Petition — Claiborne Hardware Co. v. Henry

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NOV 23 1979

|_MicHam ROBAK, JR, CLERR

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

No. 9-811

CLAIBORNE HARDWARE CO., et al.,

Petitioners,

versus

~ AARON HENRY, et al., UNITED STATES OF AMERICA,

and MISSISSIPPI ACTION FOR PROGRESS,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

DIXON L. PYLES

PYLES AND TUCKER

507 East Pearl Street

Jackson, Mississippi 39201

SHELL, BUFORD, BUFKIN,

CALLICUTT & PERRY

Suite 552

First National Bank Building

Jackson, Mississippi 39205

Attorneys for Petitioners

SCOFIELDS' QUALITY PRINTERS, P. O. BOX 53096, N. O., LA. 70153 - 504/822-1611

TABLE OF CONTENTS

Page

Table of Authorities AV CEU ed et ENCES cles te ees iv

SSB LEILA EE LIS CLES NRE

JerldnGen ea ER i kn i AR... 3

Quciieen Freee (ioe ere... 3

Constitutional Provisions Involved ............... 4

Statutory Provisions Involved ..............0.05: 4

Statement? GF-thb- Case! oii Mili eed scenes 7

Reasons for Granting the Writ ................. 10

I. THE ABSTENTION DOCTRINE

ARTICULATED IN YOUNGER uv.

HARRIS AND ITS PROGENY ‘PRE-

CLUDES THE DISTRICT COURT

FROM ENJOINING ENFORCE-

MENT OF THE STATE COURT.

JUDGMENT IN A CIVIL ACTION

BETWEEN PRIVATE PARTIES IN

WHICH THE STATE IS NOT A PAR-

Il. MERE ENTRY OF AN EN-

FORCEABLE STATE COURT JUDG-

MENT, FROM WHICH APPEAL LIES

AS A MATTER OF RIGHT IS NOT

“STATE ACTION” FOR PURPOSES

OF THE FOURTEENTH AMEND-

MENT OR 42 U.S.C. §1983 .......... 1. 16

‘i

TABLE OF CONTENTS (Continued)

Page

Ill. AN ORIGINAL COMPLAINT CAN-

NOT. “ARISE” TO CONFER OR

CONTINUE JURISDICTION ON A

FEDERAL COURT WHEN AN

AMENDED COMPLAINT, WHICH

SUPERSEDED THE ORIGINAL

COMPLAINT, IS DISMISSED .......... 22

IV. THE UNITED STATES OF

AMERICA CANNOT CLAIM A LIEN

INTEREST IN THE ASSETS OF A

PRIVATE NONPROFIT CORPORA-

TION THAT IS NOT A FEDERAL

AGENCY, ALTHOUGHITS ASSETS

COME FROM A FEDERAL AGENCY .... 26

CONC LUSSIER dec cs s caaecesevenen ge roan ue 27

APPENDIX —

Opinion of Fifth Circuit Court of Appeals

reported at 595 F.2d 291 .......sseeeeee veces la

Accompanying Judgment dated May 21, |

197D <6 cape caciaheen cence de cpeekinese ees oes 42a

Letter dated August 6, 1979 denying Peti-

tion for Rehearing En Banc in United States

Court of Appeal ......cccccecceeeseseee ces ~ 44a

Opinion of District Court for the Northern

District of Mississippi reported at 424

F.Supp. 633 .....cccccecccccesccccccuos cons 46a

iii

TABLE OF CONTENTS (Continued)

Page

Order of United States District Court for

the Northern District of Mississippi - Delta

Division, No. DC 69-58-S, dated October

20; WQS so yactes tices te eee es =. 58a

Order of United States District Court for

the Northern District of Mississippi - Delta

Division, No. DC 69-58-S, dated October

DO: RAP Cia va behe ced KeVRA Orbe ek 62a

Order of United States District Court for

the Northern District of Mississippi - Delta

Division, No. DC 69-58-S, dated October

BO, TOT G cic sieht nc ikke Le a es 65a

Judgment of Supreme Court of the United

States dated March 27, 1972 denying Peti-

tion for Writ of Certiorari ................. 67a

Supreme Court of the United States Judg-

ment dated May 30, 1972 denying Petition

for Reheariae” = a cccscs cance ccceurte +... 68a

Opinion of Fifth Circuit Court of Appeals

reported at 444 F.2d 1300 .............0 000 69a

United States District Court, Northern Dis-

trict of Mississippi, Delta Division, Prelimi-

nary Injunction dated December 15, 1969..... 96a

Opinion of United States District Court for

the Northern District of Mississippi re- —

ported at 50 F.R.D. 251 ................... 102a

List of Individual Defendants ............... 146a

TABLE OF AUTHORITIES

CASES: Page

Ahrensfeld v. Stephens, 528 F.2d 193 (7th Cir.

1978): os eke e Vine cee Cena Con eeee eens 13

Anonymous v. Association of the Bar, 515

F.2d 427 (2nd Cir. 1975), cert. denied, 423

U.S. 863 (1995). 05. 0s uuictes mae cae ae ees 12

Anonymous J. v. Bar Association, 515 F.2d 435

(2nd Cir. 1975), cert. denied, 423 U.S. 840

(JOTS) | «0:90.04 6000.94 cae eeenek ei aie ded 12

Baer v. Baer, 450 F.Supp. 481 (N.D. Cal. 1978) ..... 21

Borel v. U.S. Casualty Co., 233 F.2d 385 (Sth

Cir. 1956) assets CPA CA ae pes ee ee 25

Cousins v. Wigoda, 463 F.2d 603 (7th Cir.

1972), stay denied, 409 U.S. 1201 (1972) ...... 13

Diaz v. Stathis, 576 F.2d 9 (1st Cir. 1978) ....... 11

Douglas v. City of Jeanette, 319 U.S. 157

(1943) SL OSiS a TR ees eee eeenren acere 21

Douglas-Guardian Warehouse Corp. v.

Posey, 486 F.2d 739 (10th Cir. 1973) ......... 13

Dubose v. Harris, 434 F.Supp. 227 (D. Conn.

1977) ..«cccdcucds Vevedee eeu een eerie secun 25

Duke v. Texas, 477 F.2d 244 (5th Cir. 1973),

cert. denied, 415 U.S. 978 (1974) ............. 13

Ealy v. Littlejohn, 569 F.2d 219 (5th Cir. 1978) ..12

Vv.

TABLE OF AUTHORITIES (Continued)

Erdmann v. Stevens, 458 F.2d 1205 (2nd Cir.

1972), cert. denied, 409 U.S. 889 (1972) ..... 12

Fallis v. Dunbar, 532 F.2d 1061 (6th Cir. 1976) ..19

Friedman v. Beame, 558 F.2d 1107 (2nd Cir.

EOC GE bare eee ETERS CARE EAET ON e BER CORES 12

Flagg Brothers, Inc. v. Brooks, 436 U.S. 149

PPM Gs SiS 5h hehe ae ade eeias 11,17,18,20

Fuentes v. Shevin, 407 U.S. 67 (1972) ........... 13

Gibson v. Berryhill, 411 U.S. 564 (1973) ......... 14

Gravitt v. Southwestern Bell Telephone Co.,

396 F.Supp. 948, motion granted 416

F.Supp. 830, appeal after remand 430 U.S.

TER EIOGIT 5s caccs ca sceaterceleccasbans sc0s 25

Henkel v. Bradshaw, 483 F.2d 1386 (9th Cir.

SOE 55k Kans cnseewes teen tee eee eeeeeeee cones 13

Henry v. First National Bank of Clarksdale, 50

F.R.D. 251 (N.D. Miss. 1970) ........22. .ee0e. 2

Henry v. First National Bank of Clarksdale,

444 F.2d 1300 (Sth Cir. 1971), cert. denied,

405 U.S. 1019 (1972) ee Wy ss od bx Ve Bee 2,8,23-24

Henry v. First National Bank of Clarksdale,

424 F.Supp. 633 (N.D. Miss. 1976) .........-. 2,9

Henry v. First Nationat Bank of Clarksdale,

595 F.2d 291 (Sth Cir. 1979), rehearing de-

nied, No. 76-4200 (5th Cir. Aug. 6, 1979) ... 2,14,

16,26

T..%LE OF AUTHORITIES (Continued)

Page

Huffman v. Pursue, Ltd., 420 U.S. 592

CU9TS) eviews nee 05h ib bee eens 12,13,14,15,17

Jackson v. Metropolitan Edison Co., 419 U.S.

REL rg | ke Oy ne Me TE Raph idake hc) Saree 18

Johnson v. Kelley, 583 F.2d 1242 (3rd Cir. 1978),. .12

Juidice v. Vail, 430 U.S. 327 (1972) ....3,10,14,15,16

Kahn v. Shainswit, 414 F.Supp. 1064

(SDN. Y. SURE. coves ¢: evra oariae eeekns caaes 12

Kurek v. Pleasure Driveway & Park District,

574 F.2d 892 (7th Cir. 1978), cert. denied,

___ U.S. ___, 59 L.Ed.2d 57, 99 S.Ct. 873

(1979). i Sce eee vee ccc cb cae eNV bene oo ake 17

Lamb Enterprises, Inc. v. Kiroff, 549 F.2d 1052

(6th Cir. 1977), cert. denied, 431 U.S. 968

(1997). cash ase nte sits, diene sheds Sep ee 13

Louisville Area Inter-Faith Committee v.

Nottingham Liquors, Ltd., 542 F.2d652 (6th

Chr, 1976) 8 oss SATO oe es we es 13

Lynch v. Household Finance Corp., 405 U.S.

SSS IGF A). -i-+.0ccnckanuseime ecu otnees ss 13

Lynch v. Snepp, 472 F.2d 769 (4th Cir. 1973),

cert. denied, 415 U.S. 983 (1974) ............. 12

Mansfield, Coldwater & Lake Michigan

Ry. v. Swan, 111 U.S. 379 (1884) ............. 23

Marshall v. Gibson’s Products, Inc. of Plano,

584 F.2d 668 (Sth Cir. 1978) ............ 2.00. 23

Vii

TABLE OF AUTHORITIES (Continued

Page

Matter of Establishment Inspection, Etc., 589

F.2d 1335 (7th Cir. 1979) (U.S. Appeal Pend-

ing) SHA BRR OA Rf Se ea. 23

Moore v. Sims, ___U.S. ____, 60 L.Ed.2d 994,

99:S.Ct: ZO7E (1979) 9. Rae he Es 13,14

Morial v. Judiciary Commission of State of

Louisiana, 565 F.2d 295 (5th Cir. 1977), cert.

denied, 435 U.S. 1013 (1978) ........... 2006 12

New Jersey Education Association v. Burke,

579 F.2d 764 (3rd Cir. 1978), cert. denied,

___U.S. ___, 58 L.Ed.2d 239, 99 §.Ct. 252

(SOFIE sik ei cas oa POk Ben (Ao Rae eee 12

New York Times v. Sullivan, 376 U.S. 254

COUEE acca scien nsce chascdate ches 18,19,20,21

Pierson v. Ray, 386 U.S. 547 (1967) ..........4.. 21

Proctor & Gamble Defense Corp. v. Bean, 146

F.2d 598 (Sth Cir. 1945) .......... pe wecie FON 25

Puerto Rico International Airlines v. Silva

Recio, 520 F.2d 1342 (1st Cir. 1975) .......... 11

Sappington v. Beckert, 48 U.S.L.W. 3235 ........ 21

Shelley v. Kraemer, 334 U.S. 1 (1948) .. 18,19,20,21

Stevens v. Frick, 372 F.2d 378 (2nd Cir. 1967),

cert. denied, 387 U.S. 920 (1967) ............. 21

Stivers v. Minnesota, 575 F.2d 200 (sth Cir.

1978), cert. denied, 99 S.Ct. 1043 (1979) ...... 13

Viii

TABLE OF AUTHORITIES (Continued)

United States v. Fort Sill Apache Tribe of the gs

State of Oklahoma, 507 F.2d 861 (Ct. Cl.

ROUGE) .5 sping venchdesddeaeeisi ee Ce 25

Wichman v. United Disposal, Inc., 553 F.2d

1104 (8th Cir. 1977) ...... Sawn e ye riae seus 25

Williams v. Washington, 554 F.2d 369 (9th

Ri BOPT) a < pine oend baa BEML Ce oes 13

Williams v. Williams, 532 F.2d 120 (8th Cir.

ADTO) os wianin v0 00 sdh Gide Oe bey) Oar «head 13

Younger v. Harris, 401 U.S. 37 (1971) .... 3,9,10,11,

12,13,14,15,16

STATUTES:

28 U.S.C.

Se ) Sey poner w ey SMe AAS bial oC" RISER aie 4,5,24

GIRBS |. 60s Kcedkcadk abba h ewe “2. aD Fre bbe

42 U.S.C

$1983. ss iiiasiixa seeeeeee 3,5,8,10,15,16,17,19,21

Miss. Code Ann. (1972)

11-51-35 sce assseeeos <cceatcéeliac cl 6,17,20

TABLE OF AUTHORITIES (Continued)

Page

OTHER AUTHORITIES:

P. Bator, P. Mishkin, D. Shapiro and H.

Wechsler, Hart & Wechsler’s The Federal

Courts and the Federal System, 835 (2d Ed. 1973) ..... 23

71 CJ.S. Pleadings, §321(a) (1951) .........+. 23,25

61 Am. Jr. 2d Pleadings, §334 (1972) ........-++- 25

Fed. R. Civ: F, GOD) ova vic cs cca cabelas ceeetes. 26

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

No.

CLAIBORNE HARDWARE CO., et al.,

: Petitioners,

versus

AARON HENRY, et al.,

UNITED STATES OF AMERICA, AND

M 3SISSIPPI ACTION FOR PROGRESS, INC.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

The petitioners, Claiborne Hardware Co., et al.,

respectfully pray that a Writ of Certiorari issue to

1 CLAIBORNE HARDWARE COMPANY; Q. H. MCDANIEL

JR., dibja McDaniel Pharmacy; JAMES E. HUDSON, GEORGE

A. HUDSON and H. B. HUDSON, JR., d/b/a Hudson Brothers,

trading as Piggly Wiggly Store and Hudson’s Gift ; WADDY

A. ABRAHAM, d/b/a Jitney Jungle; LOUIS N. ELLIS, Executor of

the Will and Estate of Michael Ellis, Deceased; JOE ELLIS, MRS.

BEN MULLEN and MISS ELLA MAE ELLIS, d/b/a George Ellis

review the erroneous judgment and opinion of the

United States Court ef Appeals for the Fifth Circuit

entered in this proceeding on May 21, 1979.

OPINIONS BELOW

The opinion of the Court of Appeals is reported at

595 F.2d 291 and appears in the Appendix filed with

this petition. The opinion of the District Court for the

Northern District of Mississippi is reported at 424

F.Supp. 633, and appears in the Appendix.

Because reference to opinions in a companion case is

necessary to ascertain the grounds of the opinion in

this case, the prior judgments of this Court denying re-

hearing and denying certiorari are reported at 406 U.S.

963 and 405 U.S. 1019, respectively, and appear in the

Appendix. The underlying opinion of the Court of

Appeals is reported at 444 F.2d 1300 and the opinion

below that is reported at 50 F.R.D. 251, both of which

appear in the Appendix.

Food Store; LOUIS N. ELLIS, d/b/a Abe’s en bee and Port Gib-

son Trading Company; H. D. HARWELL, d/b/a Mack’s Package

Store; NORMAN N. ELLIS and BARBARA B. ELLIS, d/b/a Ellis

Variety Store; W. H. HAY, d/b/a O.K. Cleaners and Shirt Laun-

dry; MURAD NASIF and MILDRED NASIF, d/b/a M & M Super

Store and Washateria; PORT GIBSON LUMBER AND SUPPLY

COMPANY, INC.; CHARLES R. DOBBS, d/b/a Western Auto

Associate Store; KELLY D. CONN, d/b/a Auto-Lec Associates

Store No. 225;A & PSERVICE AND PARTS, INC.; Allen Motor

Company, Inc.; DONALD-SEGREST FORD, INC.; and MRS.

EDGAR A. MCCAA, d/b/a Town and Country.

JURISDICTION

The opinion and judgment of the Court of Appeals

for the Fifth Circuit was entered on May 21, 1979.

After being granted an extension, a timely petition for

rehearing en banc was filed and subsequently denied on

August 6, 1979. On October 22, 1979, Mr. Justice

Powell signed an order extending the time for filing

this petition for certiorari to and including November

25, 1979. This Court’s jurisdiction is invoked pursuant

to 28 U.S.C. §1254(1).

QUESTIONS PRESENTED

1. WHETHER THE DOCTRINE OF ABSTEN-

TION ARTICULATED IN YOUNGER V. HARRIS

AND EXTENDED TO CIVIL PROCEEDINGS IN

JUIDICE V. VAIL PRECLUDED THE DISTRICT

COURT FROM ISSUING AN INJUNCTION EN-

JOINING ENFORCEMENT OF A STATE COURT

JUDGMENT IN A CIVIL ACTION BETWEEN

PRIVATE PARTIES WHEN THE STATE IS NOT A

PARTY TO THE SUIT?

2. WHETHER THE MERE ENTRY OF A STATE

COURT JUDGMENT FROM WHICH AN APPEAL

LIES AS A MATTER OF RIGHT CONSTITUTES

“STATE ACTION” FOR PURPOSES OF THE FOUR-

TEENTH AMENDMENT AND 42 U.S.C. §1983?

3. WHETHER AN. ORIGINAL COMPLAINT

CAN “ARISE” TO CONFER JURISDICTION ON A

ea TR A Ne ET LO a ee ee RT

FEDERAL COURT WHEN AN AMENDED COM-

PLAINT, WHICH SUPERSEDED THE ORIGINAL

COMPLAINT, IS DISMISSED?

4. WHETHER THE UNITED STATES OF

AMERICA CAN HAVE A LIEN INTEREST IN THE

ASSETS OF A PRIVATE NONPROFIT CORPORA-

TION THAT IS NOT A FEDERAL AGENCY?

CONSTITUTIONAL PROVISIONS INVOLVED

(U.S.C. Const. Amend. XIV §1)

All persons born or naturalized in the United States,

and subject to the jurisdiction thereof, are citizens of

the United States and of the State wherein they reside.

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of

life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal

protection of the laws.

STATUTORY PROVISIONS INVOLVED

28 U.S.C. §1292

(b) When a district judge, in making ina civil action

an order not otherwise appealable under this section,

shall be of the opinion that such order involves a con-

trolling question of law as to which there is substantial

ground for difference of opinion and that an im-

mediate appeal from the order may materially advance

the ultimate termination of the litigation, he shall so

state in writing in such order. The Court of Appeals

may thereupon, in its discretion, permit an appeal tobe

taken from such order, if application is made to it

within ten days after the entry of the order: Provided,

however, that application for an appeal hereunder shall

not stay proceedings in the district court unless the dis-

trict judge or the Court of Appeals or a judge thereof

shall so order.

28 U.S.C. §2283.

A court of the United States may not grant an in-

junction to stay proceedings in a State court except as

expressly authorized by Act of Congress, or where

necessary in aid of its jurisdiction, or to protect or effec-

tuate its judgments.

42 U.S.C. §1983.

Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State or

Territory, subjects, or causes to be subjected, any citi-

zen of the United States or other person within the

jurisdiction thereof to the deprivation of any rights,

privileges or immunities secured by the Constitution

and laws, shall be liable to the party injured in an action

at law, suit in equity, or other proper proceeding for re-

dress.

Miss. Code Ann. §11-51-3 (1972).

An appeal may be taken to the supreme court from

any final judgment of a circuit court ina civil case, not

being a judgment by confession or from any final

decree of the chancery court, not being by consent, by

any of the parties or legal representatives of such par-

ties; but such appeal shall operate as a supersedeas only

when the party applying for the same shall comply with

the terms hereinafter prescribed; and in no case shall

such appeal be held to vacate the judgment or decree.

Miss. Code Ann. §11-51-31 (1972)

On appeal from any interlocutory decree, where the

chancellor shall allow a supersedeas, and on appeal

from a final decree of the chancery court, or the final

judgment of a circuit court where the appellant shall

desire a supersedeas, bond shall be given by the

appellant, payable to the opposite party, with two (2) or

more sufficient resident sureties, or one or more guar-

anty or surety companies authorized to do business in

this state, in a penalty of one hundred twenty-five per -

cent (125%) of the amount of the decree or judgment

appealed from, or one hundred twenty-five percent

(125%) of the amount of the value of the property or

other matter in controversy, to be determined by the

officer granting the appeal, conditioned that the

appellant will satisfy the judgment or decree com-

plained of, and also such final judgment as may be made

in the cause, and all costs, if the same be affirmed, anda

supersedeas shall not issue until such bond shall have

been given. A supersedeas shall not be granted in any

case pending in the supreme court, unless the party

applying for it shall give bond as above required.

STATEMENT OF THE CASE

Petitioners are merchants who filed suit in a Mis-

sissippi court against numerous individuals, Mississip-

pi Action for Progress and the National Association for

the Advancement of Colored People seeking injunc-

tive relief from a secondary boycott enforced by vio-

lence and damages for violations of State Anti-Trust

Laws. The merchants also named as defendants some

banks possessing funds belonging to the NAACP,

which were attached.

Shortly after the State court action was filed several

defendants (all of whom are hereinafter referred to as

respondents, including the parties added later and

named below) brought suit in federal district court

seeking release of the attached funds. Respondents are

the National Association for the Advancement of

Colored People, Aaron Henry, Mississippi State Con-

ference of the NAACP, Coahoma County Branch of

the NAACP, and all individual defendants (App. pp.

146a through 147a)? found liable in the state court suit.

Respondents sued pursuant to 42 U.S.C. §1983 and in-

voked the jurisdiction of the district court under 28

U.S.C. §§1331 and 1343(3). The district court entered

2 The abbreviation “App.” refers to the Appendix filed with this

petition.

it» preliminary injunction (App. pp. 96a through 101a)

enjoining the merchants fromi attaching the funds held

by the banks.

A. amended complaint was then filed in district

court, on the same jurisdictional grounds, wherein the

respondents sought to enjoin prosecution of the State

court suit. Mississippi Action for Progress, a respond-

ent here, was named as a defendant in that complaint

but later was realigned with the respondents. The dis-

trict court entered a preliminary injunction barring the

State suit until the rights of the parties could be deter-

mined.

On appeal, the Fifth Circuit reversed the prelimi-

nary injunction for lack of subject matter jurisdiction

holding that there is no “state action” under 42 U.S.C.

§1983 or the Fourteenth Amendment where a state has

simply held open its court to litigation by private par-

ties. Henry v. First National Bank of Clarksdale, 444 F.2d

1300 (Sth Cir. 1971), cert. denied 405 U.S. 1019 (1972),

rehearing denied 406 U.S. 963 (1972). App. p. 69a

through 96a.

After an eight-month trial, the State court rendered

its opinion in favor of the petitioners. Based upon its

findings of violent tortious actions by respondents

which not only damaged petitioners but created in

atmosphere of fear in the area, it ordered injunctive re-

lief against the violent secondary boycott, held the

respondents, except the United States of America,

jointly and severally liable for darnages in the total sum

of $1,250,699.00, declared the funds in the banks to be

the property of the NAACP and directed the banks to

pay the funds to petitioners.

Shortly thereafter, the respondents filed a supple-

mental and amended complaint in the district court re-

questing injunctive relief prohibiting the petitioners

from enforcing the State court judgment pending re-

view by the State Supreme Court and, if necessary, the

United States Supreme Court. Jurisdiction was in-

voked under 28 U.S.C. §§1331, 1343(3), 2001 and 2202

alleging acause of action under the First, Fifth, Seventh

and Eleventh Amendments to the Constitution and 42

U.S.C. §1981, et seq. Respondent, The United States of

America, was allowed to intervene, invoking jurisdic-

tion under 28 U.S.C. §1345, claiming a lien interest in

the assets of Mississippi Action for Progress, one of the

respondents. The district court entered three prelimi-

nary injunctions (App. pp. 58a through 66a) en-

joining the petitioners from enforcing the State court

judgment pending its appeal to the Mississippi

Supreme Court, and, if necessary, to this Court. Henry

v. First National Bank of Clarksdale, 424 F.Supp. 633 (N.D.

Miss. 1976). App. pp. 46a through 57a.

On appeal, the Fifth Circuit held, inter alia, that (1) the

district court had subject matter jurisdiction of the

claims underlying its enjoinment of petitioners from

enforcing the State judgment; (2) 28 U.S.C. §2283 did

not prohibit issuance of the injunctions; (3) Younger v.

Harris, 401 US. 37 (1971), and its progeny did not re-

quire abstention by the district court and (4) the district

court did not abuse its discretion in issuing the prelim-

inary injunctions. 595 F.2d 291 (SthCi

la through 41a. ta od

REASONS FOR GRANTING THE WRIT

This case presents a long awaited opportunity for

this Court to determine the applicability of the absten-

tion doctrine of Younger v. Harris, 401 U.S. 37 (1971) t

purely civil cases. The state is not a party here; the pa :

ties disagree on whether or not an im ete t al

interest is involved. . el any

The decision of the Court below, which refused t

abstain, conflicts with this Court’s decision in Juidice ‘y

Vail, 420 U.S. 327 (1972) which applied Younger’s ie

stention to a purely civil action. It is but one example of

a general retreat from Juidice and foreshadows bd .

proper trend in the law. It also illustrates the need a

national guidance on th icabili

es e applicability of Younger to civil

The decision of the Court of Appeals also raises sub-

stantial and unanswered questions which need to b

settled regarding the jurisdiction of federal courts: i

particular, whether or not the mere entry of a ie se

court judgment constitutes “state action” for pur a

of the Fourteenth Amendment or 42 U.S.C $1983 The

Court’s decision that it does, not only contliets with

Flagg Brothers, Inc. v. Brooks, 436 U.S. 149 (1978), but

raises the specter of “state action” arising any time any

court in the fifty states enters its judgment.

The Abstention Doctrine Articulated in

Younger v. Harris And Its Progeny Precluded

The District Court From Enjoining Enforce-

ment Of A State Court Judgment In A Civil

_Action Between Private Parties In Which The

State Is Not A Party.

An issue of national importance that has evaded

resolution by this Court is to what extent the princi-

ples of Younger v. Harris, 401 U.S. 37 (1971) apply to

purely civil cases. After eight years, it is time for a deci-

sion and this case affords an excellent opportunity to

enunciate comprehensive and much needed rules.

All ten circuits have been faced with post- Younger re-

quests for intervention in state court civil proceed-

ings. Their decisions reflect a reluctance to apply Young-

er to purely civil proceedings even though this Court

has never forbidden it. The circuits have generally re-

fused to apply ‘Younger to civil proceedings unless the

state is a party or an “important state interest” is in-

volved.3 The obvious important state interest here is

the State’s ability to enforce its judgments.

3 First Circuit:

Diaz v. Stathis, 576 F.2d 9 (1978);

Puerto Rico International Airlines v. Silva Recio, 520 F.2d 1342 (1975).

From a policy standpoint, perhaps there is some

argument to a federal court not abstaining, at least in

the early stages of a state court civil suit, because (1) no

administrative or executive resources of the state are

committed to it and (2) any presumption that state

authorities by and large act in good faith would not

apply to private parties who could use the state’s judi-

cial machinery for harrassment purposes. At this stage,

the affront to the state court would be minimal. But the

picture changes as the state court becomes more in-

volved. Duplication of effort becomes more serious and

affront more likely as the state judge nears a decision

on the constitutional claim the state court defendant

would like to assert in federal court. When the state

court has rendered a decision, as in this case, the af-

front is obvious. Huffman v. Pursue, Ltd., 420 U.S. 592,

608 (1975).

Second Circuit:

Kahn v. Shainswit, 414 F.Supp. 1064 (S.D.N.Y. 1976); See also

Friedman v. Beame, 558 F.2d 1107 (1977);

Anonymous v. Association of the Bar, 515 F.2d 427 (1975), cert.

denied, 423 U.S. 863 (1975);

Anonymous J. v. Bar Association, 515 F.2d 435 (1975), cert. denied,

423 U.S. 840 (1975);

Erdmann v. Stevens, 458 F.2d 1205 (1972), cert. denied, 409 U.S.

889 (1972).

Third Circuit:

New Jersey Education Association v. Burke, 579 F.2d 764 (1978) cert.

denied, 58 L.Ed.2d 239, 99 S.Ct. 252 (1978);

Johnson v. Kelley, 583 F.2d 1242 (1978). (This position is not un-

animous within the circuit. See dissent of lies Aldisert, Id. at

1252 arguing for Younger’s applicability to all civil proceedings.)

Fourth Circuit:

Lynch v. Snepp, 472 F.2d 769 (1973), cert. denied, 415 U.S. 983

(1974).

Fifth Circuit:

Ealy v. Littlejohn, 569 F.2d 219 (1978);

Morial v. Judiciary Commission of State of Louisiana, 565 F.2d 295

(1977);

A number of Supreme Court Justices favored an ex-

tension of Younger to civil cases. Justice Rehnquist's

opinion in Huffman suggested that the Court had

created a “civil counterpart” to Younger. Id. at 611.

Justice White, joined by Chief Justice Burger and

Justice Blackman, argued that Younger should be ex-

tended into the civil area in his dissents in Fuentes v. Sheo-

in, 407 U.S. 67, 97-99 (1972), and Lynch v. Household

Finance Corp., 405 U.S. 538, 560-61 (1972). Now it has

been extended, but how far?

Unquestionably, Younger is applicable to civil pro-

ceedings in which important state interests are in-

volved. Moore v. Sims, U.S. , 60 L.Ed.2d 994, 99

S.Ct. 2371 (1979); Huffman v. Pursue, Ltd., supra. The cir-

cumstances when a federal court need not stay its hand

are where the district court finds a state proceeding

Duke v. Texas, 477 F.2d 244 (1973), cert. denied, 415 U.S. 978

(1974).

Sixth Circuit:

Lamb Enterprises, Inc. v. Kiroff, 549 F.2d 1052 (1977), cert. denied

431 U.S. 968 (1977);

Louisville Area Inter-Faith Committee v. Nottingham Liquors, Ltd., 542

F.2d 652 (1976).

Seventh Circuit:

Cousins v. Wigoda, 463 F.2d 603 (1972) (Stevens, Circuit J.), stay

denied 409 U.S. 1201 (1972);

Ahrensfeld v. Stephens, 528 F.2d 193 (1975).

Eighth Circuit:

Stivers v. Minnesota, 575 F.2d 200 (1978); cert. denied, 99 S.Ct.

1043 (1979);

Williams v. Williams, 532 F.2d 120 (1976).

Ninth Circuit:

Williams v. Washington, 554 F.2d 369 (1977);

Henkel v. Bradshaw, 483 F.2d 1386 (1973).

Tenth Circuit:

Douglas-Guardian Warehouse Corp. v. Posey, 486 F.2d 739 (1973).

motivated by a desire to harass, or conducted in bad

faith, or where the challenged statute is “flagrantly and

patently violative of express constitutional prohibi-

tions in every clause, sentence and paragraph, and in

whatever manner and against whomever an effort

might be made to apply it.” Huffman v. Pursue, Ltd.; supra,

420 U.S. at 611.

A federal court should not exert jurisdiction if the

plaintiffs “had an opportunity to present their federal

claims ina state proceeding.” Juidice v. Vail, 430 U.S. 327,

337 (1972) (emphasis in original); see, Gibson v. Berry-

hill, 411 U.S. 564, 577 (1973). In this case abstention is

appropriate because the state law clearly does not bar

the interposition of any constitutional claims, Moore v.

Sims, supra, 60 L.Ed.2d at 1004-1005, which have been

and are being raised in state court.

In upholding the injunctions, the Courts below

abused their discretion and misconstrued the requi-

sites of Younger abstention when they stated, “[a]s the

[respondents] had exhausted all avenues of emer-

gency state relief available to them, we conclude that

the Younger doctrine did not require the federal district

court to abstain from entertaining the suit and grant-

ing appropriate relief.” Henry v. First National Bank of

Clarksdale, 595 F.2d 291, 302 (Sth Cir. 1979). App. pp.

20a-21a. A party may not avoid Younger by exhausting

only emergency relief measures. A necessary con-

comitant of Younger is that a party must exhaust state

appellate remedies before seeking relief in the district

court, unless he can bring himself within one of the ex-

ceptions of Younger. Huffman v. Pursue, Ltd., supra, 420

U.S. at 608. This case has nosuch exception because en-

forcement of the state court judgment can be stayed by

respondents if they simply post a bond.

“Virtually all of the ills at which Younger is di-

rected would inhere in federal intervention

prior to completion of state appellate pro-

ceedings, just as surely as they would if sucha

dimension occurred at or before trial. Inter-

vention at a later date is if anything more

highly duplicative, since an entire trial has al-

ready taken place, and it is also a direct asper-

sion on the capabilities and good faith of state

appellate courts.”

Id.

In Juidice v. Vail, the underlying state suit was not

quasi-criminal in nature. This Court nevertheless held

that the principles of Younger and Huffman mandated

federal abstention in the subsequent §1983 action, 430

U.S. at 338-339, and it thereby extended those prin-

ciples for the first time to civil proceedings beyond the

narrow confines of the Huffman quasi-criminal factual

setting. In thus expanding the doctrine of civil comity,

this Court did not rely on the traditional reluctance of

equity to interfere with the state criminal process, a

rationale employed in both Younger, 401 U.S. at 43-44

and Huffman, 420 U.S. at 604-05. The Court, with

Justice Rehnquist writing for the majority, justified

federal abstention by relying on the more vital con-

siderations of federalism and comity, 430 U.S. at 338-

339, thereby establishing those doctrines as independ-

ent bases for denying federal equitable relief. The sig-

nificance of this step is clear. With the quasi-criminal

rationale now an unessential element in applying

Younger to civil cases, the foundation was laid in Juidice

for the application of Younger to more, if not all, civil ac-

tions. As stated by Justice Brennan in his dissent,

Juidice merely postpones the formal announcement that

Younger will be extended to all civil cases. 430 U.S. at

345.

If indeed Younger extends to purely civil cases this

Court needs to say so. Not only would its application

effect a reversal here but, more importantly, it will pro-

vide guidance to federal courts throughout the United

States when confronted with purely civil actions in

which the applicability of Younger is raised.

II.

Mere Entry Of An Enforceable State Court

Judgment From Which Appeal Lies As A

Matter Of Right Is Not “State Action” For

Purposes Of The Fourteenth Amendment Or

42 U.S.C. §1963.

The court below found “state action” in the prior

State court judgment which was termed “immediately

enforceable.” Henry v. First National Bank of Clarksdale, 595

F.2d 291, 299 (Sth Cir. 1979) App. p. 14a. How-

ever, appeal from that judgment lies as a matter of right

and a stay of execution is available by simply posting a

supersedeas bond. Miss. Code Ann. §§11-51-3 and 11-

51-31 (1972). The effect of the district court’s injunc-

tions forbidding execution of the judgment was to sub-

stitute the injunctions for the supersedeas bond and

itself for a state appellate remedy. This Court has often

held that a federal court should not substitute itself for

state appellate remedies. Huffman v. Pursue, Ltd., supra,

420 U.S. at 609; Compare, Kurek v. Pleasure Driveway &

Park District, 574 F.2d 892 (7th Cir. 1978), cert. denied,

__US. _, $9 L.Ed.2d 57, 99 S.Ct. 873 (1979).

The finding of state action here directly conflicts

with this Court’s opinion in Flagg Brothers, Inc. v. Brooks,

436 U.S. 149 (1978), which held that there is no state

action where private parties, pursuant to a state stat-

ute, act in a manner which the State permits, but does

not compel, in an area which is not exclusively re-

served to the State. Before a 1983 action can lie here,

Respondents must establish not only that Petitioners

acted under color of a challenged statute but also that

their actions are properly attributable to the State of

Mississippi. Flagg Brothers, Inc. v. Brooks, supra, 436 U.S.

at 156. The State is not a party here nor can it be logic-

ally said that petitioners, whose act has been to file a

lawsuit and obtain a judgment, have done any act

attributable to the State.

A State is responsible for the act of a private party

when the State, by its law, compels the act. Flagg

Brothers, Inc. v. Brooks, supra, 436 U.S. at 164. “This

Court, however, has never held that a State’s mere ac-

quiescence in a private action converts that action into

action of the State. The Court rejected a similar argu-

ment in Jackson [v. Metropolitan Edison Co., 419 U.S. 345

(1974)] 419 U.S. at 357...” Id.

Respondents have argued that the failure of the Mis-

sissippi courts to stay execution of the judgment pend-

ing appeal makes the judgment state action. Mere de-

nial of judicial relief cannot convert a private act into a

public one. This notion is completely contrary to the

essential dichotomy between public and private acts. Id.

at 165.

By finding state action, the decision of the courts

below foreshadows an ominous trend in the law which

must be prevented; otherwise, “state action” will arise

whenever a judgment is rendered in any court of any

state. This Court has never adopted sucha broad scope

of “state action” and to uphold the injunctions in this

case would be to eradicate the essential dichotomy be-

tween public and private acts.

In finding state action, the courts below mistakenly

relied on Shelley v. Kraemer, 334 U.S. 1 (1948) and New

York Times v. Sullivan, 376 U.S. 254 (1964). The rules of

those cases simply cannot be stretched to fit the facts of

this case; beyond that, their citation as percedent opens

the door for their rules to be applied nationwide in a

manner which endangers our system of federalism.

The Court in Shelley looked to the motive of the par-

ties — which admittedly was discriminatory — thus

making the state court privy to a discriminatory pur-

pose. No such compelling facts exist in the present case

as the Mississippi Courts have merely afforded a pro-

cedure by which the petitioners may protect their

pecuniary and property interests without inquiry into

their motives for bringing the suit.

A more important reason for limiting the rule in

Shelley is the danger which the straining of that doc-

trine poses as a precedent. A logical extension of the

doctrine would result ina federal cause of action when-

ever any state power is used by private persons where

constitutionally protected rights are allegedly in-

volved. It could logically apply where a proprietor seeks

to remove a person from his private property because

of what the person is doing or saying. Such an exten-

sion has so great an application to purely private ac-

tions as to be overbroad. Therefore, the mere entry of a

judgment in a civil suit among private parties should

not extend to the rule of Shelley within §1983. Cf. Fallis

v. Dunbar, 532 F.2d 1061 (6th Cir. 1976) (eviction action

in state court among private parties is not an action

under color of law within §1983).

The test for “state action” given in New York Times, “is

not the form in which state power has been applied but,

whatever the form, whether such power has in fact

been exercised” 376 U.S. at 265. New York Times, then, is

inapposite because there has been no state power exer-

cised here. On the contrary, the case is proceeding to

the Mississippi Supreme Court on appeal. “Indeed, the

crux of Respondents’ complaint is not that the State has

acted but that it refused to act.” Flagg Brothers, Inc. v. Brooks,

supra, 436 U.S. at 166 (emphasis in original).

In concluding that the state court judgment was im-

mediately enforceable the Court of Appeals relied

heavily on the fact that, “appellate review may only be

had by the posting of a supersedeas bond. . .” 595 F.2d

291, 299-300 (5th Cir. 1979). Finding that appeal was

“so difficult,” it concluded that the immediate enforce-

ment of the judgment could not be prevented, pending

appeal to the State Supreme Court, and cited New York

Times v. Sullivan, supra and Shelley v. Kraemer, supra. In

both of those cases, after appeal, a final judgment was

involved. In this case, appea! lies as a matter of right.

Contrary to one part of its own opinion, 595 F.2d at

299, 300, App. p. 15a the Court of Appeals recog-

nized in another part, 595 F.2d at 296, App. p.

7a, the availability of appeal, including stay of execu-

tion, via Miss. Code Ann. §§11-51-3 and 11-51-31

(1972). (Stay of execution pending appeal upon post-

ing a supersedeas bond). This, of course, obviates the

need for an injunction by the district court since

respondents have admitted financial ability to post a

supersedeas bond.

Respondents have the right to appellate review after

the judgment of the state court is entered. Such an

appeal is in progress. There is no reason to believe the

Mississippi courts, and if necessary this Court, cannot

or will not protect respondents’ constitutional rights.

See, Douglas v. City of Jeanette, 319 U.S. 157, 165 (1943);

Stevens v. Frick, 372 F.2d 378 (2 Cir. 1967), cert. denied,

387 U.S. 920 (1967).

With appeal available, New York Times and Shelley are

inapposite. As contemplated by those cases, there is no

“state action” here and the issuance of these injunc-

tions was an abuse of discretion. Although respond-

ents allege the petitioners acted “under color of law” to

deprive them of constitutional rights, “it is wel: estab-

lished that the fact that in the deprivation resort was

had to courts of the state does not supply the necessary

state action.” Baer v. Baer, 450 F.Supp. 481, 486 (N.D.

Cal. 1978).

Finally, respondents have named no public official as

a defendant and have not alleged a conspiracy between

or among any petitioners. A conspiracy is required

under §1983 and it is well established that judges are

absolutely immune from liability for acts done in the

performance of their judicial functions. Sappington v.

Beckert (D.C. Pa. 1979), appeal dismissed, 48 U.S.L.W.

3235; Pierson v. Ray, 386 U.S. 547, 553-55 (1967). Since

there have been no allegations of conspiracy here, no

jurisdiction can lie under §1983.

Il.

A complaint was filed in the district court and

an injunction was issued thereon. Contest-

ing the district court's jurisdiction, an appeal

was perfected to the Fifth Circuit. There-

after, an amended complaint, which super-

seded the original complaint, was dismissed

by the Court of Appeals, which also dismiss-

ed the appeal of the original complaint be-

cause of the presence of the intervening

amended complaint. Petitioners, from the

earliest stages of this proceeding, have con-

tended that the dismissal of the amended

complaint necessarily included dismissal of

the original complaint and the injunction

issued thereon. The question arises, then:

Whether An Original Complaint Can

“Arise” To Confer Jurisdiction On A Federal

Court When An Amended Complaint, Which

Superseded The Original Complaint, Is Dis-

missed?

Beyond the fact that the injunctions in question are

barred by 28 U.S.C. §2283, if this Court allows them to

stand it will legitimize a precedent-setting error of ex-

ceptional public importance that distorts fundamental

principles of civil procedure upon which every litigant

in federal court must rely. It is simple “horn-book” law

that an amended complaint supersedes an original com-

plaint, especially so when the order allowing an amend-

ed complaint specifically so provides. 71 C.J.S., Plead-

ings §321(a) (1951). Without addressing this question,

the Court of Appeals summarily decided that since the

injunction issued upon the original complaint was

never appealed, it was not before the Court and could

not be questioned. Such action violates the rule of

Mansfield, Coldwater & Lake Michigan Ry. v. Swan, 111 U.S.

379 (1884), which states that it is incumbent on acourt

of the United States, whether trial or appellate, to dis-

miss an action whenever it appears that subject matter

jurisdiction is lacking, and the court must do so sua sponte

even if the parties have not brought the issue to the

attention of the court. This is the first principle of fed-

eral jurisdiction, P. Bator, P. Mishkin, D. Shapior & H.

Wechsler, Hart & Wechsler’s The Federal Courts and the

Federal System, 835 (2d Ed. 1973), and was recognized by

the Fifth Circuit itself in Marshall v. Gibson's Products, Inc.

of Plano, 584 F.2d 668, 671-72 (Sth Cir. 1978); but see

Matter of Establishment Inspection, etc., 589 F.2d 1335, 1344

(7th Cir. 1979) (U.S. Appeal Pending).

Even when the Fifth Circuit refused to consider the

jurisdictional issue sua sponte, it should not be allowed to

deny petitioners the right to contest jurisdiction and

later hold the jurisdictional question to be beyond its

reach because petitioners never contested it. In its first

brush with this case the Fifth Circuit ruled that the dis-

trict court’s injunction of December 15, 1969, App.

pp. 96a-101a, the fountainhead of jurisdiction for this

case, was never appealed from and, therefore, was not

before the Court then or now. Henry v. First National Bank

of Clarksdale, 444 F.2d 1300, 1305 (Sth Cir. 1971). App.

p. 77a. Yet prior to this, the Fifth Circuit refused

petitioners’ motion for leave to appeal the complaint

underlying the injunction and now the Fifth Circuit up-

holds jurisdiction claiming no appeal was made. This

Court should not condone such a “mouse trap.”

Initially, Petitioners filed a motion to dismiss the

original complaint in the district court. The district

court denied the motion but permitted Petitioners to

apply to the Court of Appeals for an interlocutory

appeal pursuant to 28 U.S.C. §1292(b).

A panel entered its order (Claiborne Hardware Co.,

et al. v. Aaron Henry, et al., Misc. No. 1583) denying

leave to appeal. One of the Judges specially concur-

ring, stated, “I concur in this order solely because of the presence

of an intervening amended complaint.” (Emphasis added).

Subsequently, the district court entered its order,

holding, inter alia, “The amended complaint heretofore

filed herein by the parties plaintiff shall be and the same

hereby is received and considered by the Court for all

purposes as an amended complaint herein.” On appeal,

the Court of Appeals faulted petitioners for not appeal-

ing the injunction. The fact is that the attempted appeal

of the original complaint would include any order or in-

junction issued thereon: “An interlocutory appeal

carries with it all previous orders and rulings only to

the extent that they are subsumed into the appealed

ruling.” Dubose v. Harris, 434 F.Supp. 227,231 (D. Conn.

1977); United States v. Fort Sill Apache Tribe of the State of

Oklahoma, 507 F.2d 861, 864 (Ct. Cl. 1974).

Thus we have (1) an injunction which is moot upon

the filing of an amended complaint, or (2) that same in-

junction relying on the amended complaint for juris-

diction which is dismissed along with the amended

complaint or (3) the same as (2) except Petitioners tried

to appeal and were denied leave. In any event, the dis-

trict court had no jurisdiction to issue its injunctions in

this case due to the bar of 28 U.S.C. §2283 because,

quite simply, there was no order or injunction which

made the injunctions here “necessary in aid of its juris-

diction, or to protect or effectuate its judgments.” 28

U.S.C. §2283.

By filing an amended complaint respondents aban-

doned the original complaint. Compare Borel v. U.S. Cas-

ualty Co., 233 F.2d 385 (Sth Cir. 1956) with Proctor and

Gamble Defense Corp. v. Bean, 146 F.2d 598 (Sth Cir. 1945);

See generally, Wichman v. United Disposal, Inc., 553 F.2d

1104 (8th Cir. 1977); Gravitt v. Southwestern Bell Tel. Co.,

396 F.Supp. 948, motion granted 416 F.Supp. 830,

appeal after remand 430 U.S. 723, reh. denied 431 U.S.

975 (1977). An amended pleading ordinarily super-

sedes the prior pleading. 71 C.J.S. Pleadings §321(a)

(1951). Neither the Court of Appeals nor the district

court has power arbitrarily to order that the original

complaint be restored, 61 Am. Jur. 2d Pleadings, §334,

(1972), and then rely upon it to uphold jurisdiction. The

Fifth Circuit has sanctioned a departure so far from the

accepted and usual course of judicial proceedings by the

district court as to call for an exercise of this Court’s

power of supervision.

Finally, petitioners have consistently noted that no

bond was posted by respondents for the December 15,

1969 injunction. Without such bond the injunction was

never effective, Fed. R. Civ. P., 65(b), and the district

court had no basis for issuing its injunctions here.

IV.

The United States Cannot Have A Lien Inter-

est In The Assets Of A Private Nonprofit

Corporation That Is Not A Federal Agency

And Prevent Execution Upon Those Assets

Under The Guise Of Governmental Im-

munity.

One of the respondents, Mississippi Action for

Progress, (MAP) is a private nonprofit corporation. It is

not a federal agency although most of its funding is

through the federal government. MAP was one of the

parties in the state court suit and was held jointly and

severally liable with the other defendants.

The court below decided the United States had a

property interest in MAP’s assets sufficient to create

an equitable lien which enjoys immunity from uncon-

sented judicial process. Henry v. First National Bank of

Clarksdale, 595 F.2d 291, 309 (Sth Cir. 1979) App. pp.

ores a errr

38a-40a. This finding not only stretches the idea of

governmental immunity to ridiculous ends, it creates a

dangerous precedent for the proposition that so long as

an entity receives some federal funding it cannot be

sued without the government’s permission. This is

ludicrous and completely unsupported by apposite

authority.

CONCLUSION

For these reasons, a writ of certiorari should issue to

review the erroneous judgment and opinion of the

United States Court of Appeals for the Fifth Circuit.

Respectfully submitted,

DIXON L. PYLES

PYLES AND TUCKER

507 East Pearl Street

Jackson, Mississippi 39201

SHELL, BUFORD, BUFKIN,

CALLICUTT & PERRY

Suite 552

First National Bank Building

P.O. Box 157

Jackson, Mississippi 39205

ATTORNEYS FOR PETITIONERS

APPENDIX

Aaron HENRY et al.,

Plaintiffs-Appellees,

versus

FIRST NATIONAL BANK

OF CLARKSDALE et al.,

Defendants-Appellants,

versus

MISSISSIPPI ACTION FOR PROGRESS, INC.,

Defendant-Appellee.

No. 76-4200.

United States Court of Appeals,

Fifth Circuit.

May 21, 1979.

Appeal from the United States District Court for the

Northern District of Mississippi.

Before THORNBERRY, AINSWORTH and

MORGAN, Circuit Judges.

AINSWORTH, Circuit Judge:

Serious questions of federalism are raised in this

strongly contested Mississippi civil rights case, espe-

cially as concerns the right of a federal court, on con-

stitutional grounds, to enjoin the execution of a judg-

ment of a Mississippi state court. In this appeal we re-

view the action of the federal district court in issuing

three preliminary injunctive orders prohibiting the en-

forcement by state court plaintiffs of an injunction and

damages award entered in a judgment of the Chancery

Court of Hinds County, Mississippi pending review of

the state court judgment by the Mississippi Supreme

Court and, if necessary, by the United States Supreme

Court. This dispute has been before the federal courts

and the state courts of Mississippi intermittently for al-

most a decade. It is before us now for the second time.

The factual background to this extended litigation

has been summarized in earlier reported decisions of

this court and the district court. See Henry v. First Nation-

al Bank of Clarksdale, N.D. Miss., 1970, 50 F.R.D. 251,

rev'd, 5 Cir., 1971, 444 F.2d 1300, cert. denied, 405 U.S.

1019, 92 S.Ct. 1284, 31 L.Ed.2d 483 reh. denied, 406 U-S.

963, 92 S.Ct. 2057, 32 L.Ed.2d 351; Henry v. First Nation-

al Bank of Clarksdale, N.D. Miss., 1976, 424 F.Supp. 633.

The latter cited decision is the subject of the instant

appeal.

The pertinent facts begin in 1966 when civil rights

organizations and several black citizens in Claiborne

County and Port Gibson, Mississippi organized a boy-

cott of white businesses in Claiborne County and Port

Gibson to protest racial discrimination by the mer-

chants and local public officials and to seek certain con-

cessions concerning racial matters. The leaders of the

boycott held public meetings and organized picketing,

leafletting and solicitations to encourage black citizens

to support the boycott. At times violence or threats of

violence were employed to enforce the boycott and dis-

courage black patronage of white merchants.

Procedural History

On or about October 31, 1969, after the boycott had

been in effect several years, 23 white merchants in Port

Gibson and Claiborne County filed suit in the Chan-

cery Court of Hinds County against the National Asso-

ciation for the Advancement of Colored People

(NAACP), a New York corporation, Mississippi Action

for Progress (MAP), a federally-funded, nonprofit

Mississippi corporation, and 146 individual defend-

ants, seeking injunctive relief and $3.5 million in dam-

ages. Plaintiffs sought to enjoin the defendants from

picketing or guarding white businesses, conducting a

secondary boycott by applying economic pressure on

businesses to seek concessions from public officials,

asking, soliciting, threatening or coercing others to

cease trading with white businesses, and otherwise

restraining trade in violation of the laws of Mississippi.

The state plaintiffs alleged that the boycott and the

various activities undertaken in support thereof vio-

lated Mississippi’s antitrust laws. The complaint also

named as parties defendant the First National Bank of

Clarksdale and 55 other banks alleged to have in their

possession funds of the national NAACP or of its

branches and auxiliary offices in Mississippi. Plaintiffs

sought to attach these funds pursuant to Mississippi

statutes authorizing the attachment in chancery of the

assets of a nonresident debtor. Miss.Code Ann. §§11-

31-1 et seq. (1972). Soon after the filing of the com-

plaint the clerk of Chancery Court issued writs of

attachment to the defendant banks.

On November 7, 1969 the Mississippi State Confer-

ence of the NAACP (State Conference) and the Coa-

hama Branch of the State Conference (Local Branch),

on behalf of itself and all other local branches, brought

suit in federal district court against the Bank of Clarks-

dale, the Coahama National Bank and the First Nation-

al Bank of Clarksdale as representatives of all the

defendant banks in the state action, seeking the re-

lease of funds sequestered pursuant to the state writs

of attachment. The State Conference and the Local

Branch alleged that, although they used the name

NAACP, they were independent and autonomous

organizations, residents of Mississippi, and that they

were suffering irreparable harm from the attachment

of their assets without notice or an opportunity to be

heard in a state suit to which they were not parties. On

motion by the First National Bank of Clarksdale, the

district court ordered the state court plaintiffs joined as

parties defendant in the federal suit as necessary and

proper parties, and on December 15, 1969 the district

court entered a preliminary injunction which inter alia

enjoined the state court plaintiffs “subject to final ac-

tion of this court, from subjecting or causing to be sub-

jected in any way funds of plaintiffs deposited in the

defendant banks to attachment or other process

causing plaintiffs to be deprived of the use of their

funds.” The state court plaintiffs, joined as defendants

in this federal action, failed to appeal or otherwise chal-

lenge the injunction. See Henry v. First National Bank of

Clarksdale, 5 Cir., 1971, 444 F.2d 1300, 1305-06 & nn. 4,

5, 6, 7, 8 & 9 (Henry 1).

Also on December 15, 1969, the national NAACP

moved to intervene as a party plaintiff in the federal

court suit and the original federal plaintiffs moved to

join MAP as a party defendant. In addition, the federal

plaintiffs amended their complaint to expand signifi-

cantly the issues in the case and the relief sought.

Aaron Henry who originally appeared in his official

capacity as president of the State Conference and the

Local Branch now appeared individually and as the rep-

resentative of the class of all individual defendants in

the state court suit. The amended complaint sought

generally to enjoin the state court plaintiffs from fur-

ther prosecuting the state suit. The district court

granted the NAACP’s motion to intervene and the

motion to join MAP and on June 9, 1970 the district

court entered a preliminary injunction barring prose-

cution of the state suit by the state court plaintiffs

“until the rights of the parties can be ascertained.” 50

F.R.D. 251, 268.

On appeal this court reversed the district court’s

grant of the preliminary injunction because of lack of

subject matter jurisdiction, holding that there is no

state action for purposes of 42 U.S.C. §1983 or the

Fourteenth Amendment where the state has simply

held open its tribunals to litigation by private parties.

The mere availability of a forum for the resolution of

private conflicts does not clothe private litigants with

the authority of the state. Henry I, supra at 1309. For

purposes of finding the requisite state action, we dis-

tinguished the situation where private parties have

merely brought an action in state court from the situa-

tion where a private party has procured a judgment and

is able to enlist the power of the state on his behalf in

enforcing the judgment. See, e.g., New York Times v. Sulli-

van, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964);

Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836,92 L.Ed. 1161

(1948); Stevens v. Frick, 2 Cir., 372 F.2d 378, cert. denied,

387 U.S. 920, 87 S.Ct. 2034, 18 L.Ed.2d 973 (1967).

While reversing the district court’s injunction of June 9

against further prosecution of the state suit, we made

clear that the preliminary injunction entered Decem-

ber 15, 1969 barring interference with funds in the

defendant banks was not under consideration in the

appeal and that it remained in force pending further ac-

tion by the district court. Henry I, supra at 1306.

Pursuant to this court’s mandate the district court

dissolved its injunction against prosecution of the state

court suit and dismissed the amended complaint. The

state court suit proceeded to trial in the Hinds County

Chancery Court on June 11, 1973; the trial took

approximately eight months with the appearance of

about 144 witnesses. On August 9, 1976 the Hinds

County Chancellor rendered a lengthy opinion pur-

suant to which he entered on August 19 a decree and

order granting injunctive relief against the continua-

tion or enforcement of the boycott by the state court

defendants, holding the defendants, NAACP, MAP,

and various individuals, jointly and severally liable for

damages and attorneys’ fees in the amount of $1.25

million, finding that the funds in the Mississippi banks

subject to writs of attachment in chancery were the

property of the nonresident NAACP and directing the

banks to pay the funds to the state court plaintiffs.

Claiborne Hardware, Inc. v. NAACP, No. 78,353

(Miss.Ch.Ct. Aug. 9, 1976). In Mississippi, trial court

judgments become executory immediately upon their

entry, although execution of a judgment for damages

may be stayed pending appeal to the appellate courts by

the posting of a supersedeas bond in the amount of

125% of the judgment. See Miss.Code Ann. §11-51-31

(1972). The NAACP, MAP and the individual defend-

ants moved the Chancery Court for a stay of execu-

tion or for astay and supersedeas without bond or with

reduced bond on September 24, 1976. The Chancellor

denied the motion on September 30 and the Mississippi

Supreme Court denied a similar motion for a stay on

October 1.

On the same day that the Mississippi Supreme Court

denied the motion for a stay, the NAACP, the State

Conference, the Local Branch, and later the United

States as intervenor applied to the federal district court

for a temporary restraining order and for a prelimi-

nary injunction, prohibiting the state court plaintiffs

from enforcing or executing the Chancery Court’s

judgment per.ding review of that judgment by the Mis-

sissippi Supreme Court and, if necessary, the United

States Supreme Court. See Henry v. First National Bank of

Clarksdale, N.D.Miss., 1976, 424 F.Supp. 633. The fed-

eral plaintiffs filed a supplemental and amended com-

plaint that raised essentially three kinds of allegations.

First, the complaint alleged that the preliminary in-

junction entered December 15, 1969 against seizing the

disputed funds in the various state banks was still in

effect and that, notwithstanding the state court judg-

ment, any attempt to seize those funds would directly

contravene that injunction. Second, the United States

claimed a full and complete equitable lien interest in all

of MAP’s funds and property derived from federal

grants made exclusively to it for the purpose of oper-

ating the Headstart Program in Mississippi. The Unit-

ed States argued that no property interest of the Unit-

ed States can be subjected to judicial process without its

consent and that injunctive relief was necessary to pre-

vent the impending loss of United States property in

MAP’s hands to the state court plaintiffs.

Finally, the federal plaintiffs alleged that the Chan-

cery Court’s injunction and damages award prohibited

and penalized constitutionally protected activities and

that they would suffer irreparable harm from execu-

tion of the Chancery Court’s judgment during the

pendency of the appeal to the Mississippi Supreme

Court. Specifically, the plaintiffs argued that the Chan-

cery Court could not properly enjoin the organization

of a boycott to protest racial discrimination or the use

of nonviolent and noncoercive picketing or solicitation

in support thereof since rights of free speech and asso-

ciation are guaranteed by the First and Fourteenth

Amendments; nor could the state court assess dam-

ages for the exercise of protected rights. The federal

plaintiffs claimed that without equitable relief they

would suffer immediate and irreparable harm: first,

through the serious impairment of the free exercise of

protected rights by the state injunction and second, in

the serious financial difficulties attendant on satisfy-

ing the judgment or posting a supersedeas bond. The

NAACP filed supporting affidavits asserting that the

national organization was essentially bankrupt and

that posting the bond, while possible, would entail the

cessation of virtually all the NAACP’s national activi-

ties.

In three orders dated October 20, 1976, the district

court preliminarily enjoined the state court plaintiffs

from taking any action to enforce the final decree of the

Chancery Court against the NAACP or the other state

defendants, from interfering in any way with the

operation of the federally assisted program adminis-

tered by MAP, and from seizing or interfering with the

funds attached in the various state banks, pending the

appeal of the state court judgment to the Mississippi

Supreme Court. The district court required the fed-

10a

eral plaintiffs to post bonds totaling $110,000 for the

protection of any parties later found to have been

wrongfully enjoined. On appeal, the successful state

court plaintiffs who have been enjoined from en-

forcing or executing the state court judgment chal-

lenge the entry of each of the district court’s orders. We

affirm as to each of the orders.

The Issues

Appellants’ numerous contentions on appeal, when

viewed in the most favorable light, raise essentially

four major issues with respect to each of the district

court’s orders. First, appellants challenge the district

court’s jurisdiction over the federal claims underlying

each of the three orders. Second, they argue that the

Anti-Injunction Act, 28 U.S.C. §2283 (1976), prohibits

the orders enjoining the state plaintiffs’ execution of

the state court judgment. Third, they contend that

principles of equity, comity and federalism require that

the federal court abstain from exercising its jurisdic-

tion in this case under the doctrine of Younger v. Harris,

401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). Final-

ly, appellants argue that the district court erred incon-

cluding that the four requirements for entry of a pre-

liminary injunction had been met for each of the

orders. The requirements include the probability that

the plaintiff will succeed on the merits of his claim, the

necessity of an injunction to prevent irreparable harm

to the plaintiff, the absence of serious harm to the party

nr wore 50 ws ~ mow

lla

enjoined, and the finding that the issuance of an in-

junction is in the public interest.1

1 For the first time on appeal, appellants contend that principles

of res judicata and collateral estoppel preclude consideration of cer-

tain aspects of the federal action by the district court. These

matters are affirmative defenses which are considered waived if

not pleaded in the trial court. See Rule 8(c), Fed.R.Civ.P., 28 U.S.C.;

Wright, Miller & Cooper, Federal Practice and Procedure: Civil §§

1270 & 1278 (1978). They will not be considered for the first time

on appeal. Guerra v. Manchester Terminal Corp., 5 Cir. 1974, 498 F.2d

641, 657 n.44, 658 n.47; Dellums v. Powell, 184 U.S. App.D.C. 275,

285 n.13, 1977, 566 F.2d 167, 177 n.13, cert. denied, 438 U.S. 916,98

S.Ct. 3146-47, 57 L.Ed.2d 1161 (1978); Sartin v. Commissioner of Public

Safety, 8 Cir., 1976, 535 F.2d 430, 433; Schramm ov. Oakes, 10 Cir.,

1965, 352 F.2d 143. As appellants failed to present these issues in

any fashion to the court below, we do not consider them here.

Even if appellants had raised these issues below, however, we

have serious doubt that, in an action brought under section 1983, a

party who has been involuntarily forced to litigate his federal con-

stitutional issues in a state court would be precluded from raising

those issues in a federal court. The Supreme Court has indicated

that the preclusive effect of a state court decision ona subsequent

suit under section 1983 remains an open question. Huffman v. Pur-

sue, Ltd., 420 U.S. 592, 606 n.18, 95 S.Ct. 1200, 1209, 43 L.Ed.2d 482

(1975); Ellis v. Dyson, 421 U.S. 426, 440, 95 S.Ct. 1691, 1699, 44

L.Ed.2d 274 (1975) (Powell, J., dissenting); Preiser v. Rodriguez, 411

U.S. 475, 509 n.14, 93 S.Ct. 1827, 1847, 36 L.Ed.2d 439 (1973)

(Brennan, J., dissenting); Florida State Board of Dentistry v. Mack, 401

U.S. 960, 91 S.Ct. 971, 28 L.Ed.2d 245 (1971) (Burger, Ch. J., &

White, J., dissenting from a denial of certiorari). Compare Montana v.

United States, U.S. ___, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979);

England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84

S.Ct. 461, 11 L.Ed.2d 440 (1964). The Supreme Court has, in sev-

eral recent cases, declined to reach this question where the parties

failed to raise it properly below. Vendo Co. v. Lektro-Vend Corp., 433

U.S. 623, 629 n.4, 97 S.Ct. 2881, 2886, 53 L.Ed.2d 1009 (1977);

Huffman v. Pursue, Ltd., 420 U.S. 592, 607-08 n.19, 95 S.Ct. 1200,

1210, 43 L.Ed.2d 482 (1975); Sosna v. Iowa, 419 U.S. 393, 397 n.3, 95

S.Ct. 553, 556, 42 L.Ed.2d 532 (1975); cf. Wooley v. Maynard, 430

U.S. 705, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977).

The rigid application of principles of res judicata and collateral

estoppel to section 1983 actions like this case would be particular-

ly troublesome in that parties like the federal plaintiffs herein

12a

Although there is substantial overlap in the relief

afforded by the district court’s three orders, the legal

theories underlying each of the orders vary consider-

ably. We, therefore, discuss each of the orders sep-

arately with respect to the above issues.

could never obtain a hearing on their federal constitutional claims

in a federal court. In a purely private action there is generally no

state action for purposes of section 1983 prior to the entry of a

judgment ina state court. Henry I, 444 F.2d at 1300. Where the only

federal question in the litigation is the defendant’s federal con-

stitutional defense, unrelated to laws protecting racial equality,

the defendant cannot remove the action to federal court either

under the civil rights removal statute, 28 U.S.C. §1443, or under

the general removal statute, 28 U.S.C. §1441. City of Greenwood v.

Peacock, 384 U.S. 808, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966); Georgia

v. Rachel, 384 U.S. 780, 86 S.Ct. 1783, 16 L.Ed.2d 925 (1966); John-

son v. Mississippi, 5 Cir., 1974, 488 F.2d 284, aff'd, 421 U.S. 213,95

S.Ct. 1591, 44 L.Ed.2d 121 (1975); Gully v. First National Bank, 299

U.S. 109, 57 S.Ct. 96, 81 L.Ed. 70 (1936).

If the defendant is thereafter bound by the state court's decision

regarding his federal claim, his only opportunity to obtain access

to a federal forum would lie in the slim possibility of direct review

to the United States Supreme Court under 28 U.S.C. §1257. Pre-

cluding an action under section 1983 in these narrow circum-

stances would effectively frustrate the congressional intent that

section 1983 serve as a safeguard against the infringement of fed-

erally protected rights by a state’s judiciary as well as by other

branches of state government. See Mitchum v. Foster, 407 U'S. 225,

92 S.Ct. 2151, 32 L.Ed.2d 705 (1972).

These concerns distinguish this case from decisions in this and

other circuits holding that a party that voluntarily submits a fed-

eral claim to astate court is thereafter bound by the decision of the

state court. See, e.g., Cornwell v. Ferguson, 5 Cir., 1977, 545 F.2d 1022;

Jennings v. Caddo Parish School Board, 5 Cir., 1976, 531 F.2d 1331, cert.

denied, 429 U.S. 897, 97 S.Ct. 260, 50 L.Ed.2d 180 (1976); Brown v.

Chastain, 5 Cir., 1969, 416 F.2d 1012, cert. denied, 397 U.S. 951, 90

S.Ct. 976, 25 L.Ed.2d 134. But see Brown v. Georgia Power Co., S.D.Ga.,

1973, 371 F.Supp. 543, affd, 5 Cir., 1974, 491 F.2d 117, cert. denied,

419 U.S. 838, 95 S.Ct. 66, 42 L.Ed.2d 65 (1974).

13a

Discussion

First, we consider the order generally enjoining the

state court plaintiffs from enforcing the state Chan-

cery Court’s injunction and damage award pending re-

view of the state court judgment by the Mississippi

Supreme Court and, if necessary, by the United zoe

Supreme Court. This is the broadest of the t hs

orders and largely encompasses the relief embodie in

the other two. It is the only order preventing enforce-

ment of the state court’s injunction against all ane

ing, persuading, soliciting or advising in support of t :

boycott and the only order generally delaying <r

tion of the damages award against the NAACP and the

individual.defendants.

Appellants contend that the district court a sub-

ject matter jurisdiction over the constitutional c =

underlying this order. This contention 1s wit “8

merit. The supplemental and amended complaint file

October 1, 1976 alleged that enforcement of the vem

court’s judgment would infringe rights secured to cin

federal plaintiffs by the First and Fourteenth —_ -

ments of the Constitution and by 42 U.S.C. §1983;? as

2 42U.S.C. §1983 provides: ;

ivil action for deprivation of rights ;

Seo are who, under color of any statute, ager aga

lation, custom, or usage, of any State or hakinrs? 6 ee i ‘ > <d

causes to be subjected, any citizen of the jer ta wd ety

person within the ig ea a bg by threat : eit

i ivi immunities $¢ an

ane yi lakhs to ee party injured in an action at law, suit in

equity, or other proper proceeding for redress.

14a

such it plainly stated a federal cause of action over

which the district court had jurisdiction under 28

U.S.C. §§ 1331(a)3 and 1343(3).4 The requisite state ac-

tion which we found absent in Henry I has since been

supplied by entry of the state Chancery Court judg-

ment which is immediately enforceable. The crucial dif-

ference between a private party who has merely filed a

civil suit in a state forum and the successful litigant

who possesses an immediately enforceable state judg-

ment is that in the latter case the full power and

authority of the state can be invoked on behalf of the

litigant. It is this exercise of state power that provides

state action for purposes of the Fourteenth Amend-

ment and section 1983. Henry I, supra. In the ordinary

case a state court judgment must have been approved

by the highest court of the state before it becomes im-

mediately enforceable. See New York Times v. Sullivan, 376

U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); Shelley v.

Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948).

The present case is unique, however, for several

reasons.

3 28U.S.C. §1331(a) provides:

§1331. Federal question; amount in controversy; costs

(a) The district courts shall have original jurisdiction of all civil

actions wherein the matter in controversy exceeds the sum or

value of $10,000, exclusive of interest and costs, and arises under

the Constitution, laws, or treaties of the United States.

4 28U.S.C. §1343(3) provides:

(3) To redress the deprivation, under color of a‘ty State law,

statute, ordinance, regulation, custom or usage, of any right, priv-

ilege or immunity secured by the Constitution. of the United

States or by any Act of Congress providing for equal rights of citi-

zens or of all persons within the jurisdiction of the United States;

15a

The injunction issued by the state Chancery Court is

presently enforceable, and there can be no doubt that

the state court plaintiffs can invoke the full power and

authority of the state to enforce the injunction pend-

ing appeal. The damage award is a closer question, but

we areconvinced that the unique facts of this case justi-

fy our conclusion that the damage award is also im-

mediately enforceable, even assuming the possibility of

state appellate review. First, the damage award is

essentially based on the underlying injunction. As we

will demonstrate, infra, significant parts of the injunc-

tion are at odds with the First Amendment. Second,

appellate review of the damage award may only be had

by the posting of a supersedeas bond which would

effectively bankrupt the NAACP. Under the circum-

stances, we conclude that under applicable state law

appellate review of this case is made so difficult as to

justify our conclusion that the state Chancery Court

judgment is immediately enforceable.

Appellants next argue that the Anti-Injunction Act,

28 U.S.C. §2283 (1976), prohibited issuance of the dis-

trict court’s injunction delaying enforcement of the

state court judgment by the state plaintiffs. Section

2283 provides that “[a] court of the United States may

not grant an injunction to stay proceedings in a State

court except as expressly authorized by Act of Con-

gress, or where necessary in aid of its jurisdiction, or to

protect or effectuate its judgments.” Section 2283 ap-

plies to restraints on private parties as well as to those

imposed directly ona state court. Atlantic Coast Line Rail-

16a

road Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281,

286, 90 S.Ct. 1739, 1743, 26 L.Ed.2d 234 (1970); Okla-

homa Packing Co. v. Oklahoma Gas & Electric Co., 309 U.S. 4,

60 S.Ct. 215, 84 L.Ed. 537 (1940).

This section, however, poses no bar to the order un-

der consideration, for the order plainly falls within one

of the statutory exceptions to section 2283. After care-

fully reviewing the history and policies underlying sec-

tion 2283 the Supreme Court held in Mitchum v. Foster,

407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972), that

section 1983 satisfies the requirements of the first ex-

ception to section 2283 as an express congressional

authorization to intervene instatecourt proceedings in

order to protect federal rights. See also Vendo Co. v. Lektro-

Vend Corp., 433 U.S. 623, 97 S.Ct. 2881, 53 L.Ed.2d 1009

(1977); Trainor v. Hernandez, 431 U.S.434, 444-45 n.8, 97

S.Ct. 1911, 1918-19, 52 L.Ed.2d 486 (1977); Joiner v. City

of Dallas, Texas, 5 Cir., 1974, 488 F.2d 519, 520; American

Radio Assoc. v. Mobile Steamship Assoc., Inc., 5 Cir., 1973,

483 F.2d 1, 6; Palaio v. McAuliffe, 5 Cir., 1972, 466 F.2d

1230, 1232 n.7. As the district court’s first order was

entered pursuant to a claim under section 1983 involv-

ing the deprivation of constitutional rights, section

2283 did not prohibit the issuance of this injunction.

Appellants argue that, even if section 2283 creates no

absolute bar to entry of an injunction in this case, the

district court should have abstained from exercising its

jurisdiction under the doctrine articulated in Younger v.

Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971),

17a

and its progeny. The applicability of the Younger ab-

stention doctrine requires consideration entirely apart

from the determination that section 2283 does not pro-

hibit issuance of an injunction. See Mitchum v. Foster, 407

U.S. 225, 243, 92 S.Ct. 2151, 2162, 32 L.Ed.2d 705

(1972); Trainor v. Hernandez, 431 U.S.434, 444-45 n.8, 97

S.Ct. 1911, 1918-19, 52 L.Ed.2d 486 (1977). Neither the

Supreme Court nor this court has made the Younger

doctrine generally applicable to all civil litigation and

we decline the invitation to do so in this case.

In Younger, the Supreme Court held that a federal dis-

trict court ought not enjoin a pending state criminal

prosecution absent exceptional circumstances such asa

prosecution brcught in bad faith or for harassment, a

prosecution under a statute flagrantly un-

constitutional in all respects or other possibly extra-

ordinary circumstances. founger v. Harris, supra, 401

U.S. at 53-54, 91S.Ct. at 755. This doctrine rests on the

traditional reluctance of federal courts of equity to

intervene in state criminal prosecutions and on the

considerations of comity and federalism that must

guide relations between state and federal courts. The

Court explained the principle of comity as “a proper re-

spect for state functions, a recognition of the fact that

the entire country is made up of a Union of separate

state governments, and a continuance of the belief that

the National Government will fare best if the States

and their institutions are left free to perform their sep-

arate functions in their separate ways.” Id. at 44, 91

S.Ct. at 750.

18a

While certain considerations of comity and federal-

ism pertain to civil proceedings as well as to criminal

prosecutions the Supreme Court thus far has declined

to extend the Younger doctrine to all civil litigation. See

Huffman v. Pursue, Ltd., 420 U.S. 592, 607, 95 S.Ct. 1200,

1209, 43 L.Ed.2d 482 (1975); Juidice v. Vail, 430 U.S. 327,

336 n.13, 97 S.Ct. 1211, 1218, 51 L.Ed.2d 376 (1977);

Trainor v. Hernandez, 431 U.S. 434, 44-45 n.8, 97 S.Ct.

1911, 1919, 52 L.Ed.2d 486 (1977). In each instance

where the Court has applied Younger principles to civil

litigation, a state or a state official was engaged in ad-

vancing important state interests in the state courts,

and intervention by the federal courts would have

seriously impaired the pursuit of those interests.

In Huffman, the state brought a civil nuisance action

against the owners of a movie theater that showed ob-

scene films. The state could have chosen instead to

bring a criminal proceeding against the owners. The

Court concluded that paramount state interests akin to

those implicated in a criminal prosecution were in-

volved in this civil action “in aid of and closely related to

criminal statutes which prohibit the dissemination of

obscene materials,” 420 U.S. at 604, 95 S.Ct. at 1208,

and, accordingly, held that federal abstention was

appropriate.

Similarly, in Juidice, the state enforced a contempt

citation for failure to observe a court order to appear in

court. In holding Younger principles applicable, the

Court emphasized the state’s strong interest in en-

19a

forcing rules for the orderly administration of its judi-

cial system. “A State’s interest in the contempt process,

through which it vindicates the regular operation of its

judicial system, so long as that system itself affords the

opportunity to pursue federal claims within it, is sure-

ly an important interest. . .. The contempt ponies ties

at the core of the administration of a State s judicial

system ... [Flederal court interference with _

State’s contempt process is ‘an offense to the State's

interest . . . likely to be every bit as great as it would be

were this a criminal proceeding.’ ” (citations omitted)

430 U.S. at 335-36, 97 S.Ct. at 1217.

Finally, in Trainor the Court found abstention indi-

cated where the state initiated a civil proceeding for the

recovery of monies fraudulently obtained from the

state by a welfare recipient. The Court discussed the

importance that the state as sovereign attached to the

prosecution of the suit, stressing that the state could

have initiated criminal proceedings to vindicate its

interests and concluding that “the principles of Younger

and Huffman are broad enough to apply to interference

by a federal court with an ongoing civil enforcement ac-

tion such as this, brought by the State in its sovereign

capacity.” 431 U.S. at 444,97 S.Ct. at 1918. Mr. Justice

Blackmun’s concurrence particularly emphasized the

significance to be accorded the state sovereigns pres-

ence in the litigation. Id. at 448-49, 97 S.Ct. at 1920-21.

The instant case plainly differs from Huffman, Juidice,

and Trainor. First, this case involves an exclusively

20a

private dispute to which the state has never been a par-

ty either in the state or the federal proceedings. This

does not represent a case where the state has under-

taken the vindication of important state interests in a

civil proceeding. To the extent that Mississippi has any

interest in the instant litigation, it is the interest in pro-

viding and supervising state forums for the orderly

resolution of private conflicts. The district court’s

order does not interfere with this state function.

This brings us to the second important distinction

between the case under review and the Younger line of

decisions: the narrow scope of the relief afforded the

federal plaintiffs. The district court’s order herein does

not prohibit further proceedings in the state courts,

but merely delays enforcement of the state Chancery

Court’s judgment until the Mississippi Supreme Court

and, if necessary, the United States Supreme Court

have had an opportunity to review the important con-

stitutional issues presented in this case. The district

court carefully limited its relief to preserving the fed-

eral plaintiffs (defendants in the state court suit) from

certain irreparable injury during the pendency of the

appeal, while not interfering with the normal progress

of the state court case through the Mississippi appellate

courts. Thus, the district court’s order was consider-

ably less intrusive and disruptive of state functions

than the broader injunctions under consideration in

Younger and its progeny.

As the federal plaintiffs had exhausted all avenues of

emergency state relief available to them, we conclude

21a

that the Younger doctrine did not require the federal dis-

trict court to abstain from entertaining this suit and

granting appropriate relief. Appellants have cited no

decision of the Fifth Circuit indicating a contrary re-

sult. Indeed, those cases which have applied Younger

principles in the civil context have involved instances

where the state as sovereign employed proceedings

akin to criminal actions to advance important state

interests and are, thus, entirely consistent with the

analysis we adopt today. See Duke v. Texas, 5 Cir., 1973,

477 F.2d 244, cert. denied, 415 U.S. 978, 94S.Ct. 1565, 39

L.Ed.2d 874 (1974); Palaio v. McAuliffe, 5 Cir., 1972, 466

F.2d 1230.

Having concluded that the action of the district court

was not barred either by the Anti-Injunction Act or by

the Younger abstention doctrine, we now consider

whether the requirements for entry of a preliminary

injunction were satisfied. The standard for appellate

review of a preliminary injunction is simply whether

the district court abused its discretion in issuing the in-

junction; the reviewing court does not engage in the

same plenary review that would be indicated on appeal

of permanent relief. Brown v. Chote, 411 U.S. 452, 456-

57, 93 S.Ct. 1732, 1735, 36 L.Ed.2d 420 (1973); Morgan

v. Fletcher, 5 Cir., 1975, 518 F.2d 236, 239; DiGiorgio v.

Causey, 5 Cir., 1973, 488 F.2d 527, 528; Johnson v. Radford,

5 Cir., 1971, 449 F.2d 115, 116.

There are four requirements for the issuance of a

preliminary injunction: first, there must be a substan-

22a

tial likelihood that the plaintiff will ultimately prevail

on the merits of his claim; second, the injunction must

be necessary to prevent irreparable injury; third, the

threatened injury to the plaintiffs must outweigh the

harm the injunction might do the defendants, and,

fourth, entry of an injunction must be consistent with

the public interest. Morgan, supra at 239; Canal Authority

v. Callaway, 5 Cir., 1974, 489 F.2d 567, 572; DiGiorgio,

supra at 529. We consider these requirements in order.

The federal plaintiffs have argued that the injunc-

tion and damages award entered by the state Chan-

cery Court are unconstitutional in that they prohibit

and penalize activity protected by the First Amend-

ment. Before addressing the merits of plaintiffs’ con-

stitutional claim, we emphasize that appellate review

by us in the circumstances of this case is limited to an

inquiry into whether the district court could, without

abusing its discretion, have found that the federal

plaintiffs were likely to succeed on the merits of their

claim. Beyond this determination we intimate no opin-

ion regarding the ultimate merit of their contentions.

It is a cardinal principle of First Amendment law that

restrictions on speech must be narrowly drawn so as

not to restrain or cramp the exercise of protected

rights. Police Department of Chicago v. Mosley, 408 U.S. 92,

101, 92 S.Ct. 2286, 2293, 33 L.Ed.2d 212; Carroll v. Presi-

dent and Commissioners of Princess Anne, 393 U.S. 175, 183-

84, 89 S.Ct. 347, 353, 21 L.Ed.2d 325 (1968); Coates v.

City of Cincinnati, 402 U.S. 611,91 S.Ct. 1686, 29 L.Ed.2d

23a

214 (1972); Broadrick v. Oklahoma, 413 U.S. 601, 611, 93

S.Ct. 2908, 2915, 37 L.Ed.2d 830 (1973); Shelton v. Tuck-

er, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231.

Restraints on speech must be carefully tailored so as

not to exceed the ambit of permissible regulation.

The boycott in this case was organized to protest

racial discrimination by the merchants and city govern-

ment of Port Gibson. The organizers of the boycott

undertook a variety of activities including public

speeches, private solicitations and picketing to encour-

age other members of the black community to support

the boycott. There were several instances of violence

or threats of violence by supporters of the boycott

against black individuals who continued to patronize

white businesses. Violence, threats, and other coercive

activity, of course, enjoy no protection under the First

Amendment, and the district court properly left un-

disturbed those aspects of the state Chancery Court’s

injunction prohibiting “physical violence, damage to

any real or personal property, or obstructing the en-

trance to the place of business of any complainant.”

The state court’s injunction, however, was not limit-

ed to prohibiting acts or threats of violence but ex-

tended to every form of speech or activity designed to

discourage for whatever reason anyone from trading

with the businesses of the state plaintiffs.5 This sort of

5 The state Chancery Court's decree reads in pertinent part:

E. The defendants, and each of them, and all persons confed-

erating and cooperating with them be and they are hereby per-

manently enjoined from:

24a

sweeping prohibition on speech and communication

raises serious constitutional problems. Consistent with

the views underlying its injunction, the state court

assessed the state defendants for all damages suffered

by the state plaintiffs during the period of the boycott

which the court found attributable to the failure or re-

fusal of black citizens to trade with the white busi-

nesses in anticipated numbers.

At the heart of the Chancery Court's opinion lies the

belief that the mere organization of the boycott and

every activity undertaken in support thereof could be

subject to judicial prohibition under state law.¢ This

1. Stationing guards, store watchers, enforcers, deacons, or

black hats, or by whatever name such persons are called, at or near

the business premises of the above named complainants.

2. Persuading, soliciting, advising, threatening, coercing, in-

timidating and restraining any person to withdraw and withhold

his or her patronage or to cease trading with the above named

complainants.

3. Blocking the streets and sidewalks near the business estab-

lishment of any complainant or obstructing the entrance to the

place of business of any of the above named complainants.

4. Using physical violence against any person; inflicting dam-

age to any real or personal property of any person; or using de-

meaning and obscene language to or about any person; by reason

of such person continuing to patronize or trade with any of the

above named complainants.

5. Combining or colluding to interfere with the business of an-

other person or for the purpose of restraining or monopolizing

trade and commerce.

6. Picketing or patroling the premises of any of the above

named complainants for the reason that the Court finds that the

picketing is to attain an object which is in violation of the laws and

public policy of Mississippi, and has been conducted against and

onenseled| in a background of violence.

6 The Chancery Court found that the organization of the

boycott and the activities undertaken in support thereof violated

Mississippi common law and statutes prohibiting illegal second-

ary boycotts, Miss. Code Ann. §97-23-85 (1972), restraints of

trade, Miss. Code Ann. §75-21-1, et seq. (1972), and unlawful con-

spiracies, Miss. Code Ann. §97-1-1 (1972).

25a

view accords insufficient weight to the First Amend-

ment’s protection of political speech and association.

There is no suggestion that the NAACP, MAP or the

individual defendants were in competition with the

white businesses or that the boycott arose from paro-

chial economic interests. On the contrary, the boycott

grew out of a racial dispute with the white merchants

and city government of Port Gibson and all of the

picketing, speeches, and other communication asso-

ciated with the boycott were directed to the elimina-

tion of racial discrimination in the town. This differen-

tiates this case from a boycott organized for economic

ends, for speech to protest racial discrimination is

essential political speech lying at the core of the First

Amendment.

In aclosely analogous case, Machesky v. Bizzell, 5 Cir.,

1969, 414 F.2d 283, which also involved a state injunc-

tion against picketing and other speech in support of a

political boycott, we said:

“We start from the premise that peaceful

picketing carried on in a location open gen-

erally to the public is, absent other factors in-

volving the purpose or manner of the picket-

ing, protected by the First Amendment.”

The right to picket is not absolute. It must

be “asserted within the limits of not un-

reasonably interfering with the rights of

others to use the sidewalks and streets, to

2F.

have access to store entrances, and where con-

ducted in such manner as not to deprive the

public of police and fire protection.”. . . These

interests can, of course, be protected by state

injunctions narrowly drawn. The injunction

here, however, has not struck sucha balance.

It prohibits all picketing in the designated

business areas of Greenwood, for whatever

purpose and in whatever manner carried out.

This overshoots the mark and the situation

cannot be saved by Milk Wagon Drivers Union v.

Meadowmoor Dairies, 1941, 312 U.S. 287, 61

S.Ct. 552, 85 L.Ed. 836, acase premised on vio-

lence of an intensity and duration in no way

present here, or at least on the record before

the district court.

The injunction here in question goes even

further than prohibiting protected picketing.

It enjoins “loitering or congregating . . . to in-

duce, persuade, or coerce any person or per-

sons not to trade or to do other business with

... Complainants. .. .” This, for aught else

appearing, prohibits the distribution of leaf-

lets or even speech directed toward the boy-

cott effort.

We hold that the state court injunction here

is unconstitutionally overbroad in that it

lumps the protected with the unprotected in

such a way as to abridge important public

27a

interests in the full dissemination of public ex-

pression on public issues. We hold also that

where important public rights to full dissemi-

nation of expression on public issues are

abridged by state court proceedings, .. . the

district court is empowered to enjoin the state

court proceedings to the extent that they vio-

late these First Amendment rights.

Id. at 290-91 (citations omitted).

Machesky is fully consistent with other cases in which

this court has demonstrated its sensitivity to the

heightened First Amendment concerns implicated in

picketing or boycotts in furtherance of important

public issues as opposed to narrow economic interests.

See Kirkland v. Wallace, 5 Cir., 1968, 403 F.2d 413; Davis v.

Francois, 5 Cir., 1965, 395 F.2d 730; Kelly v. Page, 5 Cir.,

1964, 335 F.2d 114; see also Smith v. Grady, 5 Cir., 1969,

411 F.2d 181; Medrano v. Allee, S.D.Tex., 1972, 347

F.Supp. 605, aff'd in part and vacated in part on other grounds,

416 U.S. 802, 94 S.Ct. 2191, 40 L.Ed.2d 566 (1974);

Cottonreader v. Johnson, M.D.Ala., 1966, 252 F.Supp. 492.

This distinction has recently formed the basis for

holding that the Sherman Act’s prohibition against

concerted refusals to deal does not reach boycotts that

are intimately bound up with political speech and un-

related to any economic interests. Missouri v. National

Organization for Women, W.D.Mo., 1979, 467 F.Supp. 289;

cf. Eastern Railroad Presidents Conference v. Noerr Motor Freight,

28a

Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961);

United Mine Workers of America v. Pennington, 381 U.S. 657,

85 S.Ct. 1585, 14 L.Ed.2d 626 (1965).

Given the procedural posture of this case, we have no

need and, hence, make no attempt to articulate a com-

prehensive scheme for reconciling a state’s interest in

regulating economic activity with the First Amend-

ment’s protection of political speech. On review of a

preliminary injunction, we need only decide whether

the district court could, without abusing its discretion,

have concluded that the federal plaintiffs were likely to

prevail ultimately on the merits of their First Amend-

ment claims. The district court did not abuse its dis-

cretion on this issue.

The second requirement for a preliminary injunction

is that the plaintiff will suffer irreparable injury

without the injunction. The district court found that

the sweeping restrictions on speech and association

embodied in the state Chancery Court’s injunction

would seriously impair the federal plaintiff’s rights

under the First Amendment, and that such restric-

tions in themselves constitute an irreparable injury. See,

e.g., Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14

L.Ed.2d 22 (1965); Machesky v. Bizzell, 5 Cir., 1969, 414

F.2d 283. In the circumstances of this case, the en-

forcement of this injunction could effectively paralyze

all efforts by the NAACP and the individual federal

plaintiffs to protest racial discrimination in Port Gibson

and in Claiborne County.

29a

With regard to the damages award, the district court

found, on the basis of extensive affidavits and finan-

cial statements submitted by various national officials

of the NAACP, that either the execution of the $1.25

million damage award or the posting of a $1.56 million

supersedeas bond (as required by Mississippi law)

would effectively bankrupt the national organization

bringing all of its activities throughout the United

States to an immediate and indefinite halt. In short, the

NAACP’s financial condition was so precarious that

execution of the judgment or posting of the bond

would have entailed the virtual disappearance of the

NAACP as a functional entity.

MAP, which operates the Headstart Program in Mis-

sissippi, providing breakfasts and services to over 5,000

small children and employing over 1,000 persons, dem-

onstrated by affidavit that payment of the state court

judgment or posting of the bond would exhaust all of

MAP’s available assets and revenues, requiring the

cessation of the Headstart Program in Mississippi. The

individual state court defendants who are jointly and

severally liable for the entire amount of the judgment

would obviously lose all their assets and property if the

judgment were executed against them. In these cir-

cumstances, we discern no abuse of discretion in the

district court’s finding of irreparable injury.

The third requirement for entry of a prelyminary in-

junction is that the prospective harm to thé plaintiffs

must outweigh the injury to the defendants caused by

30a

the injunction. In this case the state court judgment is

earning interest at the lawful rate during the pend-

ency of the appeal in the Mississippi courts and the dis-

trict court ordered the federal plaintiffs to post a bond

in the amount of $110,000 to protect the federal

defendants should they subsequently be found to have

been wrongfully enjoined. The district court found

these provisions adequate to the protection of the fed-

eral defendants’ pecuniary interests. Given the

NAACP’s impaired financial condition in 1976, the dis-

trict court found no heightened risk of insolvency

attendant on delay. Further, as the district court’s

order permitted enforcement of those parts of the state

court’s injunction prohibiting violence, threats, or

other coercion, the federal defendants are protected

against any conduct by the federal plaintiffs lying out-

side the bounds of constitutional privilege. The district

court did not abuse its discretion in concluding that the

federal defendants would suffer no serious injury from

issuance of the federal injunction.

Finally, the district court found that issuance of its

injunction was in the public interest. We find no abuse

of discretion here for it is well established that the

public has a vital interest in the vigorous and free dis-

cussion of public issues. See, e.g., Machesky v. Bizzell, supra.

Il.

We next consider the district court’s order which re-

inforces and effectuates those parts of the preliminary

injunction of December 15, 1969 enjoining the state

3la

court plaintiffs from interfering with the funds claim-

ed by the State Conference and Local Branches on de-

posit in the defendant state banks. Appellants have ad-

vanced a lengthy and elaborate argument designed to

demonstrate either that the December 15 injunction

never took effect due to the failure of the federal plain-

tiffs to post a necessary bond or that the December 15

injunction was necessarily dismissed when the injunc-

tion of June 9, 1970, along with the amended com-

plaint of December 15, 1969 was dismissed for lack of

subject matter jurisdiction pursuant to our decision in

Henry I. These contentions are without merit.

First, the December 15 injunction required the post-

ing of a bond by the federal plaintiffs only upon with-

drawal of the funds on deposit in the state banks; those

portions of the injunction barring interference with

these funds by the federal defendants were in no way

conditioned on the posting of a bond. Second, the court

in Henry I took great pains to explain that the Decem-

ber 15 injunction was not at issue in that appeal and

was, therefore, unaffected by our decision therein. See

Henry I, 444 F.2d 1300, 1305-06 & nn. 4, 5, 6, 7, 8 & 9.

After carefully distinguishing the December 15 in-

junction and the June 9 injunction, the court indicated

that the federal defendants had never appealed the

entry of the former injunction and that the discussion

of the December 15 order had been

for only two reasons: (1) to set the stage for

our discussion of the June 9, 1970 order, and

32a

(2) to notify the parties that the December 15

interlocutory injunction against the attach-

ments remains standing, pending a final

determination by the district court of the

many difficult questions raised by the orig-

inal plaintiffs’ procedural due process claim

. . « AS we proceed to what really concerns us

on this appeal, therefore, we understand that

the Banks and the state court complainants

are presently preliminarily enjoined from

withholding or causing to be withheld ...

funds belonging to the original plaintiffs

deposited in the defendant Banks.

Id. at 1306. In subsequently implementing this court’s

judgment by vacating the June 9 order, the district

court specifically referred only to the amended com-

plaint filed in December 1969, not to the original com-

plaint filed in November 1969.

Appellants’ present contention that the amended

complaint of December 1969 in all respects superseded

the original complaint of November 1969 so that dis-

missal of the former necessarily involved dismissal of

the latter is contrary to the clear understanding of this

court and the district court regarding the separate stat-

us of the complaints and the orders based thereon. See

Henry v. First National Bank of Clarksdale, N.D. Miss., 1976,

424 F.Supp. 633, 636. There is no reason now for us to

revise our earlier appreciation of the continued vitality

of the December 15 injunction.

33a

Given that the December 15 order has been un-

interruptedly in force since its entry, the remaining

issues concerning the issuance of the order in October

1976 are readily resolved. The district court clearly had

continuing jurisdiction over the issues and parties orig-

inally involved in 1969. As the December 15 injunction

has been continuously in effect since 1969, any attempt

by the federal defendants to interfere with the funds in

the state banks would plainly be in derogation of an

outstanding order of the federal court. The subse-

quent finding by the state Chancery Court that the

funds in the state banks belong to the national NAACP

and the Chancery Court’s order directing the banks to

pay the funds over to the state court plaintiffs could not

affect the prior order of the federal district court.

Section 2283, the Anti-Injunction Act, was no bar to

the entry of the 1976 order in these circumstances. The

section specifically permits stays of state court pro-

ceedings by a federal court “where necessary .. . to

protect or effectuate its judgments.” We conclude that

in this case the December 15 preliminary injunction

constitutes a judgment for purposes of this exception

to the Anti-Injunction Act. See Doe v. Ceci, 7 Cir., 1975,

517 F.2d 1203, 1206-07; Wright, Miller & Cooper, Fed-

eral Practice and Procedure: Jurisdiction §4226, at 347

(1978); see also Swann v. Charlotte-Mecklenburg Board of

Education, 4 Cir., 1974, 501 F.2d 383; Montgomery County

Board of Education v. Shelton, N.D.Miss., 1970, 327 F.Supp.

811. In explaining the purpose of this exception the

Supreme Court ‘as stated that “some federal injunc-

34a

tive relief may be necessary to prevent a state court

from so interfering with a federal court’s considera-

tion or disposition of a case as to seriously impair the

federal court’s flexibility and authority to decide that

case.” Atlantic Coast Line Rail Co. v. Brotherhood of Locomotive

Engineers, 398 U.S. 281, 295, 90 S.Ct. 1739, 1747, 26

L.Ed.2d 234 (1970).

The failure at this juncture to enforce the December

15 preliminary injunction would unquestionably im-

pair the district court’s ability to resolve the issues

underlying that injunction, for the state court judg-

ment expressly authorizes the state court plaintiffs to

execute the damages award against the funds which

are the subject of the earlier federal dispute. More-

over, the state banks, defendants in both the federal

and state actions, have been placed in the unacceptable

position of being ordered by the state Chancery Court

to do precisely what the federal injunction orders them

not to do: pay the disputed funds over to the state court

plaintiffs. The only satisfactory resolution of this un-

seemly tension lies in delaying execution of the state

court judgment until the prior federal injunction hgs

been removed.

There is no basis for federal abstention under the

Younger doctrine or any other theory in these circum-

stances surrounding the entry of anorder to protect an

extant prior injunction of the federal court. The sub-

stantive merits of the December 15 injunction are not

before us on the instant appeal. Accordingly, we con-

35a

clude that the district court acted properly in entering

the order in October 1976 preventing action in dero-

gation of the December 15 injunction.

III.

Finally, we consider the order entered on behalf of

the United States as intervenor enjoining the state

court plaintiffs from executing the state court judg-

ment against or otherwise interfering with the funds

or property in the possession of MAP received from the

United States exclusively for the purpose of operating a

Headstart Program in Mississippi. The United States

petitioned to intervene in this case pursuant to Rule 24,

Fed.R.Civ.P., 28 U.S.C.,” claiming that its property

7 Rule 24 provides in pertinent part:

Rule 24. Intervention

(a) Intervention of Right. Upon timely application any-

one shall be permitted to intervene in an action: (1) when a stat-

ute of the United States confers an unconditional right to inter-

vene; or (2) when the applicant claims an interest relating to the

property or transaction which is the subject of the action and he is

so situated that the disposition of the action may as a practical

matter impair or impede his ability to protect that interest, unless

the applicant’s interest is adequately represented by existing par-

ties.

(b) Permissive Intervention. Upon timely application any-

one may be permitted to intervene in an action: (1) when a statute

of the United State- confers aconditional right to intervene; or (2)

when an applicant's claim or defense and the main action have a

question of law or fact in common. When a party to an action re-

lies for ground of claim or defense upon any statute or executive

order administered by a federal or state governmental officer or

agency or upon any regulation, order, requirement, or agreement

issued or made pursuant to the statute or executive order, the of fi-

cer or agency upon timely application may be permitted to inter-

vene in the action. In exercising its discretion the court shall con-

sider whether the intervention will unduly delay or prejudice the

adjudication of the rights of the original parties.

36a

interest in all funds granted to MAP could not be sub-

jected to judicial process in the Mississippi state courts

without the consent of the United States. The district

court allowed intervention and granted preliminary re-

lief.

Before addressing the merits of the preliminary in-

junction, we decide several preliminary questions.

First, the district court had jurisdiction under 28 U.S.C.

§13458 over the claims of the United States in this ac-

tion. Second, the district court committed no error in

allowing the United States to intervene as a party plain-

tiff. Appellants’ sole contention on appeal regarding

the grant of the United States’ application to intervene

is that the application was not timely. The determina-

tion of the timeliness of a request to intervene rests

within the sound discretion of the district court and

will be disturbed on appeal only if there has been an

abuse of discretion. See, e.g., Stallworth v. Monsanto, 5 Cir.,

1977, 558 F.2d 257; McDonald v. E. J. Lavino Co., 5 Cir.,

1970, 430 F.2d 1065; Smith Petroleum Service, Inc. v. Mon-

santo, 5 Cir., 1970, 420 F.2d 1103; Wright, Miller &

Cooper, Federal Practice and Procedure: Civil §1916

(1978).

There was no abuse of discretion. The United States

moved to intervene in the federal court action on

8 28 U.S.C. §1345 provides:

§1345. United States as plaintiff

Except as otherwise provided by Act of Congress, the district

courts shall have original jurisdiction of all civil actions, suits or

proceedings commenced by the United States, or by any agency or

officer thereof expressly authorized to sue by Act of Congress.

37a

October 7, 1976, a mere six days after the filing of the

supplemental and amended complaint had initiated

proceedings concerning the state Chancery Court S

judgment and decree of August 19, 1976. The inter-

vention by the United States caused no delay in the fed-

eral action or prejudice to the appellants.

Third, the Anti-Injunction Act, 28 U.S.C. §2283,

does not apply when the United States seeks to stay

proceedings in a state court. “The frustration of super-

ior federal interests that would ensue from precluding

the Federal Government fr »m obtaining a stay of state

court proceedings, except under the severe restric-

tions of 28 U.S.C. §2283, 28 U.S.C.A. §2283, would be

so great that we cannot reasonably impute such a pur-

pose to Congress from the general language of 28

U.S.C. §2283, 28 U.S.C.A. §2283, alone.” Leiter Min-

erals, Inc. v. United States, 352 U.S. 220, 226, 77 S.Ct. 287,

291, 1 L.Ed.2d 267 (1957); N.L.R.B. v. Nash-Finch Co., 404

U.S. 138, 92 S.Ct. 373, 30 L.Ed.2d 328 (1971); N.L.R.B.

v. Roywood Corp., 5 Cir., 1970, 429 F.2d 964.

Fourth, we reject appellants’ contention that the

issuance of this injunction by the district court was

barred by the Younger doctrine. In our discussion of the

district court’s first order we explained our view that

Younger principles do not control in the circumstances

of this case, where neither the state nor important

state interests are involved. Moreover, there is an addi-

tional consideration when the United States as sov-

ereign is the party seeking injunctive relief in a federal

38a

court. The same factors that militate against applica-

tion of section 2283 to the national government also

counsel against extension of the Younger doctrine to

suits by the United States.

Having concluded that there was no bar to the entry

of a preliminary injunction in favor of the United

States, we now consider the injunction itself. As dis-

cussed above in our consideration of the first injunc-

tion, the standard of appellate review of a preliminary

injunction is simply whether there has been an abuse of

discretion by the district court. With regard to the four

requirements for a preliminary injunction, the district

court found, first, that the United States was likely to

succeed on the merits of its claim. It is well established

that a property interest of the United States cannot be

subjected to judicial process without its consent. Mari-

copa County v. Valley National Bank, 318 U.S. 357, 362, 63

S.Ct. 587, 589, 87 L.Ed. 834 (1943); United States v. Ala-

bama, 313 U.S. 274, 281-82, 61 S.Ct. 1011, 1014, 85

L.Ed. 1327 (1941). “A proceeding against property in

which the United States has an interest is a suit against

the United States.” Id. at 282; 61 S.Ct. at 1014.

The only question, therefore, is whether the United

States had a property interest in MAP’s funds and

property sufficient to invoke tne above principle. The

United States claimed an equitable lien in such funds

and property. We find that the district court did not

abuse its discretion in deciding that the United States

was likely to succeed in its claim that it had an equit-

39a

able interest in MAP’s property and that this interest

could not be subjected to state judicial process without

the consent of the United States.

It is undisputed that virtually all of MAP’s assets de-

rive from grants made through the Department of

Health, Education and Welfare under the Headstart-

Follow Through Act, 42 U.S.C. §2928, et seq. (1976), and

predecessor statutes authorizing funding for qualified

Headstart Programs. The Act carefully delineates the

purposes for which grant funds may be expended. Al-

though MAP is a private, nonprofit corporation and

not a federal agency, extensive and detailed regula-

tions govern its expenditure of federal funds in order to

ensure the use of grant funds for approved purposes.

See 45 C.F.R. Part 74 (1977). The United States retains a

reversionary interest in all grant funds and in all prop-

erty purchased with such funds that can no longer be

used for the narrow purposes specified in the Act and

regulations. Id. A Headstart grantee must undergo an

annual audit to determine whether it has spent grant

funds ina fashionconsistent with “applicable laws, reg-

ulations and directives.” 45 C.F.R. §1301.3-3(a).

The district court could properly conclude that the

United States’ continuing interest in grant funds met

the criteria for creation of an equitable lien. See Avco

Delta Corp. Canada Ltd. v. United States, 7 Cir., 1973, 484

F.2d 692, 703, cert. denied sub nom. Canadian Parkhill Pipe

Stringing, Ltd. v. United States, 415 U.S.931,94 S.Ct. 1444,

39 L.Ed.2d 490 (1974); Citizens Co-Op Gin v. United States, 5

40a

Cir., 1970, 427 F.2d 692, 695; Morrison Flying Service v.

Deming National Bank, 10 Cir., 1968, 404 F.2d 856, 861,

cert. denied, 393 U.S. 1020, 89 S.Ct. 628, 21 L.Ed.2d 565

(1969). The equitable as well as the legal property inter-

ests of the United States enjoy immunity from uncon-

sented judicial process. See Blake Construction Co. v.

American Vocational Assoc., Inc., 1969, 136 U.S.App.D.C.

6, 419 F.2d 308, and cases cited.

With regard to the other criteria for issuance of a

preliminary injunction, the United States has ade-

quately demonstrated that it would suffer irreparable

harm from the destruction of its Headstart grantee in

Mississippi. MAP provides food, medical and other

services to roughly 5,000 needy children. Execution of

the state damage award against MAP would effective-

ly eliminate the Headstart Program in Mississippi for

the year or longer it would take to establish a new

grantee. Providing necessary aid to these children rep-

resents an important national policy which would be

severely frustrated by execution of the state judgment.

The district court did not abuse its discretion in find-

ing that the important public interests implicated in the

Headstart Program outweighed the interest of the

state court plaintiffs in immediate execution of the

state judgment against MAP.

Conclusion

Having carefully examined each of the preliminary

injunctions entered by the district court and having

4la

found that each satisfies the requirements for issu-

ance of a preliminary injunction and that there exists

no extrinsic bar to the entry of any of the injunctions,

we affirm the district court as to each of the orders. We

have also considered appellants’ other contentions and

find them without merit. The judgment is, therefore,

AFFIRMED.

42a

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 76-4200

D.C. Docket No. CA-DC-69-58-S

AARON HENRY, ET AL.,

Plaintiffs-Appellees,

versus

FIRST NATIONAL BANK

OF CLARKSDALE, ET AL.,

Defendants-Appellants,

versus

MISSISSIPPI ACTION FOR PROGRESS, INC.,

| Defendant-Appellee.

Appeal from the United States District Court for the

Northern District of Mississippi

Before THORNBERRY, AINSWORTH and

MORGAN, Circuit Judges.

43a

JUDGMENT

This cause came on to be heard on the transcript of

the record from the United States District Court for

the Northern District of Mississippi, and was argued by

counsel;

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the judgment

of the said District Court in this cause be, and the same

is hereby, affirmed;

It is further ordered that the defendants-appellants

pay to the plaintiffs-appellees and defendant-appellee

the costs on appeal to be taxed by the Clerk of this

Court.

May 21, 1979

ISSUED AS MANDATE: AUG. 14, 1979

A true copy

Test:

Clerk, U.S. Court of Appeals, Fifth Circuit

ls|/ BRENDA HAUCK

Deputy

New Orleans, Louisiana

Aug. 14, 1979

44a

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

Office of the Clerk

August 6, 1979

TO ALL PARTIES LISTED BELOW:

NO. 76-4200 — AARON HENRY, ET AL v. FIRST

NATIONAL BANK OF CLARKS-

DALE, ET AL. v. MISSISSIPPI AC-

TION FOR PROGRESS, INC.

Dear Counsel:

This is to advise that an order has this day been

entered denying the petition for rehearing, and no

member of the panel nor Judge in regular active serv-

ice on the Court having requested that the Court be

polled on rehearing en banc (Rule 35, Federal Rules of

Appellate Procedure; Local Fifth Circuit Rule 16) the

petition for rehearing en banc has also been denied.

See Rule 41, Federal Rules of Appellate Procedure for

issuance and stay of the mandate.

Very truly yours,

EDWARD W. WADSWORTH,

Clerk

45a

Is) SALLY HAYWARD

Deputy Clerk

cc: Mr. Dixon L. Pyles

Mr. W. E. Gore, Jr.

Mr. Crane D. Kipp

Messrs. Robert E. Kopp

Neil H. Koslowe

Messrs. Nathaniel R. Jones

Charles E. Carter

Mr. Robert A. Murpy

Mr. Dennis J. Dimsey

Messrs. Allen R. Snyder

Benton R. Hammond

Vincent H. Cohen

Messrs. Thomas E. Royals

Robert H. Taylor, Jr.

Mr. H. M. Ray

46a

Aaron HENRY et al.,

Plaintiffs,

versus

FIRST NATIONAL BANK

OF CLARKSDALE, et al.,

Defendants.

No. DC 69-58-S.

United States District Court,

N.D. Mississippi,

Delta Division.

Oct. 20, 1976.

MEMORANDUM OF DECISION

ORMA R. SMITH, District Judge.

This action is before the court on motions for pre-

liminary injunctions filed herein by plaintiffs National

Association for the Advancement of Colored People

(NAACP), Mississippi State Conference of the Nation-

al Association for the Advancement of Colored People

(State Conference) and Coahoma County Branch of

the National Association for the Advancement of

Colored People (Coahoma Branch), and the United

States of America, and intervenor herein.

47a

Time will not permit the preparation of an exhaus-

tive opinion. Consequently, the court will deal with

only the most important issues.

A resume of the background of this litigation is

necessary for an understanding of the court’s findings

and conclusions as herein expressed. This court and the

United States Court of Appeals for the Fifth Circuit

have published opinions which give a factual back-

ground of the case. These opinions are, therefore,

made a part hereof in order to establish the history of

the controversy between the parties. Henry ov. First

National Bank of Clarksdale, 50 F.R.D. 251 (N.D.Miss.

1970), Henry v. First National Bank of Clarksdale, 444 F.2d

1300 (5th Cir. 1971). The facts as set out in detail in

both opinions are adopted by the court for the purpose

of its findings and conclusions stated herein.

On the remand pursuant to the findings of the Fifth

Circuit, an order was entered herein on June 14, 1972

vacating this court’s injunctive order of June 9, 1970,

and dismissing the amended complaint for lack of juris-

diction.

The state court complainants, defendants herein,

contend that the entry of the order just above-men-

tioned deprives this court of jurisdiction of the action.

The court does not agree. Judge Thornberry speaking

for the Fifth Circuit following a discussion of this

court’s December 15, 1969 injurxtive order and the

part it played on the appeal, said:

48a

To the extent that we have discussed the

December 15 order, we have done so for only

two reasons: (1) To set the stage for our dis-

cussion of the June 9, 1970 order, and (2) to

notify the parties that the December 15 inter-

locutory injunction against the attachments

remains standing, pending a final determina-

tion by the district court of the many difficult

questions raised by the original plaintiffs’ pro-

cedural due process claim that all their funds

have been illegally attached without notice

and hearing, pursuant to a Mississippi non-

resident attachment statute, when these

plaintiffs are in fact residents of the State of

Mississippi and not even parties to the state

civil suit, the filing of which generated the

attachments. Cf., e.g., Wisconsin v. Constanti-

neau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d

515 (1971). As we proceed to what really con-

cerns us on this appeal, therefore, we under-

stand that the Banks and the state court com-

plainants are presently preliminarily enjoin-

ed from withholding or causing to be with-

held pursuant to writs of attachment issued in

connection with Cause No. 78353 in Chan-

cery Court of the First Judicial District of

Hinds County, Mississippi, funds belonging to

the original plaintiffs deposited in the defend-

ant Banks. - |

444 F.2d 1306.

49a

The issues created by the complaint and defendants’

answer thereto have not been tried and no disposition

has been made of the same. The injunctive order

rendered by the court on December 15, 1969, is there-

fore in force and provides specifically as follows:

Defendants herein, who are complainants

in Cause No. 78353 in Chancery Court of the

First Judicial District of Hinds County, are

preliminarily enjoined, subject to final action

of this court, from subjecting or causing to be

subjected in any way funds of plaintiffs de-

posited in the defendant banks to attachment

or other process causing plaintiffs to be de-

prived of the use of their funds.

The state court’s final decree provided that the funds

just mentioned had been properly attached in that pro-

ceedings as the property of the non-resident defend-

ant NAACP and directed that the said Banks pay tothe

complainants in the state proceedings the funds which

are the subject of this court’s injunctive order.

It is apparent that any attempt by the state court

complainants to enforce the decree of the state court

and require the defendant banks to comply therewith

would be a violation of this court’s injunctive order of

- December 15, 1969. In order to protect and effectuate

this court’s-said judgment the motion for preliminary

injunction as regards said funds must be sustained, 28

U.S.C. §2283.

50a

It may be well at this juncture to discuss the position

of the state court complainants that the court is pro-

hibited by Section 2283 from granting the preliminary

injunction requested by the parties. The injunctive re-

lief requested does not contemplate interference with

the proceedings in the state court. The relief request-

ed applies to the enforcement of the judgment by the

individual state court complainants and extends only

for that period necessary to permit an exhaustion of

appellate remedies. The final decree of the state court is

now the subject of review by the Supreme Court. The

appeal has been perfected and the state court defend-

ants have complied with the cost bond requirements

fixed by the state court. The appeal will take its usual

course through the state’s appellate procedure and be-

cause of the complexity of the issues involved there will

be several years involved in this process.

The state court complainants question the court’s

jurisdiction as a single-judge court, contending that

since the case involves the constitutionality of a state

statute and enforcement thereof, a court of three

judges is required. 28 U.S.C. §2281. The court rejects

this contention for two reasons. First, section 2281 has

been repealed by an Act of Congress effective August

12, 1976. Public Law 94 381, 94th Congress, S. 537, 45

LW 1. Section 7, of the Act provides that it shall not

apply to any action commenced onor before the date of

enactment. While the action sub judice was originally

commenced prior to the enactment of the law, the facts

and circumstances giving rise to the filing of the

amended complaint did not occur until after the effec-

5la

tive date. The final decree of the state court awarding

monetary and injunctive relief to the state court com-

plainants was not ntered until August 19, 1976. The

cause of action presented by the amended complaint

herein did not come into existence until that time.

Under such conditions Public Law 94-381 is fully ap-

plicable and a court of three judges is not authorized.

Second, plaintiffs do not challenge the constitutionality

of the supersedeas bond requirement of Section 11-51-

31 Miss.Code 1972. Rather, they argue that enforce-

ment of the state chancery court injunction and dam-

age award, which prohibit and penalize both protected

and unprotected activities, would irreparably abridge

constitutionally protected rights. The court agrees

with this contention. A three-judge court is not re-

quired.

The United States by its intervenor’s complaint and

accompanying motion, seeks to protect its interest in

the funds and property of Mississippi Action for

Progress, Inc., (MAP). This organization is a non-

profit, tax exempt, corporation duly organized and

existing pursuant to Mississippi law. MAP receives

grants-in-aid from the Department of Health, Educa-

tion and Welfare (HEW) pursuant to Title V of the Eco-

‘nomic Opportunity and Community Partnership Act

of 1974, 42 U.S.C. §2921, et seq., (Head Start Act) for

the operation of a Head Start Program in Mississippi.

The Head Start Act and regulations promulgated pur-

suant thereto, provide that title to all property pur-

chased with grant funds is vested in the grantee solely

for the purpose of enabling the grantee to carry out the

52a

objective of the grant, i.e., operate a Head Start Pro-

gram as authorized by the Head Start Act, 42 U.S.C.

§2921, et seq. The United States has a full and com-

plete lien interest in all funds and property purchased

by MAP with funds advanced by HEW. In order to

protect the interest of the United States in these funds

and property, it is necessary to enjoin defendants from

subjecting, in any way, such funds and property to the

satisfaction of the state court’s monetary awards. The

objective of the Head Start Program would be curtail-

ed, if not eliminated, if such injunctive relief is not

granted.

The courts have long recognized and enforced the

rule that no property interest of the United States can

be subjected to judicial process without the consent of

the sovereign. United States v. Alabama, 313 U.S. 274, 281,

61 S.Ct. 1011, 85 L.Ed. 1327 (1941), Maricopa County v.

Valley National Bank, 318 U.S. 357, 362, 63 S.Ct. 587, 87

L.Ed. 834 (1943).

The United States is now threatened with im-

mediate, irreparable harm as the result of pending en-

forcement of the state judgment against MAP. The

court concludes that injunctive relief is appropriate.

Security is not required of the United States, Rule 65(c)

Fed.R.Civ.P.

Coming now to the consideration of the motion of

the NAACP the Mississippi State Conference and Coa-

Be ES

53a

homa Branch for injunctive relief against the enforce-

ment of the state decree, the court concludes that the

motion is well taken and should be sustained.

The amended complaint and the injunctive relief

granted plaintiffs against the prosecution of the state

action in the first instance were the subjects of an

appeal to the Fifth Circuit. Henry v. Bank of Clarksdale, 444

F.2d 1300 (1971). Judge Thornberry, speaking for the

court reversed this court’s decision to stay the state

court proceedings and directed the dissolution of the

injunction and dismissal of the amended complaint.

Pursuant to the mandate issued by the Fifth Circuit, on

June 14, 1972, this court entered an order dismissing

the amended complaint and vacating its injunctive

order of June 9, 1970.

Judge Thornberry’s reversal was based upon a find-

ing that the record under review did not reveal a“state

action” to support the injunctive relief sought by plain-

tiffs. Judge Thornberry said

Since we conclude that there is no“state ac-

tion” to be found in the mere filing of a private civil

tort action in state court, the district court’s order

of June 9, 1970, enjoining the prosecution of

the pending state civil action should be vacat-

ed and the cause remanded with instructions

to dismiss the amended complaint for lack of

jurisdiction. [Emphasis supplied.] 444 F.2d at

1312.

S4a

As to the proposition that it is essential to civil rights

jurisdiction that the deprivation of rights contested be

“state action”, Judge Thornberry made this observa-

tion

The difficult problem has always been to

pinpoint the boundary between state action

and nonstate, or private action. In this case,

we must decide on which side of the bound-

ary lies the mere commencement of a private tort suit in

state court. [Emphasis supplied.] 444 F.2d at

1308.

Other pertinent excerpts from Judge Thornberry’s

opinion are:

To apply this test to the mere filing of a

private civil complaint in a state court and con-

clude that “state action” results would be to

demean the judicial process. It would be to

forget that a court is an open forum before

which each party is to have a full and fair

opportunity to make his case. Only after both

parties to a private civil action here had their

day in court and thecourt has reached its deci-

sion and rendered its judgment does the full

power of the state come into play in enforcing

the judgment..

* * * * * ®

At the time the court below issued its in-

junction, the Mississippi Chancery Court had

made no dispositive determinations, factual or

55a

legal, on any of these difficult issues. In other

words, the State, through its courts, had

taken a stand on neither side of this very diffi-

cult controversy. 444 F.2d at 1310.

There has been a drastic change in circumstances

since Judge Thornberry considered the sufficiency of

the allegations expressed in the amended complaint.

The parties have now had their day in the state trial

court and the court has rendered its judgment. The

plaintiffs have the right of appeal to the Mississippi

Supreme Court and then, if necessary, to the Supreme

Court of the United States. The state statutes, how-

ever, make it mandatory that a supersedeas bond be

posted if execution and enforcement of the judgment is

to be stayed during the appellate process. The parties

have sought relief from the requirements of the bond

statute in the trial court and inthe Supreme Court, but

to no avail. They have exhausted all state remedies in

that regard. As the matter now stands, absent federal

intervention, the plaintiffs must post the bond re-

quired by the Mississippi Statute or suffer the seizure

and sale of their property. Should they be successful on

appeal, their only recourse would be to pursue aclaim

against the judgment creditors for an unwarranted

seizure and sale of their property. The state court com-

plainants were not required to post bond in the state

court attachment proceedings, and are not required to

give security for any loss or damage which plaintiffs

might suffer on account of the seizure and sale of the

property, should the trial court’s judgment be set aside

or vacated on appeal.

56a |

The record reflects that plaintiffs will suffer im-

mediate and irreparable harm if the enforcement of the

state decree by defendants is not enjoined. To comply

with the provisions of the decree enjoining protected

rights will seriously impair their rights to free speech

and association. This is in and of itself an irreparable in-

jury. Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct.

1116, 14 L.Ed.2d 22 (1965). While the record reflects

that plaintiff NAACP can obtain funds to finance the

procurement of a supersedeas bond, to accomplish this

NAACP will be required to borrow a substantial por-

tion of the amount of the bond and to deplete funds

necessary to conduct its normal operations. To repay

these sizeable loans the NAACP will have to curtail

practically all of its usual functions during the pend-

ency of appeal, shown to be a period of two or three

years. Many current projects will have to be termi-

nated and new projects cannot be commenced.

The granting of injunctive relief will not cause sub-

stantial harm to the defendants. The. decree bears

interest at the lawful rate from the date of its entry and

there is no showing that a delay in enforcing the de-

cree will result in a dissipation of the assets of plaintiffs

now subject to levy. This problem, if it exists, can be

alleviated by requiring an injunction bond in an appro-

priate amount.

The court finds the granting of the injunction to be in

the public interest.

57a

The court has concluded that the Mississippi stat-

utes do not afford plaintiffs the due process required by

law in the settlement of their controversy with defend-

ants.

The existence of state action within the purview of

the equal protection clause of the Fourteenth Amend-

ment to the Constitution of the United States can be

determined only in the framework of the peculiar facts

or circumstances of a case. Burton v. Wilmington Parkway

Authority, 365 U.S. 715, 716, 81 S.Ct. 856, 857, 6 L.Ed.2d

45, 47 (headnote 7). Here in vindication of their rights,

the state statutes impose such a burden on plaintiffs as

to deprive them of rights guaranteed to them by the

First Amendment to the Constitution of the United

States. An injunction is essential to protect those

rights.

The court will enter appropriate orders of injunction.

58a

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF MISSISSIPPI

DELTA DIVISION

AARON HENRY, et al,

Plaintiffs,

versus NO. DC 69-58-S

FIRST NATIONAL BANK

OF CLARKSDALE, et al,

Defendants.

ORDER

October 20, 1976

This cause having come on to be heard on motion of

the plaintiffs National Association for the Advance-

ment of Colored People, Mississippi State Conference

of the National Association for the Advancement of

Colored People and Coahoma County Branch of the

National Association for the Advancement of Colored

People, for a preliminary injunction restraining the

defendants from taking any action to enforce the final

decree entered August 19, 1976, by the Chancery

Court of the First Judicial District of Hinds County,

Mississippi, in Claiborne Hardware Company, et al, v. Nation-

al Association for the Advancement of Colored People, et al, Cause

No. 78353, until said plaintiffs herein have fully

exhausted all appeals to the Mississippi Supreme Court

and, if necessary, to the United States Supreme Court,

the court finds, in part, as follows:

59a

1. That this court entered an injunction herein on

December 15, 1969, preliminarily enjoining defend-

ants herein, complainants in the state court proceed-

ings aforesaid, from subjecting or causing to be sub-

jected in any way funds of said plaintiffs Mississippi

State Conference of the National Association for the

Advancement of Colored People and Coahoma County

Branch of the National Association for the Advance-

ment of Colored People, deposited in the defendant

banks to attachment or other process causing said

plaintiffs to be deprived of the use of their funds;

2. That this court’s said preliminary injunction has

not been dissolved and is in full force and effect;

3. That defendants are the beneficiaries of certain

monetary awards contained in the state court decree

aforesaid, which contain the following provision:

The funds attached by the writs of attach-

ment in chancery in the hands of and under

the control of the hereinafter named resident

banks be and they are hereby declared to be

the funds of the nonresident defendant

NAACP. Each of the resident attachment

defendant banks as set forth hereinafter, be

and they are hereby directed to pay to the

seventeen above-named complaints [defend-

ants herein] to be applied toward the payment

of damages, the following sums:

60a

Attachment Defendants Amount of funds

First National Bank, Jackson G 249.86

The First National Bank

of Greenville 182.24

Bank of Cleveland 74.63

Commercial Bank, Woodville 171.48

Southern National Bank, Hattiesburg .33

State Youth Conference NAACP

Port Gibson Bank 247.59

Hancock Bank, Gulfport 151.92

Deposit Guaranty National Bank, 7,955.03

Jackson Mechanics, Bank of

McComb (branch bank)

Merchants & Farmers Bank, Meridian 98.04

Citizens Bank of Hattiesburg 693.82

First National Bank of Clarksdale 6,500.00

4. That any effort on the part of defendants to en-

force the previsions of the state court decree with ref-

erence to the money on deposit in the above-mention-

ed banks will be violated of this court’s aforesaid pre-

«liminary injunction;

5. That in order to effect this court’s judgment and

compel the obedience thereof, it is necessary that an in-

junction be issued restraining defendants from en-

forcing or allowing to be enforced, the above quoted

provision of the state court decree.

It is, therefore, this 20th day of October, 1976,

hereby

61a

ORDERED that the defendants herein, complain-

ants in the above-described state action, and each of

them, their officers, agents, servants, employees,

attorneys, and those in active concert or participation

with them be restrained and enjoined from seizing, or

in any way causing the funds in the banks aforesaid to

be paid in accordance with the decree of the state court

to said defendants.

ls} ORMA R. SMITH

UNITED STATES DISTRICT

JUDGE

ORDER FOR SERVICE

The clerk is directed to serve, by United States Mail,

Return Receipt Requested, aceriified copy of the above

and foregoing order upon all counsel of record, which

service shall constitute notice to all parties of the issu-

ance of the order.

This 20th day of October, 1976.

ls| ORMA R. SMITH

UNITED STATES DISTRICT

JUDGE

62a

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF MISSISSIPPI

DELTA DIVISION

AARON HENRY, et al,

Plaintiffs,

versus NO. DC 69-58-S

FIRST NATIONAL BANK

OF CLARKSDALE, et al,

Defendants.

ORDER

October 20, 1976

Upon consideration of the motion for a preliminary

injunction filed herein by plaintiffs, the National Asso-

ciation for the Advancement of Colored People, the

Mississippi State Conference of the National Associa-

tion for the Advancement of Colored People, and the

Coahoma Branch of the National Association for the

Advancement of Colored People, the memoranda and

affidavits filed in support thereof, the opposition

thereto and the other submissions of the parties with

respect to said motion, as well as oral arguments of

counsel for the parties, it appearing to the court that

said motion should be granted in order to avoid irrep-

arable injury to the plaintiffs, it is hereby

ORDERED that defendants in this action and their

officers, agents, servants, employees, and attorneys,

and all persons authorized by law or otherwise to en-

63a

force or execute judgments issued by the Chancery

Court for the First Judicial District of Hinds County, be

and they hereby are, restrained and enjoined pending

determination of this action, from taking any action to

enforce the final decree entered August 19, 1976, by

the Chancery Court for the First Judicial District of

Hinds County in Claiborne Hardware Co., et al, v. National

Association for the Advancement of Colored People, et al. (Cause

No. 78353), provided, however, that nothing in this order

shall prohibit the enforcement of those provisions of

the State Chancery Court’s injunction prohibiting

physical violence, damage to any real or personal prop-

erty, or obstructing the entrance to the place of busi-

ness of any complainant; it is further

ORDERED that the 45-day period for posting a

supersedeas bond be extended until 48 hours follow-

ing the dissolution or vacation of this preliminary in-

junction or any succeeding preliminary injunction

issued herein; it is further

ORDERED that the plaintiffs aforesaid first give

security in the sum of $100,000.00 for the payment of

such costs and damages as may be incurred or suffered

by any party who is found to be wrongfully enjoined,

such bond to be approved by the court or by the clerk of

the court, which said bond shall be in addition to the

$10,000.00 bond previously posted pursuant to this

court’s order dated October 1, 1976, which shall be

maintained in effect as security for the payment of such

costs and damages above mentioned; and it is further

/ 64a

ORDERED that pursuant to Rules 23(b)(2) and

23(c)(1) of the Federal Rules of Civil Procedure, plain-

tiff NAACP may maintain this action as a class action

on behalf of all individuals named as defendants in

Claiborne Hardware Co., et al, v. National Association for the

Advancement of Colored People, et al (Cause No. 78353).

Dated this 20th day of October, 1976.

Is| ORMA R. SMITH

UNITED STATES DISTRICT

JUDGE

ORDER FOR SERVICE

The clerk is directed to serve, by United States Mail,

Return Receipt Requested, acertified copy of the above

and foregoing order upon all counsel of record, which

service shall constitute notice to all parties of the issu-

ance of the order.

This 20th day of October, 1976.

ls| ORMA R. SMITH

UNITED STATES DISTRICT

JUDGE

65a

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF MISSISSIPPI

DELTA DIVISION

AARON HENRY, et al,

Plaintiffs,

versus NO. DC 69-58-S

FIRST NATIONAL BANK

OF CLARKSDALE, et al,

Defendants.

ORDER

October 20, 1976

This cause having come on to be heard on motion of

United States for preliminary injunction, and the court

having considered said motion and having found that

the United States has established the basic requisites

for the issuance of preliminary injunctive relief includ-

ing likelihood of success on the merits, irreparable in-

jury if an injunction is not issued, greater injury to the

United States by the denial of an injunction than the in-

jury to the defendants if an injunction is granted, and

injury to the public interest if an injunction is not

granted, it is this 20th day of October, 1976, hereby

ORDERED that the defendants named in the plain-

tiff-intervenor’s complaint and each of them, their offi-

cers, agents, servants, employees, attorneys and those

in active concert or participation with them be re-

66a

strained and enjoined from seizing, attaching, levying

upon, selling, garnishing, or otherwise interfering with

the possession and use by Mississippi Action for

Progress, Inc., (M.AP) of grant funds received from the

Department of Health, Education and Welfare pur-

suant to the terms of Title V of the Economic Oppor-

tunity and Community Partnership Act of 1974, 42

U.S.C. §2921 et seq., or otherwise interfering with the

operation of the federally assisted program adminis-

tered by MAP by enforcing or attempting to enforce or

allowing any clerk of a court or sheriff to enforce or

attempt to enforce the final judgment of the Chancery

Court of the First Judicial District of Hinds County,

Mississippi, in the case of Claiborne Hardware Co., Inc., et

al, v. NAACP, et al, NO. 78-353, as against the funds,

property or other tangible assets of MAP pending

further orders of this court. |

Is} ORMA R. SMITH

UNITED STATES DISTRICT

JUDGE

ORDER FOR SERVICE

The clerk is directed to serve, by United States Mail,

Return Receipt Requested, acertified copy of the above

and foregoing order upon all counsel of record, which

service shall constitute notice to all parties of the issu-

ance of the order.

This 20th day of October, 1976.

Is} ORMA R. SMITH

UNITED STATES DISTRICT

JUDGE

67a

SUPREME COURT OF THE UNITED STATES

No. 71-605

Aaron Henry, et al.,

Petitioners,

versus

Claiborne Hardware Company, et al.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the Fifth Circuit.

On Consideration of the petition for a writ of cer-

tiorari herein to the United States Court of Appeals for

the Fifth Circuit, it is ordered by this Court that the

said petition be, and the same is hereby, denied.

March 27, 1972

Mr. Justice Douglas is of the opinion that certiorari

should be granted. ee

Mr. Justice Marshall took no part in the considera-

tion or decision of this petition.

68a

SUPREME COURT OF THE UNITED STATES

No. 71-605

Aaron Henry, et al.,

Petitioners,

versus

Claiborne Hardware Company, et al.

A PETITION for rehearing having been filed in this

case,

UPON CONSIDERATION THEREOF, it is ordered

by this Court that the said petition be, and the same is

hereby, denied.

May 30, 1972

Mr. Justice Douglas and Mr. Justice Marshall took no

part in the consideration or decision of this petition.

69a

Aaron HENRY et al.,

Plaintiffs-Appellees,

versus

FIRST NATIONAL BANK

OF CLARKSDALE, et al.,

Defendants-Appellants.

No. 30295.

United States Court of Appeals,

Fifth Circuit.

June 23, 1971.

Rehearing and Rehearing En Banc

Denied Sept. 16, 1971.

Before RIVES, THORNBERRY and CLARK, Circuit

Judges.

THORNBERRY, Circuit Judge:

In this interlocutory appeal, filed pursuant to 28

U.S.C.A. §1292(a),1 the defendants-appellants, who

1 28U-S.C.A. §1292(a) provides in pertinent part that:

The courts of appeals shall have jurisdiction of appeals

from:

(1) Interlocutory orders of the district courts of the

70a

are also complainants in a pending state civil action

instituted by them in Mississippi Chancery Court, con-

test the propriety and validity of an order of the Unit-

ed States District Court of the Northern District of

Mississippi entered on June 9, 1970, 50 F.R.D. 251, in

which that court preliminarily enjoined the appellants

(hereinafter referred to as “state court complainants”)

from further prosecuting the aforementioned state

civil action then pending in the Chancery Court of the

First Judicial District of Hinds County, Mississippi. A

clear picture of what has transpired so far in the court

below, and of what is and is not raised in this interlocu-

tory appeal, is essential to an understanding of our dis-

position of this case.

I. Facts and Procedural History

A. Background

This controversy began in 1966 when a group of

Negro citizens in Port Gibson, Mississippi, began a

movement designed to protest what they considered to

be racial discrimination practiced by the white mer-

chants and local officials of Port Gibson. The group

sought to achieve fair employment practices, fair treat-

ment of Negro customers, and to otherwise eliminate

discrimination through the use of economic pressure in

the nature of a boycott of.the merchants in Port Gib-

son. The boycott was effectuated by picketing to pub-

United States, * * * granting, continuing, modifying, re-

fusing or dissolving injunctions, or refusing to dissolve or

modify injunctions, except where a direct review may be

had in the Supreme Court * **.

7la

licize the action, and by other non-picketing activities

such as leafleting and public meetings through which

citizens of Port Gibson were encouraged to join the

boycott. After this boycott had been in effect for sev-

eral years, twenty-three white merchants of Port Gib-

son, who were subject to the boycott, joined in a suit

filed on or about November 4, 1969, in State Chancery

Court in Hinds County, Mississippi, against (1) the

National Association for the Advancement of Colored

People, a nonresident (New York) corporation; (2) the

Mississippi Action for Progress, Inc. (MAP), a federal-

ly-funded nonprofit resident corporation, and (3)

approximately 150 named individuals, adult residents

of Mississippi alleged to be working “in concert with

and under the direction of * * * NAACP and MAP.”

(These three groups of defendants will be referred to

hereinafter as the “state court defendants”.) In addi-

tion, the state court complainants joined as defendants

approximately fifty banks in the State of Mississippi al-

leged to have in their possession funds, property and

effects of the nonresident defendant NAACP. The

state court complainants alleged that the state court

defendants had entered into aconspiracy in restraint of

trade and had engaged in secondary boycotts and other

malicious and wrongful interference with the state

court complainants’ businesses, all in violation of the

Mississippi Anti-Trust Laws. Miss.Code Ann. 1088,

1089 (1942).2 Among the allegations of the state court

2 §1088. Trust and combine — defined.

A trust or combine is acombination, contract, understanding or

agreement, expressed or implied, between two or more persons,

corporations or firms or association of persons or between any

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one or more of either with one or more of the others, when in-

imical to public welfare and the effect of which would be:

(a) To restrain trade;

(b) To limit, increase or reduce the price of a commodity;

commodity;

(d) tohinder competition in the production, importation, man-

ufacture, transportation, sale or purchase of a commodity;

(e) To engross or forestall a commodity;

(f) To issue, own or hold the certificate of stock of any trust

and combine within the spirit of this statute knowing it to be such

at the time of the issue or the acquisition or holding such certifi-

cate; or

(g) To place the control to any extent of business or of the pro-

ceeds or earnings thereof, contrary to the spirit and meaning of

this chapter, inthe power of trustees, by whatever name called; or

(h) To enable or empower any other person than themselves,

their proper officers, agents and employees to dictate or control

the management of business, contrary to the spirit and meaning of

this chapter; or

(i) To unite or pool interest in the importation, manufacture,

production, transportation, or price of acommodity, contrary to

the spirit and meaning of this statute.

Any corporation, domestic or foreign, or any partnership, or in-

dividual, or other association, or person whatsoever, who is now,

or shall hereafter create, enter into, become a member of, or a par-

ty to any trust or combine as hereinabove defined shall be deemed

and adjudged guilty of a conspiracy to defraud and shall be subject

to the penalties hereinafter provided. Any persons, association of

persons, corporation, or corporations, domestic or foreign, who

shall be a party or belong to a trust and combine shall be guilty of

crime and upon conviction thereof shall for a first offense be fined

in any sum not less than one hundred dollars nor more than five

thousand dollars and for a second or subsequent offense not less

than two hundred dollars nor more than ten thousand dollars, and

may be enjoined by a final decree of the chancery court, ina suit by

the state on the relation of the attorney-general, from further

prosecution of or doing of the acts constituting the trust and com-

bine as defined in this chapter.

* ® * + *

1089. Additional contracts or combinations not allowed by law.

Any corporation, domestic or foreign, or individual, partner-

ship, or association of persons whatsoever, who, with intent to ac-

complish the results herein prohibited or without such intent,

shall accomplish such results to a degree inimical to public welfare,

and shall thus:

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complaint are charges that the state court defendants

abused the customers of the state court complainants

by threatening them with physical violence, address-

ing them with obscene and insulting language, destroy-

ing their property, and beating and assaulting them.

For relief, the state court complainants sought (A) to

have “the funds, property and effects of the nonresi-

dent defendant NAACP, its branches or auxiliary of-

fices in the State of Mississippi, in the hands of and

under the control of the resident (defendant Banks)

* * * attached” [presumably as asource of damages] and

held to await the decrees and orders of the court; (b) to

(a) Restrain or attempt to restrain the freedom of trade or pro-

duction;

(b) Or shall monopolize or attempt to monopolize the produc-

tion, control or sale of any commodity, or the prosecution, man-

agement or control of any kind, class or description of business;

stall any commodity;

(d) Or shall destroy or attempt to destroy competition in the

manufacture or sale of a commodity, by selling or offering the

same for sale at a lower price at one place in the state than another

or buying or offering to buy acommodity at a higher price at one

place in the state than another, differences of freight and other

necessary expenses of sale and delivery considered;

(e) Or shall destroy or attempt to destroy competition by

rendering any service or manipulating, handling or storing any

commodity for a less price in one locality than in another, the dif-

ferences in the necessary expenses of carrying on the business

considered, shall be deemed and held a trust and combine within

the meaning and purpose of this section, and shall be liable to the

pains, penalties, fines, forfeitures, judgments, and recoveries de-

nounced against trusts and combines and shall be proceeded

against in manner and form herein provided, as in case of other

trusts and combines. And it shall be sufficient to make out a prima

facie case of a violation of this subdivision of this section to show

lower charge for the service therein mentioned in one locality than

another, or to show a higher price paid for a commodity in one

locality than another, differences of freight and other necessary

expenses of operating business considered.

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have all the defendants (except the Banks) enjoined

from “(1) Picketing in or about the business premises of

the complainants,.(2) stationing guards at or near the

viciity of the said premises of the complainants; (3)

soliciting, advising, threatening, coercing and con-

straining any person from trading with complainants;

(4) interfering with the businesses of the complain-

ants; (5) boycotting the businesses of the complain-

ants; (6) asking or demanding that others cease doing

business with the complainants; and (7) committing

acts in restraint of trade and/or in violation of the laws

of the State of Mississippi thereto appertaining;” and

for which the state court defendants would be held

jointly and severally liable.

Shortly after filing of this State Chancery suit, and

without notice or hearing the Clerk of the Chancery

Court for the First Judicial District Court of Hinds

County commenced to serve writs of attachment

against what was purported to be the funds of the

NAACP on deposit in various Banks around Mississip-

pi, ordering the Banks to hold the funds of the NAACP

until further notice. The Clerk’s action was taken pur-

suant to Miss.Code Ann. §2730 (1942),3 which author-

3 §2730. Attachment against non-residents — how effects or indebtedness

bound.

When a bill shall be filed for an attachment of the effects of a

non-resident, absent or absconding debtor in the hands of persons

in this state, or of the indebtedness of the defendant in this state to

such non-resident, absent or absconding debtor, it shall be suffi-

cient to bind such effect or indebtedness, that the summons for

the defendant resident in this state shall have stated in or en-

75a

izes attachment of the property of non-residents with-

out notice or hearing. It turned out, however, that the

Banks upon which the writs of attachment were served

had frozen not the assets of the non-resident NAACP,

which was a named defendant in the state civil action,

but rather the assets of the Mississippi State Confer-

ence of the NAACP, and of all local NAACP branches

in the State of Mississippi, all of which organizations

claim not to have been named as defendants in the state

civil action, and claim further to be residents of the

State of Mississippi and therefore not subject to its

non-resident attachment statutes.

B. Proceedings Below: Stage I

Believing that their constitutional rights to due

process of law had been infringed by these attach-

ments, the Mississippi State Conference and the Coa-

homa Branch of the NAACP, acting individually and on

behalf of all other local branches similarly situated,

filed a section 1983 action in federal court against the

Banks which had frozen their funds pursuant to the

writs of attachment. The original complaint in this suit

was filed on November 7, 1969, by Aaron Henry, Presi-

dent of both the Mississippi State Conference and the

Coahoma Branch. (The parties to the original com-

dorsed upon it the nature and object of the suit, and that it is to

subject the effects in the hands of the resident defendant, and the

indebtedness of such defendant to the non-resident, absent or ab-

sconding debtor, to the demand of the complainant; or, instead of

such statement on the summons, a copy of the bill may be served

with the summons, and shall bind the effects or indebtedness from

the time of such service.

76a

plaint will be referred to hereinafter as the “original

plaintiffs.”) The original plaintiffs alleged that al-

though they are authorized by the NAACP, a New

York Corporation, to use the words “National Asso-

ciation for the Advancement of Colored People” as part

of the title of their respective associations, and have

agreed to abide by the constitution of the New York

NAACP, they are completely autonomous and inde-

pendent of the New York NAACP. They alleged

further that they were not defendants to the state civil

action and had received no notice of the suit, and that

they are residents of the State of Mississippi and there-

fore not subject to its non-resident attachment pro-

cedures. Charging that they had been and were being

irreparably injured in that all their operational funds,

which were used to carry out constitutionally protect-

ed activities such as a voter registration drive, had been

frozen without notice and hearing, and without even

being named in the state civil action, they sought “to

enjoin (the) attachment of property belonging to them

made without compliance with fundamental con-

stitutional guarantees.” The original plaintiffs thus

moved for a temporary restraining order and a prelim-

inary injunction. The court below held a hearing on the

original plaintiffs’ motion for a temporary restraining

order on November 17, 1969, at which one of the

defendant Banks appeared and moved to have the state

court complainants made parties to the proceeding on

grounds that the state court complainants claimed an

interest in the contested funds. The court below grant-

ed the Banks’ motion, as well as the original plaintiffs’

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motion for a temporary restraining order. The court

then set December 1, 1969 for a hearing on the orig-

inal plaintiffs’ motion for a preliminary injunction. At

this hearing, the state court complainants appeared and

contested the motion. At the conclusion of this hear-

ing, and on the strength of the evidence taken, along

with the various pleadings of the parties, the court

granted the original plaintiffs’ motion for preliminary

relief on December 15, 1969, ordering the defendant

Banks “to release all funds [of the original plaintiffs]

held by them pursuant to the writs of attachment * * *

upon posting by plaintiffs * * * of abondinthe amount

of 110% of [the] funds,” and further preliminarily en-

joining the state court complainants “from subjecting

or causing to be subjected in anyway funds of [the orig-

inal plaintiffs] deposited in the defendant Banks to

attachment or other process causing [the original plain-

tiffs] to be deprived of the use of their funds.”

No appeal was taken by either the Banks or the state

court complainants from the interlocutory injunction

of December 15, 1969.4 And although it may be within

4 At the same time the court below issued its preliminary in-

junction, it issued a separate order overruling the state court com-

plainants’ motion to dismiss the action. Se Memorandum Opin-

ion in No. DC 69-58-S, at 8 (Appendix, Vol. II, at 195). Inthe order

overruling the motion to dismiss, the court below provided that

the state court complainants might make application to the Fifth

Circuit for an interlocutory appeal from the order, pursuant to 28

U.S.C.A. §1292(b). The state court complainants did make appli-

cation to this Court for interlocutory appeal from the district

court’s order denying their motion to dismiss, and leave to appeal

was denied on March 4, 1970. Claiborne Hardware Co. et al. v.

Aaron Henry et al., Misc.No. 1583 (March 4, 1970). Although the

78a

the scope of our reviewing powers on this appeal to

consider the validity of this December 15

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