Fairfax County Wide Citizens Association v. Fairfax County, VA Petition for a Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit

    No. /  8 'S d  7  

IN THE

Supreme Court of the United States
OCTOBER TERM, 1977

FA IR FA X  COUNTY WIDE CITIZENS 
ASSOCIATION, et al,

Petitioners,
v.

COUNTY O F FA IRFAX , VIRGINIA, et al.,

PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

ALLISON W. BROWN, JR. 
Suite 301
1345 E Street, N.W. 
Washington, D.C. 20004

ROBERT M. ALEXANDER 
2011 South Glebe Road 
Arlington, Virginia 22204

Attorneys for Petitioners
JACK GREENBERG 
JAMES M. NABRIT, II 
10 Columbus Circle 
New York, New York 10019

Of Counsel

THE C A S IL L A S  PRESS. IN C .-1717  K Street. N. W.-Washington, D. C.-223-1220



INDEX

OPINIONS BELOW .................................................................... 2

JURISDICTION....................................................... 2

QUESTION P R E SE N T E D ...................................  2

STATEMENT .............................................................................  2

A. The settlement agreement — its enforce­
ment by the district court .............................. 2

B. The court of appeals’ decision . . . . . .  4

C. Further proceedings in the district court . . .  6

REASONS FOR GRANTING THE W R I T .....  6

CONCLUSION......................................................  12

APPENDIX A .....................................................................  la

APPENDIX B .....................................................................  15a

APPENDIX C .....................................................................  17a

APPENDIX D .....................................................................  18a

CITATIONS

Cases:
Albright v. R. J. Reynolds Tobacco Co.,

350 F. Supp. 341 (W.D. Pa., 1972), affd 
485 F.2d 678 (C.A. 3, 1973), cert, denied 
416 U.S. 951 ............................................

Page

8



All States Investors, Inc. v. Bankers Bond Co.,
343 F.2d 618 (C.A. 6, 1965), cert, denied,
382 U.S. 830 ................................................................  11

Aro Corp. v. Allied Witan Co.,
531 F.2d 1368 (C.A. 6, 1976), cert, denied,

429 U.S. 862 ................................................................  6,9

Autera v. Robinson,
419 F.2d 1197 (C.A.D.C., 1 9 6 9 ) .............................. 11

Beirne v. Fitch Sanitarium,
167 F. Supp. 652 (S.D.N.Y., 1 9 5 8 ) ......................... 11

Bernstein v. Brenner,
320 F. Supp. 1080 (D.D.C., 1 9 7 0 ).............................. 8

Chief Freight Lines Co. v. Local Union No. 886,
514 F.2d 572 (C.A. 10, 1 9 7 5 ) ..................................  6

Cia Anon Venezolana de Navegacion v. Harris,
374 F.2d 33 (C.A. 5, 1 9 6 7 ) ........................ ..... 11

Coburn v. Cedar Valley Land Co.,
138 U.S. 196 (1 8 9 1 )......................................................  10, 11

Cummins Diesel Michigan, Inc. v. The Falcon,
305 F.2d 721 (C.A. 7, 1962) ................................... 11

Dugas v. American Surety Co.,
300 U.S. 414 (1 9 3 7 )......................................................  7

Haldeman v. United States,
23 L. Ed. 433 ( 1 8 7 6 ) .................................................  8

Hall v. People to People Health Foundation, Inc.,
493 F.2d 311 (C.A. 2, 1974)

jj

Page

7



I l l

Ingalls Iron Works Co. v. Ingalls,
111 F. Supp. 151 (N.D. Ala., 1 9 5 9 ) ......................... 7, 11

Kelly v. Greer,
334 F.2d 434 (C.A. 3, 1965) ................................... 6, 10

Kelly v. Greer,
365 F.2d 669 (C.A. 3, 1966), cert, denied,
385 U.S. 1035 ................................................................  6, 10

Kelsey v. Hobby,
41 U.S. 269 ( 1 9 4 2 ) ......................................................  10

Kukla v. National Distillers Products Co.,
483 F.2d 619 (C.A. 6, 1973) ................................... 11

Landau v. St. Louis Public Service Co.,
364 Mo. 1134, 273 S.W. 2d 255 (1954) . . . .  8

Langlois v. Langlois,
5 A.D.2d 75, 169 N.Y.S. 2d 170 (1957) . . . .  8

Pacific Railroad of Missouri v. Missouri Pacific
Railway Co., I l l  U.S. 505 (1 8 8 4 ) .............................. 7

Robinson v. E. P. Dutton & Co.,
45 F.R.D. 360 (S.D.N.Y., 1968)................................... 8

Skyline Sash Co. v. Fidelity and Casualty Co. 
o f New York, 378 F.2d 369 (C.A. 3, 1967), 
affd 267 F. Supp. 577 (W.D. Pa., 1966) . . . .  6, 10

Williams v. First National Bank,
216 U.S. 582 (1910)

Page

9



IV

Constitution, Statutes, Rules:

U. S. Constitution, Fourteenth A m endm ent.................... 2

42 U.S.C. Sec. 1 9 8 1 ...........................................................  2

42 U.S.C. Sec. 1983 ...........................................................  2

Federal Rules of Civil Procedure, Rule 60(b)(6) . . .  4

Miscellaneous:

124 Cong. Rec. H1553 ff. ( 1 9 7 8 ) ................................... 7

124 Cong. Rec. H1569 ff. ( 1 9 7 8 ) ................................... 7

Annual Report of the Director of the 
Administrative Office of the United
States Courts ( 1 9 7 7 ) ......................................................  1 ,9

13 Wright, Federal Practice and Procedure
Sec. 3523 ..........................................................................  7

Page



IN THE

Supreme Court of the United States
OCTOBER TERM, 1977

No.

FAIRFAX COUNTY WIDE CITIZENS 
ASSOCIATION, et al,

v.
Petitioners,

COUNTY OF FAIRFAX, VIRGINIA, et al.,

PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

Petitioners respectfully pray that a writ of certiorari issue 
to review the decision and judgments of the United States 
Court of Appeals for the Fourth Circuit in this case.1

1 Petitioners, in addition to Fairfax County Wide Citizens Associa­
tion, are Gum Springs Civic Association, Springdale Civic Association, 
William L. and Jeanne G. Paige, Ulysses 0 . and Ada M. Scott, and 
Roy and Evelyn A. Brent. Respondents, in addition to County of 
Fairfax, Virginia, are Joseph Alexander, Martha V. Pennino, John 
F. Herrity, Alan H. Magazine, Audrey Moore, James M. Scott, Marie 
B. Travesky, John P. Schacochis, and Warren I. Cikins, individually 
and as members of the Board of Supervisors of County of Fairfax, 
Virginia; and Douglas B. Fugate, individually and as Virginia State 
Highway Commissioner.



OPINIONS BELOW

The opinion of the court of appeals (App. A., infra, pp. 
la-14a) is reported at 571 F.2d 1299. The memorandum 
opinion of the district court (App. D, infra, pp. 18a-23a) 
is not reported.

JURISDICTION

The judgments resulting from the appeal and cross­
appeal were entered by the court of appeals on March 
6, 1978 (App. B, infra, pp. 15a-16a). A timely petition 
for rehearing and suggestion for rehearing en banc was de­
nied by the court of appeals by its order entered April 
28, 1978 (App. C, infra, p. 17a). On July 19, 1978,
Justice Brennan extended the time for filing a petition 
for a writ of certiorari to and including September 25, 1978. 
The jurisdiction of this Court is invoked under 28 U.S.C.
Sec. 1254(1).

QUESTION PRESENTED

Whether a district court’s jurisdiction to enforce a set­
tlement agreement which terminated a federal civil rights 
action pending before it is defeated by the fact that the 
parties are citizens of the same state.

STATEMENT

A. The settlement agreement — its enforce­
ment by the district court

This action was commenced in August 1971 by three 
civic associations and six black residents of Fairfax County 
Virginia, alleging racial discrimination in the delivery of 
public services, in violation of 42 U.S.C. Secs. 1981, 1983, 
and the Equal Protection Clause of the Fourteenth Amend­
ment. Specifically, plaintiffs alleged that as a result of dis­



3
criminatory policies and practices of the defendant County, 
members of its board of supervisors, and Virginia State 
Highway Commissioner Douglas B. Fugate, the predomi­
nantly black neighborhoods of Fairfax County, in con­
trast to the white neighborhoods, were generally charac­
terized by unpaved and substandard streets, inadequate 
storm drainage, lack of curbs and gutters, and lack of 
public sidewalks. Plaintiffs requested a mandatory injunc­
tion compelling the defendants to upgrade and pave the 
streets in question, and to construct adequate drainage 
facilities, curbs, gutters, and sidewalks (infra, pp. 3a-4a). 
Following the denial of defendants’ motions to dismiss, 
the case was set for trial on June 1, 1971 (infra, p. 4a).

On May 31, 1972, following extensive pre-trial dis­
covery, plaintiffs entered into two separate settlement 
agreements. The first, between plaintiffs and defendant 
Fugate, required the State to upgrade and pave six streets 
located in black neighborhoods in Fairfax County (infra, 
p. 4a). The second settlement agreement, between plain­
tiffs and the County defendants, required the latter to up­
grade and pave 76 streets in black neighborhoods within 
a three-year period (infra, p. 4a). In view of the settle­
ment of the litigation, plaintiffs, pursuant to agreement 
of the parties, moved for dismissal of the suit and on 
June 1, 1972, the district entered separate orders dis­
missing the action as to the State and County defendants. 
(infra, p. 5a).

Thereafter, the State substantially performed its obli­
gations under its settlement agreement. However, the 
County only partly performed its obligations and in the 
ensuing three years upgraded 25 streets in black neigh­
borhoods. In the spring of 1975, the County concluded 
that it lacked authority under state law to perform fur­
ther its obligations under the settlement agreement, and 
on April 28, 1975, the County’s board of supervisors



4

adopted a resolution repudiating the agreement (infra, 
p. 5a).

On August 7, 1975, plaintiffs moved in the district 
court under Rule 60(b) (6), F.R. Civ. P., to vacate the 
dismissal order of June 1, 1972, and for an order com­
pelling specific performance of the County’s settlement 
agreement. Plaintiffs, in support of their motion, disputed 
the County’s claim that state law prohibited its perform­
ance of the settlement agreement and asserted that, in any 
event, enforcement of the statutes and regulations relied 
on by the County should be enjoined because they were 
administered and enforced in an arbitrary, capricious, and 
racially discriminatory manner (infra, p. 6a). On January 
30, 1976, under authority of Rule 60(b) (6), F.R. Civ. P., 
the district court granted plaintiffs’ motion to vacate the 
dismissal and reopened the proceeding against the County 
(infra, p. 6a). Following discovery procedures and a trial 
of issues pertaining to the County’s breach of the settle­
ment agreement, the district court, on November 26, 1976, 
entered its order directing the County to perform the re­
mainder of the agreement by upgrading and paving 43 
streets still in controversy (infra, p. 6 a).

B. The court of appeals’ decision

Appeals from the district court’s order were taken by 
both the County and plaintiffs, the latter claiming that cer­
tain additional relief should have been granted. Ruling on 2

2 Rule 60(b) (6), F.R. Civ. P., provides in relevant part that, “On 
motion and upon such terms as are just, the court may relieve a 
party or his legal representative from a final judgment, order, or 
proceeding for the following reasons: . . .  (6) any other reason 
justifying relief from the operation of the judgment.”



5

the County’s appeal, the court of appeals held that, upon 
the County’s repudiation of the settlement agreement which 
had terminated the litigation pending before it, the district 
court had authority under Rule 60(b) (6) to vacate its 
prior dismissal order and restore the case to its docket 
(infra, p. 8a). However, the court of appeals held that 
upon the district court’s vacation of its prior order of dis­
missal, that court only had authority to restore the case 
to its trial docket for the purpose of allowing plaintiffs 
to prove their case and to obtain relief on the merits of 
their original claim. Thus, the court held, because plaintiff 
and the County defendants lack diversity of citizenship, 
the district court did not have jurisdiction to enforce the 
settlement agreement against the breaching party (infra, 
pp. 13a-14a). Accordingly, the court of appeals reversed the 
order of specific performance entered by the district court 
against the County and remanded the proceeding to that 
court to allow plaintiffs to proceed to the trial of their 
original case.

In reaching its decision, the court of appeals held that 
although the original complaint stated a federal civil rights 
claim over which the district court had jurisdiction, the 
settlement agreement was a private contract which, be­
cause of the nondiversity of the parties, could only be en­
forced by plaintiffs bringing a separate action in state court 
(infra, p. 13a). Finally, the court of appeals noted that 
the settlement agreement had not been approved or incorpo­
rated into an order of the district court. This omission, 
the court held, would not have affected the district court’s 
authority to enforce the agreement if there had been an in­
dependent ground of federal jurisdiction, such as diversity 
of citizenship, but since such ground is lacking here the 
district court was not empowered to enforce the agree­
ment (infra, p. 8a).



6

C. Further proceedings in the district court

Pursuant to the court of appeals’ order of remand, the 
district court set the case down for trial on the basis of 
plaintiffs’ original complaint. Plaintiffs’ motion for a stay 
of proceedings pending the filing of a petition for certio­
rari was denied by the district court, and trial was held on 
July 10, 1978. As of September 25, 1978, the date of fil­
ing of this petition, the district court still had the matter 
under advisement.

REASONS FOR GRANTING THE WRIT

I.

The court of appeals’ ruling that the district court 
lacked jurisdiction to enforce the settlement agreement 
reached in litigation pending before it is totally without 
precedent in the reported authorities and is in direct con­
flict with the decisions of at least three other circuits.
The Sixth, Third, and Tenth Circuits have specifically held 
that issues pertaining to compliance with a settlement 
agreement that terminated litigation in a district court 
may properly be resolved by that court upon the filing 
of a supplemental motion or petition in the original pro­
ceeding, and that an independent action need not be ini­
tiated for such purpose. Since, as these three circuit 
courts recognize, an action to compel compliance with a 3

3 See Aro Corp. v. Allied Witan Co., 531 F.2d 1368 (C.A. 6, 1976), 
cert, denied, 429 U.S. 862; Kelly v. Greer, 334 F.2d 434 (C.A. 3, 
1965); Kelly v. Greer, 365 F.2d 669 (C.A. 3, 1966), cert, denied 
385 U.S. 1035; Chief Freight Lines Co. v. Local Union No. 886,
514 F.2d 572 (C.A. 10, 1975); Skyline Sash Co. v. Fidelity and 
Casualty Co. o f New York, 378 F.2d 369 (C.A. 3, 1967), aff’g 
267 F.Supp. 577 (W.D. Pa., 1966).



7

settlement agreement may be brought in a proceeding 
that is supplemental or ancillary to the original suit, there 
clearly is no need to establish a separate and independent 
basis of federal jurisdiction for this purpose, as the court 
of appeals held herein.4

The court of appeals’ decision in this case should be 
reversed, not only because it is unprecedented and con­
flicts with the decisions of other circuits, but also be­
cause it poses a serious threat to the efficient administra­
tion of justice by discouraging, rather than encouraging, 
the settlement of cases in the district courts. Seventy-five 
percent of all cases filed in the district courts are non­
diversity cases in which jurisdiction is based either on the 
fact that the suit involves a federal question or that the 
United States is a party.5 In federal question cases, if 
there is no diversity between the parties, based on the 
court of appeals’ decision, the only way that litigants can 
be assured that a settlement agreement they might enter 
into will be enforceable by the court where the case is

4 The authority to enforce a settlement agreement reached by par­
ties in pending litigation has been said to fall within a federal court’s 
“ancillary jurisdiction.” 13 Wright, Federal Practice and Procedure, 
Sec. 3523, n. 2, citing Hall v. People to People Health Foundation, 
Inc., 493 F.2d 311, 313 n. 3. (C.A. 2, 1974). And see Ingalls Iron 
Works Co. v. Ingalls, 111 F. Supp. 151, 154 (N.D. Ala., 1959). It
is well settled that absence of diversity of citizenship does not de­
feat ancillary jurisdiction. Pacific Railroad of Missouri v. Missouri 
Pacific Railway Co., I l l  U.S. 505, 522 (1884); Dugas v. American 
Surety Co., 300 U.S. 414, 428 (1937).

5 Annual Report of the Director of the Administrative Office of 
the United States Courts, Table C2 (1977). A bill that would abolish 
diversity jurisdiction passed the House of Representatives on Febru­
ary 28, 1978, by a vote of 266 to 133, and now pending in the 
Senate. See 124 Cong. Rec. H1553-1561, H1569-1570, 95th Cong. 
2nd Sess. (1978).



pending is by having it approved and incorporated into an 
order of the court. The imposition of such requirements 
is totally contrary to the more informal practice that is 
followed by untold numbers of litigants who settle a pend­
ing case through agreement and then move for dismissal, 
as was done in the instant case. In Haldeman v. United 
States, 23 L. Ed. 433, 434 (1876) this Court recognized 
that:

Suits are often dismissed according to 
the agreement of the parties, and a gen­
eral entry made to that effect, without 
incorporating the agreement in the record, 
or even placing it on file. 6̂ ̂

The formal requirements of approval and incorporation 
in an order that the court of appeals would impose on 
parties as conditions of having their settlement agreement 
enforceable by the court where the case is pending would 
discourage the informal type settlement that today is fre­
quently resorted to by parties wishing to terminate their 
litigation quickly and with a minimum of expense. In 
addition to the extra time and cost to the litigants that 
is involved in going before a judge and having a settle­
ment agreement incorporated into an order, the require­
ments that the court of appeals would impose create addi­
tional duties for already overburdened federal judges. Be­
fore approving a settlement agreement, a judge inevitably * 3

6 Also, see for example, Robinson v. E.P. Dutton & Co., 45 F.R.D. 
360 (S.D. N.Y., 1968); Albright v. R.J. Reynolds Tobacco Co., 350 
F. Supp. 341, 344, 348 (W.D. Pa., 1972), aff’d 485 F.2d 678 (C.A.
3, 1973), cert, denied, 416 U.S. 951; Bernstein v. Brenner, 320 F. 
Supp. 1080 (D.D.C., 1970); Landau v. St. Louis Public Service Co., 
364 Mo. 1134, 273 S.W. 2d 255 (1954); Langlois v. Langlois, 5 A.D 
2d 75, 169 N.Y.S. 2d 170 (1957).



9

must spend time familiarizing himself with its provisions 
and, in most instances, before the judge will enter an 
order incorporating a settlement he will require a hearing 
for the purpose of allowing the parties to explain the 
agreement and present their respective positions.

It has never been doubted that, “Compromises of dis­
puted claims are favored by the courts.” Williams v. First 
National Bank, 216 U.S. 582, 595 (1910). Yet, the court 
of appeals’ decision would be a serious impediment to the 
settlement of a substantial amount of litigation in the fed­
eral courts. In a recent 12-month period there were 130,567 
civil actions filed in the federal district courts and 92 per­
cent of those cases (excluding land condemnation proceed­
ings) were disposed of without trial.7 It cannot be doubted 
that voluntary settlements without formal court action ac­
counted for a substantial number of the cases that were 
disposed of without trial. However, the court of appeals’ 
decision would in effect elirriinate this form of settlement 
for federal litigants, and thus impair, rather than assist, 
the efficient administration of justice.

II.

The court of appeals acknowledges in its opinion that 
its decision conflicts with the Sixth Circuit’s ruling in 
Aro Corp. v. Allied Witan, supra, where, on facts virtually 
indistinguishable from those present here, a district court 
was held to have jurisdiction to enforce a settlement 
agreement, despite nondiversity of citizenship. The court 
of appeals herein failed to note, however, that its decision 
also conflicts, as shown supra, n. 3, p. 6, with the Third

■7
Annual Report of the Director of the Administrative Office of the 

United States Courts, supra, Tables C2, C4 (1977).



10

Circuit’s decisions in Kelly v. Greer, supra, and the Chief 
Freight Lines, supra, and Skyline Sash, supra, decisions 
of the Tenth and Sixth Circuits, respectively. While it 
is true that in the latter two cases diversity of citizenship 
existed between the parties, the decisions are nevertheless 
relevant here for, if, as those cases hold, a district court 
has jurisdiction to resolve a dispute over a settlement 
agreement entered into a suit properly pending before it 
on the basis of a supplemental petition or motion filed 
in the original proceeding, there obviously is no reason 
to require an independent basis for jurisdiction, as the 
court of appeals herein would have it.

Not only does the court of appeals’ decision conflict 
with the foregoing authorities, but it is also contrary to 
Coburn v. Cedar Valley Land Co., 138 U.S. 196, 221- 
223 (1891), where this Court specifically rejected the 
contention that a federal court lacks authority to enforce 
in the original proceeding a settlement agreement reached 
in a pending suit. After considering cases from the English 
courts holding that a separate action for specific enforce­
ment was necessary to enforce certain settlement agree­
ments, the Court held the controlling principle to be that 
where the agreement covers only matters encompassed by 
the proceeding in which the agreement was reached, the 
court has jurisdiction to enforce it by “motion or peti­
tion in the original suit.” 138 U.S. at 223. See also Kelsey 
v. Hobby, 41 U.S. 269, 277 (1842). Since it is unquestioned 
in the instant case that the settlement agreement is limited 
to matters encompassed by the complaint, the court of 
appeals’ decision constitutes an unwarranted departure 
from the authority of the Coburn case.

Several other cases similar factually to Coburn are cited by 
the court of appeals in its opinion herein, and although the 
court seeks to distinguish them on various grounds, those cases



11

in fact demonstrate a state of the law totally at odds 
with the court’s decision. Thus, the cited cases all illus­
trate applications of the principle laid down by this Court 
in the Coburn case, that a settlement agreement entered 
into in a pending case, though it creates contract rights 
new and different from the rights on which the original 
claim was based, is nevertheless enforceable on a motion 
or petition in the original proceeding. In each of the cited 
cases the parties entered into a settlement agreement con­
templating that upon performance of the agreement the 
action would be dismissed. When breach occurred, the 
other party sought specific performance in a proceeding 
that was held to be properly part of the original suit. The 
common characteristic of such cases is that the settlement 
agreement is not necessarily intended initially by the par­
ties to be incorporated into the court’s order. Rather, it 
is only after one party breaches the agreement that its 
terms become incorporated into the order as a means of 
compelling specific performance. Upon analysis, it is clear 
that there is no meaningful distinction between cases of 
that nature and the case at bar. For, after the district 
court herein vacated its dismissal order and reopened the 
proceeding in response to plaintiffs’ motion under Rule 
60(b) (6), this case stood in exactly the same posture 
as the cited cases, i.e., enforcement was sought of a 
breached settlement agreement that had been entered into 8

8 See Autera v. Robinson, 419 F.2d 1197 (C.A. D.C., 1969); Cia 
Anon Venezolana De Navegacion v. Harris, 374 F.2d 33, 35 (C.A.
5, 1967); All States Investors, Inc. v. Bankers Bond Co., 343 F.2d 
618, 624 (C.A. 6, 1965), cert, denied, 382 U.S. 830; Cummins 
Diesel Michigan, Inc. v. The Falcon, 305 F.2d 721, 723 (C.A. 7, 
1962); Kukla v. National Distillers Products Co., 483 F.2d 619,
621 (C.A. 6, 1973); Ingalls Iron Works Co. v. Ingalls, supra, 111 
F. Supp. at 154-155; Beirne v. Fitch Sanitarium, 167 F. Supp. 652 
(S.D. N.Y., 1958).



12

with the understanding that the action would be dismissed. 
Upon the reopening of the original proceeding herein, the 
district court, no less than the courts in the cited cases, 
possessed jurisdiction to enforce the settlement agreement 
as part of the original action, and there was no necessity 
to regard plaintiffs’ motion for specific performance as a 
new action for jurisdictional purposes.

For the foregoing reasons, a writ of certiorari should 
issue to review the decision and judgments of the court of 
appeals. However, as shown supra, p. 6, as of September 
25, 1978, the date of filing of this petition, the district 
court had under advisement its decision in the proceeding 
on remand from the court of appeals. The district court’s 
decision may be a basis for resolving the controversy be­
tween the parties and thus moot the issue presented in 
this petition. Therefore, petitioners respectfully request 
this Court to withhold action on the petition, pending the 
district court’s decision. Petitioners will advise the Court 
as soon as the district court acts on the matter under 
advisement.

CONCLUSION

ALLISON W. BROWN, JR. 
Suite 301
1345 E Street, N.W. 
Washington, D.C. 20004

JACK GREENBERG 
JAMES M. NABRIT, II 
10 Columbus Circle 
New York, New York 10019

ROBERT M. ALEXANDER 
2011 South Glebe Road 
Arlington, Virginia 22204

Attorneys for Petitioners

Of Counsel

September 1978



la

APPENDIX A

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 77-1190

Fairfax Countywide Citizens Association,
Gum Springs Civic Association,
Springdale Civic Association,
Cooktown Citizens Association,
William L. and Jeanne G. Paige,
Ulysses O. and Ada M. Scott,
Roy and Evelyn A. Brent,
Earnest W. and Margaret E. Gibson,

Appellees,

v.

County of Fairfax, Virginia, 
Joseph Alexander,
Mrs. Martha V. Pennino,
John Herrity,
Alan H. Magazine,
Mrs. Audrey Moore,
James M. Scott,
Marie B. Travesky,
John P. Schacochis,
Warren I. Cikins,
individually and members, County 
of Fairfax Board of Supervisors,

Appellants.



2a

No. 77-1248

Fairfax Countywide Citizens Association,
Gum Springs Civic Association,
Springdale Civic Association,
William L. and Jeanne G. Paige,
Ulysses O. and Ada M. Scott,
Roy and Evelyn A. Brent,

Appellants,

v.

County of Fairfax, Virginia,
Joseph Alexander,
Mrs. Martha V. Pennino,
John Herrity,
Alan H. Magazine,
Mrs. Audrey Moore,
James M. Scott,
Marie B. Travesky,
John P. Schacochis,
Warren I. Cikins,
individually and members, County of
Fairfax Board of Supervisors, and
Douglas B. Fugate, individually,
and as Virginia State Highway Commissioner,

Appellees.

Appeals from the United States District Court for the 
Eastern District of Virginia, at Alexandria. Oren R. Lewis, 
Senior District Judge.

Argued January 9, 1978 Decided March 6, 1978

Before WINTER, RUSSELL and WIDENER.



3a

Robert Lyndon Howell, Assistant County Attorney (Fred­
eric Lee Ruck, County Attorney, on brief) for Appellants 
in 77—1190; John J. Beall, Jr., Assistant Attorney General 
(Anthony F. Troy, Attorney General of Virginia, Walter 
A. McFarlane, Deputy Attorney General, on brief) for 
Appellees in 77—1248; Allison W. Brown, Jr. (Robert M. 
Alexander; Jack Greenberg and James M. Nabrit, III, on 
brief) for Appellees and Cross-Appellants.

WINTER, Circuit Judge:

The County of Fairfax, Virginia (County) appeals from 
an order of the district court directing County to perform 
its remaining obligations under a 1972 settlement agree­
ment between it and Fairfax Countywide Citizens Associa­
tion (Association). Because we conclude that the district 
court lacked jurisdiction to issue the order, we reverse.

I.

In August 1971, several citizens associations located in 
Fairfax County, Virginia, and six individuals, filed suit in 
the district court alleging racial discrimination in the de­
livery of public services in violation of 42 U.S.C. §§1981, 
1983 and the Equal Protection Clause of the Fourteenth 
Amendment. Specifically, plaintiffs claimed that a dispro­
portionate number of unpaved and substandard roads in 
Fairfax County were located in predominantly black 
neighborhoods. Plaintiffs prayed a mandatory injunction 
compelling County to pave and upgrade the roads in 
question, including the construction of adequate drainage 1

1 Association also filed a cross-appeal in this case to require a modifi­
cation of the district court’s order. Because we decide that the district 
court lacked jurisdiction to enter an order enforcing the settlement 
agreement, Association’s cross-appeal is rendered moot, and we will 
not consider it further.



4a

facilities, curbs, gutters and sidewalks. In addition to 
naming County and certain of its officials as defendants 
to the action, plaintiffs also joined Douglas B. Fugate, the 
Virginia State Highway Commissioner and chief administra­
tor of the Virginia Highway System. Following a denial of 
defendants’ motions to dismiss, the case was set for trial 
on June 1, 1972.

On May 31, 1972, following extensive pretrial discovery, 
plaintiffs entered into two separate settlement agreements. 
The first, between plaintiffs and defendant Fugate, required 
the Commonwealth to upgrade six streets located in black 
neighborhoods in Fairfax County. These streets were al- 
ready part of the Virginia secondary highway system and 
therefore, within the jurisdiction of the State Highway De­
partment.2 3 4 The second settlement agreement, between plain­
tiffs and County, required County to upgrade seventy-six 
additional roads in black neighborhoods within a three-year 
period. None of these roads was, at the time of the agree­
ment, included in the Virginia secondary highway system. 
County, however, promised to “make every effort to have 
the . . . streets, when improved, taken into the State Hdgh-

2

2 This was one of many civil rights suits filed in the wake of the Fifth 
Circuit’s decision in Hawkins v. Town of Shaw, Mississippi, 437 F.2d 
1286 (1971), aff’d on reh’g, 461 F.2d 1172 (1972), holding that sta­
tistical evidence of gross inequalities in the delivery of public services 
to black and white residents is sufficient to establish a prima facie case 
of unlawful racial discrimination.

3Va. Code §33.1-67 (1950) provides that: “The secondary system of 
State highways shall consist of all of the public roads . . .  in the sev­
eral counties of the State not included in the State [Primary] Highway 
System.”

4 Va. Code §33.1-69 (1950) provides that: “The control, supervision, 
management and jurisdiction over the secondary system of State high­
ways shall be vested in the Department of Highways and the mainte­
nance and improvement . . .  of such secondary system of State high­
ways shall be by the State under the supervision of the State Highway 
Commissioner.”



5a

way System.” If these efforts proved unsuccessful, County 
nonetheless recognized a “continuing responsibility to main­
tain these streets in a fair and equitable manner.”

After securing these agreements, plaintiffs moved for dis­
missal of their claims against State and County. The mo­
tion was granted and three dismissal orders, each naming 
different defendants, were entered on June 1, 1972. The 
orders each recited that on plaintiffs’ motion, and with 
defendants’ consent, the case was dismissed. While Associa­
tions’ later motion alleged that the settlement agreements 
were filed in open court (the docket entries do not so re­
cite and the clerk’s file does not contain them), the orders 
themselves did not mention that the parties had entered 
into settlement agreements; and they neither approved nor 
incorporated either settlement agreement.

Thereafter, the Commonwealth substantially performed 
its obligations under the settlement agreement. County like­
wise commenced performance of its obligations and, in the 
ensuing three years, upgraded twenty-five roads in black 
neighborhoods. In 1975, after certain black residents not 
party to the settlement agreement obtained a permanent 
injunction preventing County from upgrading one of the 
subject roads, County reviewed its obligations and deter­
mined that the settlement agreement was, at least in part, 
void as contrary to state law. Following this determination, 
County’s Board of Supervisors passed a resolution, dated 
April 28, 1975, repudiating the settlement agreement.5

5 Briefly, the Board’s conclusion that it lacked authority to continue 
performing the settlement agreement was reached by this reasoning: 
State law prohibits local government units from expending funds for 
the construction, maintenance or improvement of roads not eligible 
for inclusion in the secondary system of State highways. Va. Code 
§33.1-225 (1950). To be eligible for inclusion in the State system, 
there must exist a public right-of-way of not less than thirty feet.
Va. Code §33.1-230 (1950). In addition, by regulation of the High­
way and Transportation Commission, a road must also service at 
least three houses per mile in order to be eligible for inclusion in



6a

On August 5, 1975, plaintiffs moved the district court 
to vacate the dismissal order of June 1, 1972. Plaintiffs 
did not pray reinstatement of their law suit and an oppor­
tunity to try it. Rather, they prayed enforcement of the 
settlement agreements and, if state law prohibited County’s 
performance, a declaration of the invalidity of the various 
statutes, regulations and administrative rulings pertaining 
to the Virginia State Highway System which purportedly 
prohibited such performance. On January 30, 1976, under 
authority of Rule 60(b) (6), F.R. Civ. P., the district 
court vacated its previous order of dismissal; and, on No­
vember 26, 1976, it entered an order directing County to 
upgrade the forty-three roads still in controversy.6

II.

Neither in the proceedings in the district court nor in 
its initial brief filed with this court, did County challenge 
the jurisdiction of the district court to resolve what had 
become essentially a contract dispute between the parties. 
Because it appeared to us that, at the time enforcement

the State system. County believes that nineteen of the forty-three 
roads still in controversy are permanently ineligible for inclusion 
either because a thirty-foot public right-of-way is unavailable or be­
cause the minimum service requirement is unmet. As to these nine­
teen, County believes that §33.1-225 absolutely forbids the expendi­
ture of county revenues for paving and other improvements. As to 
the remaining twenty-four, County believes that, while these are not 
permanently ineligible, they are presently ineligible in that the requi­
site public right-of-way has not been obtained. Moreover, says the 
County, there exists substantial resistance in the affected black neigh­
borhoods to the acquisition by County of the necessary rights-of-way.

6 The district court rejected County’s contentions as set forth in 
footnote 5, supra, holding in essence that County’s past disregard 
for the statutory prohibition of Va. Code §33.1-225 (1950) estopped 
it from denying its liability under the settlement agreement to main­
tain and improve roads not eligible for inclusion in the secondary 
system of State highways. Because we decide this case on jurisdic­
tional principles, we express no view as to the merits of County’s 
defense to repudiation or the district court’s rejection of that defense.



7a

was sought by Association, it was possible that federal 
subject-matter jurisdiction was lacking, we requested that 
the jurisdictional issue be briefed and argued. Upon con­
sideration of the various arguments advanced and author­
ities cited, we conclude that this issue is indeed dispositive 
and that the district court lacked jurisdiction to enter an 
enforcement order.

III.

As the sole authority supporting the district court’s exer­
cise of federal jurisdiction to enforce the settlement agree­
ment, Association cites Aro Corp. v. Allied Witan Co.,
531 F.2d 1368 (6 Cir.), cert, denied, 429 U.S. 862 (1976), 
a case arising on facts virtually indistinguishable from those 
in the case at bar.

In the Aro case, Aro Corporation had originally filed an 
action for patent infringement against Allied Witan Com­
pany (Allied) under 28 U.S.C. §1338. Prior to trial, Aro 
and Allied settled their dispute by means of a licensing 
agreement, and by stipulation of the parties, the complaint 
was dismissed. Six weeks later, Allied breached the agree­
ment by refusing to tender the initial royalty payment. Aro 
thereupon filed a motion under Rule 60(b) (6), F. R. Civ. 
P., praying both that the district court vacate its prior dis­
missal order and that Allied be compelled to perform its 
obligations under the licensing agreement. Defendant chal­
lenged the district court’s jurisdiction to grant the relief 
sought; but the district court ruled that it had the requi­
site subject-matter jurisdiction, 65 F.R.D. 513 (N.D. Ohio 
1975), and the Sixth Circuit affirmed, holding first that 
defendant’s repudiation of the settlement agreement con­
stituted “full justification” under Rule 60(b) (6) for re­
opening the proceedings; and second, that the district court 
was empowered to enforce the settlement agreement not- 

thstanding the lack of diversity of citizenship between 
parties. 531 F.2d at 1371.



8a

We are in agreement with the Sixth Circuit that, upon 
repudiation of a settlement agreement which had termi­
nated litigation pending before it, a district court has then
authority under Rule 60(b) (6) to vacate its prior dismis­
sal order and restore the case to its docket. See also Chief 
Freight Lines Co. v. Local Union No. 886, 514 F.2d 572 
(10 Cir. 1975); Kelly v. Greer, 334 F.2d 434 (3 Cir. 1964) 
We respectfully differ, however, with the Aro Court in its 
conclusion that, once the proceedings are reopened, the 
district court is necessarily empowered to enforce the set­
tlement agreement against the breaching party. We are of 
the opinion that the district court is not so empowered 
unless the agreement had been approved and incorporated 
into an order of the court, or, at the time the court is re­
quested to enforce the agreement, there exists some inde-Q
pendent ground upon which to base federal jurisdiction.

A district court is a court of limited jurisdiction “ [a]nd 
the fair presumption is (not as with regard to a court of 
general jurisdiction, that a cause is within its jurisdiction 
unless the contrary appears, but rather) that a cause is 
without its jurisdiction till the contrary appears,” Turner 
v. President, Directors and Company of the Bank of North 
America, 4 Dali. 8, 10, 1 L. Ed. 718, 719 (1799). The 
burden of establishing jurisdiction is on the party claiming 7 8

7 Fed. R. Civ. P. 60(b) provides, in pertinent part, that: “On mo­
tion and upon such terms as are just, the court may relieve a party 
or his legal representative from a final judgment, order, or proceed­
ing for the following reasons: . . .  (6) any other reason justifying 
relief from the operation of the judgment.”

8 Where the settlement agreement is approved and incorporated into 
an order of court, the district court possesses jurisdiction to enforce 
its own order. Where there has been no incorporation, it is likely 
that the “independent ground” most often asserted will be that of 
diversity of citizenship between the parties to the settlement agree­
ment. 28 U.S.C. §1332. This is not to suggest, however, that other 
bases of federal jurisdiction may not also be available in appropri­
ate situations, e.g., 28 U.S.C. §§1345, 1346 (United States as party).



9a

it. McNutt v. General Motors Accept. Corp. 298 U.S. 178, 
182-83 (1936). After canvassing the possible sources of 
jurisdiction in the instant case, we do think that Associa­
tion has not met its burden.

Association’s contract claim did not arise “under the 
Constitution, laws, or treaties of the United States,” 28 
U.S.C. §1331. The settlement agreement between Associa­
tion and County, while serving to terminate litigation of a 
federal claim, was a private contract entered into after pri­
vate negotiations between the parties. Both its validity and 
the interpretation of its terms are governed by Virginia 
law. If, instead of filing a motion under Rule 60(b) (6), 
Association had filed a new complaint in the district court, 
alleging breach of contract and seeking specific performance, 
there is little doubt that the claim would have been dis­
missed on jurisdictional grounds.9 10 See Arvin Industries,
Inc. v. Bems Air King Corp., 510 F.2d 1070 (7 Cir. 1975). 
The same is true if the parties had negotiated and entered 
into a settlement agreement prior to any litigation, and 
thereafter Association, alleging the breach of the agreement, 
sought to invoke federal jurisdiction to enforce it. See Kysor 
Industrial Corporation v. Pet, Incorporated, 459 F.2d 1010 
(6 Cir.), cert, denied, 409 U.S. 980 (1972).

9 It is true that, in its motion seeking specific performance of the set­
tlement agreement, Association asked the district court to declare un­
constitutional any state law prohibiting County’s performance. While 
this presents a potential federal question, it is well established that 
§1331 jurisdiction obtains only if federal law “creates the cause of 
action.” American Well Works Co. v. Layne § Bowler Co., 241 U.S. 
257 (1916). See also Louisville & Nashville R.R. v. Motley, 211 U.S. 
149 (1908). At the time enforcement was sought, Association’s “cause 
of action” was for breach of contract — a claim arising under state 
law.
10 Since both parties to this litigation are citizens of Virginia, no juris­
diction would obtain under 28 U.S.C. §1332, nor does there exist any 
special statutory grant of jurisdiction empowering the district court in 
the instant case to take cognizance over the contract dispute.



10a

Thus, since there is neither federal question nor diversity 
jurisdiction in the instant case, we must look elsewhere if 
the jurisdiction of the district court is to be sustained.11 
In Aro, the Sixth Circuit advanced what appeared to be 
alternative jurisdictional theories and we turn to them.

First, it was said that “courts retain inherent power to 
enforce agreements entered into in settlement of litigation 
pending before them.” 531 F.2d at 1371. See also United 
States v. Newport News Shipbuilding and Dry Dock Co.,
—  F.2d— , —  (4 Cir. 1978) (dictum); Meetings & Expo­
sitions, Inc. v. Tandy Corp., 490 F.2d 714, 717 (2 Cir. 
1974); Kukla v. National Distillers Products Co., 483 F.
2d 619, 621 (6 Cir. 1973); Massachusetts Casualty Insur­
ance Co. v. Forman, 469 F.2d 259, 260 (5 Cir. 1972); 
Autera v. Robinson, 419 F.2d 1197, 1200 (D.C. Cir. 1969); 
Kelly v. Greer, 365 F.2d 669, 671 (3 Cir. 1966), cert, de­
nied, 385 U.S. 1035 (1967); Cummins Diesel Michigan, Inc. 
v. The Falcon, 305 F.2d 721, 723 (7 Cir. 1962).

While this principle is sound under appropriate circum­
stances, it is not a principle of federal jurisdiction. An 
analysis of the cases cited by the Aro court in support of 
the principle shows that, except for one, they all concerned 
settlement agreements which were intended to be incorpo­
rated into final orders 12 or for which independent federal

11 Certainly Rule 60 supplies no grant of jurisdictional authority.
It merely permits a district court to try the original cause of action 
when the district court concludes that the ends of justice warrant 
reinstating the original claim.

12 Kukla v. National Distillers Products, supra; Cia Anon Venezolana 
de Navegacion v. Harris, 374 F.2d 33 (5 Cir. 1967); All States In­
vestors, Inc. v. Bankers Bond Co., 343 F.2d 618 (6 Cir. 1967).

In each of these cases, parties to litigation pending in district 
court had entered into an agreement prior to final judgment where­
by defendant consented to a judgment in favor of plaintiff; but 
prior to entry of judgment, defendant had repudiated. Rather than



11a

jurisdiction existed. The single exception was a state case 
which involved a court of general, not limited, jurisdiction.* 14 
likewise, in Newport News Shipbuilding and Dry Dock Co., 
a recent decision of this court where the principle was re­
peated with approval, the jurisdiction of the district court 
was not at issue.15

In our view, the inherent power of a district court to en­
force settlement agreements, like any other power inherent­
ly vested in a federal court, presupposes the existence of 
federal jurisdiction over the case or controversy.

13

remitting plaintiff to proof of his entire case, the district court 
entered judgment in accordance with the terms of the repudiated 
agreement. The settlement agreement was thus viewed as a stipula­
tion on the merits of the original claim whereby defendant admitted 
liability. See also Cummins Diesel Michigan, Inc. v. The Falcon, 
supra.
1 3 Meetings and Expositions, Inc. v. Tandy, supra. See also Massa­
chusetts Casualty Ins. Co. v. Forman, supra; Autera v. Robinson, 
supra; Skyline Sash, Inc. v. Fidelity and Casualty Co., 378 F.2d 
369 (3 Cir. 1967), aff’g, 267 F.S. 577 (W.D. Pa. 1966); Kelly v. 
Greer, supra.

14 Melnick v. Binenstock, 318 Pa. 533, 179 A. 77, 78 (1935) (“A 
compromise or settlement of litigation is always referable to the ac­
tion or proceeding in the court where the compromise was effected; 
it is through that court the carrying out of the agreement should 
thereafter be controlled.”)

The principle of a court’s inherent power to enforce settlement 
agreements appears to have had its origins in state-court decisions. 
However, since state courts, unlike federal courts, are courts of gen­
eral jurisdiction, state courts generally need not concern themselves 
with the source of their jurisdictional authority over a dispute. 
Therefore, a statement such as found in Melnick should not be con­
strued as a jurisdictional statement; nor should it be relied upon, as 
it was in Aro, in resolving an issue of Federal jurisdiction.

15 Because in Newport News Shipbuilding and Dry Dock Co. the 
United States was a party to the settlement agreement, subject-mat­
ter jurisdiction clearly existed on independent grounds.



12a

As a second alternative ground for upholding federal juris­
diction, both the district court and the court of appeals in 
Aro invoked a concept of derivative jurisdiction. Because 
the settlement agreement resolved the dispute giving rise to 
the original litigation over which the district court had juris­
diction, any dispute involving the agreement itself was like­
wise properly before the court. As stated by the district 
court: “ [J] urisdiction rests on the same footing as when the 
case began. . . .” 65 F.R.D. at 514. The court of appeals 
developed the point as set forth in the margin.16

It is, of course, well established that, under appropriate 
circumstances, a federal court may exercise derivative juris­
diction over a dispute despite the absence of an independ­
ent basis for federal jurisdiction. The doctrines of both 
pendent and ancillary jurisdiction fall within this category. 
See, e.g., Moor v. County of Alameda, 411 U.S. 693,
714-15 (1973) (dictum); United Mine Workers v. Gibbs, 383 
U.S. 751 (1966); Dery v. Wyer, 265 F.2d 804 (2 Cir. 1959). 
We think, however, that derivative jurisdiction should be 
grounded on something more substantial than a mere show­
ing that the settlement agreement would not have been en­
tered into but for the existence of litigation pending in 
federal court.

Consideration of the rationale of Gibbs and Dery supports 
this conclusion. In each, derivative jurisdiction was upheld 
only because the claim for which no independent jurisdic­
tion existed derived from the same nucleus of operative facts

16 As stated in 531 F.2d at 1371:
The Agreement in question is not merely a patent license. It is 

also the contractual vehicle by means of which the parties reached 
agreement settling their litigation. Both types of agreements are con­
tracts; but a settlement agreement is more than a patent license. . . . 
To permit the absence of diversity to divest the court of jurisdiction 
after settlement, when it could not have done so prior to settlement, 
would be to exalt form over substance and to render settlement in such 
cases a trap for the unwary. The license cannot be separated from the 
purpose of its birth.



13a

as the claim for which there did exist independent jurisdic­
tional grounds. For reasons of economy, reasoned the courts, 
it makes little sense to remit one of two related claims to 
state court since the same facts will form the basis of de-

1 7cision in both.
That consideration is absent here. Association’s contract 

claim is factually and legally distinct from the claim giving 
rise to the original litigation. To remit Association to state 
court in order to have its agreement with County enforced 
will not create duplicating litigation since the operative facts 
bearing on the validity of the agreement bear no relation to 
those underlying Association’s §1983 claim.

While not relying on the sort of economy interest upon 
which the doctrines of pendent and ancillary jurisdiction are 
based, Aro nonetheless suggests that to divest a district court 
of jurisdiction to enforce a settlement agreement in cases 
such as this will “render settlement . . .  a trap for the unwary.” 
531 F.2d at 1371. We think that this is not so. As in the 
instant case where federal jurisdiction to sue for a breach of 
a settlement agreement does not otherwise exist, a plaintiff 
who claims a breach of his settlement agreement has avail­
able two courses of action. Fie may take his contract claim 
to state court where he may seek enforcement of the settle­
ment agreement. Because enforceability is likely to turn on 
questions of state law, the state court is an appropriate forum 
for resolving this dispute. Alternatively, the injured plain-

57 A recent note suggests that even this rationale is overly expansive 
when due weight is given to the fact that federal courts are courts of 
limited jurisdiction. The note argues that consistent with Article III 
of the Constitution pendent jurisdiction should be recognized only 
when the rights created by state and federal law are substantially iden­
tical, irrespective of the factual predicate giving rise to the assertion 
of those rights. Note, The Concept of Law-Tied Pendent Jurisdiction: 
Gibbs and Aldinger Reconsidered, 87 Yale L. J. 627 (1978).

18 In the instant case, the state forum is particularly appropriate be­
cause of the complexity of the state law questions involved. See foot­
note 5, supra; Note, Virginia Subdivision Law: An Unreasonable Bur-



14a

tiff may file a Rule 60(b) (6) motion in federal court, re­
questing that the prior dismissal order be vacated and the 
case restored to the court’s trial docket. This restores the 
litigants to the status quo ante and allows the plaintiff to 
prove his case and obtain his relief on the merits of the 
underlying claim.

IV.

To summarize: We find no independent basis for assert­
ing jurisdiction over the contract dispute, and we see no 
considerations of either judicial economy or fairness requir­
ing the settlement agreement to be enforced in federal court. 
We therefore conclude that the district court lacked jurisdic­
tion to enforce the agreement. We reverse the order of the 
district court compelling County to perform its remaining 
obligations under its agreement with Association. We do not 
disturb the portion of the district court’s order which struck 
its order of dismissal. Association may proceed to the trial 
of its original claim if it be so advised.

REVERSED AND REMANDED

den on the Unwary, 34 Wash. & Lee L. Rev. 1223 (1977). While we 
do not question the competence of the district court to resolve these 
questions, it is nonetheless preferable, when a decision requires inter­
pretation of statutes establishing a state administrative or regulatory 
regime, that such interpretation be authoritatively made in the state- 
court system. Cf. Railroad Commission of Texas v. Pullman Co., 312 
U.S. 496, 498-500 (1941).



15a

JUDGMENT

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 77-1190

APPEAL FROM the United States District Court for the 
Eastern District of Virginia.

THIS CAUSE came on to be heard on the record from 
the United States District Court for the Eastern District 
of Virginia, and was argued by Counsel.

ON CONSIDERATION WHEREOF, It is now here order­
ed and adjudged by this Court that the judgment of the 
said District Court appealed from, in this cause, be, and 
the same is hereby, reversed. This case is remanded to the 
United States District Court for the Eastern District of 
Virginia, at Alexandria, consistent with the opinion of this 
Court filed herewith.

APPENDIX B

[Filed March 6, 1978]
/s/William K. Slate II 

CLERK



16a

JUDGMENT

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 77-1248

APPEAL FROM the United States District Court for the 
Eastern District of Virginia.

THIS CAUSE came on to be heard on the record from 
the United States District Court for the Eastern District 
of Virginia, and was argued by counsel.

ON CONSIDERATION WHEREOF, It is now here order­
ed and adjudged by this Court that the judgment of the 
said District Court appealed from, in this cause, be, and 
the same is hereby, reversed. The case is remanded to the 
United States District Court for the Eastern District of 
Virginia, at Alexandria, consistent with the opinion of this 
Court filed herewith.

/s/William K. Slate II 
CLERK

[Filed March 6, 1978]



17a

[Filed 4/28/78]
UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Appeals from the United States District Court for the East­
ern District of Virginia, at Alexandria. Oren R. Lewis, Dis­
trict Judge.

Upon consideration of the appellee/cross-appellants peti­
tion for rehearing and suggestion for rehearing en banc, 
and no judge having requested a poll on the suggestion for 
rehearing en banc.

IT IS ADJUDGED and ORDERED that the petition for 
rehearing is denied.

Entered at the direction of Judge Winter for a panel con­
sisting of Judge Winter, Judge Russell and Judge Widener.

FOR THE COURT,

APPENDIX C

/s/William K. Slate, II 
CLERK



18a

IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF VIRGINIA 

Alexandria Division

FAIRFAX COUNTYWIDE CITIZENS : 
ASSOCIATION, et al.,

Plaintiffs 

v.

COUNTY OF FAIRFAX, VIRGINIA 
et al.,

Defendants

MEMORANDUM OPINION

APPENDIX D

Civil Action No. 
71-336-A

This suit was originally brought in this court in 1971 as 
a civil rights action for declaratory judgment and injunctive 
relief — The plaintiffs alleged discrimination in the provi­
sion of public services for the black residents of Fairfax 
County and the Town of Herndon.

Considerable pretrial discovery took place and both par­
ties were prepared for trial scheduled for June 1, 1972.

In the interim the parties had been attempting to com­
promise and settle their differences.

They reached agreement on May 31, 1972 and entered 
into separate settlement agreements with the County Board 
of Supervisors, the Town of Herndon and the defendant 
Fugate.

On June 1, 1972, the day following execution of the 
settlement agreements, the plaintiffs moved to dismiss their 
claims against the County of Fairfax, the Town of Herdon



19a

and the defendant Fugate on the ground that the matter 
in controversy had been compromised and settled — The 
case was then dismissed.

All of the defendants proceeded with the work provided 
for in the said settlement agreements.

The plaintiffs admit that the Town of Herndon has done 
what it agreed to do and that the defendant Fugate has up­
graded the streets in the Virginia secondary highway system 
as provided for in the June 1st agreements — They further 
admit that the County of Fairfax has done considerable 
work under its agreement — It has upgraded over 25 roads, 
and has been successful in having the State include several 
of the upgraded streets into the secondary road system.

The County now says it will not complete the upgrading 
of the remaining roads as provided for in the settlement 
agreement — The Fairfax County Board of Supervisors 
adopted a resolution on April 28, 1975 so stating.

The plaintiffs immediately thereafter moved the Court 
to vacate the June 1, 1972 dismissal order and to reinstate 
the suit, and to compel the County of Fairfax to upgrade 
the roads as called for in its settlement agreement.

The motion to reopen was heard shortly thereafter, and 
both parties advised the Court they wanted time to further 
negotiate in the hopes that they might settle their differ­
ences to the satisfaction of the citizens living in the so- 
called black communities, many of whom were not then 
knowledgeable of the contents of the settlement agreements 
and many of whom purportedly did not want the thorough­
fares in front of their residences made into public streets.

Although some further compromises and settlements were 
reached as to some of the streets, much remained to be done 
when the motion to reopen was again heard by the Court on 
June 21, 1976.



20a

The County now contends that the original settlement 
agreement was illegal because it could not upgrade or im­
prove streets in the County that did not meet the minimum 
requirements for inclusion in the state secondary highway 
system — it also claims mutual mistake and misrepresenta­
tion of material facts.

The County now wants to modify the settlement agree­
ment to allow all residents along the P.6 roads in question 
which meet the state requirements for service, who wish 
their road to become public, to dedicate the necessary 
thirty feet of right-of-way. The County then would upgrade 
those roads so they could be accepted into the state second­
ary system.

The plaintiffs want the settlement agreement performed 
as written.

The pertinent portions of the settlement agreement pro­
vide that —

(1) The County agrees to upgrade the P.6 streets 
(attached hereto) — At a minimum, the P.6 
streets shall be paved. Consistent with the above 
and the reasonable desires of the existing resi­
dents, the P.6 streets will be brought as closely 
as possible to existing surrounding area stand­
ards.

(2) The County will make every effort to have the 
P.6 streets, when improved, taken into the state 
secondary highway system — If unsuccessful, 
the County recognizes their continuing respon­
sibility to maintain these streets in a fair and 
equitable manner.

(3) The plaintiffs will use their best good faith ef­
forts to assist the County with any land acqui­
sition problems.



21a

The record here made discloses that the County has spent 
more than a half million dollars and has been working on the 
roads in question for more than three years.

Seven of the P.6 roads have been accepted into the state 
highway system — Sixteen are being readied for acceptance 
by the State.

The plaintiffs have agreed to drop six of the P.6 roads be­
cause they serve no public purpose — They also have agreed 
to drop Ransell Road because of severe resident opposition.

Of the remaining 45 P.6 roads, 36 are private, 7 are partly 
private and partly dedicated, and 2 are completely dedicated 
— Of the 36 private roads, 2 are partially outside of the juris­
dictional limits of Fairfax County.

The county survey made long after the settlement agree­
ment discloses that many of the private roads are ineligible 
for acceptance into the state system due to insufficient 
service — and on those which completely or partially meet 
the state requirements for service, at least one resident indi­
cated he would not be willing to grant the County a 15-foot 
right-of-way from the centerline of the existing travelway in 
return for public maintenance.

The County’s belated claim that it is illegal for the County 
to spend money to upgrade and maintain P.6 roads that do 
not qualify for acceptance into the state system is without 
merit.

The record shows that the County has, both before and 
after the date of the settlement agreement, upgraded and 
paved many of the P.6 roads which were not then or are not 
now eligible for inclusion in the state road system under the 
existing statutory requirements -  and has continued to main­
tain many of them.

Fairfax had many roads that did not meet the state re­
quirements for inclusion in the state secondary road sys-



22a

tern prior to the adoption of the so-called Byrd Road Sys­
tem.

Practically all of these old roads, with the exception of 
the P.6 roads in question, have been acquired and upgraded 
by the County and are now a part of the state secondary 
road system.

The County gives no reason for its failure to acquire these 
P.6 roads and to upgrade them so they might become eligible 
for inclusion in the state system.

After this suit was filed charging the County with discrimi­
nation in furnishing public services for the black residents of 
the County (these P.6 roads are all within Fairfax County’s 
so-called black communities), the County Board agreed to 
upgrade these P.6 streets — at a miminum by paving — and 
to make every effort, when improved, to have them taken 
into the state secondary system.

If unsuccessful, the County Board agreed to maintain 
them in a fair and equitable manner.

They now say, in support of their charge of mutual mis­
take and/or misrepresentation, that they did not know when 
they signed the agreement that many of these P.6 streets 
had not been dedicated to public use by prescription or 
otherwise.

If they did not know who owned the requisite right-of- 
way, all they had to do was to search their own land records. 
All of the P.6 streets were in use and open and obvious to 
the county officials for many years.

There is no evidence of any misrepresentation on the part 
of the plaintiffs — To the contrary, paragraph three of the 
settlement agreement provides that the plaintiffs will use 
their best good faith efforts to assist the County with any 
land acquisition problems.



23a

The County now wants the Court to modify the agree­
ment to require the adjacent landowners to dedicate the 
necessary rights-of-way as a condition precedent to its up­
grading and paving the P.6 streets.

Courts do not modify agreements — They determine only 
whether they are valid and enforceable.

The agreement in question is clear and unequivocal — Per­
formance is neither illegal nor impossible.

At a minimum the P.6 streets shall be paved and brought 
as closely as possible to existing surrounding area standards.

If the County is unsuccessful in having them taken into 
the state system, it should maintain them in a fair and equi­
table manner.

The County can acquire the necessary rights-of-way, if 
needed for paving and maintenance, by gift, purchase, pre­
scription or condemnation, and upgrade the streets suffi­
cient for inclusion into the secondary road system, thereby 
relieving the County from future maintenance.

This suit was dismissed by the plaintiffs in good faith -  
The County has not lived up to its part of the bargain.

Therefore the June 1, 1972 order of dismissal will be 
vacated, the suit reinstated, and an order will be entered 
requiring the Board of Supervisors of Fairfax County to 
perform its part of the May 31, 1972 settlement agree­
ment within a reasonable period of time.

Counsel for the plaintiffs will prepare an appropriate 
order pursuant to the foregoing, submit the same to coun­
sel for the defendant for approval as to form, and then to 
the Court for entry.

The Clerk will send a copy of this memorandum opinion 
to all counsel of record.

/s/Oren R. Lewis
September 27, 1976 United States Senior Judge