Court filings: Court of Appeals, brief of appellee/appellant Mrs. Lorene Joshua, et al.

The transcript for this item was created using Optical Character Recognition (OCR) and may contain some errors. SEP 5 1996 Office of Desegregation Monlicnn~ Michael E. Gans, Clerk U.S. court Of Appeals, 1114 Market Street st. Louis, MO 63101 of Court Eighth Circuit 22 Locust Avenue Lexington, MA 02173 September 3, 1996 Re: Little Rock School Dist. v. Servicemaster Management Services, No. 96-2047EALR Dear Mr. Gans, Enclosed for filing are the original and 9 copies of the brief o~ the Joshua Intervenors (appellees\appellants). Sincerely, cc: all counsel I I I I I i I I I I I I I I I I I I I IN THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT NO. 96-2047EALR LITTLE ROCK SCHOOL DISTRICT APPELLANT v. SERVICEMASTER MANAGEMENT SERVICES L.P. MRS. LORENE JOSHUA, ET AL. APPELLEE Ilic APPELLEE~ _ .. APPELLANT Appeal from the United States District Court For the Eastern District of Arkansas Western Division Honorable Susan Webber Wright, District Judge BRIEF OF APPELLEE\APPELLANT MRS. LORENE JOSHUA, ET AL. John W. Walker John W. Walker, P.A. 1723 Broadway Little Rock, AR 72206 501-374-3758 Bob Pressman 22 Locust Avenue Lexington, MA 02173 617-862-1955 I I I I I I I I I I I I I I I I I I 1, Summary and Reguest for Oral Argument Long after this court in 1990 directed the entry of a fresh order providing for the dismissal of the State (but not the local systems) from this litigation, the LRSD's appeal calls for this court to consider the meaning\implications of the robust version of continuing jurisdiction provided for by this court in 1990. This court must also consider, with regard to the LRSD motion denied below, the implications of the district court's finding of poor implementation by LRSD, a finding amply supported by the record. The contract issues presented by LRSD involve the application of basic principles of contract interpretation. Such principles call for a different result than the one reached below. Oral argument is warranted, given LRSD's request for a directive that the litigation be dismissed with prejudice. I I I I I I I I I I I I I I I I I I I TABLE OF AUTHORITIES Cases Appeal of Little Rock Sch. District, 949 F.2d 253 (8th Cir. 1991) 6, 15-16 Brown v. Board of Education, 349 U.S. 294 (1955) 1, 13, 15 Continental Bank and Trust Co. v. American Bonding Co., 630 F.2d 606 (8th Cir. 1980) 17 Klein v. Arkoma Production Co., 73 F.3d 779 (8th Cir. 1996) 17 Little Rock Sch. Dist. v. Pulaski County Special School District, 921 F.2d 1371 (8th Cir. 1990) passim Little Rock Sch. Dist. v. Pulaski County Special School Dist., 971 F.2d 160 (8th Cir. 1992) 14, 15-16 Press Machinery Corp. v. Smith R.P.M. Corp., 727 F.2d 781 (8th Cir. 1984) 18 Raney v. Board of Education, 391 U.S. 443 (1968) 13 st. Mary's Honor Center v. Hicks, 113 s.ct. 2742 (1993) 14 Swann v. Charlotte-Mecklenburg Board of Educ., 402 U.S. 1 (1971) 15 Tasby v. Estes, 643 F.2d 1103 (5th Cir. 1981) 12 Union National Bank v. Federal Nat. Mort. Assoc., 860 F.2d 847 (8th Cir. 1988) 19 United States v. Montgomery County Board of Education, 395 U.S. 225 (1969) 15 Wright v. City Council of Emporia, 407 U.S. 451 (1972) Other Authorities Restatement of Contracts, Second, Sections 202(1), 203(a) 15 1, 18-19 I I I I I I I I I I I I I I I I I I I TABLE OF CONTENTS summary and Request for Oral Argment Table of Contents Table of Authorities Issues Presented on Appeal Statement of the Case A. LRSD's Motion for Dismissal B. The Servicemaster Contract Argument A. The District Court's Denial of LRSD's Motion Dismissal with Prejudice Should be Affirmed for 1. It is Plausible to Construe This Court's 1990 Decision as Not Applying the Provision for Dismissal of the Case as to the Local Districts i ii iii 1 1 1 11 12 12 12 2. If the District Court, in Substance, Rejected a Belated Effort to Implement a Portion of the Settlement Agreement, That Action Was Not an Abuse of Discretion in View of the Evolution of the Case Since 1990 15 B. The Court Erred in Applying Principles of Contract Conclusion Addendum Release as to State Order of Dismissal, Dec. 15, 1989 Order, Jan. 18, 1991 Statement of Judge Wright to LRSD Counsel and Board, March l9, 1993 Transcript Excerpts, March 29, 1993 Transcript Excerpts, June 7, 1994 Transcript Excerpts, June 29, 1994 Excerpts from ODM report, May 17, 1995 Law 17 19 1 5 6 8 16 22 30 40 I I I I I I I I I I I I I I I I I I I Issues Presented on Appeal (1.) Whether, in 1990, this court in fact approved, as to LRSD, a provision for dismissal with prejudice of this civil action and cases consolidated therein and their predecessors. * Little Rock School District v. Pulaski County Special School District, 921 F.2d 1371 (8th Cir. 1990) (2.) Whether, alternatively, the district court's denial in 1996 of the motion for dismissal with prejudice was, in view of the evolution of the case since 1990, an appropriate exercise of the court's broad discretion. * Little Rock School District v. Pulaski County Special School District, supra, 921 F.2d at 1386, 1394 * Brown v. Board of Education, 349 U.S. 294, 299-301 (1955) (3.) Whether the district court erred in interpreting the contract between the LRSD and Servicemaster Management Services and in declaring the interpretation urged by the LRSD and the Joshua Intervenors to be inconsistent with public policy. * Restatement of Contracts, Second, Sections 202(1), 203(a) Statement of the Case A. LRSD's Motion for Dismissal In 1988 and 1989 the parties agreed to settle this desegregation case concerning three school districts in Pulaski County, Arkansas. They presented to the district court separate, detailed, desegregation plans for the three systems, a lengthy interdistrict plan, and a 36-page "settlement agreement" 1 I I I I I I I I I I I I I I I I I I I resolving the financial liability of the State of Arkansas. 1 Four releases were attached to the settlement agreement, one pertaining to each of the three local school systems and one regarding the State and its agents. A difference in the text of the two categories of releases is noteworthy. The releases pertaining to the LRSD, the NLRSD, and the PCSSD contained the following identical provision (emphasis by use of capitalization and parenthetical explanations added). 2 It is further understood and agreed that the litigation now pending in the United States District Court for the Eastern District of Arkansas, Western Division, entitled Little Rock School District vs. Pulaski County Special School District No. 1 et al., No. LR-C-82-866 and cases consolidated therein and their predecessors (including but not limited to, [identification of other cases applicable to the system] (the 'Litigation') is to be dismissed with prejudice as to the [name of local system] and the former and current members of its board named in the Litigation. THIS DISMISSAL IS FINAL FOR ALL PURPOSES EXCEPT THAT THE COURT MAY RETAIN JURISDICTION TO ADDRESS ISSUES REGARDING THE IMPLEMENTATION OF THE PLANS. The release regarding the State and its agents did not include the language regarding the retention of jurisdiction. It read as follows: It is further understood and agreed thast the litigation now pending in the United States District Court for the Eastern District of Arkansas, Western Division, entitled Little Rock School District vs. Pulaski County Special School District No. 1. et al., No. LR-C-82-866 and cases consolidated therein and their predecessors (the 'Litigation') is to be dismissed with prejudice as to the Arkansas State Board of Education and the former and current 1 See Little Rock School District v. Pulaski County Special School District, 921 F.2d 1371, 1376 (8th Cir. 1990). 2 See LRSD Addendum, at 13, 17, 21. 2 I I I I I I I I I I I I I I I I I I I members of that Board named in the Litigation. 3 Thereafter, the parties appealed to this court the district court's rejection of the five agreements. At the outset of its opinion, this court characterized its resolution of the parties' challenge to the district court's action, as follows. We now reverse the judgment of the District Court. In general, we direct that Court, on remand, to approve the settlement plans and settlement agreement as submitted by the parties. We also make certain other directions for the future of the case. This court discussed the standards governing its review of the parties' settlement. See 921 F.2d at 1383-85, 1388-89. On the one hand, the court emphasized the importance of the parties' agreement and the public policy in favor of settlements. Id., at 1383, 1388. The court also recognized, however, its responsibility to insure that the agreements were not "unfair to class members ... ," or ones inconsistent with the "[court's] strong interest in not involving itself, along with the prestige of the law, in an ongoing equitable decree which is either manifestly unworkable or plainly unconstitutional on its face." Id., at 1383. This court's 1990 opinion emphasized the district court's important responsibilities and its considerable authority and discretion. This language, quoted below, casts doubt on whether this court in fact approved the "dismiss[al] with prejudice" of 3 See Joshua Add., at 2. See Little Rock School District, supra, 921 F.2d at 1376. 3 I I I I I I I I I I I I I I I I I I I this and the related civil actions as to the LRSD (and NLRSD and PCSSD). This text is as follows: 921 F.2d at 1383 This does not mean that a court must automatically approve anything the parties set before it. In the present case, for example, any remedy will necessarily require some judicial supervision -- monitoring, at least -- for a long time. A court has a strong interest in not involving itself, along with the prestige of the law, in an ongoing equitable decree which is either manifestly unworkable or plainly unconstitutional on its face. In addition, this is a class action, and courts are not obliged (indeed they are not permitted) to approve settlements that are unfair to class members, or negotiated by inadequate class representatives. 921 F.2d at 1386 The district court was concerned about the lack of sufficient detail in the plans to guarantee successful implementation. The answer to this concern lies, we think, in the fact, upon which we place a great deal of weight, that the parties have all agreed to continued monitoring. Indeed, such monitoring by the District Court and its agents is essential. It is important for the settlement plans to be scrupulously adhered to -- and here we have in mind especially the kind of programs that the plan contemplates for the incentive schools -- and it will be the job of the District Court to see that this monitoring is done effectively, and that appropriate action is taken if the parties do not live up to their commitments. 921 F.2d at 1388 As indicated above, this does not mean that the parties will be free of supervision or monitoring. Quite the contrary: a necessary condition of our holding that the plans are not facially unconstitutional is that the parties' compliance with them will be carefully monitored. As we shall make clear at the conclusion of the opinion, when we set out the directions to be followed by the District Court on remand, the office previously known as the Office of the Metropolitan Supervisor will be reconstituted as the Office of Desegregation Monitoring, to be headed by a Monitor appointed by the District Court, with such additional personnel as the District Court shall deem appropriate. 921 F.2d at 1390 .. We accept these undertakings [of the districts], 4 I I I I I I I I I I I I I I I I I I I again with the reminder that compliance with them will be closely monitored. If the District Court becomes convinced in the future that money is being wasted, and that desegregation obligations contained in the settlement plans are being flouted, it will be fully authorized to take appropriate remedial action. As the parties agree, the settlement agreement implicitly authorizes the District Court to retain jurisdiction to oversee its implementation. See 14 App. 3466. 921 F.2d at 1394. para. (8.) The District Court is instructed to monitor closely the compliance of the parties with the settlement plans and the settlement agreement, to take whatever action is appropriate, in its discretion, to ensure compliance with the plans and the agreement, and otherwise to proceed as the law and the facts require. 921 F.2d at 1394. para. (9.) .. The parties should be able to agree as to whether any such adjustments [for purposes of transition to the new plans] are necessary, and, if so, what they should be. Absent such agreement, the District Court is authorized to take such action as may be just. [explanation added] This court's "actions" (921 F.2d at 1394) also addressed explicitly the "settlement plans," the "settlement agreement," and the provision, set forth without qualification, for dismissal of the State and its agents from the litigation. The court directed the district court, on remand, "to approve" "the settlement plans submitted by the parties" and "the parties' settlement agreement as written by them." See 921 F.2d at 1394. This court also specified [921 F.2d at 1394, para. (5.), emphasis added] that [i]n Nos. 90-1165, 90-1166, and 90-1167, the District Court's order of December 11, 1989, is reversed, and the order of December 15, 1989, is vacated, with instructions to enter a fresh order dismissing the State as a party pursuant 5 I I I I I I I I I I I I I I I I I I I to the terms of the parties' settlement agreement. 5 There was no comparable provision regarding LRSD, NLRSD, or PCSSD. In an order of January 18, 1991, the district court (the Honorable Susan Webber Wright) addressed certain of this court's directives. Judge Wright, inter alia, ordered that "[t]he state of Arkansas is dismissed as a party to this action pursuant to the terms of the parties' settlement agreement." Joshua Add., at 7. She added that "[t]he parties' settlement agreement is hereby approved as written by them" (id.) and paraphrased this court's description of her responsibilities and authority as the case unfolded on remand. Id. In Appeal of Little Rock School District, 949 F.2d 253 (8th Cir. 1991), this court addressed the contention that the district court had employed erroneous legal standards in considering the parties' agreed upon modifications of the settlement. This court concluded that the district court had erred, articulated standards to be used in considering the requested modifications, and remanded for proceedings consistent with the decision. This court added: "We ask the District Court, to the extent practicable, to give this matter priority on its docket" (949 F.2d at 258) phraseology seemingly inconsistent with the notion that this case had been or should have dismissed as to the 5 This court referred to the entry of "a fresh order" because on December 15, 1989, Judge Henry Woods had, by order, "dismissed [the State defendants] with prejudice from this case, the cases consolidated herein and their predecessors .... 11 Joshua Addendum, at 5. 6 I I I I I I I I I I I I I I I I I I I local defendants and the Joshua Intervenors. On November 30, 1995 -- 4 years and 10 months after Judge Wright had provided for the dismissal of the State defendants, the LRSD, alone, filed a "Motion for Order of Dismissal" seeking an order dismissing this case with prejudice with respect to LRSD, PCSSD and NLRSD as of January 18, 1991, except to the extent the court retains jurisdiction to address issues regarding implementation of the plans and to conduct proceedings to enforce the terms of the settlement agreement or the desegregation plans. [LRSD App., at 35-36) LRSD did not in its motion or supporting memorandum explain to the court and the parties how, if at all, the conduct of the litigation would change if the motion were granted, whether effective January 18. 1991 as requested, or upon the date of the district court's order. See LRSD App., at 34-43. 6 On March 11, 1996, the district court denied LRSD's motion, reasoning as follows (LRSD Add., at 8-9, emphasis added): Let there be no mistake that, with the entry of the settlement agreement, the claims involved in this ongoing litigation were dismissed, at least as a technical matter. The Court finds, however, that no useful purpose would be served by entering an order of disnmissal at this time. The Court of Appeals has instructed this Court 'to monitor closely the compliance of the parties with the settlement plans and the settlement agreement, to take whatever action is appropriate, in its discretion, to ensure compliance with the plans and the agreement, and otherwise to proceed as the law and the facts require.' Little Rock School Dist. v. Pulaski County Special School District No. 1, 921 F.2d 1371, 1394 (8th Cir. 1990). The LRSD has frequently exhibited indifference or outright recalcitrance towards its commitments and has been slow to implement many aspects of its agreements (although some improvements have been made). Therefore. the Court finds that an order of dismissal should be deferred in order to ensure compliance with the plans and 6 No such explanation is offered here, despite the fact that the Joshua Intervenors' Opposition to LRSD's motion below noted LRSD's silence about its perceived effects. LRSD App., at 56-57. 7 I I I I I I I I I I I I I I I I I I I the agreement. Even had the LRSD acted in good faith throughout the years. the logistics and complexity of this case are such that this court's monitoring function would be impaired by entering an order of dismissal at this time. The court's earlier statements and reports of the Office of Desegregation Monitoring (ODM), created by order of this court, provide ample support for the court's finding about LRSD'~ poor implementation of the settlement. We next provide examples from the record supportive of the court's finding. Judge Wright directed that LRSD's school board members appear in court on March 19, 1993, at which point she "read the riot act" to them, beginning as follows (Joshua Add., at 8): .... The Court does not believe that you understand those orders, or if you do understand them, you do not seek to comply. Hopefully, after this morning, you will have an understanding; but whether you do or do not, you must comply. This court has been too lenient with you. The Court has given you ample leeway and opportunity to move toward a unitary school system. Those days of Court leniency and the assumption by the Court of good faith on your part are over. The court's March 19, 1993 statement, encompassing eight pages (Joshua Add., at 8 - 15), provided considerable evidence of failings in the LRSD. The court, for example, noted that it would "appoint a budget officer to be paid by the [LRSD], who [would] be a part of the [ODM] and who [would] operate under the direction of Ann Brown [ODM Director]." lg., at 11. This would be done because "it became increasingly apparent that the [LRSD] could not or would not develop a budget sufficient to identify 8 I I I I I I I I I I I I I I I I I I I expenditure of desegregation funds." Id., at 10. 7 The district court also provided "a reminder of some of the provisions of the Plan or Court orders that [LRSD had] yet to fulfill," citing 21 examples. Id., at 13 - 15. On March 29, 1993, Judge Wright made the following comments to the lawyers for the parties (Joshua Add., at 18, 20-21): And just letting you as the lawyer for the district work this out with Joshua and the ODM will not help me instill in your Board the importance of starting a process whereby they consider the ramifications of their own actions and whereby they focus on the plan. They must be driven by this plan. The plan has to drive their actions and that has not been happening, clearly. * * * I feel that in dealing with the district that the Court has had to to ask the district at every turn where is this, where is that. You promised this under the plan, where is it? And the district kind of says, oh, yeah, we do need to do this, un-huh. But they drag their feet, and they don't have a plan in place to focus and they don't have a process in place to focus on what needs to be done to fulfill their obligations. And I have waited long enough and I'm tired of waiting .. On June 7, 1994, the district judge alluded to the need to depend upon action by many LRSD employees, in the context of again criticizing the quality of the system's implementation efforts (Joshua Add., at 22, 23-24, 27). THE COURT: I want to inject something right now. I hope that you are right, that people are there ready to, as you 7 The court further explained (id., at 13): "A budget officer to assist the School District is just a 'make work' situation." No, it is not; that is patently false. The Court cannot determine how you are spending your money to achieve desegregation. Your administrators do not know. Your lawyers do not know. And you do not know. If the LRSD were a corporation, I would put it in receivership. By the way, do not think that I have not considered that with regard to LRSD." 9 I I I I I I I I I I I I I I I I I I I put it, collaborate with the LRSD. I'm willing to assume that that's correct. What I cannot assume is that the LRSD will put in motion the efforts to, in fact, collaborate. The district talks a good game, but a lot of times, doesn't have anyone accountable for putting its promises into action, and we have seen this repeatedly in this case and it's an inherent defect of the Desegregation Plan. The Plan made a lot of promises, but didn't make any one department or person or officer officially accountable, and that's the reason people like you have to be here because nothing was being done. And we are getting things a little more in motion .... * * * THE COURT: Well, that sounds good, but I need to know with some specificity who will do it, when they'll do it, where they'll do it, who the targets are, what the means will be, because so far in this case, it has been difficult to get an organization as big and cumbersome as you school district to coordinate itself to meet these visions you have. I think they're great visions. I mean, no one can say that's a poor idea. I think it's a wonderful idea .... * * * THE COURT: Well, saying that you can do this and saying that that you will do it is not going to be enough in this courtroom any more. You're going to have to say specifically in some detail what you will do, when you'll do it, whom you'll contact and what have you .... 8 This court provided for the creation of the Office of Desegregation Monitoring to gather and report facts, therby facilitating and strengthening the district court's monitoring efforts. LRSD's incentive schools, identified by this court as a pivotal part of the settlement (921 F.2d at 1386 ), have been a focus of ODM's monitoring. In its report of May 17, 1995, concerning the incentive schools, ODM concluded (Joshua Add., at 8 See also Joshua Add., at 30-39 (deficiencies in LRSD's performance described by the court at a hearing on June 29, 1994). 10 I I I I I I I I I I I I I I I I I I I 40-44): This year, we found none of the programs that we monitored being fully implemented at all five schools. Beginning with the first ODM incentive schools report in 1991-92, we have pointed to the glaring inconsistencies among the schools. As the number of incentive schools has dwindled from seven to five, the inconsistencies have grown rather than diminished. With four of the five principals being newly assigned this year, and two of them being brandnew principals, it is no wonder that some programmatic offerings have been slighted as the new principals tried to deal with the challenges posed by incentive schools, while adjusting to new jobs as well. In many areas, we were disheartened to see a retreat from the prior level of program implementation .... [details re particular programs omitted] [At 34) In many ways our fourth annual visit to the incentive schools was the most discouraging review we have conducted. While we saw many positive and commendable aspects, we also saw problems and deficiencies that were entirely avoidable and correctable. The LRSD has had a sufficient amount of time to successfully implement the promised programs. These schools were designed to serve as models of instructional excellence, but that level of quality has not been realized throughout. Instead, too many aspects of these schools serve as an object lesson that promises made, but not kept, are meaningless. Successfully implementing the incentive schools programs is not an impossible task by any means. With solid leadership. competent staff, consistent support, and the will and determination to 'be the best,' all these schools can be the high-guality centers of learning they were pledged to be. [At 36; emphasis added] In summary, as of the time of the LRSD's motion, the district court had an ample basis for concluding that LRSD had not ":scrupulously and diligently carr[ied] out the [relevant portions of] the settlement plans ... " (921 F.2d at 1394), including the provisions regarding the incentive schools. B. The Servicemaster Contract With the exception of expressing the view that the LRSD and the Joshua Intervenors agreed to a settlement of intervenors' 11 I I I I I I I I I I I I I I I I I I I motion concerning the Servicemaster contract, the intervenors accept LRSD's factual statement regarding this contract. See LRSD Brief, at 4-5. Argument A. The District Court's Denial of LRSD's Motion for Dismissal with Prejudice Should Be Affirmed 1. It Is Plausible to Construe This Court's 1990 Decision as Not Applying the Provision for Dismissal of this Case as to the Local Districts This court is, of course, the best judge of the meaning of its 1990 decision and the specific directives to the district court. 9 It is plausible, we respectfully submit, to construe this court's 1990 decision as not applying the provision for "dismiss[al] [of this litigation] with prejudice as to the LRSD ." and its agents. Several factors support this alternative argument. First. This court did not simply state that it approved the settlements. Rather, it cited the responsibility to insure their consistency, facially, with minimum constitutional standards (921 F.2d at 1383) and approved the agrements "[i)n general" and subject to "certain other directions for the future of the case." See 921 F.2d at 1376. Second. This court directed the entry of an order dismissing the action agaiamst the State and its agents (921 F.2d at 1394); no similar action was required as to the local systems. 9 See Tasby v. Estes, 643 F.2d 1103, 1106 (5th Cir. 1981) (deference to district court on the standard of compliance established by its own order); Little Rock School District, supra, 921 F.2d at 1391-92 (construing earlier decision in this case). 12 I I I I I I I I I I I I I I I I I I I Third. This court's description (quoted above) of the district court's future role is hardly consistent with a dismissed case. In the light of five, detailed settlement documents, this court obviously foresaw an active role for the district court -- and, indeed, even required the creation of ODM to facilitate that effort. Fourth. This court may have viewed the key paragraph of the releases quoted above as containing contradictory concepts10 and opted for continuing jurisdiction as necessary to meet the minimum constitutionaal standards to which it alluded. 11 Fifth. This court may have construed the key paragraph of the releases - - by use of the words "may retain jurisdiction ... " -- to allow the courts to choose the retention of jurisdiction (i.e., a continued open status), if deemed necessary for the court to conclude that the settlement was lawful. See 921 F.2d at 1390.12 Lastly, we reiterate our point about this court's descrip~ion of the status of this case during a later appeal. See supra at 6. To be sure, our suggested approach may involve some tension with the directive that on remand the district court should "approve the parties' settlement agreement as written by them." 10 That is, this case shall be dismissed, this case shall not be dismissed. 11 E.g., Brown v. Board of Education, 349 U.S. 294, 299-301 (1955); Raney v. Board of Education, 391 U.S. 443, 449 (1968). ~ "As the parties agree, the settlement agreement implicitly authorizes the District Court to retain jurisdiction to oversee its implementation. See 14 App. 3466." 13 I I I I I I I I I I I I I I I I I I I 921 F.2d at 1394, para. (6.). 13 It sometimes happens that all of the content of an opinion resolving a complex matter does not fit neatly together. See St. Mary's Honor Center v. Hicks, 113 s.ct. 2742, 2752-53 (1993). If there is tension, or inconsistency, we respectfully suggest that ours is the best reading of the totality of the 1990 opinion. 14 Intervenors' alternative approach does not leave LRSD without the benefit of its bargain. Rather, the case continues to be deemed open, as realistically it is; 15 and LRSD and the other districts are free to argue that any particular matter (or claim) raised by the Joshua Intervenors is ouside the ambit of the ongoing litigation. That is, the case remains open; its nature is somewhat changed." 13 There is no such issue, if the agreement "as written by [the parties]" is construed by reason of the phrase "may retain jurisdiction" to allow the courts to choose a continuing open status rather than dismissal. 14 The decision in Little Rock School District v. Pulaski County Special School District, 971 F.2d 160 (8th Cir. 1992), regarding the provision about millages (see LRSD Brief, at 7-9), is factually distinguishable. That issue did not involve an instance of either differing strands in this court's 1990 opinion approving the settlement, or a provision of the settlement open to multiple interpretations. 15 The docket excerpts included in the LRSD Appendix (at i to xv) include, for example, 155 entries from August 31, 1995 through April 30, 1996. 16 It is unclear to intervenors what the district judge meant by stating that "the claims involved in this ongoing litigation were dismissed, at least as a technical matter." LRSD Add., at 8. The court, there, did not refer to dismissal of the litigation with prejudice. 14 I I I I I I I I I I I I I I I I I I I 2. If the District Court, in Substance, Rejected A Belated Effort to Implement a Portion of the Settlement Agreement, That Action Was Not an Abuse of Discretion in View of the Evolution of the Case Since 1990 It may be, depending upon this court's interpretation of its 1990 ruling, that the district court's denial of the motion is accurately characterized as rejecting a part of the "settlement agreement" -- at least temporarily.n If so, that action was not an abuse of discretion given the facts of which the district court was aware when it ruled in 1996, and the non-final nature of its ruling. The Supreme Courts's emphasis on the role of district courts in desegregation cases began with Brown v. Board of Education. supra, 349 U.S. at 299-301. This theme was often repeated thereafter by the high court, which emphasized the need to rely upon the informed discretion of the district courts, the judicial bodies most familiar with the facts of each case.~. United States v. Montgomery County Board of Education, 395 U.S. 225, 227, 235-36 (1969) (noting that on at least one occasion the district court had "on its own motion, amended his outstanding order ... "); Swann v. Charlotte-Mecklenburg Board of Educ., 402 u. S. 1, 28 (1971); Wright v. City Council of Emporia, 407 U.S. 451, 470-71 (1972). 18 n The district court wrote that dismissal "should be deferred"; the court declined to approve dismissal "at this time." LRSD Add., at 9, 10. 18 In this case, this court has followed the Supreme Court's lead, emphasizing the need for reliance on the district court, as well as that court's discretion. See Little Rock School District. supra, 921 F.2d at 1394, para. (8.); Appeal of Little Rock School 15 I I I I I I I I I I I I I I I I I I I Turning to the action giving rise to this segment of the appeal, the district court faced a motion seeking dismissal of this litigation in 1995 and 1996, at a point when it had been confronted with and commented upon LRSD's inadequate implementation of the settlement, also evidenced by the work of ODM. The situation, then, was different in a very significant sense from 1989-1990 when this court had considered the facial validity of the settlement. See 921 F.2d at 1383-84. The district court's ruling was based upon "the facts"; the court took "appropriate [action] . to ensure compliance with the plans and the agreement .. "See