In Re Anthony P. Mehfoud, Richard W. Glover, John A.waldrop, Jr., David A. Kaechele, L. Ray Shadwell,jr., Philomena M. Bryant, E.r. Boisseau,ronald B. Chaney, Barbara G.thompson, Petitioners.mattie S. Mcdaniel, Frank J. Thornton, Sr., Carl Mcmillian,sam Creighton, Charles E. Scott, Francis J. Justis, Reginaldstevens, Reverend, Helen E. Harris, C.m. Archer, Sanadalindsey, Sadie C. Sears, David Goodall, Sr., Elliot M.harris, Robert S. Melvin, Jr., John E. Mcneil, Sr., Alonzoanderson, Walter Bullock, Leamon Clayton, Jr., Henricocounty Civic League, Montezuma Oak-hill Civic Association,henrico Political Task Force, Plaintiffs-appellees, v. Anthony P. Mehfoud, Richard W. Glover, John A. Waldrop, Jr.,david A. Kaechele, L. Ray Shadwell, Jr., in Their Officialcapacities As Members of the Board of Supervisors of Henricocounty, Virginia, Philomena M. Bryant, E.r. Boisseau, Ronaldb. Chaney, in Their Official Capacities As Members of Theelectoral Board of Henrico Co., Virginia, and Barbara G.thompson, in Her Official Capacity As Registrar of Henricoco., Virginia, Defendants-appellants, 927 F.2d 596 (4th Cir. 1991)

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US Court of Appeals for the Fourth Circuit - 927 F.2d 596 (4th Cir. 1991)

Argued Oct. 30, 1990. Decided Feb. 26, 1991


Appeals from the United States District Court for the Eastern District of Virginia, at Richmond. Robert R. Merhige, Jr., Senior District Judge. (CA-88-20-R)

Robert Harvey Chappell, Jr., Christian, Barton, Epps, Brent & Chappell, Richmond, Virginia, (argued), for appellants; Paul W. Jacobs, II, Christian, Barton, Epps, Brent & Chappell, Joseph P. Rapisarda, Jr., W. Todd Benson, Joseph T. Tokarz, Office of the County Attorney, County of Henrico, Richmond, Va., on brief.

Gerald T. Zerkin, Gerald T. Zerkin & Associates, Henry L. Marsh, III, Hill, Tucker & Marsh, Richmond, Va., (argued), for appellees; Karen Ely-Pierce, Kelley H. Brandt, Gerald T. Zerkin & Associates, Sharon A. Baptiste, Hill, Tucker & Marsh, Stephen B. Pershing, American Civil Liberties Union Foundation of Virginia, Richmond, Va., on brief.

E.D. Va., 702 F. Supp. 588.

DISMISSED.

Before CHAPMAN and WILKINS, Circuit Judges, and HIRAM H. WARD, Senior United States District Judge for the Middle District of North Carolina, Sitting by Designation.

WILKINS, Circuit Judge:


Plaintiffs allege that the method of election for the Board of Supervisors of Henrico County, Virginia violates rights secured to them by the first, thirteenth, fourteenth, and fifteenth amendments, 42 U.S.C.A. Secs. 1971-73 (West 1981 & Supp.1990), and 42 U.S.C.A. Sec. 1983 (West 1981). The lower court found the districting plan of the County constituted a violation of section 2 of the Voting Rights Act of 1965, 42 U.S.C.A. Sec. 1973 (West 1981), and awarded temporary attorneys' fees to plaintiffs. Unable to implement a satisfactory plan based upon 1980 census information as a remedy for the violation, the district court stayed further proceedings until 1990 census data became available. Defendants appealed these orders, and alternatively petitioned this court for a writ of mandamus or prohibition directing the district court to enter an order in aid of this court's jurisdiction. We conclude that this court presently lacks jurisdiction and deny defendants' petition for a writ of mandamus.

The individual plaintiffs are black registered voters and residents of Henrico County, Virginia. The associational plaintiffs are nonprofit organizations founded by residents of Henrico County for the purpose of advancing civil rights. Defendants are members of the Board of Supervisors, members of the Electoral Board, and the Registrar for the County. Plaintiffs brought this action in January 1988 claiming that the districting scheme in the County that had been in place since 1981 prevented black voters from electing a representative to the Board of Supervisors.

Henrico County surrounds the City of Richmond, Virginia on the west, north, and east. According to 1980 census data, the total population of the County was 180,735 and of this number 27,096, or approximately 15 percent, were black residents. The black voting age population of the County was 17,979--approximately 13.9 percent of the total voting age population. Data in the record also reveals that Henrico County has less residential segregation than 33 of the 35 largest residential areas in the United States that have at least a 10 percent black population.

The Board of Supervisors for the County is composed of five members who are elected to four-year concurrent terms. Each member is elected from one of the five single-member districts: Brookland, Fairfield, Three Chopt, Tuckahoe, and Varina. Voters of the County have never elected a black member to the Board of Supervisors. During the 1983 and 1987 elections for the Board of Supervisors, black candidates ran, but were defeated, in Fairfield.

In 1981, after 1980 census data became available, the County redistricted to bring it into compliance with the constitutional guarantee of one person, one vote. Prior to the 1981 redistricting, Fairfield had the highest black population of the five districts with black residents comprising 39.6 percent of the district. Following redistricting, this percentage increased to 42.8 percent. The total percentage of black residents of Henrico County living in Fairfield increased from 50.8 percent to 58 percent. The redistricting plan maintained a low deviation of population from smallest to largest district.

Following a bench trial, by order dated December 30, 1988, the district court, quoting Thornburg v. Gingles, 478 U.S. 30 (1986), found that the black population of Henrico County "is 'sufficiently large and geographically compact' to constitute a majority in one or more single-member districts." The court relied on 1980 census data to find that a majority of the black population lived in Fairfield "and to the extent that blacks reside in other districts, they are concentrated in a few specific areas." The district court noted that plaintiffs had submitted a proposed plan illustrating that it was "possible to meet the requirement of Gingles and create a single-member district with a black majority." This odd-shaped plan zig-zags a distance of over 24 miles--ten miles longer than the present Fairfield district--and is in places only 1,000 feet wide.

Finding that the other elements of the Gingles test had been established by the plaintiffs, the district court turned its attention to the question of an appropriate remedy. Initially, the district court instructed defendants to submit a remedial plan for redistricting within 75 days. In response, the Board of Supervisors directed the County Manager's staff to work together with attorneys to establish a district that would permit black voters to obtain a voting majority. Although a good faith effort appears to have been made, the Board subsequently reported to the court that it was unable to devise a plan that would create a black voting majority and meet other elemental redistricting criteria.

Noting that the defendants failed to comply with the directive to submit a remedial plan, the district court appointed a special master, pursuant to Federal Rule of Civil Procedure 53(a), "to aid the Court in fashioning a remedy which fully cures the violation of plaintiffs' voting rights found to exist." The special master's final report, dated August 29, 1989, concluded that he "found no way of constructing a five-member district plan with a population that was 58.9 percent black in total population that did not produce a deviation from the ideal population that was unacceptably high."

The district court then instructed the special master to attempt to fashion a plan in which the black voting age population constituted a simple majority of the total voting age population in a district. The master's revised report, issued in March 1990, explained the difficulties of attempting to use data that was then ten years old to remedy the violation. He stated:

I think it is important to recognize that constructing a single-member district plan which "completely remedies prior dilution of minority voting strength and fully provides equal opportunity for minority citizens to participate and elect candidates of their choice," at this point in time is fraught with uncertainties. A major part of the uncertainty is due to the fact that we are forced to rely on 1980 Census data to construct districts. Use of ten-year old data makes it impossible to determine the precise demographic dimensions of a district that will remedy the violation of Plaintiffs [sic] voting rights at this point in time.

The report continued by describing the population growth of Henrico County that more recent statistical and demographic data disclosed.

On April 16, 1990 the district court conducted a hearing during which the court and counsel recognized the futility of proceeding with the implementation of any new plan at that time since redistricting under 1990 census data would be required in early 1991 in any event. The court, by order of the same date, ruled that the action was stayed until March 1, 1991, enjoined implementation of any plan until further order of the court, and ordered defendants to forward the 1991 census data to plaintiffs' counsel within 24 hours of receipt and submit a proposed redistricting plan to the court within 20 days after receipt of the data.

Defendants noticed an appeal from the December 30, 1988 order finding a violation of section 2 and the April 16, 1990 order staying the proceedings. Defendants alternatively petitioned this court for a writ of prohibition or mandamus in aid of this court's jurisdiction. We stayed the orders of the district court and ordered the petition for the writ be consolidated with this appeal.

Defendants contend that this court has jurisdiction over the appeal on several bases. They first argue that the December 30, 1988 and April 16, 1990 orders, taken together, constitute a final order appealable under 28 U.S.C.A. Sec. 1291 (West Supp.1990). Next, defendants argue that since the district court enjoined implementation of any new districting plan, this court may review the appeal under 28 U.S.C.A. Sec. 1292(a) (1) (West Supp.1990) that provides for interlocutory appeals from orders granting or denying injunctions. Alternatively, defendants argue that this court should issue a writ of mandamus or prohibition to the district court in aid of jurisdiction. We find that jurisdiction over the appeal at this juncture is inappropriate and decline defendants' invitation to issue the writ.

This court has "jurisdiction of appeals from all final decisions of the district courts ... except where a direct review may be had in the Supreme Court." 28 U.S.C.A. Sec. 1291. An order of the district court is final for purposes of section 1291 only if the ruling " 'ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.' " Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 275 (1988) (quoting Catlin v. United States, 324 U.S. 229, 233 (1945)). Because the decision of whether an order is "final" is frequently a difficult and close question, the finality requirement of section 1291 "is to be given a 'practical rather than a technical construction.' " Gillespie v. United States Steel Corp., 379 U.S. 148, 152 (1964) (quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949)). " [I]n deciding the question of finality the most important competing considerations are 'the inconvenience and costs of piecemeal review on the one hand and the danger of denying justice by delay on the other.' " Gillespie, 379 U.S. at 152-53 (quoting Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 511 (1950)).

Our balancing of these competing considerations leads us to conclude that the December 30, 1988 and April 16, 1990 orders, taken together, do not amount to a final order from which appeal may be taken. Although the district court appears to have rendered a definitive ruling on the existence of a violation of section 2, the court has thus far failed to make a final ruling on the matter of an appropriate remedy. We find that the expense to the parties and the waste of judicial resources occasioned by piecemeal appeals are not outweighed by any danger of injustice as the County has failed to show that it will be prejudiced in any way if review of the district court finding of a section 2 violation is postponed until a remedy is ordered that can also be reviewed at the same time. To the contrary, and important to this disposition, the record reveals that redistricting based upon 1990 census data is inevitable in early 1991 even if the district court finding of a section 2 violation is ultimately reversed.

We conclude that jurisdiction over the merits of the appeal does not properly lie under 28 U.S.C.A. Sec. 1292(a) (1) which gives this court jurisdiction over interlocutory orders granting or denying injunctions. Our review of the imposition of an injunction on an interlocutory basis is confined to "the propriety of the interlocutory order itself." 16 C. Wright, A. Miller, E. Cooper & E. Gressman, Federal Practice and Procedure Sec. 3921 (1977). The reviewing court rules merely on whether the district court abused its discretion in granting the temporary relief and generally need only review the merits of the action insofar as necessary to determine the propriety of the limited issue before it. Continental Oil Co. v. Frontier Ref. Co., 338 F.2d 780, 781 (10th Cir. 1964). See also 11 C. Wright, A. Miller & F. Elliott, Federal Practice and Procedure Sec. 2962 & n. 28 (1973 & Supp.1990). We cannot conclude that the district court abused its discretion in temporarily staying implementation of any plan until new census data had been received and analyzed.

This court must find two factors present before it will issue a writ of mandamus and only if both considerations are fully satisfied should a court resort to use of the extraordinary writ. First, the court must possess the authority to issue the writ, and second, the circumstances must constitute an appropriate situation for the exercise of the power. In re Sewell, 690 F.2d 403 (4th Cir. 1982). The exercise of the power is inappropriate when adequate relief may be obtained through other means. See Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 35 (1980).

We find that circumstances justifying the proper exercise of our authority to issue the writ do not exist and deny defendants' petition for the writ. As noted above, it appears at this time that defendants will suffer no harm if this action proceeds at the district court level without appellate intervention. This court has the ability to remedy any error relating to the finding of a violation or the appropriateness of an attorneys' fee award upon appeal from a final order of the district court.

We do not address whether the district court erred in finding a violation of section 2 nor whether plaintiffs' proposed black majority plan will support the threshold requirements of Gingles. We only hold that review of these issues at this time is inappropriate. Consequently, we dismiss the appeal, deny defendants' petition for the writ of mandamus, and vacate our orders of May 24, 1990 and December 28, 1990 staying the orders of the district court.

DISMISSED.