Petition for a Writ of Certiorari — Gibson v. Harris

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d oe 7 FILED.

) og | DEC 11 196.

“JOHN F. DAVE, CLERK

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Supreme Court aif the Wunited Prater

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Tre Boake or Eprearion or ii

Crry or BirMixncivaM, EY St. Petitioners,

ee v.

_Dwicite Arustrone, er an, Respondeits.

: Lixpa Str. Grpson, Ev AL. Petitionors,

CAROLYN. ELEANOR TLarris, et Ab., Respondesits,

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Ls WHESCE Roperts, Ev AL. Petitioners,

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Raren STELL, ET. . Hespondcuts,

» PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF-APPEALS - asa

- FOR THE FIFTH. CIRCUIT -

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“Gro. STEPHEN Leon ar

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TABLE OF AUTI LORITIES

(CASES: Sree teee w+ 4 .

a ae a ; a «

‘Aaron v.i\Cooper,.29¢ F. 2d 33 (8th Cir. 1958) ........ “=~

Aaron v.\Cooper, 261 F.2d 7 (Sth Cir. 1958)-........ 20

American Lead Peneil v.-Schneegass, les Fed. 725

Dr Oe 1) Sa ae aa SNamie weed ike aire ae ds.

Bergen Drug v. Parke Davis Co.. 307 F..2 cz 422) Sosa ;

" Me, MD ek Cas ’s De tree 16°

_ Clune y . Hublisher~ Association of New York c ‘ity, 24

ane F. Su SEU LEA hy LOCO) Sse eet base iens ly

* Cooper v. Naron, S98 US. 1 1. 8) Sa akch eae Rie stale vu

# DeBeors Mynes y. United States. 325 US, 212 (4845). O°)

Dennis v. United States, 541 ULS, ho4 td eee aN = “35

Dunn ve Ratail Clerks International Assoviation, 290

ge a EB WOT 7 4 I eae ne 4

—

(Gireene v. Fair, OE! BL 2d 200-05th Cir. 163) ee:

Hamilton Watel oe Henna Bate ‘o., P06 F.2d -

~ocememaenezamty * 9 6B Ce |.) ree ugk sie nieas enka ae

Hess v. Woods, 185 BF. 2d 404 (oth ¢ 150) Terre er 21-2

‘Joint. Anti-kpseist Retuwec 4 MRE . MeGirath, —.

BREE Be IDOE oi vnc ca ee eae 245

‘Tnore Lennon.166 CLS, Ads CIS9O7) 222... PPS ee ai och |

Mack vo Gener! Motors Corp. 260 PF, 2d S86 (7th Cir,

sche DAE EPSPS ire ee pa ir eS par ee 2

Meredith v. Fair. 305 EF. 2d EI ( oth Ci

Ws Sie ck wes ee

i .* ~ Index Continued

’ “4 eye Page: .

Miami Beac ‘h Feder al S sav, & Loan Assoc. v. sane

256 F.2d 410 (Sth Cir, MAB) TT... 7, J5-4-

Northern Securities: Conv. & inited States, 193-ULS. 198 ;

(1904) See REE. CEE e er oe Oy PE Ee ry ne 24-°

‘Price v. Johnston, ret yi i (1948) a nese ree VW

Shuttlesworth v. Birmingham Board’ of Education,

358 U.S. 101 (1958) .......... Ot whtita set ae py ¢

* Tanner’ Motor Livery, Ltd. v. Avis, Inc, 316 KF. 2d si

(Mh Cire 1963) Deh IGaR Ch Res MOEN G eR URW we cat ay Xi

Toledo. A.A. & N.M. Ry. Co. : Pennsylvania Co, 4 *

Fed. 720 (N.D. Ohio 18613) Tete ere erie ee

Toledo Seale Co. vy. Computing Seale Co., 261 Yr. S. 399:

INS ee das SERGE ES EEE CREE AUER Rada eae we 6, 20

U nited States v. Adler's € ‘reamery, 107 F. 2d 987 (: 2d

ats. SE Fires Ee ee Sheen ee Rea eke ws oak 17,18

United States v. Miieinae: 342 U.S. 205 (1952) ....... 1

United States v. Mor Kain, 346 U. S. ee (1) ess OD

U nited States v. Wood, 295 F. 24 772 (Sth Cir. 1961) ..19-20

Warner Brosav. Gittone, L10- F.2d 292 (34 Cir. 1940}. .17

-. Westinghouse Electciec Corp. v. Free Sewing Machine

; “Co., 206 F; 2a BOG. (7th Cir. WS) Wt. ee can 18

~Willheim v. Investors Diversified Services, Inc., 303

“Ee ee fe Ee, Se oo a cee oe ee 47, 8

Willheim v. Muteliason, 203. F. Supp. 418 (S.D.N.Y . fae

SUEY onc awa is ee Riven aC eRe OS keane WV

Winton Motor Carriage Co. v2 Curtis Publishing oo

196 Fed. GO (E.D.. Pa. 1912) Sees ceaegey ai vag 17

SratvtTes: «© 2 : yr oat =

YS USC: sy rere eee ee ee 3

ee As RE ee Ed ee ee ca ns 12.18, 24

WS Ml UO ey ee ee 4,12, 18:9

7 BUSS Sie «SPN NER Sein Fae Naber ies a ae,

8 U.S.C: £1651- ::..... ont onns SERA ~AD.T 18, 23

ee Re OND cs ac ew be ake eee ren an eee

. 98 Ce BAI06 2. 64. cece. Poets ae Ae ee REE a a i)

so EAE GCA peters et ne Sea weuwauerecs ty

_ MISCELLANEOUS:

A‘L.R. 2d, vol. = D. 213, 2" eRe ECL TEE Ee wean e

"Am. Jur... vol, RINE CEP ED con ole aes

Pomeroy’ s hii onrseprele nee “(4th ed. 1919), vol.

: 4, S$ ) 3375 Lait Pe ee ae hake cee euler ihrer

JIS

INDEX TO APPENDIX’

OPINIONS OF 4 ‘orrts Brow

Q Uxirep Srates Coure or APPEALS

pe Firta Cincurr

Ralph Stell ef-al. v. Savannali-( attain County Boaril

of Education ot al. . 318 BF. 2d425 (1963) 2... ae |

Birdie Mat Davis et-al. . Board of: School ¢ ‘yf

oe sioner s, ga. oe dl: the ii ra YG3 ) eoveseeveesd fe wewvns

= * i . Page

Dwight Armstrong ¢t al. v. The Board of ‘Edtication ‘of °

thes City of Binhingh: im, Jefferson County, Ala-

a ott bai, t- itl. bid ol # 3 Pr. eat | ood, (1S Me} ) Jf: sees sh eaee

- + arolyn Kleanor Harris et al. v.cLine Sua Gibson ¢t

‘

: ‘

aoe Fs 4 vd 780 (P63 iceeen /

DISTRIC neCOU RES

al. and’ Glyvin County fers. of Education ct al...

Qo 2 Ratph Stell et al. v. ‘ioe: (Chatham County Board -

of Edticatton, TSC ) Southern | Pistrict’ of

Fao Georgia, Savannah Mivi ision (1963) (unre porte aly

Birdie Mae. Davis ops. r, Board of School Commis

: sioner’s of Mole prelerin Alabama, ef al., JIE.

Ti rsa 4 (LAB. Di Southern Ea, Alabama,

<“6/ S.D., NWBYS. hm Ag hh ECR AAA LAER LE Oe oe

‘ Duicht: Arinstrong et cal. v The ened of Widenidion of

Swan

a. the ity of andes g Jefferson County, Ala-. /°

bama,et-al., 220 F. Sapp. 217 (U.S.D.0, Northern

District. Alabama, BAe TOY b-abaw wns ree aa

LindySue Gibson et al. vv Giynn County Board of. Kdu-

veation, ULS.DCo Southern District of Georgia,

va Brunswick Divis ion (1963) (unreported) ..0.....

1a.

1S ee Rete inet aN THE

* Supremi Court of. thy United Prates te

QCTowEL TERM: 16.5. aa

THE Boarp ov Pore vries on ries

(try or BirMingitam, eran. PEiBoners

f Dwientr Aamarrow,, #0 u.. Beahondent:

.Litpa Sur Gipson, wer ain, Pelibioners. >

, ‘ ee Fe ieateede oe ‘

( QOL BLLEA NOR Ij BRE f \.. Leesnandrat

Lawrexce Roprivrs, we ac., Betelinaers

: Heals Sew { Lei taniviihe i? 7

PETITION FOR WRIT OF CERTIORARI! TO ‘THE.

NITED STATES COURT OF APPEALS:

- FOR THE. FIFTH CIRCUIT

Cn ? ° Aad os

Ta it riirry”, : T hn f ig j ae Or tana §atatyy es , a

A het te ‘ £ Sarre mn f ir f ‘

a “4 e oy ¢;

1Z 1 MOT Ls . t

to.which the respective respondents had failed to sus-

tain their right in the trial court. Pétitioners,. con-

tending that the form of sueh orders constitutes an.

_ impermissible. dep:

esses, pray the iso

. ta the United *

tue from normal appellate proc-

lanve of a writ of certiorari directed

States Court of Appeals for. the. Fifth

Cireuit limited to the’ question of the formal validity

of such orders as an allowable or proper exercise ,of

appellate. — power, : 2 aes ts

The prayer. is, made for joint consideration, of* all

four’ eases under Reale 23(5) on the groumd thiat the

four orders in question are substantially identical,

present the same issue of law and may: eanstitute the®

entire elass of such orders sinee vour petitioners know:

of no similar, a by any other C ourt of “Appe: ls.

ane | 5 .

: OPINIONS BELOW

The- -opinjons : of the Court of Appeals are printed

in the appendix and have been reported as ‘follows:

Stell vy. Savannah-Chatnam County Board of Eduea-

School Commissioners of Mobile County, Ala,, 322 F.

2d 356 -( Fuly 9, 1963); Armstrong \. Board of Educa-

'In addition: to the three captioned eases, a motion to be per

mitted to file an‘appliecation for reheariny limited to the form of

the*order corcerned is filed herewith im ‘Board of School Commrs

of Mobile, et al. v. Birdiv Mac Danis, ef al., Oot. Term. 1962. No

348, cert. “den. 375 U.S. 894 (Oct. 28. 1963). Phe inclusion of the

Davis case is solely ‘tt have betvure the Court on a singte applica-

tion, the four related cases in Which such appellate orders” have

been issued.

. : . > 5 “oe ° . ; ‘ * : :

> inal mandatory injunction whieh has de facto-reversed

the order, or Judgment ‘appealed from by awarding as -

‘against each of your petitionersgthe affirmative relief

‘tion, B18 F. 24 425 (May 24, 1963); Davis ¥. Board of —

srehe

tion of City of Birmingham, Ala., 325 Fi 2d 333 (duly

12, 1963); and Harris v, (ribsov and Glynn County >

Board 6f Education, 322 Fe 2d 780. September 12,

1963). : :

The opinions of the District Courts are not sought

.. to be reviewed herein but“are included in the appendix

for the Court’s reference. Two have been officially

reported, Davis V. Board of School -€ ToOmMISSIONerS,

219 F, Supp. 42 (SeD. Ala. Jume 242-1965) qn Arm

Ala., May 28,.1963). At the time of the issuahee of

the order of the Fifth Cirenit in “Stell v. Sarannah-

Chatham County Board of ‘Education, only the pre-

Jiniinary- findings given -in the: appendix ad heen

issued. The , District Court’s ‘deeision, as thereafter

entered with ‘the Clerk, is reported at 990 FL Supp.

667:(S.D. Ga. 1963)...

The denial of the application far id vapiece

of certiorari in Davis’ is reported at 877 TS, 84 (Oh

~ tober 28219655). a es

JURISDICTION - ee

The review authority’ of this Court prior to the

rendition of a judgment or deeree by a Courtot Aye

peals is conferred by 25 U.S.C. § 1254119; and since

each ease is now, so pending in that Court, this appli-

eation comes within the time limited by 2s U.S.

$2101 e). The datés of the issuance of the orders

sought to be reviéwed are as given in, the preceding

section; —° - Piet ie |

“rr

~~ strong Vv. Board of Education, 220 F. Supp. 217° ( SV.

4 :

~~” QUESTION PRESENTED

Does a Court of Appeals have power, pending its

determination of an appeal on the merits, to issue an

original mandatory injunction which |

(a) reverses the apy reviled- from\grder: or judgment

of the District-Court by granting the affirmative

relief, prayed -by the Ydastecessful parties iu the

trial court;

(h) alters both the status quo. ante litem. and Fe |

talus quo as of the time the appeal was taken;

-and :

(ey divects the trial court to sign and issue as its

* own the interim reversal of its earlier‘order ?

STATUTES INVOLVED _ s

28 U.S.C. $ 1282(a)(1), Iaterlocutory Decisions,

(2) The courts of appeals sliall have jurisdiction

of appeals frem:

‘1): Interloentory orders of the district courts -

of the United Btates,.the United States Distract

Court -for the District of the Canal Zone, the

District Court of Guam, and the District Court

of the Virgin Islands, or of the judges thereot-

granting. continuing, modifving, refusing or dis-,

solving ‘njunetions, or refusing to: dissolve or

¢nodify injunetions, except where a direct review

mav be had in the Supreme Court :° (As am..Oct

31... 1951, 6545, § 49, 60 Stat. 726; July 7, 195s,

Pub. L.85-508, § 12(e), 72 Stat. 548; Sept. 2.197 IS,

Pub. 1, 85-919, 72 Stat. 1770)

28 U.S.C. § 165](a). Writs.

The Supreme Court and all courts established

Aet of Congress may issue all writs necessary or

appropriate in aid of their respecti.e jurisdictions -

and agreeable to the tsages and principles of law.

(June 25, 1948, ¢. 646, 62 Stat. 944, amended May 24,

1949, 6. 180, § $0, 63 Stat. 102).

28 U.S.C. § 2106. Review: Determination. .

“The Supreme Court or any other court of appel-

late, jurisdiction may affirm, modify, vaeate, set aside

“or reverse “any judiment, decree, or order of a court

lawfully brought before it for review, and may remand’

the eguse and direct the eutry of Suci: uppropriate

judgment, decree, ‘or order, or require such further

proéeedings to be had as may he just under the cir,

cumstances.”** (June 25, 1948, ¢. 646, 62 Sti ite. 963).

: .STATEMENT. OF THE. CASES

-A number of facts are VOOR to all cases. Each

of the four is a school desegregation case Savannah

and Brunswick, Georgia, and Birmingham and Mobile.

Alpbama—brought as a suit-in equity“under 28-U S.C.

3/3)... The jurisdiction ef.the Distriet Courts has:

ivoked under the “due process" and **equel pro-

tection”? clauses of the Fourteenth Amendnie ut to the

Constitution as implemented by the Civil Rights Act

(42 U.S.C, § 1983). The respondents have had in ak

case the same or associated counsel and have wasked |

the same type of relief, resulting it subst; antial simi-

larity in their pleadings and mrotions both in the Dis-

triet Courts aid in the. Court of Appeals for the Fifth

Circuit. ne oe

hee

In each trial court the respondents” pleadings have

praved a permanent injunction directing Sone form«

er plan of desegregation and responde nts have asked

the same relief by way of preliminary Injimmetion. In

each Case, the Distriet Court coneerned li: as Issued wa

+6 oy x . g o @

6°

judgment: or order whicls respondents have appealed

to the Court of Appeals as constituting a denial of the

‘injunetive relief so demanded.

On taking each appeal, respondents have prayed an

original appellate ‘interloc utory. .injunction for the,

same affirmative relief as had been denied by the lower

court. The ground stated by respondents has been.

that the clear absence of legal merit in the rulings of |

the District Courts makes any de Jay in granting them _

final relief. an irreparable injury. The Court of Ap-:

peals oneach appeal has agreed with respondents and,

acting on an accelerated basis’ without a record of a

transcript of the proceedings below, has reversed the

lower court by granting the application for appellate

injunctive relief substantially as requested. Qn each

appeal, the-Circeuit has issued its mandate in the form

of an order to be signed and issued as that. of the

Distriet Court from Pasig the earlier order not vet

determined on appeal. had issued.

[n somewhat greater detail, the ‘nature of the pro-

ceedings and character of the orders issued by the trial.

and appellate courts are here-given in the chrono-

logical order of the cases.

(a) Savannah-Chatham Board of Education, et al v. =>

Ralph Stell, et al. (Sth Cir. Ct. of App. No. 20557) .

This action, was brought on behalf of: ne gro school .

children in Savannah alleging injurv caused by sép-

arate scheols and praying preliminary and permanent —

injunctive relief requiring the defendant School Board:

*From application through hearing to decision, Stell, 4 days:

Dir, 8 days: Armstrong, 39 days; Gihson, 2 days. - 7

3 Although the Fifth Cireuit in the later Davis, Armstrong and

Gihson opinions refers to Stcl/ as authority for the form of injune-

tion in question, Judge Cameron identifies an unpublished order

two days earlier as being the first. (App. pp. 60-4a)

of Savannah-C hath: mm County is submit a plan te re-

organize the se shool system into what plaintiffs de-

scribed as.a ‘tunitary nenracial systein’’. At the trial,

proof was made on defeuse that -the plan proposed by

respondents would. injure both the negro and® white

school children in Savannah, *On the Court's Inquiry,

respoude nts. refused to proffer any evidence in. rebuttal

-6f this issue or-in support of the injury averments in

their complaint, stating that the law so conclusively

presumed such injury to their class that no ih ee eo

to show other or différent injury in the Savann: ih ares

could be considered by the trial court. |

~The District Court disagréed and, at respondents”

request at the close of trial (May 13), immediately

issued its preliminary judgment, denying the -prayer

of the complaint, and giving respondents a right to re-

open for further proot, ( App. fp. SPn-90e )

. Re 'sponde nts appe: ed and moved for a preliminary

appeHate injunction on May 20, 1963, for the samte

relief .denied below (Stcll Ree. 55). The Court. of

. Appeals set this for he: ving on May 24 (7d. 80), heard

it (id. 135), and on the same day, entered its order

granting the requested injunetion (7d. 136) om the

basis of the All Writs’ statute, 28 U.S.C. § 1691 (a)

(App. p. lad. For its direction to the District Court

to. enter the érder as its own the Court of Appeals ad-

ditionally referred to this’ Court's ruling in) Toledo

Seale Co.y. Computing Séale Co., 261 US. 309 (19255)

(b) Board of School Commissioners of Mobile County. et al. v.

Birdie Mae Davis, feral ( Sth Cir. Ct. of App. No. 20657)

‘The complaint i in this case was substantially similar

to that in-Ste/] and respondents, in addition te praying

a permanent injunction therefor, moved for a prelimi-

° “ .

nary injunction requiring the submission within thirty

days of a desegregation plan to Commence in Septem--

ber, 1965. The preliminary injunction in the form

‘prayed by plaintiffs was denied. on June 24. 1963, but 3

the Court directed the School Board to. submit such a

plan to be. heard at the trial, which had. then been

scheduled for November.

“: On July 1, 1963, respondents moved the Court of

Appeals for an injunction pending appeal *tand for

other orders”. On the same day the Court orderedy

ache aygigon July 8 (Davis Ree. p. 19) and granted re-

spondents’ application on July 9 (id. Pp. 21-8). In

its decision the Court said: sii

“The ‘Al Writs’ statute, 28 U.S.CLA. § 1651 gives

us the power to grant the relief songht by the

plaintiffs. Stell « Savannah-Chatham County

Boird of Education, Fifth Cirenit, 1963, — F.

: 2d [No, 20557, May 24, 1963]. However, as —

in that ease, we think jt is more apprepriate to

frame thie injune ‘tion and direct by mandate that.

Lals injunction be made the order of the District

a Court. ( App. =. 9a ) Re

On an application for rehearing, the or der Was, recalled |

and reissued on July 18 to conform to “the form used

‘in the interval me the Court's decision in Armstrong.

In the opinion of the dissenting Judge: =

“Phe modification by the majority of their prior

order in this cause e compounds error. (App: p. sh dL).

oo% & &

to , what thas been done is at the exper ise of the

judjeial process. A Court.of Appeals should not

sit as a-Distriet Court in chancery... without

Facts before it to serve as a basis for the dee TEE,

’

yf * It was tried on the dates scheduled ang is now sub-judice.

\ “ir

The All-Writs Statute. 2@U “S.C. § 1651, does

not authorize this... more: constitutional rights

*e will be Jost than ‘ained in the long run. by depar-

ture from the procedures which have stood the

test of time, and which area part of due process”

of Jaw as we have her vetofore known it.”” (App.

p. 1 a).

A pa nt was 5 aise filed by Judge Canjeron after

rejection of his recommendation for a cn bane hear-

ing (Davis Ree. 41). A petition. for review by cer--

tiorari on the merits was filed and de nied by this Court

on October 28) 1963 ; Board of Sehool € COMMISSIONS rs

of Mobile County y, Davis, 375 UlS. 894. No ree “on-

sideration of the merits diseussed in that applic ation

Is requeste dl. the coneurrent motion served herewith

heing intended to consider only the formal validity of

the injunetive order of the Fifth Cirenit..

(Sth Cir. Ct. of App. No. 20595) ~

In this case, as jn the two eases prev jously detailed,

the complaint sought a-mandatory injunetion requir- 9

‘ing the School Board. ‘to_rearga nize thes Sthool sy yvstem

along stated lines. A preliminary injunction for the

sameé relief was made byt by stipylation was merged

into the prayer for permane nt relief and. the case was

tried of the merits. The Court found that the plain-.

tiffs in the case had failed to make any effert to comply

with the Alabama. Pupil Placeme nt. Act which this

Court hi ad held constititional : Satire orth vy. Birm-

inghani Board of Education, 358 U.S. 101 (1958). The

District Court retained jurisdic dion te eee ar the plain-

tiffs on gm contention that the manner of application

te them of that statute was improper. GApp.p. 1082):

On June 3, 1963, the Armstrong responde nuts moved

f ,

‘ . eee)

the Court of Appeals to ixsiie an injunetion: pending

pine Which would grant’ the’ relief denied) below.

(Armstrong Ree. p. 1). This was heard on June 26

(id: 21) and the requested injuxietion was granted on

“duly 12. Judge Gewin dLissen tye. (Ap pp. Wao. An

application for rehearing ex banc was denied July 22,

dudge Cameron tiling an additional dissenting opinion

on July 30. , o-

In its decision, the Cireuit Court, Rives, J., directed

the issuance of am order by. the Distriet Court In

line with the Lape .. dn Sell... (App. p. 29a

and Tuttle, C. J.. concurring specially, stated that a

definite ca should He required by an injunetion

. pending the appeal of this ease on the merits in

. ‘a. (court. See Stell... . Darts . oo App. p. Oda)

Judge Gewin, in un exte nded dissent, stated :

“Tt should be noted ‘quickly that thé- ma jority:

opinion leaves little -to he. decided when the ease

reaches this Conrt on the me nits, Under the gnise

—— of injunction pending appeal’ that opinion sub-

_ stantially decides the case and renders moot reins

a ions Which could arise when the case reaches:

_the Court for tinal decision after a review of the

record . The action in this case is taken with-

out anv pretense that the Court h: ix ti tken so mie “h

as a hiirried ed; thee atzihe record.’ (App. pp. dR)

Judge Gewin then discusse ed the questions - involved

indssuing such an injunetion pending appeal and dis-

tinguished the action taken in Sfel/ on the ground that

the Court had there considered it) Was reviewing an

Interlecutory ruling. (App. p. 4a)

Judge’ C ameron also dissented saying:

the deci ‘ision of this panel involves questions

ne procedure w ‘hic h-have for some wee ks plagued

“1

and are. still plaguing tlie Court.. The Judges of

_ the Court are sharply \livided on these questions

and not only the lawydrs of the Circuit, but the

‘public generally, are \displaying open concern

With respect to inconsistent positions which they

conceive are being taken by the Court. ...

“The procedure followed by the majority here

is one Which, In-my. opinjon, is not sanctioned: by

the law. The hearing Kyifore these three Judges.

was net an appeal. Rather, it was what the Third |

Cirenit has teryred something ‘in the-nature of am

original proceedings ...) It was the substitution

of a hearing on ‘injune ‘lon pe mding ay wpeal? for a

a hearing on-appeal. Tjreoretically the appeatis

still pending, but it is appardnt that there ix little

or nothing more, to hear <iNe the décision and

- order of the majority. of the panel are on the

merits of the casé, deciding in tull, without the

benefit of anv record of the evidence indie lower

court, the aquestions of Aaw and fact whid were

before that court in its extende d hearing. (App.-

Pp. oda-0a ), he

2 ¥ Me

“The last sentence 6f Judge Bell's special concur:

rence in the July 9th hearing characterizes poig

nantly the dilemma into which thix Court has been

plunged. sinee it-set itself the task of inventing -

ls ‘lal frei “eooUres for the handling of stueh ciases:

“This case serves as a classic example of the

pitfalls to be’ énewuntered, with the attendant

disruption and delaXs in the orderly admaimistra-

tien of. austice, whe courts depart from the

time-tested processes of law. CApp. gr 0a)

(a) Harris et al. v. Gibson and Glynn County Board of te. ty

Education et al. (Sth Cir. Ct. of Abr. No. 20871)

This action followed the pattern Gf the preceding )

three. except that in this case respondents filed their

praver for temporary nud preeminent iM junetions iis

» a

\ intervenors in a suit brought to restrain the Board

— Sef Education from effecting a pupil transfer except in

_ akgordance with Court order and the Georzia Schoo] ;

| . The action was commenced in Auzust, 1963, and

on md&tion of the Gibson respondents to intervene and

be heardvon the broad issue of desegregation, the Court

set the matter dowii for a-pretrial hearing on Septem.

ber 5. At that hearing, the Cburt allowed the requested |

intervention a 1 then heard arguments bath yon res

spondents” motion, for a preliminary injunetion and

the petitioners’ moth for judgment for failnre of dhe

School Board to have eld a public hearing under the

Georgia School Code’ prixr ‘to (their approving the

transfers in question, !

<2 ONS soa

The limit the @enes and th obviate the jurisdictional

objection, the Court. by pretrial oPNer -directed the

School Board to promptly hold an ope record hear--

ing under tire Cieorgia Code. limiting theNoarties On:

the subsequent trial te the issnes and evidenee pre-

sented before the Board. The Court further req :

the Board to recommend * complete plan of deseereay.

tion fer the County, ineluding the SIX transfers com)-

plained of.’ : ;

Q Respondents appealed this order:to the Fifth Cirenit

on the ground that i: constituted a denial of their mo-

tion for a preliminary Injunction enforcing the ttans-_ -

fers before trial. Nt the same time: they prayed an

interlocutory appellate injunetion for the relief stayed.

below. The order-of the District Court Was entered on’

September 6: the application te the Court of Appeals:

Was fifed on September 19 and was heard ‘and decided

“on September 12. (Gibson Ree. 8-9, 22 and 23) hi.

its decision granting the injipetion te respondents, -

the, Court of Appeals held that the pretrial order of

the, District Court was botli an interlocutory. appeal-

able order under 28 U.S.C. § 1292 and an appeatable

tinal order under 28 U.S.C. § 1291. (App. p.89a) °

REASONS RELIED ON FOR ALLOWANCE OF WRIT

. Each of the considerations referred to in this ‘ourt’s

Rule 19(1)(b) exists with respect to the Fifth Cire uit

opinions for Whieh review, is. sought.

1: Ther are contrary to the deeis sions ini the only .

— other four cases which petitioners have. found of ar

‘application, to a Federal Court of Appeals’ for a man-

datory injunetion to grant final relief. pending determi-

nation of an appeal on the merits. There is one such

case each in the Sixth ‘and Ninth Cireuits, the 6ther

two barcontiel ia Fifth Cireuit itself (infra yp. 21-5).

The Federal law question regarding tit powers

of cf nited States Courts of Appeals te grant this type

of order—either as ami atter of inherent authority, by

; precedent in equity, or through legislative enactment.

ix both nique and important. The four orders in

question appear te be the only four published orders

of this nature issued. hy anv U ite “d States Court of

Appeals. . ; @

)

3. In the opinion of your petitioners, the action of -

the Court of Appeals in the issuance of the orders con-

~gerned has so far departed’ from the accepte “ds and

usual course of judicial proceeding as to eall for an

exercise of this Court’s, power of supervision: Peti-

tioners concedé that applications such as this aré not

“favored because made during the pendeney of appeals

in the Court of Appeals. However, it is the position of

petitioners, and oné we believe re asonably taken, that

the ‘deviation from normal. appellate processes 3

14.

phrase in this Court's Rule 20 is more descriptive of

the action of the Court of Appeals in the fotr cap-

tioned cases than of the present application for review.

4. Petitioners recognize that the merits of the pend- |

ing appeals -involve controversial political and social’ »

issues, issues evocative of stron emotional reactions”

not always limited to the pale tis, Since we pray

no review on these issues, we do not urge their im-

portance as a basis for the grantin@of this petition.

We do tirge the corollary, however, that such cases

~ should receive the same tempered measure'‘of judicial

consideration as more mundane issues and should not

hecome a quasi-administrative and summary exception

to = normal procedures 6f the Judicial Branch.

. Three of the four orders abrogate otherwise ap-

plie sable and cons stitutionally y ‘alid state legislation.

° z

; : ARGUMENT — eee

What we are here concerned with, is a relatively

narrow question. We deal with mandatory as opposed

to prohibitory injunctions and only. those which alter

‘ather than’ maintain or yestore a status quo. W e are

concerned solely with appellate interlocutory injune-

tions and only such of those as grant relief to the ap-

| pellant which is the same as the relief he seeks by ap--

pellate process itself, i.e., ‘final’ relief in the action.

It Would- be futilesto deny that the broad powers

of the United States & nurts include e very form of writ

Which may be required to assure to: the ultimately

prevailing party an effective and meaningful reniedy.

We do deny, however, that stich authority extends to

the granting of antic ipator v relief in fhe nature of in-

‘stant reversal based on appellate prejudgment of the

merits, i

In the following argument, your petitioners will at-

tempt to show first, that there is-no statutory basis

for the orders in question nor any precedent in- equity

or in the opinions of other courts. Second, we will en-

deavor to show that the issuance of the orders in ques-

tion contiicts: with decixions in the Sixth and Ninth

Cireuits and with. the earlier decisions of the Fifth

Circuit and dex iate s from-the judicial polici iex declared

‘by this Court. aa | oo

I. THE AUTHORITIES CITED BY THE COURT OF APPEALS FOR

‘THE FIFTH CIRCUIT DO NOT SUSTAIN THAT COURT'S

POWER TO ISSUE A MANDATORY INJUNCTIGN, GRANTING

THE FULL RELIEF SOUGHT BELOW, PENDING DETERMI-

NATION OF AN APPEAL ON THE MERITS.

(a). The “All Writs” Statute (28 U.S.C. § 1651)

ac | q) Statutory Language

The Court of Appe: ils penned jurisdiction to grant

relief in these cages primarity under- the ** All Writs”

statute, 28 U.S. C. $1651, which reads: 0. 2

(a) The. Supreme Court and all courts establis hed/

by Act of Congress may issue all writs necessary

or appropriite in aid of thei ygurisdictions, and

. agrecable to t USHYOS and principles® of law.

(Emphasis added). | ‘

. -

. This Court has held that the power given to the courts

under this provision of the Judicial Code is limited,

and must be exercised in accordance with the prin-

ciples of equity jurisprudence which were Known to

the common’ law, (EC vited States v. Mérgan, 346 US.

nO2 (1954) ; United. States V. Hayman, 3AZ US. 205,

PP 1 nn 85 (1952) >. and whie ht have attached themselves

over the vears to the partic ular writ in question (Price

v. Johnston, 334 US? 266, 282 (WAS LL Ge 3

™

G* -* -

” -

Thus, in. De Bee sel dbines 3 2 U nited States, 32 > U.S.

212 (1945), this Court wacated an injunetion isstied

~ under the statute, after reviewing the ‘‘course é6f de-

cision, in-chancer y,”’ and finding that **No relief of this

. shafacter has heen thought justified in the long history

of equity jurisprudence.” (dy, 2235—

(2) Principles of Equity ,

The puPpose of the writ of prelim *4nandatory

PRT na fer common law’ was.'ty holly: preventive,

_ prohibitory or protéctive,”’ with use being’ re-

» stricted to situations where its effect would be to

“restore the plaintiff to his. **forme or “original”

position,- 4 Pomerog’s Equity Jurisprudence, §§ 1357,

1359 (ayy ed. 1919). Thus, where the object of ‘the

writ is to maintat or restore the satus quo ante litend,

- the power of, thegfederal. courts to issue aa yg bl

mandatory InjuuetioOns is, clearly recognized. Iw.

Lennon, 166 U.S. 548 (1897); Bergen Drag v. Pati e

Davis Cos, 307 F.2d 725 (8rd Cir 21962).

The preliminary mandatory injunction, like the pre-

liminary prohibiicry injunction, has | traditipyally

served “. keep the parties, while the suit goes/on, as.

far as péssible in. the respective positions thes’

pied when the suit began’? (lamilton Watch Co. y

e Benrus Watch Co., 206 F, 2d 738, 742 (2d Cir? 1953) ).

. But its issuance can be justified only when lecessary

to preserve ‘$x restere the stdtus quo pending final

‘determination of the merits of a litigation. 28 Am.

Jur. *Tujunections” £15 ALR 2d 213, 234; Tatedo

ALA. and NLM. Ry. Vv. Pennsylvania Co., 54 Fede

730 (ND. Ohio 1898 ; !

So firmly Mublisied is the equitable prine iple that

— mandatory preliminary injunctive relief , will --be

Ocell-

‘S17;

Co.

sf J 1 7

granted only te maintain the status qig ante lite

that the Federal district courts have refused, through.

the vears,| to*grant relief beyond that limited scope. .

See Clune v. Pablishers Assoc. of NAv Yord: (ity, 204

Fy Supp. S20 (SsD.N.Y. 1965) (rantlé V. Clem

Cel. of So. Cur. 203) F. Supp. 416 (W.D. So.

1962): Willheim « He Marchéson, 203° F: Supp.

“(S.D.N.VE1962), afd Witheim vy. Lnvestors Diversi-

fird Services, Inc., 303. F. 24 276 (2a Cir, 1962);

Winton’ Mater’ Carriage Co. %. Cariis Publishing Co.,

193 Fed. 906 @E.D. Pa. 19912)¢ ang American Lead

Pencil v. Schnecgass, VS Fed. T35 CN.D. Ga 19105,

yt? In Mose case? where the district ‘courts have ex-

weeded their equity jurisdiction ‘and_granted relied

requiring affirmative adtion bevond that hecessary te

reinstate a pre-existing status quo, Ahey have deen.

summarily reversed, See Fanner Motor Liveny vo:

Aris. Ine. 316 Fe2d 804 (9th Cir, 1963) 2 Mien Bears

Fede rol Savings and Loan Assoc. \. Cailander, 25H FF.

24 410 45th Cir. 1958) ; Warner Bros, v. Gittone, 0

Fi 2d 202 (3d Cir, 1940): and United States v. Adler's

Creamery, 107 V.2d 987 (24 Cire 1939).

A correlative equity principle is that the merits of

the controversy-are not to be. decided on an. appliva-

tion for preliminary reHef. - Vanner Motor Livery \. -

Aris, lic:, supra; and Miami-Beach Fe deral Savings

ad Loan Assoc. vy. Callander, supra. From this prin-

‘viple hat developed the firmly rooted’ rulythat where

the granting of a preliminary injunetion would give

‘to the plaintiff all the relief te which he would be en-

titled were he to obtain a final decree in hs faver.on

the merits, the request for preliminary retiéf should

be denied. Fanney Motor Livery Vv. Avis, Ine., supra;

~ Mack vy. General Motors Corp., 200 I, 2d 886 (7th tr.

‘

er ae

LO5® ) s Westinghouse \ Free, 26 BF. 2d 806 Tth Cir.

158): United States vo Adler's Créamery, supra;

Gantt v. Clemson Ayr. Coll, of So. Car,, supra MF 7/-

heim oN. Investors Diversitied . Services, lne., supra;

and cAmertcan Lead Vv. Scheegass, supra. .

= ° :

In each of the instant cases, the application of re-

spondents for injunctive reef both temporary and ”

permanent Was te alter a pre-existhig status in then

faver. Te give them stich relief preliminarily is to give

them what they would at most be entitle dite if they had

sucbeeded on th merits after tri al and appeal. As the

T hird Cirenit 7id in WW “hrner Bros. v. (littone, supra:

. the effeet of the prelimin: ry ijunetign whieh |,

‘the court granted was .not to preserve the status -

quo but rather’ te alter. the prior status of the

parties fundamentally, Such an alteration may

he directed only after final hearing, the office. of

v preliminary injunetion being, as we have pointed

out, merely to preserve pendent? lite the last

aefual noncontestét status Wliie h preceded the

pending’ controversy, |

. Trreparable loss resulting from refusal te accord”

plaintiff a new status, as distinguished from inter-

ference with rights previotusky enjeved by him,

does not HKrnish the basis for interlocutory relief.

110 F. 2-292, 293. )

~~ (b) Other Statutes .

fs addition to its stated reliance on 28 TSG § 1651,

— thé Court of Appedls has referred te 28 U.S.C. §§ 1291

and 1292 as sources of sueh authorit’, C¥prr “pp. le.

Ya, SUa) . 28 U.S.C. § 1291 confers uporourts of .

appe als “iarisdiction of appeals from ll final deci

sions of the distriet courts-of the United Sates... 7

28 U.S.C, § 1292(a) ft) gives the courts om appeals

ce |

orders of the district court= of the United St Wes. ed

italic ‘x OUNS J. |.

Petitioners <upmit that the Fifth Cirenit is clearly

in error ih its reference to these provislons.. Both sec

tips confer jurisdiction over the merits of an appe val,

not a new and different writ power, Petitioners cou-

cede that these appe ‘als are pig! pending in the

“Fifth Cireuit, that that Court's jurisdiction extends -

to their merits. What we say. ix that this does not

concern the form: 1 which the Court must exercise

its admitted jurisdic fton.sthis does met chiage the

nature of the\qudie ‘ial process.

(r) Opinions Cited by the: Court of Appeais

In its opinions ii these eases. the Court of Appeal

has cited as its*precedent on appe Hate injunetive power

the cxses themselves. [1 hes additionally cited deei-

-sjons. not here relevant, Te distinguish, between final.

and interlocut yo orders. the powe rot Distriet (Courts

over substi itive aspects Of se ‘hool poli iis, and the power

through District Court or ders. 5

- But. apart from the eases for which review 1 here

setghr ne other decision, referred to by the Court of

Appeals is authority: for the ee of appellate

power to issne the type of injuretion in question.

Although tour otherdecisiens are cited for the elumed

‘nuthoritve each of them concerns only a Prohibitors

order intended toe pres ent n change in the statis que

which would make ineffective the appe Hate remedy,

gv i nited States. Wood, 20 BF, 9d 72 | oth € a, 100)

(eited in Gibson, App. p. 80a) reverse Ba denial by tite

- e .

A a : 20

Distriet Court of a temporary restré aining order-agaitist

state prosecution pending a hearing for preliminary

IMjunetion because the DPistriet Court’s aetion deter-

mined “substantial rights of the parties which will be

irreparably lost if review is delaved until fina! judy-

ment’ (205 BL 2d eine 748)

€ ooper V. Aaron, 358 US. 1 (1958) was also cited in

Gibson. Vt atfirms Aaron vy. Cooper, 257 F.2d 38 (8th

Cir, 1958). reversing a Distriet Court suspension ‘of i

court approved school integration plan after a: he: rine

of the case on the merits. In its Ste// opinion (App.

p. lad. the Fifth Cirenit cited the other Aaron Va Cooper

decision, 261, F.2d 07 sth Cir, 1958) restraining the —

lensing of public schools toa private school corporation

pendipy a final determination on the me its Also cited

in Stel? was Toledo Seale Co, i, Scule Co,

261 U.S.399 (19255, where this C court upheld the power

of a Court of Appeals under‘the * All Writs” statute to

direct a District Court te enjoin a party toa suit before

.it from interfering with the Court's process by bringiny.

a conflicting suit in‘wnother jurisdiction.

Your petitioners submit that none of the foregoing

dlevisions constitutes acceptable precedent for the extra--

ordinary Writ powers claimed by the Court of Appeals

in the instant-cases,

———

* Since the granting or denial of a teraporary restraining order

is not ordinarily appealable the Circuit held this to be.a reviewable

tinal order e: “under 2 8 U.S.C. § 12391.

. 21

is °

Il. THE ORDERS SOUGHT TO BE REVIEWED ARE IN CONFLICT

WITH THE DECISIONS IN OTHER CIRCUITS AND WITH

PRIOR DECISIONS IN THE FIFTH CIRCUIT.

Your petitioners’ research has found only four other

mases in Which affirmative interlocutory in junetions

approximating tinal relief have yon used of a United -

States Court of Appeals. In /each of the four such

relief has been dented. -

In Dann ve Retail Clerks Tubecwationh! Association,

90G- FF 8d ST (6th (ir. 1962), the Tourt of Ajrpeals

refused to issue a mandatery injunetion pending appeas

compelling a regional director of the. National Laitfor

Relations Board to brine legal action against alleged

wnlewful picketing or in the alternative, to Issue a

injnnetion directly enjoining the picketing. The relref +

had heen denied= by, the Distriet Conrt. in an action

“PRought bv the owners of the property being picketed.

“not by the regione! directorof the NLRB. The District -

Court alse had denied an application for d-mandatory

injunetion pending appeal.

The statement of the case by the Court of Appeals:

. indieates its similarity to the present litigation (290 F.

Pd S73, Si4): are

“The relief praved for here is much broader than

“amere rest riining order preserving the statis que,

* " & + * @ x . x ¥ ¥

“The mandatory order which appellants request

. is the ultunate relief sought in the Pistriet Court

and in this appeal. To obtain such reief appel-

lants wonld have te prevail on the merits of the

case. We ought not to grant teniporary relief

which wenld finally dispose of the- case on its

merits... 7 |

rth ~ ; ’ . i os . ‘ ‘ ‘

The same conclusion was reached -by the Court of

oAppeals for the Ninth Circuit: 1m Hess Vv. Woods, 185

' 9

ie, 2d 404 (9th Cir. 1950). The District Court had

peat an injunction against the continuing enforce-

ment of the Housing and Rent Act of 1947. on the

ground that it, was being asked to change the: slatus

qua, Plaintiffs applied to the Court of Appeals for ati

immediate “restraining order’) and ‘injunetion”’

against the Housing Expedite and jhis subordinates, .

Which in denying the application, stated (185 F. 2d

404);

* Tu short, we are asked to SUSpe nd all activity of

an important governmental agency before the ap-

peal is before us for adjudication as toe whether

the District Court should take jurisdiction and try

the case on the merits. No order with such tar

reaching consequences should be made by any

court. before the merits of the controversy have

been tried and adjudieated.”’

In two earlier civil rights type cases, the Court. of

Appeals for the Fifth Circuit has itself denied manda-

tory injunetive relief pending determination of the

merits af the appeals on the same ground, following -

denials of such injunctions by the trial court. In Mere-

dith v. Fair, 305 F.2d 341 (Sth Cir. 1962), an appeal

Was taken froma District Court denial of an interloen-

tory order compelling a state university to admit the

negro plaintiff. The phiintiff then moved the Court of

_ Appeals for such an injunetion during the perdency of

his appeal. In denying this motion, the Coyrt! noted

that ‘the testimony taken be fore the district wourt is

not vet available te this Court’’ and stated that judg-

ment should be withheld until there had been ‘tan op-

portunity to study the full record ond. testimony onthe —

— hearing before the district court’ * (td., 341-2).:

The same ruling was made in Greene v. Fair, 314 F.

24d 200 (Sth Cir. 1963), where the Distriet Court Kad

abstained from ruling on plaintiff's university admis-

Pe ea ae 2

sien request, pending his applying to the admissions

committee of the school, Plaintiff prayed for an in-

junetion pending appeal to compel his immediate ads

misgion, asserting that 28 U.S.C. § 1651 gave the Court

power to take such action. The Court denied any

interlocutory mandatory relief, pointing out that (7d,

202) The rules of this Court make possible a prompt

hearing of all regularly docketed appellate cases.”™ |

As to the views of ‘that Court on. sueh injunctions

when issued by a District Court, Chief Judge Tuttle

has ‘stated : .

* “Upon analyzing the trial court's order, izsued

*/ without any evidence being submitted, even though

perhaps at least partially at the instigation and

insistence of the litigants, it appears much broader

than the relief requested and than the’ question at

hand. The matter béfore the court was a motion

for a preliminary injunetion which by its nature

has the purpose of preserving the status quo te

prevent irreparable injuries until the merits of

the issues can be decided. '

; * «4 * *

“The judgment awarded appears to provide the

- plaintiffs with practically all of the relief, if net

more, than they sought on the merits. ...

* * *

We have repeatedly held that an order for a

temporary injunction does not and cannot decide

——ee ee

® Possibly because nothing is left to be accomplished by a hear-

ing on the merits, it is only int Stel? of the four cases here one

_) sidered that respondents have -filed ‘a ree@rd or taken other action

to bring the matter on for a hearing on appeal. Moreover, in Stell

within the past week, appellants have moved for further time to

file a supplemental record covering District Court proceedings

directed by the interlocutory order here complained of and which

occurred after the appeal was take n-—necessarily relevant only to

issues created by the appellate injunction, not the merits of the

case as tried! ate : re

bad

ig.

the merits of the case...’ Miwni Beach Federal

Saved Loan Assoc. V. Callander, 256 Fo vd 410, 415

(Sth Cir. 1958)

lll. THIS COURT, IN THE EXERCISE OF ITS SUPERVISORY

POWERS OVER ‘THE LOWER FEDERAL COURTS, SHOULD

VACATE THE INJUNCTIONS GRANTED IN THESE CASES

AND REMAND TO THE COURT OF APPEALS FOR PROMPT

_ HEARINGS ON THE MI

Thee procedural issue raised by this application is

a narrow, but extremely: infpoertant one ‘in the admin-

istration of justice. TRere ix bo effective control ex-

cept judicial self-control in defining the incidents of

judicial power. It ix in cases stich ax these four, whose

merits concern deeply controversial issues, that courts

will always have the greatest diffieuity in adhering te

established practice.

Mr. Justice Holmes’ famens dissent in

Securities Co. v. United States, 193 U.S.

(1904), describes the problem:

17, 400-7

“Great cases like hard cases make bad law. For

great cases are called great, net by redpon of their

real importatce inf shaping the law of the future.

Init because ofssome accident of immediate over-

whelming interest which appeals to the feelings

and distorts” the judgment. ° These immediate

interests exercise a kind of hydraulie> pressure

which ttkes what ‘previously was elear seem

doubtful. and before which even well-settled prin-

ciples of Jaw will bend.”

Mr. Justice Frankfurter. coneurring an Joint Anti-

Fascist Refugee Committee V. Mebrrath, 341 US.

123. 149 (1951). recognized that where legal issues were

‘ineseapably entangled in political cortrovérsies ” and

_ “touch the passions of the day.” it wes the duty of

the Courts ‘to “dispose of a controversy within the .

narrowest confines that intellectual ntegrity per-

Northerit .

mits.” Ceneurring i Dennis x. United States, 341

US. 494, 528 (1951), he said:

“UU yless we are to compromise qudietal -impar-

Ke — snbject these defendants te the risk of

“aly ioe judgment jnthieneed by the impregnating

athiosphere 6f the tines. the constitutionality of

their conviction must be determined by prineiplgs

ist banc established in cases decided in mere tranquil

A Ma, naeaid

periods.” aden

‘ : o> ame -.

This Court in DeBeors Mines NV. J onited Ntafes,

2h i’... 242, 222 | Woo, adhered te precedent in the

face of strong pressure from the Government te tb

erence the seepe of judicial authority:

“This suit, as Wwe have said. is net te bee chistin-

guished from any, other sit in equity. What.

applies te it applies tecalf such.” +

, ” * * “hae

The powers exercised hy the Compt of Ajpypeals are

sanited by statute, thev

net known te equity, are het gr

wliate review,

eireumvent the established course «

directly affect the integrity of the jua,

stration of the eourt- and create conte

: grtuitedd, ‘ts

admin

cirenits. Review by certiorar mhicntld fe ;

prayed, ‘

Respectfully submitted,

{ 4 Gino, STEPHEN Lion vi

Re DB. Bangs

_ se fforug ys tor Res sprode nts

Ot Counsel. ‘ . .

R. Carrer PirrMas

CHarces J. Broci,

J. Warten Cowart

Ricnarp Le Hinshrrne

al prowess, thee

t fret weer

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