ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.
Gibbons, Hunter, Circuit Judges, and Stapleton,*fn* District Judge. Gibbons, Circuit Judge, dissenting.
STAPLETON, District Judge:
Frederick L. brought this civil rights action on behalf of himself and "all children attending public schools within the City of Philadelphia who have specific learning disabilities and who are deprived of education appropriate to their special needs". He asserted a right to relief under the First, Ninth and Fourteenth Amendments to the United States Constitution and under the Pennsylvania School Code. 24 Purd. Stat. §§ 13-1371, et seq. This Court previously affirmed holdings of the court below (1) that abstention on the issues presented by the class demand for injunctive relief would be inappropriate and (2) that the Pennsylvania School Code requires the defendants to identify learning disabled children and to provide them with an appropriate education. Frederick L. v. Thomas, 557 F.2d 373 (1977), affirming 419 F. Supp. 960 (E.D.Pa. 1976). The defendants have been ordered to identify all learning disabled children and proceedings concerning further relief for the class are ongoing.
The present appeal is from an order staying further proceedings relating to Frederick L.'s individual claim for damages until he has presented his state law based damage claim to a court of the Commonwealth of Pennsylvania. This abstention decision was based on the District Court's view that (1) the plaintiff's damage claim posed an unclear issue of state law, that is, whether 24 Purd. Stat. § 13-1371 creates a private right of action for damages, (2) this issue involved a sensitive area of special state concern, (3) a decision by a state court in plaintiff's favor might obviate the necessity of deciding plaintiff's constitutionally based claims, and (4) any delay occasioned by affording the state court an opportunity to act would not irreparably injure the plaintiff. Relying on Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 85 L. Ed. 971, 61 S. Ct. 643 (1941), the District Judge exercised his discretion in favor of abstention, but reserved jurisdiction so that the plaintiff's constitutional claims could be adjudicated in the District Court if that became necessary.
Plaintiff maintains that abstention was improper because, in his view, the constitutional questions are not "premised" on the pendent claim for damages, there is no unclear question of state law, resolution of the pendent claim will not avoid a decision on the constitutional claims, abstention in this context will not serve the policies underlying the abstention doctrine, and the request for abstention was untimely.
Before evaluating these contentions, we must first determine whether we have jurisdiction to conduct the review which the plaintiff seeks. He maintains that the lower court's abstention order is a "final" one under the collateral order doctrine and that, accordingly, jurisdiction lies under 28 U.S.C. § 1291. Primary reliance is placed on a footnote comment of the Supreme Court in Idlewild Bon Voyage Liquor Corp. v. Epstein.*fn1 Additional support is said to exist in Professor Moore's treatise*fn2 and a number of Circuit Court opinions which cite the Idlewild footnote.*fn3
The existence of Section 1291 jurisdiction in a situation of this kind is far more debateable than the plaintiff would have us believe. The per curiam opinion in Idlewild does make the following observation about an order implementing a decision to abstain:
The Court of Appeals properly rejected the argument that the order of the District Court "was not final and hence unappealable under 28 U.S.C. §§ 1291, 1292," pointing out that "appellant was effectively out of court".
But this statement was made in the context of a case in which the order appealed from constituted a denial of injunctive relief and appellate jurisdiction was clear under 28 U.S.C. § 1292(a).*fn4 In contrast, the order before us impacts only on a claim for monetary damages and, in this context, Idlewild is not controlling. Moreover, as a single panel of this Court, we would not consider ourselves free to premise jurisdiction on Idlewild's cryptic reference to Section 1291 without satisfactorily distinguishing the decisions of this Court in Cotler v. Inter-County Orthopaedic Ass'n, 526 F.2d 537 (3rd Cir. 1975) and Arny v. Philadelphia Transportation Co., 266 F.2d 869 (3rd Cir. 1959). In each instance, this Court held that an order staying a federal court suit until final resolution of a pending, related, state litigation was not appealable under Section 1291.
It is necessary, however, for us to pursue an analysis of Section 1291 and the collateral order doctrine. We are in agreement that appellate review should be available to one in plaintiff's position and that we may undertake that review pursuant to 28 U.S.C. § 1651. This Court held in Texaco, Inc. v. Borda, 383 F.2d 607 (3rd Cir. 1967) that "the remedy of mandamus . . . specifically extends to review of a trial court's grant, or refusal, of a stay of proceedings". 383 F.2d at 608. The Cotler decision and United States v. Mellon Bank N.A.*fn5 also support this view.*fn6
Turning to the merits, we believe this Court's original opinion in this case offers substantial guidance in evaluating plaintiff's first two grounds for relief. As he correctly points out, the "classic" case for application of the Pullman doctrine involves a constitutional attack on a state statute under circumstances where one possible construction of the statute would avoid or substantially alter the constitutional issue. But we recognized in our initial opinion that Pullman abstention is not limited to this classic case:
At the outset of our abstention analysis, we must take cognizance of the fact that the litigation at hand does not present an "orthodox" abstention situation. In a recent decision, the Supreme Court described Pullman cases as those where "a federal constitutional claim is premised" on an unclear state law issue. The constitutional issue in the instant case is not, in the strict sense, "premised" upon a state law question. This is so since the alleged constitutional defects in the District's educational programs will exist, theoretically, regardless of the interpretation placed upon the state statutes or regulations.
Nonetheless, we believe that the facts of this case place it within the general ambit of Pullman. The constitutional issue is accompanied by a pendent state law claim. And even though the two problems are not inextricably intertwined, resolution of the state law claim might make it unnecessary to confront the federal constitutional question. Further, an ...