvania, No. 71-538, at 192-93 (W.D.Pa. July 14, 1980). . The district court’s July 30 order provided: 1. Plaintiffs’ request of July 30, 1980 that the Tuition Plan and the tuition concept be rejected forthwith is denied, without prejudice to its renewal at the end of the hearings on said Plan. 2. Plaintiffs’ request of July 30, 1980, that this Court grant them an injunction affording them merger, or consolidation relief beginning in the fall of 1980 is denied, without prejudice. Reprinted in Appendix for Appellant at 584a. . Section 1291 provides: The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States, ... except where a direct review may be had in the Supreme Court. . Section 1292(a)(1) provides: (a) The courts of appeals shall have jurisdiction of appeals from: (1) Interlocutory orders of the district courts of the United States, ... or of the judges thereof, granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify injunctions, except where a direct review may be had in the Supreme Court. . That case involved the desegregation of the Nashville, Tennessee schools. The school board had submitted a plan for desegregation relief to the district court, but the court stayed indefinitely all proceedings pending the Supreme Court’s decision of desegregation cases on its docket. The Sixth Circuit held that a stay for an indefinite time was appealable as a final order under § 1291, and vacated the stay. . Judge Higginbotham is of the view that there is also appellate jurisdiction under 28 U.S.C. § 1291 (1976). . See n. 17, supra. . Cf. United States v. Texas Educational Agency, No. 79-2833 (5th Cir. Nov. 15, 1979) (Court of appeals took jurisdiction over trial court’s denial of immediate injunctive relief in school desegregation case). . See discussion at n. 15, supra. . Although our order is necessarily directed to the district court, we fully recognize that the delay in this litigation is in large part attributable to the actions of the parties, and not to the Chief Judge of the Western District, who has valiantly and ably wrestled with the complex issues of this case since 1971. Thus, contrary to the assertion made by the dissent, our order does not reflect any criticism, implied or express, of the Chief Judge’s conduct of the litigation. Accordingly we admonish the parties to provide the district court with whatever assistance it may require to comply with our mandate. . Cf. Anderson v. Dougherty County Board of Education, 609 F.2d 225, 226 (5th Cir. 1980) (Court of appeals ordered district court to adopt a desegregation plan within sixty days of entry of its order).
A. LEON HIGGINBOTHAM, Jr., Circuit Judge, concurring. On June 9,1971, Dorothy Hoots and other concerned parents of children attending public schools in the General Braddock Area School District (GBASD) in Allegheny County, Pennsylvania, filed a complaint challenging its racially segregated school system. On May 15,1973, the district court held that the creation of the GBASD was “an act of de jure discrimination” in violation of the fourteenth amendment. Hoots v. Commonwealth of Pennsylvania, 359 F.Supp. 807, 823 (W.D.Pa.1973), (Hoots II), appeal dismissed, 495 F.2d 1095 (3d Cir. 1974), cert. denied, 419 U.S. 884, 95 S.Ct. 150, 42 L.Ed.2d 124 (1974). Almost seven years have since elapsed without the district court ordering any remedy. There have been numerous appeals during this period attempting, without success, to expedite the implementation of an effective remedy. Judge Hunter has dealth with this problem of unconscionable delay in a thoughtful and moderate opinion which imposes quite reasonable time limitations. I join Judge Hunter in the result. I feel compelled to write separately, however, to emphasize my fundamental differences with the dissent of Judge Garth, who challenges the power and the wisdom of this court’s imposing a 90-day timetable on the district court to choose a remedial plan. Despite the passage of 9V2 years since the filing of the original complaint, and the graduation of black students each year from a public school system held to be in violation of the United States Constitution, the dissent today claims that we are powerless to place any time limitations on the district court’s consideration of possible remedial decrees. I find this view of the powerlessness of an appellate court contrary to judicial precedent and doctrine and a derogation of our judicial mandate to enforce the provisions of the Constitution. I know of no other judicial authority, and the dissent does not cite any, which has ever taken such a position. I reject it completely- I. Judge Garth provides three reasons for refusing to impose a time limitation on the district court. First, he claims that an appellate court lacks the power under any circumstance to impose a timetable for decision on a district court judge. Second, he claims that even if we do possess such power, it is inadvisable as a matter of policy that we exercise it. He believes this is especially true in this case where, according to Judge Garth, the 9'/2 year delay is not the responsibility of the district court judge. Finally, he claims that a 90-day requirement is too restrictive. I find his hypothetical and speculative arguments unpersuasive and divorced from the stark reality of this inexcusable 9% year delay. A. THE POWER TO IMPOSE A TIMETABLE The dissent’s contention that we lack the power to place time limitations on a district judge is contradicted by numerous federal decisions. Every court which has reached this issue has found that an appellate court possesses the power, in exceptional circumstances, to impose time limitations on the district court. In Anderson v. Dougherty County Bd. of Educ., 609 F.2d 225, 226 (5th Cir. 1980), the appellate court ordered “the district court to adopt a plan for the desegregation of the elementary and junior high schools in the Dougherty County School system within sixty days from the entry of [the appellate court’s] order,” and retained jurisdiction. The Fifth Circuit also imposed a mandatory timetable in the case of United States v. Texas Educ. Agency, No. 79-2833 (5th Cir. November 15, 1979) (per curiam). The dissent characterizes the Anderson decision as “improvident and improper,” but cites no cases from the Fifth Circuit or any other circuit disapproving such a decree. At 994 n.8. Indeed, numerous courts have gone even further and themselves drafted injunctions where the district court was unwilling or unable to act. For example, in United States v. Lynd, 301 F.2d 818 (5th Cir.), cert. denied, 371 U.S. 893, 83 S.Ct. 187, 9 L.Ed.2d 125 (1962), the Fifth Circuit employed extraordinary powers to remedy violations of voting rights by granting a temporary injunction at the Court of Appeals level. Judge Tuttle, writing for the court, ordered the injunction “transmitted forthwith to the Clerk of the District Court,” bypassing completely a remand to the district court for fashioning an entry of the injunction. 301 F.2d at 823. See also United States v. Lynd, 349 F.2d 785 (5th Cir. 1965); Stell v. Savannah-Chatham County Bd. of Educ., 318 F.2d 425 (5th Cir. 1963). An even more compelling example of the power of the Court of Appeals was evidenced in United States v. Barnett, 330 F.2d 369 (5th Cir. 1963) (the James Meredith case), cert. denied, 376 U.S. 681, 84 S.Ct. 984, 12 L.Ed.2d 23 (1964), where the appellate court, sitting en banc, heard witnesses in open court and entered “its order, findings of fact and conclusions of law and judgment of civil contempt.” 330 F.2d at 376. Although Chief Judge Weber’s handling of the Hoots case is not comparable to the actions of the district court judges in Lynd and Barnett, these cases demonstrate the power and duty of the Court of Appeals to make real every citizen’s fundamental civil rights. The dissent does not challenge the power of the circuit court to take testimony and to fashion and enter its own injunctive decree, as in Lynd and Barnett. Rather, it claims that the exercise of such powers “obviously [has] nothing to do with a Court of Appeals order which commands that a district court deal with discretionary and evidentiary matters within a particular time frame.” At 997. Yet the usurpation by the Court of Appeals of the district court’s duty to hold evidentiary hearings and to fashion a remedy is a far greater intrusion on the lower court’s discretion than a modest 90-day order. If the dissent does not challenge the power of the court to take these extraordinary actions, I fail to see how it can deny its power merely to place a time limitation on the district court’s decision. It is precisely because we are unwilling to intrude upon the district court’s discretion any further than is necessary that we have sent the case back for a final decision by Chief Judge Weber. B. THE WISDOM OF PLACING TIME LIMITATIONS ON JUDGES The dissent’s second argument is that, even if we have the power to impose such a time limitation, it is “inadvisable” that we exercise it. Setting any timetable would be “unseemly, injudicious, improper and unrealistic” because it unduly limits the discretion of the district court judge and upsets him emotionally. The dissent is replete with scare words predicting doom for the federal judiciary if, after 9‘/2 years, the district court is ordered to resolve the case within an additional 3 months. It sees this order as carrying the “seeds of great mischief and potential disruption” and finds it “demeaning and even insulting” to the district court judge because it is “misconceived and misdirected” and implies “criticism” of the district judge. At 990-991. Judge Garth sees the majority’s opinion as an implied threat to hold the district judge “in contempt,” to subject him to “some form of disciplinary proceeding,” to “remove his caseload,” and finally, to “point a gun without the ability to pull its trigger.” At 996. I cannot find a basis for any responsible judge to be demeaned because a judgment is vacated and remanded to him in a 9'/2 year case where the litigants have received no relief. Article III judges are, or should be, mature enough to recognize that remands are not “demeaning and even insulting.” Speaking of the Supreme Court, Justice Robert Jackson once commented, “We are not final because we are infallible, but we are infallible only because we are final. Brown v. Allen, 344 U.S. 443, 540, 73 S.Ct. 397, 432, 97 L.Ed. 469 (1953) (Jackson, J., concurring). In my view, district court judges have a healthy skepticism of the infallability of all appellate courts. I do not believe that they will shirk from their duty and obligations when a “higher” court disagrees with them on the law. Hardly a week goes by without this court reversing a district judge. I have yet to find any district court judge who believes that a good faith reversal or remand is “pointing a gun” to the lower court judge’s head. Judge Garth stresses what he perceives as the “humiliation” of the district judge because of this 90-day order. Our court should have equal concern for the humiliation thrust upon innocent black children who for almost a decade have been begging for judicial relief from the persistent constitutional violation which Chief Judge Weber found they endure, and of the humiliation when hundreds of black children have already graduated without ever having their constitutional rights enforced. Nowhere is the dissent more misleading and deceptive than the “Ode” to district court judges. The dissent distorts the issue totally and measures the precious constitutional rights of children by impermissible standards. While I appreciate the fact, as Judge Garth notes, that he was a district court judge for three years, the judges of the majority are not bereft of state trial or district court experience. I am not hostile to district court judges and I will not debate the claim that district court judges are “the most diligent, conscientious and hardworking judicial cadres in this country.” At 991. I recognize that Chief Judge Weber is an excellent judge; he is not malevolent, venal or incompetent. But despite my agreement with the dissent’s accolades on the general excellence of district judges, I believe that Chief Judge Weber, like all of us, is not infallible. Far more important than back-patting rhetoric among the judicial fraternity as a mutual admiration society, the citizens of this nation are entitled to have their civil rights implemented promptly even if, in the words of the dissent, some district judges might “have resentment” of our views of the Constitution. Judges and lawyers should never be shocked with time limitations to finish their obligations. This court’s own Internal Operating Procedures (IOP’s) are replete with time limitations on judges and the parties which can be more restrictive and demanding than the present 90-day order. We require that parties submit briefs four weeks before oral argument. IOP, Chapter 1(A). We require that a judge write a dissent within 45 days of the circulation of the majority opinion. IOP, Chapter V(D). And we require that judges vote to rehear a case, or file a dissent to a denial of a petition for rehearing, within 8 days of the circulation of the petition for rehearing. IOP, Chapter IX(A)(3), (A)(6)(d). The dissent’s rejection of the time limitations is predicated on the view that we never could enforce such an order. Of course, all appellate decisions ultimately rest upon the willingness of district court judges to obey them, rather than any inherent power we have to physically enforce compliance. Time limitations are no more inherently unenforceable than any other type of order. If the power of this court to act were limited, as the dissent suggests, to those situations where we could physically force compliance on district court judges, then this court would be stripped of its purpose and function. It is the responsibility of a district court judge to shape the movement of cases through his or her court. Once suit has been brought, he or she has a duty to meet this constitutional mandate. Yet nearly ten years have elapsed in this case since the suit was filed. The original plaintiffs, along with a generation of black students from Allegheny County, have already graduated from school and irretrievably lost the opportunity ever to receive a public school education which conforms with constitutional requirements. After the judge has struggled without success for almost ten years to meet this mandate, and we have recommended in a previous appeal of two years ago that the case be disposed of within six months, it would be a derogation of our function as an appellate court not to impose a requirement that the court act with dispatch. Neither Chief Judge Weber nor district court judges in general are on trial here. The issue is whether black children who have waited patiently at the courthouse door for more than 9V2 years without an ounce of relief are entitled to a decree that their matter be expedited within a specific time frame. The rights of citizens are not contingent upon a Gallup poll survey as to whether a district judge or even the community in general is receptive to a constitutional mandate. If the Constitution required that appellate courts worry about “resentment on the part” of a district court judge or by the community, as Judge Garth suggests, at 991, then James Meredith would still be waiting in vain to enter the University of Mississippi, Autherine Lucy’s application to the University of Alabama would still be in limbo, and thousands of blacks denied the right to vote in Forrest County, Mississippi would still be disenfranchised. See United States v. Barnett; Lucy v. Adams, 228 F.2d 619 (5th Cir.), cert. denied, 351 U.S. 931, 76 S.Ct. 790, 100 L.Ed. 1460 (1956); United States v. Lynd. Fortunately, neither the Court of Appeals for the Fifth Circuit nor any other federal appellate court in the nation has adopted the unconstitutional standard urged in the dissent. C. THE CAUSE OF THE DELAY Judge Garth also contends that whatever the general merits of restricting the timetable of district court decisions, the facts of this case do not warrant such action. He suggests that the 9'/2 year delay is due entirely to the actions of the plaintiffs, and therefore the district court should not be held accountable for the time delay. The delay in this case is allegedly due to “two improvident appeals and the recent decision of the plaintiffs to change direction in midstream.” At 991-992 (footnote omitted). A review of the factual circumstances under which the plaintiffs were forced to act reveals that the two appeals were taken in an effort to force the implementation of a remedy and not to delay the proceedings. Indeed, virtually every action by the plaintiffs has been in response to inaction by either the district court or the defendants. The plaintiffs’ first appeal was taken to this court in 1977 after Chief Judge Weber issued his November 1977 Order denying Plan A. Plan A was a school district consolidation program first submitted to the Pennsylvania State Board of Education (State Board) in July of 1973 by the plaintiffs. The plaintiffs endorsed this plan from 1973 until it was rejected by the district court. The State Board itself adopted Plan A after hearings in 1975, and at the hearing held before Chief Judge Weber, only one defendant district opposed its implementation. Nevertheless, Chief Judge Weber rejected Plan A and another consolidation alternative (Plan 22-W) because he found “no evidence of broad base community support for such a remedy.” Order of November 18, 1977, p. 4, reprinted in Appendix at 211a. The plaintiffs appealed this order. Judge Garth, writing for a divided court, held that there was no appealable order and dismissed the appeal. Hoots IV. Interestingly enough, Judge Garth observed in Hoots IV that: The order of May 15, 1973 provided for submission of a plan within forty-five days. Inasmuch as the plaintiffs now regard the Commonwealth’s Plan A as affording appropriate relief, a common base apparently exists from which a remedy may be expeditiously fashioned. 587 F.2d at 1351 n.57. As has already been exhaustively detailed, the Hoots IV admonition by Judge Garth did not result in the desegregation of GBASD or in any remedy for plaintiffs during the 26 months since that decision was filed. The second “improvident appeal” resulted from the plaintiffs’ motion of January 29, 1979 asking Chief Judge Weber to order the Commonwealth to submit one or more plans to the district court. This motion followed repeated efforts by the court and the plaintiffs to move the Commonwealth to propose an acceptable plan. When the district court by mid-April of 1979 had still taken no action on the January 29 motion, the plaintiffs petitioned this court for a writ of mandamus. This court denied the writ after receiving a response from Chief Judge Weber that he would “order a submission of a plan forthwith and schedule the plan for prompt hearings.” Nowhere did this court indicate that the action of the plaintiffs was dilatory or frivolous. Likewise, the plaintiffs’ reluctant willingness to accept a tuition plan was more the result of frustration occasioned by the passage of school year after school year than it was a desire to see a tuition plan in use. Chief Judge Weber has regularly indicated to the plaintiffs that “the difficulty with ... any . .. merger plan is what might be called community acceptance,” and that a tuition plan “arouse[s] the least opposition.” It is little wonder that the plaintiffs during the course of their 9VÍ! year battle would be willing to at least have considered the use of a tuition plan. It is also not surprising that, as able and conscientious attorneys, they would refuse to accept a tuition plan, as ultimately developed, which is unconstitutional on its face because it leaves completely unremedied grades K through 6. As I view the facts and history of this case, the plaintiffs have been flexible and willing to consider any alternative that might result in an effective remedy. In turn, they have been met by delay and inaction on the part of the court and defendants. D. THE 90-DAY REQUIREMENT Finally, Judge Garth argues that, even if some time limitation is proper, 90-days is too short. I believe that the order is entirely appropriate and reasonable under the circumstances of this case. Most of the factual issues have been litigated and the legal issues briefed. From its experience with the case for nearly ten years, the district court is also intimately familiar with the various options. The need for a 90-day fixed time order, enforceable by mandamus if necessary, is evidenced by the failure of this court’s admonition to the district court in Hoots IV to have a plan in place by the 1978-1979 school year. There Judge Garth wrote: Having concluded that the November 18, 1977 order is not appealable, we have no jurisdiction to review it and thus must dismiss the plaintiffs’ appeal. We are confident that, in light of the long history of this litigation and the sensitive, constitutional nature of the relief sought, the district court will require submission of a plan forthwith and certainly within the time limits of its original order, will expedite all further proceedings, and will give priority on its calendar to consideration and implementation of the plan. This being so, it would appear that an appropriate final order can be entered by year end which will grant plaintiffs the relief to which they are entitled under the district court’s order of May 15, 1973. 587 F.2d at 1351 (footnote omitted). To anyone who believes that the civil rights of our citizens are at least as important as the business rights of corporations, the dissent’s explanation as to why it may be so difficult for a judge to act within 90 days on this 9lA year-old case is absurd. Judge Garth is worried that there might be “unforeseen circumstances, illnesses, accidents, emergencies, deaths, court conflicts and the like.” At 993. From my observation as a federal judge for more than 17 years, I have never found the federal courts impotent or unable to act with dispatch when important corporate or stockholder rights are involved. Only last month, in Kennecott Corp. v. Smith, 637 F.2d 181 (3d Cir. 1980), we were willing to impose extraordinary time deadlines because of the needs of two corporations in a sixteen million dollar tender offer battle. On November 15, 1980, the district court in that case denied a motion by Kennecott for a preliminary injunction and vacation of a temporary restraining order, thereby preventing the continuation of the tender offer. “Because of the short time requirements for tender offers established by the SEC regulations,” at 184, this court expedited briefing and appeal, and oral argument was held on December 11. On December 17, six days after oral argument, the panel, of which Judge Garth was a member, filed a 21-page opinion reversing the district court and directing it to conduct further proceedings “as expeditiously as possible.” At 191 n.ll. Normally, under the IOP’s of our court, a judge must circulate a draft opinion to the active judges for eight days before it can be filed. IOP, Chapter IX(A)(3). In Kennecott, because of the importance of time to the corporations involved in the tender offer, this court held an expedited oral argument sixteen days after the district court’s decision, and filed the opinion six days after that argument. If in corporate cases this court is willing to expedite its own procedures so dramatically to reduce judicial consideration by several months, I fail to understand why we may not require a district court judge to decide a civil rights case in three months when he has had it for almost ten years. II. The Intrusion Upon Judicial Independence In the final analysis Judge Garth’s ultimate conclusion is that “we have committed an almost unprecedented intrusion upon judicial independence.” At 994. He cites only one case to explain why this is true—Chandler v. Judicial Council, 398 U.S. 74, 90 S.Ct. 1648, 26 L.Ed.2d 100 (1970). Chandler involved a tragic case of a district judge who was cantankerous to the extreme and in all probability mentally ill. As Justice Douglas commented, the Chandler “case has been and continues to be the liveliest, most controversial contest involving a federal judge in modern United States history.” 398 U.S. at 130, 90 S.Ct. at 1677. There the Judicial Council of the Tenth Circuit had, because of “the attitude and conduct of Judge Chandler,” found that he was “unable, or unwilling, to discharge efficiently the duties of his office; that a change must be made in the division of business and the assignment of cases in the Western District of Oklahoma;” and that for a period of time his cases had to be reassigned to other judges. 398 U.S. at 77-78, 90 S.Ct. at 1650. The Supreme Court denied him a writ of mandamus. Two cases could hardly be more dissimilar. Here we are dealing with a judge who is well, competent and has not been disparaged personally or professionally. Even in Chandler when focusing on this problem, Chief Justice Burger observed: There can, of course, be no disagreement among us as to the imperative need for total and absolute independence of judges in deciding cases or in any phase of the decisional function. But it is quite another matter to say that each judge in a complex system shall be the absolute ruler of his manner of conducting judicial business. 398 U.S. at 84, 90 S.Ct. at 1653 (emphasis added). Chief Justice Burger questioned whether “each judge [can] be an absolute monarch and yet have a complex judicial system function efficiently?” 398 U.S. at 86, 90 S.Ct. at 1654. The dissent asserts that this court lacks the power to impose a time limitation on a district court judge because such a step is analogous to “stripping]” him of his “caseload” as in Chandler. I find this analogy unpersuasive. We are not depriving the district court judge of his right to hear the case, as in Chandler, or to fashion a remedy, as in Lynd. While I do not disagree with Justice Douglas’ concerns about preserving the independence of the federal judiciary, bluntly, Chandler is totally irrelevant to the instant case. If one is seeking more relevant philosophical expressions of Justice Douglas, I submit that the Justice’s opinion in Bell v. Maryland, 378 U.S. 226, 84 S.Ct. 1814, 12 L.Ed.2d 822 (1964), involving the question of whether blacks could be denied equal public accommodations in a restaurant, would be far more apt. Twelve black students had been prosecuted for criminal trespass because they dared to believe they were entitled to unsegregated service at the Hooper’s Restaurant in Baltimore. In urging that the indictment must be dismissed, Justice Douglas asserted: We have in this case a question that is basic to our way of life and fundamental in our constitutional scheme. No question preoccupies the country more than this one; it is plainly justiciable; it presses for a decision one way or another; we should resolve it. The people should know that when filibusters occupy other forums, when oppressions are great, when the clash of authority between the individual and the State is severe, they can still get justice in the court. When we default, as we do today, the prestige of law in the life of the Nation is weakened. 378 U.S. at 244-45, 84 S.Ct. at 1824 (Douglas, J., concurring). If the dissent’s views were accepted, this court would be defaulting on its obligations and “the prestige of law in the life of the Nation [would be] weakened.” III. CONCLUSION When dissenting in Hoots IV, Judge Gibbons asserted: On the record before us, where the very object of the appeal is to cure unconscionable delay which is causing irreparable harm, the majority’s reference to “the goal of speedy justice” as a justification for dismissing it rings hollow. And as to caseload considerations, this is one of those cases in which our concern about the caseload must yield to our obligation to enforce the supremacy of federal law. 587 F.2d at 1357. Since then, two more school years have gone by and the children still have received no relief. In an attempt to be moderate and responsible, the majority today has said that the district court must make a decision within 90 days. At some point appellate judges must be as concerned about the human and civil rights of all of our citizens as they are fearful of offending their judicial colleagues or pears. I regret that I have been compelled to write so forcefully to a dissent, which if it were adopted, could have tragic implications for the weak, the poor and the dispossessed, whose rights are often denied and who must rely on the power of the federal court for ultimate vindication. What the majority has ordered is no radical decree. It is precedent as old as the Republic. More than two centuries ago Blackstone declared “it is a general indisputable rule, that where there is a legal right, there is also a legal remedy by suit, or action at law, whenever that right Í3 invaded.” 3 Blackstone, Commentaries 23 (as cited in Marbury v. Madison, 5 U.S. 137, 163, 1 Cranch 137, 163, 2 L.Ed. 60 (1803)). In Marbury v. Madison, 5 U.S. at 161-63, 1 Cranch at 161-63, Chief Justice John Marshall asserted: The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. The plaintiffs in this case are entitled “to claim the protection of the laws” because of the constitutional injuries they have sustained. After a 9‘/2 year persistent denial of their constitutional rights, the children of Allegheny County should not have to wait for more than an additional 90 days. . If I had been a member of the panel in Hoots IV, 587 F.2d 1340 (3d Cir. 1978), I would probably have agreed with Judge Gibbons’ dissent. From my view, Judge Gibbons’ conclusion was unassailable. As he wrote: On the record before us, where the very object of the appeal is to cure unconscionable delay which is causing irreparable harm, the majority’s reference to “the goal of speedy justice” as a justification for dismissing it rings hollow. And as to caseload considerations, this is one of those cases in which our concern about the caseload must yield to our obligation to enforce the supremacy of federal law. There is no justification for dismissing this appeal. 587 F.2d at 1357 (footnote omitted). . I would like to make it clear that 1 have high regard for Chief Judge Weber. While I am dissatisfied with his pace in handling this particular case, my opinion is not intended to be disparaging of him as a Judge or as a person. . See generally Note, Judicial Performance in the Fifth Circuit, 73 Yale L.J. 90 (1963). . An earlier appeal was taken by the defendants but presumably the plaintiffs cannot be charged with the delay incident to it. Hoots III, 495 F.2d 1095 (3d Cir.), cert. denied, 419 U.S. 884, 95 S.Ct. 150, 42 L.Ed.2d 124 (1974). . It is axiomatic that community resistance to a desegregation remedy is an inappropriate rationale for rejecting an otherwise acceptable plan. Brown v. Bd. of Educ. of Topeka, Kansas (Brown II), 349 U.S. 294, 300, 75 S.Ct. 753, 756, 99 L.Ed. 1083 (1955); Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958); Monroe v. Bd. of Comm’rs of the City of Jackson, 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733 (1968). . After Chief Judge Weber’s initial 1973 order directed the Commonwealth to submit a plan for desegregation within 45 days, the Commonwealth sought and received two extensions which resulted in the passing of the 1973-1974 and 1975-1976 school years without a remedy in place. . It is clear that if a defendant fails to come up with an adequate remedy then the duty falls upon the district court to “make every effort to achieve the greatest possible degree of actual desegregation.” Davis v. School Comm’rs of Mobile County, 402 U.S. 33, 37, 91 S.Ct. 1289, 1291, 28 L.Ed.2d 577 (1971). The federal courts have the authority to formulate broad remedies. Dayton Bd. of Educ. v. Brinkman, 433 U.S. 406, 97 S.Ct. 2766, 53 L.Ed.2d 851 (1977); Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973); Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971). The district court’s granting of two major extensions to the Commonwealth when the latter failed to discharge its duties under the 45-day order cannot be attributed in any way to the plaintiffs. . For example, the Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974), issue has been briefed four times before Chief Judge Weber since 1974. . The opinion of the court in Kennecott repeatedly stresses the critical need to avoid delay when courts are issuing injunctions in tender offer battles. Delay would have “detrimental effects on the stock market” and undermine the “market approach of the Williams Act.” At 189, 190. An evidentiary hearing to determine the impact of delay was held to be unwarranted because, as found by Congress in passing the Williams Act, “it would not be possible to recast the balance between incumbent and challenger.” At 190. The dissent finds Kennecott distinguishable because it involves the Court of Appeals placing a time limitation on itself, rather than on the district cou