Lee v. Talladega County Board of Education Brief for Appellants

    In the
UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT

No. 88-7471

ANTHONY T. LEE, et al.,
Plaintiffs-Appellants, 

UNITED STATES OF AMERICA,

NATIONAL EDUCATION ASSOCIATION, INC.,
Plaintiff-Intervenor,

v s .

TALLADEGA COUNTY BOARD OF EDUCATION, et al.
Defendants-Appellees.

On Appeal from the United States District Court 
for the Northern District of Alabama

Plaintiff-intervenor and Amicus Curiae,

BRIEF FOR APPELLANTS

JULIUS L. CHAMBERS 
NORMAN J. CHACHKIN CLEOPHUS THOMAS, JR. P.O. Box 2303 

Anniston, AL 36202 (205) 236-1240
JANELL M. BYRD

99 Hudson Street, 16th FI. 
New York, New York 10013 (212) 219-1900

Attorneys for Plaintiffs-Appellants



CERTIFICATE OF INTERESTED PERSONS
Pursuant to Eleventh Circuit Rule 28-2(b) the undersigned 

counsel of record certifies that the following is a complete list 
of all trial judges in the proceedings in Lee v. Macon Countv 
Board of Education, Civ. No. 604-E (M.D. Ala.)(state-wide case) 
and Lee v. Macon County Board of Education. No. 70-AR-0251-S 
(N.D. _ Ala.) (Talladega County), and of all attorneys, persons, 
associations of persons, firms, partnerships, or corporations 
that may have an interest in the outcome of these proceedings:

Hon. Frank M. Johnson, Jr.; Hon. William M. Acker, Jr.; Hon. Sam C. Pointer, Jr.; Hon. H.H. Grooms; Hon. Virgil Pittman; and Hon. James H. Hancock (trial judges).
Anthony^ T. Lee, Henry A. Lee, Detroit Lee, Hattie M. Lee, 

Palmer Sullins, Jr., Alan D. Sullins, Marsha Marie Sullins, 
Palmer Sullxns, Della D. Sullins, Gerald Warren Billes, Heloise 
Elaine Billes, I.V. Billes, Willie M. Jackson, Jr., Mabel H. 
Jackson, Willie B. Wyatt, Jr., Brenda J. Wyatt, Willie B. Wyatt, 
Thelma A. Wyatt, Nelson N. Boggan, Jr., Nelson Boggan, Sr., Mamie 
Boggan, Willie C. Johnson, Jr., Brenda Faye Johnson, Dwight W. Johnson, Willie C. Johnson, Ruth Johnson, William H. Moore, 
Edwina M. Moore, L. James Moore, Edna M. Moore, Robert Judkins^ 
Jr., Willie_ B. Wyatt, Jr., Patricia Jones, Shelby Chambliss, 
Carmen Judkins, Janice Carter, Ellen Henderson, Harvey Jackson, 
Wilmar Jones, John W. Nixon, Alabama State Teachersf Association, 
National Education Association, Alabama Interscholastic Athletic 
Association, Quintin Elston, Rhonda Elston, Tiffanie Elston, 
Augustus Elston, Cardella Elston, Ernest Jackson, Rayven Jackson^ 
Rollen Jackson, Helen Jackson, Wendell Ware, John W. Ware* 
Jeffery Morris, Lela Morris, Vernon Garrett, Estella Garrett,' 
Delicia Beavers, _Loretta Beavers, Dorothy Beavers, Carla Jones' Paul Jones, Willie Jones, Bertha Jones, Lecorey Beavers, Ronnie 
Beavers, Stephanie Y. Hill, Connally Hill, Jacgues Turner, 
William Tuck, Jr., Veronica Tuck, Danielle Jones, Donald Jones\ 
Torrance Beck, Albert Beck, Jr., Quinedell Mosley, Quinell 
Mosley, Kereyell_Glover, Delilah Glover, Tiffani Swain, Kedrick 
Swain, Terry Swain, Donyae Swain, Gwendolyn Swain, Darius Ball, 
Kierston Ball, Gwynethe Ball, Damien Garrett, Althea Garrett^ 
Tonya Shepard, Mary Alice Jemison, Cora Tuck, Louise Tuck, Jerrk 
Evans, Kate Evans, Montina Williams, Richard Williams, Angie 
Williams, Roslyn Cochran, Johnnie Cochran, Quinton Morris, Datrea Morris, Torry Morris, Willie Morris.

Macon County Board of Education, Wiley D. Ogletree, Madison 
Davis, John M. Davis, Harry D. Raymon, F.E. Guthrie, C.A. Pruitt, 
B.O. Dukes, John M. Davis, Joe C. Wilson, Governor George C. 
Wallace, Alabama State Board of Education, Alabama High School 
Athletic Association, Austin R. Meadows, James D. Nettles, J.T. 
Albritton, J.P. Faulk, Jr., Fred L. Merrell, W.M. Beck, Victor P. 
Poole, W.C. Davis, Cecil Ward, Harold C. Martin, Governor Lurleen

1



Burns Wallace, Governor Albert Brewer, Ernest Stone, Ed Dannelly, 
Mrs. Carl Strang, Talladega County Board of Education, J. R. 
Pittard, Jim Wallis, C.L. Hall, E.C. Hutto, A.O. Riser, M.R. 
Watson, Lance Grissett, Kenneth Armbrester, M. R. Watson, Gay Langley, Joseph Pomeroy, Larry Morris, Dan Limbaugh.

Jack Greenberg, Constance Baker Motley, Norman Amaker, Leroy 
D. Clark, Charles H. Jones, Charles Stephen Ralston, Melvyn Zarr, 
Henry Aronson, Fred Gray, Solomon S. Seay, Julius L. Chambers, 
Norman J. Chachkin, Janell M. Byrd, Oscar W. Adams, Jr., Robert 
L. Carter, Cleophus Thomas, Jr., Reid & Thomas, Donald V. 
Watkins, Gray, Seay & Langford, Gray, Seay, Langford & Pryor, Howard Mandell, Frank D. Reeves.

Richmond M. Flowers, MacDonald Gallion, Robert P. Bradley, 
Gordon Madison, Goodwyn & Smith, Goodwyn, Smith & Bowman, James 
T. Hardin, Hugh Maddox, John C. Satterfield, Maury D. Smith, 
Nicholas S. Hare, Ralph D. Gaines, Jr., George C. Douglas, Jr. \ 
Ralph D. Gaines, III, Gaines, Gaines & Gaines, Hill, Hill' 
Stovall & Carter, Hill, Hill, Whiting & Harris, Hill, Robinson[ 
Belser & Phelps, Steiner-Crum & Baker, Rushton, Stakely & 
Johnston, John C. Satterfield, Satterfield, Shell, Williams, & 
Buford, Martin Ray, McQueen, Flowers & Ray, Orzell Billingsley 
David H. Hood, Oakley Melton, T. W. Thagard, Jr., Charles m ! 
Crook, Alabama Education Association, Hon. Truman M. Hobbs Hobbs, Copeland, Franco, Riggs & Screws. '

United States of America, Ben Hardeman, St. John Barrett, 
David L. Norman, Alan G. Marer, Brian K. Landsberg, Charles S. 
Bentley, James C. Foy, John Doar, Kenneth Franklin, James Taylor 
Hardin, J. Mason Davis, Peter A. Hall, Pauline Miller, John 
Moore, William Bradford Reynolds, Roger Clegg, Frank W. 
Donaldson, Caryl Privett, Ramsey Clark, John Mitchell, Alexander C. Ross, Reuben Ortenberg, Frank D. Allen, Stephen J. Poliak 
Charles Quaintance, Alexander C. Ross, Ira DeMent, Jerris 
Leonard, Robert Pressman, Joseph D. Rich, Angela Schmidt, Dennis J. Dimsey, Thomas E. Chandler.

11



Statement Regarding Oral Argument
Pursuant to Eleventh Circuit Rule 28-2(c), plaintiffs- 

appellants request oral argument because the issues raised by 
this appeal are of substantial public importance and may recur in 
other school desegregation cases pending in this Circuit.



Certificate of Interested Persons ....................  i
Statement Regarding Oral Argument ....................  iii
Table of Contents ..................................... j_v
Table of Authorities ............................... . v
Jurisdiction .......................................... ^
Issues Presented for Review .................  ........  2
Statement of the Case ....................... ......... 2

Procedural History ................ . 2
Relevant Facts ......................... . 6

Scope of Review ....................... .............. . 9
Summary of Argument .........................   10

1   • ........ 10
11 ........................................ ............. 10

1 1 1 .......................................... 11
ARGUMENT

Introduction ..........................   12
I The District Court Erred In Refusing To 

Reopen The Litigation And To Enforce The 
Terms Of The 1985 Settlement Agreement 
Which It Had Approved As The Basis ForDismissal Of This Action .......   13

II The District Court Erred In Ruling That It Was Without Jurisdiction To
Entertain The Motion To Reopen .....    is

III The District Court Eerred In Ruling 
That Plaintiffs-Appellants Could Not Reopen The Case Pursuant To Fed. R. Civ. P.60 (b) (5) or (b)(6)      21

CONCLUSION ....... .......... . 00

TABLE OF CONTENTS
Page

IV



TABLE OF AUTHORITIES

Cases:
*Aro Corporation v. Allied Witan Company, 531 F.2d 

1368 (6th Cir.), cert, denied. 429 U.S.
862 (1976)   20

Berman v. Denver Tramway Corporation, 197 F.2dF. 2d 946 (10th Cir. 1952) .......................  21
Bonner v. Prichard, 661 F.2d 1206 (11th

Cir. 1981 (en banc) .............................  2.9
C & C Products, Inc. v. Messick, 700 F.2d 635(11th Cir. 1983)    6
Cathbake Investment Company v. Fisk Electric

Company, 700 F.2d 654 (11th Cir. 1983) ..........  9
Combs v. Ryan's Coal Company, 785 F.2d 970 (11th

Cir.), cert, denied. 107 S.Ct. 187 (1986) ..... . 9
*D.H. Overmyer Company v. Loflin, 440 F.2d 1213 

(5th Cir.), cert, denied. 404 U.S. 851(1971) .......................................... . 14
*Dowell v. Board of Education of Oklahoma City,

795 F.2d 1516 (10th Cir.), cert, denied.
107 S.Ct. 420 (1986) ................... .......... 11,19

*Fairfax Countywide Citizens Association v.
County of Fairfax, 571 F.2d 1299 (4th Cir.),
cert, denied. 439 U.S. 1047 (1978) ...... ........ 17,20

Georgia State Conference of Branches of NAACP
v. Georgia, 775 F.2d 1403 (11th Cir. 1985) ......  25

Humble Oil & Refining Company v. American
Oil Company, 405 F.2d 803 (8th Cir. 1969) .......  24

Joy v. Manufacturing Company v. National Mine 
Service Company, 810 F.2d 1127 (Fed. Cir.
1 9 8 ? ) .............................. ...............................  21

*Lee v. Hunt, 631 F.2d 1171 (5th Cir. 1980). cert.
denied. 454 U.S. 834 (1981) .....................  11,19

Page

v



Page

Lee v. Macon County Board of Education, 267 F. Supp.
458 (M.D. Ala.) (3-judge court), aff'd sub nom.
Wallace v. United States, 389 U.S. 215(1967) ........................................... 6

Lee v. Macon County Board of Education, 448 F.2d 746(5th Cir. 1971) .................................. 3
Lee v. Macon County Board of Education (Nunnelley 

State Technical College), 681 F. Supp.
730 (N.D. Ala. 1988) ............................  16,26

Local Number 93, International Association of 
Firefighters v. City of Cleveland, 478
U.S. 501 (1986)    14,17,19

*Meetings and Expositions, Inc. v. Tandy Corp.,
490 F. 2d 714 (2d Cir. 1974) .....................  20

Monteilh v. St. Landry Parish School Board, 848
F.2d 625 (5th Cir. 1988) ............... . 25

Morgan v. Roberts, 702 F.2d 945 (11th Cir. 1983) ...... 6
*Paradise v. Prescott, 767 F.2d 1514 (11th Cir.

1985), aff'd, 107 S.Ct. 1053 (1987) .... .........9,14,17,19
*Pasadena City Board of Education v. Spangler,

427 U.S. 424 (1976)    11,27
Pearson v. Ecological Science Corporation, 522 F.2d 

171 (5th Cir. 1975), cert, denied. 425 U.S. 912 (1976).................................      14
Riddick v. School Board of Norfolk, 784 F.2d 521 (4th Cir.), cert, denied. 107 S.Ct.

420 (1986) ........................................... . i7
Ridley v. Phillips Petroleum Company, 427 F.2d

19 (10th Cir. 1970)     24
Theriault v. Smith, 523 F.2d 601 (1st Cir.

1975)       22,25
Turner v. Orr, 759 F.2d 817 (11th Cir. 1985) .........  10
United States v. Board of Education of Jackson

County, 794 F.2d 1541 (11th Cir. 1986) ..........  17,25

- vi



Page

United States v. City of Miami, 664 F.2d 435
(5th Cir. 1981) (en banc) ........................  14,19

United States v. Georgia, 691 F. Supp. 1440
(M. D. Ga. 1988) ................................ . 25

*United States v. Georgia Power Company, 634 F.2d
929 (5th Cir. [Unit B] 1981), vacated on other 
grounds, 456 U.S. 952 (1982), original opinion 
affirmed and reinstated. 695 F.2d 890
(5th Cir. 1983) .............................. ...10,11,24,27

United States v. Lawrence County School District,
799 F. 2d 1031 (5th Cir. 1986) ............. . 25

United States v. Overton, 834 F.2d 1171 (5thCir. 1987)     17
United States v. Swift & Company 189 F. Supp. 885 

(N.D. 111. 1960), aff'd per curiam. 367
U.S. 909 (1961)    24

United States v. Timmons, 672 F.2d 1373 (11thCir. 1982)   23
Westmoreland v. National Transportation Safety

Board, 833 F.2d 1461 (11th Cir. 1987) ...... . 5
W.J. Perryman & Company v. Penn Mutual Fire 

Insurance Company, 324 F.2d 791 (5th Cir.1963) ........................................... . 14

Statutes:
28 U.S.C. § 1291 ...........................    x
28 U.S.C. § 1343 (3)     ±

42 U.S.C. § 1983 .................................   1

Rules and Regulations:
Fed. R. Civ. P. 60(b)(1)..............................  23
Fed. R. Civ. P. 60(b)(2)..............................  23
Fed. R. Civ. P. 60(b)(2)..............................  23

- vii -



*Fed. R. Civ. P. 60(b)(5) .................. 2,11,21, 22, 23, 24,
*Fed. R. Civ. P. 60(b)(6) ....................2,11,20,21,22,23,24
Eleventh Circuit Rule 28-2(b) .................... .
Eleventh Circuit Rule 28-2(c) ........................

Other Authorities;
C. Wright & Miller, Federal Practice and Procedure (1973) ................................ .
* Indicates authorities primarily relied upon.

27.28
27.28 

i
iii

24

Page

- viii



In the
UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT

No. 88-7471

ANTHONY T. LEE, et al.,
Plaintiffs-Appellants,

UNITED STATES OF AMERICA,
Plaintiff-Intervenor and Amicus Curiae,

NATIONAL EDUCATION ASSOCIATION, INC.,
Plaintiff-Intervener,

vs.
TALLADEGA COUNTY BOARD OF EDUCATION, et al.

Defendants-Appellees.

On Appeal from the United States District Court 
for the Northern District of Alabama

BRIEF FOR APPET.TAWTS

Jurisdiction

Jurisdiction in the district court was invoked pursuant to 
28 U.S.C. § 1343(3) and 42 U.S.C. § 1983. Jurisdiction over this 
appeal is established pursuant to 28 U.S.C. § 1291. On July 25, 
1988, the district court issued its opinion and entered final 

denying plaintiffs—appellants' motion to reopen the case



and attendant motions (Rl-1; Rl-2; Rl-3; Rl-7). Timely notice of 
appeal was filed on July 29, 1988 (Rl-9).

Issues Presented for Review

The issues presented by this appeal are as follows:
1. Whether a district court may refuse to implement the 

explicit terms of its own order approving dismissal of a case 
pursuant to a settlement agreement.

2. Whether, after dismissal of an action pursuant to a 
court-approved settlement agreement, a district court has 
inherent authority to enforce the agreement.

3. Whether a final order of dismissal should be set aside 
pursuant to Fed. R. Civ. P. 60(b)(5) or (6) (so as to allow 
enforcement of a settlement agreement) if the district court 
has, since approving the agreement and dismissing the action 
according to its terms, changed its view of the applicable law 
regarding the settlement agreement's enforceability.

Statement of the Case
Procedural History

This appeal involves the Talladega County, Alabama school 
system1 and is part of the state-wide class action, Lee v. Macon 
County Board of Education, commenced in 1963 to challenge racial

By Order of this Court on December 1, 1988, thisappeal was consolidated with appeals No. 88-7551, 88-7552, and
88-7553. The Court instructed that separate briefs could be 

and because of the uniqueness of this appeal it' is separately presented.
2



segregation and discrimination in the public schools of the State 
of Alabama. A three-judge court in the late 1960's and early 
1970's entered injunctive orders, including desegregation orders 
for each jurisdiction covered by the litigation. In most 
instances, after detailed desegregation orders had been 
implemented for a period of several years, the district court2 
entered findings that each of the districts were operating "a 
unitary school system,"3 substituted general permanent 
injunctions for the detailed orders, and placed the cases on the 
inactive docket.

The Talladega County School System, however, had significant 
ongoing litigation and continued to operate under its detailed 
desegregation plan, as modified over the years. On March 13, 
1985, the district court endorsed as "Approved" and "Entered" a 
Joint Stipulation of Dismissal agreed to by all parties.4 
Incorporated in that Joint Stipulation was the Resolution of the 
Talladega County Board of Education, which states that the 
"Talladega County System shall be operated at all times so as to 
conform with . . . all previous orders of [the District] Court"
and commits the school system "to adopt, maintain and implement

2 By this time, the cases involving the individual school systems throughout the state had been transferred from the three- 
judge^ court to the respective federal judicial districts and 
divisions throughout Alabama and assigned to individual judges.

Lee v. Macon County Board of Education. 448 F.2d 746 748 n 1(5th Cir. 1971).
3 See, e^g., lSR-29-Exhs. F, G, and H at 1.

lSR-29-Exh. D, Joint Stipulation of Dismissal.

3



affirmative action programs designed to improve racial 
integration among students, faculty and administrative staff of 
the School System."5

A separate Judgment and Order6 was issued on the same date. 
It dismissed the case "in view of" the Joint Stipulation of 
Dismissal and recited that the school district had achieved 
"unitary status." Neither the Joint Stipulation nor the 
Judgment and Order provided that prior court orders were to be 
vacated or dissolved.

On July 22, 1988, plaintiffs, seeking to enforce the orders
which they believed defendants were violating, filed a "Motion to 
Reopen, and Motions for Preliminary Injunction and for an Order 
Directing Compliance With Outstanding Court Orders" [referred to 
hereafter as "Motion to Reopen"]; a Motion for Expedited 
Discovery; a Motion to Add Parties; and discovery requests (Rl- 
i' Rl~2; Rl-3; Rl-4; Rl-5; Rl-6). On July 25, 1988, the district
court summarily denied all of plaintiffs' motions. It stated 
that there were no residual injunctive orders to enforce 
following dismissal of the case in 1985, and that there was no 
retention of jurisdiction which would permit the court to reopen 
the case or to grant relief from the order of dismissal (which 
the district court now interpreted to have ipso facto 
extinguished all prior orders in the case); the court stated that

5 lSR-29-Exh. D, Resolution at 23.
zT lSR-29-Exh. D, Judgment and Order. The district court 

judge described this separate judgment issued pursuant to Fed.' R. Civ. P. 54 as a "redundancy" (Rl-ll-l).
4



plaintiffs could challenge the school board's actions only by 
filing a new lawsuit (Rl-7).

On July 29, 1988, plaintiffs noticed this appeal and moved 
in the district court for an injunction pending appeal (Rl-9; 
Rl-10). On July 30, 1988, (order entered August 1, 1988), the
district court denied this request, stating that inasmuch as it 
had held on July 25, 1988, that it was without jurisdiction to 
entertain an "untimely post-judgment motion," the court also was 
without jurisdiction to consider a motion for an injunction 
pending appeal. The district court elaborated upon the basis for 
its July 25 ruling by stating that the dismissal order entered in 
1985 "necessarily meant" that there are no outstanding court 
orders applicable to the Talladega County Board of Education 
(Rl-11). On August 8, 1988, plaintiffs filed an Emergency Motion 
for Injunction Pending Appeal in this Court. That motion was 
denied by an order dated November 3, 1988.^

In order to protect plaintiffs' substantive rights, following the denial of the Motion for Injunction Pending Appeal 
m  this Court, plaintiffs-appellants have filed a new lawsuit and 
a motion for preliminary injunction against the proposed new 
school construction. If this Court reverses the district court 
order with respect to reopening, we will seek to consolidate these two actions in the district court.

On December 12, 1988, plaintiffs-appellants received theMotion of Talladega County Board of Education to Dismiss Appeal 
as Moot. We will set out fully in our opposition to that motion, 
which will be_filed shortly, the reasons why there remains a live 
controversy in this action and the appeal should not be 
dismissed. The short answer to the Board's contention is that
until such time as there is a ruling in the new suit which makes 
it impossible for this Court to grant effective relief to 
appellants, the pending appeal is not moot. See, e.o.
Westmoreland_v. National Transportation Safety Board. 833 F.2d

(continued...)5



Relevant Facts
Plaintiffs alleged, in support of the Motion to Reopen, 

that Talladega County school officials were violating prior court 
orders prohibiting them from discriminating against black school 
children on the basis of race, Lee v. Macon Countv Board of 
Education, 267 F. Supp. 458, 480 (M.D. Ala.) (3-judge court),

'd sub nom. Wallace v. United States. 389 U.S. 215 (1967),
requiring the assignment of students to schools based on 
specified attendance zones, and requiring the Board of Education 
to adopt affirmative action plans to integrate faculty and staff 
(Rl-1-2).

Specifically, plaintiffs alleged that defendants' plan to 
construct a new elementary school on property adjacent to the 
site of the historically white Idalia School, and thereafter to 
close all or a portion of the historically black Talladega 
County Training School, is part of a racially discriminatory 
pattern of closing historically black schools in order to avoid 
assigning white students to them.® This practice, plaintiffs 7

7 (...continued)
1461, 1462 (11th Cir. 1987); Morgan v. Roberts. 702 F.2d 945
946-47 (11th Cir. 1983); C & C Products. Inc, v. Messick. 7nnF.2d 635, 637 (11th Cir. 1983).

In 1970 the Board of Education frankly told the district court that its key problem in devising a desegregation 
plan wap the size of the black population, which would require that white students be assigned to black schools:

I am sure you realize that the implementation of a plan 
to abolish the dual school system is more difficult in 
some school systems than in others because of the 
racial composition of the school system. It is

(continued...)
6



asserted, devalues the black citizens of the County by 
systematically eliminating, downgrading, or limiting the schools 
in the black community or those with historical connections to 
blacks, although white citizens and the white community have not 
been treated similarly (Rl-1).

In 1970, when the Talladega County desegregation plan was 
approved by the district court, eight8 9 of the twenty schools in 
the system were maintained as separate schools for black school 
children: Charles R. Drew (1-9), Hannah Mallory (1-6), Mignon (1- 
6), Nottingham (1-6), Ophelia S. Hill (1-12), Phyllis Wheatley

8 (...continued)
anticipated that the implementation of the plan in the 
Talladega County School System will be difficult 
because of the size of our Negro population. 
Implementation of the plan in the Talladega County 
School System will require us to send white students to 
all Negro schools with the exception of one school.
Our problem is further intensified by the fact that of 
the five county school systems bordering this county, 
it will not be necessary for four of these systems to 
send white students to Negro schools. I hope, 
therefore, that you will have some understanding of our situation and of the problems involved.

(Plaintiffs' Exhibit A. [Plaintiffs' Exhibits, which are part of the record on appeal, will be referred to hereinafter as "PX."])
In addition, when the Idalia Elementary School, which had a student population over 50% white (PX-C-18) burned down 

approximately two years ago, the Board of Education decided to 
house the Idalia children in trailers rather than send them to 
the historically black Talladega County Training School, which 
had space available and was about a five-minute ride away. CSee 
PX-B [Composite Facilities Report attached to Talladega County- 
Desegregation Plan] for capacities; PX-C for 1984 school 
enrollments.) The Idalia students have remained in trailers since their school burned down (Rl-1-6).

9 Plaintiffs alleged that prior to 1970, the Board of 
Education had closed five historically black schools: Pine Hill,
Sweet Home, Lane Chapel, Union Springs, and Hall Grove (Rl-1-4)/

7



(1-9), R. R. Moton (1-9), and the Talladega County Training 
School (1-12) (PX-B-9,10). Since 1970, the Board of Education
has closed outright four of these eight schools: Mignon (1972), 
Nottingham (1974), Hannah J. Mallory (1985), and Phyllis Wheatley 
(1988). The Board also has closed parts of three other
historically black schools: grades 7-12 at the Ophelia S. Hill
School, grades 1-4 and 9 at the Charles R. Drew School, and grade 
9 at the R.R. Moton School (named for a black person), which the 
board had also redesignated as the Sycamore School (PX-B-9, 10; 
PX-C-17, 18). Today, the only historically black school
remaining unaltered in grade structure or name is the Talladega 
County Training School, which serves grades K-12 (Rl-1-4).

Plaintiffs alleged, and defendants admitted, that the 
Talladega County Board of Education intends to build a new, 500- 
pupil elementary school adjacent to the former site of the 
Idalia Elementary School, to close the elementary section of the 
County Training School, and to close the Jonesview Elementary 
School (the Training School's only remaining feeder school10). 
Rather than having the new facility feed the Training School, the 
Board of Education plans to give students completing the sixth 
grade at the new school "freedom of choice" for the secondary 
grades (Rl-1-5).11

10 In 1985, the Board closed the other feeder school to the Training School —  Hannah Mallory Elementary School (Rl-l- 6 ) .

Under the proposed plan, it is clear that the very existence of the Training School is in jeopardy. Closing the
(continued...)

8



Plaintiffs also alleged that since dismissal of the case in 
1985, defendants have adopted a new student transfer policy that 
circumvents the attendance zone plan ordered by the court and 
which will facilitate white students' avoidance of historically 
black schools (Rl-1-6,7), and they challenged defendants' failure 
to comply with the promise to adopt affirmative action plans.12

Scope of Review
The first and second issues set out above present guestions 

of proper application or formulation of the law and therefore are 
subject to independent review by this Court. See Combs v. Ryan's 
Coal Company, 785 F.2d 970, 976 (11th Cir.), cert, denied. 107 S. 
Ct. 187 (1986), citing Cathbake Investment Company v. Fisk
Electric— Company, 700 F.2d 654, 656 (11th Cir. 1983). Appellate 
review of a district court's construction of a consent decree is 
a question of law subject to de novo review. See Paradise v. 
Prescott, 767 F.2d 1514, 1525 (11th Cir. 1985), aff'd. 107 S. Ct. 11 12

11(...continued)
elementary division of the County Training School and Jonesview 
(the latter school, as of 1984, enrolled a total of only 158 
students) (PX-C-18), and adopting a "free choice" plan with 
respect to attendance at the Training School on the secondary level, is likely to result in there being few -- and almost 
certainly no white -- students enrolled in its upper grades. 
This can readily be seen in the pattern of white secondary 
attendance following completion of the sixth grade at Jonesview 
Elementary School. in 1984, Jonesview had 70 white students 
(44% of its enrollment), while the County Training School for 
that year had only 13 white students (3% of enrollment) (PX-C- 
18) -- suggesting that whites, for the most part, do not attend
the Training School after completion of the sixth grade at Jonesview.

12 Rl-l-9. Plaintiffs repeatedly requested a copy of the 
Board s affirmative action plans. None were ever provided I'RT—i — 9; PX-L; PX-D). v

9



1053 (1987), citing Turner v. Orr. 759 F.2d 817, 821 (11th Cir.
1985) . The third issue is reviewed under an "abuse of 
discretion" standard. See United States v. Georgia Power 
Company, 634 F.2d 929 (5th Cir. [Unit B] 1981), vacated on other 
grounds, 456 U.S. 952 (1982), original opinion affirmed and
reinstated. 695 F.2d 890 (5th Cir. 1983).

Summary of Argument 
I

The district court erred in failing to adhere to the terms 
of its own order —  the Joint Stipulation of Dismissal, which 
the court specifically approved and entered. The Joint 
Stipulation clearly contemplated the continued existence of the 

court orders as well as specifically providing a new 
commitment by defendants to obey them. The district court never 
vacated nor dissolved any of these orders, nor did it find them 
unenforceable for any reason except the 1985 dismissal of the 
lawsuit. The district court was not free to ignore these orders 
when plaintiffs sought to reopen the case in order to enforce 
them.

II
The district court's perception that it lacked jurisdiction 

even to entertain the motion to reopen, and a fortiori to reopen 
the case, is clearly in error. Federal courts retain the 
inherent power to enforce injunctive decrees and court-approved 
agreements entered into in settlement of litigation, either in

10



supplemental proceedings in the same case or in a separate 
ancillary proceeding, notwithstanding whether the original 
action was closed or dismissed after entry of the initial relief. 
See, e. q. , Dowell v. Board of Education of Oklahoma Citv. 795 
F•2d 1516 (10th Cir.), cert, denied. 107 S.Ct. 420 (1986); Lee v. 
Hunt, 631 F. 2d 1171 (5th Cir. 1980), cert, denied. 454 U.S. 834 
(1981).

Ill
Assuming arguendo that the district court lacked the 

inherent equitable authority to enforce the terms of the Joint 
Stipulation, it erred in refusing to vacate the dismissal order 
pursuant to Fed. R. Civ. P. 60(b)(5) and (b)(6). This Court held 
in United States v. Georgia Power Company. 634 F.2d 929, 934 (5th 
Cir. [Unit B] 1981), that Rule 60 applies where there has been a 
"significant modification in decisional law" upon which a final 
judgment was based. Here the district court's 1988 
interpretation of the law governing the effect of a dismissal in 
a school desegregation case upon the vitality of prior decrees in 
the case which were never explicitly vacated -- an interpretation 
which it applied to plaintiffs' motion to reopen —  is based 
upon legal precedents that postdate the Joint Stipulation, and 
which are contrary to the prior law in this Circuit and the clear 
intentions of the parties at the time the Joint Stipulation was 
entered. Similarly, the Supreme Court has indicated that in such 
circumstances, where a district court's interpretation of its own 
orders is at odds with the parties' prior understanding, relief

11



from the orders should be granted. Pasadena City Board of 
Education v. Spangler. 427 U.S. 424, 437-38 (1976).

ARGUMENT

Introduction
This appeal, while focusing upon procedural questions, 

involves an extremely serious issue: whether black schoolchildren 
and black citizens of Talladega County, Alabama are to be 
afforded the same treatment, respect, and services as the white 
citizens of that county. It is ironic, indeed, that the same 
black citizens who fought a long battle to desegregate the 
schools of their community now find themselves saddled with new 
burdens and discriminatory treatment by the Talladega County 
School System.13 Unless the judgment below is reversed, however, 
they will be deprived of the protections and benefits achieved in 
their school desegregation lawsuit, in spite of the care which 
they took in conditioning dismissal of that case in 1985 upon the 
School System's explicit commitment to abide by the prior court 
orders in the case.

. Plaintiffs' Motion to Reopen, Rl-1, alleged a pattern of racially discriminatory and stigmatizing practices, including: 
the closing of two historically black schools within a three-year 
period, choosing to teach white children in temporary trailers 
rather than send them to a historically black school less than a 
five-minute drive away; choosing to build a new school and to 
close two facilities to avoid assigning white children to a 
historically black school; adopting a student transfer policy 
which circumvents the_court orders designed to attain a unitary 
school system; and ignoring the school system's promise to 
implement affirmative action plans to integrate the faculty and staff of the schools.

12



I

The District Court Erred In Refusing To 
Reopen The Litigation And To Enforce The 
Terms Of The 1985 Settlement Agreement 
Which It Had Approved As The Basis 

_____ For Dismissal Of This Action______

On March 13, 1985, the district court "Approved" and
"Entered" a Joint Stipulation of Dismissal executed by the
parties (lSR-29-Exh. D, Joint Stipulation of Dismissal at 2) -
The Stipulation attached a Resolution of the Talladega County
Board of Education adopted November 22, 1983, and "incorporated
[it] herein" (Id.)- The final paragraph of the Joint 
Stipulation recited that in view of the parties' agreement that 
prior court orders had been effectuated in a satisfactory manner 
and "in view of the attached Resolution, the parties conclude 
that dismissal of this cause of action, as it applies to the 
Talladega County School System, is appropriate at this time" (id. 
at 2 [emphasis supplied]).

The Board of Education's resolution was quite specific. It 
resolved that:

1. The Talladega County System shall be operated at all times so as to conform with the United States 
Constitution, laws passed by Congress, and all previous
orders— of_this Court and the following paragraphs of
this resolution are adopted subject to this policy.

4. Every member of this Board, and all officers and employees of the Talladega County System shall 
continue to adopt, maintain and implement affirmative 
action programs designed to improve racial integration 
among students, faculty and administrative staff of the School System.

13



(Id., Resolution at 2-3 [emphasis supplied].)
The Joint Stipulation of Dismissal, which thus embodied the 

terms upon which the parties consented to dismissal of the 
action, became an enforceable judgment once it was "Approved" by 
the district court and "Entered."14 "A consent decree, although 
founded on the agreement of the parties, is a judgment." United
States v ._City of Miami. 664 F.2d 435, 439 (5th Cir. 1981) (en
bamc)(opinion of Rubin, J .).15 "it therefore has the force of 
res judicata, and may be enforced by judicial sanctions, 
including a citation for contempt." Paradise v. Prescott. 767 
F•2d 1514, 1525 (11th Cir. 1985), aff'd. 107 S. Ct. 1053 (1987).
Moreover, "[settlement agreements are highly favored in the law 
and will be upheld whenever possible because they are a means of 
amicably resolving doubts and uncertainties and preventing 
lawsuits." D.H. Overmver Company v. Loflin. 440 F.2d 1213, 1215
(5th Cir.), cert, denied. 404 U.S. 851 (1971).15

The separate Judgment and Order entered on the same date recites that "The parties have submitted to this Court a 
Joint Stipulation of Dismissal. In view of that submission, it 
is appropriate that the above captioned case should be dismissed" 
(lSR-29-Exh. D, Judgment and Order at 1) (emphasis supplied). 
Significantly, the Judgment and Order did not vacate any of the 
prior decrees that had ̂ been issued in the suit, including the 
Joint Stipulation of Dismissal "Approved" and "Entered" by the court on the same date.

_15_ See Local--Number 93, International Assnr.iatinn 0f
Firefighters— v.— City_of Cleveland. 478 U.S. 501, 518 (1986}citing Miami. ' '

See e. g. , Pearson v. Ecological 522 F.2d 171, 176 (5th Cir. 1975) , cert,
(1976)7 W.J. Perryman & Company v. Penn
Company, 324 F.2d 791, 793 (5th Cir. 1963).

Science Cornorationr 
denied. 425 U.S. 912 
Mutual Fire Insurance

14



In accordance with these principles, the district court 
should have carried out the terms of the Stipulation of Dismissal 
by reopening the case upon plaintiffs' allegations that the 
Stipulation's terms were being violated by the defendants. 
Instead, the trial court —  without explanation, supporting legal 
precedent, or even express acknowledgement —  issued a ruling 
that treats the Joint Stipulation of Dismissal as if it is either 
void or unenforceable. This action is indefensible.

First, the district court specifically "approved" and 
entered the Joint Stipulation of Dismissal which incorporated 

and was dependent upon the Board's commitment to continue to 
comply with "all previous orders of th[e] Court." As we have 

above, the court thereby adopted the Board's commitment 
as its own decree.

Second, the district court never vacated either the Joint 
Stipulation of Dismissal nor any other decree previously entered 
in the action. The Judgment and Order of dismissal (1SR-29—Exh. 
D) is silent on the issue of vacating or dissolving the 
injunctive decrees, in stark contrast to orders of dismissal 
entered by the same district judge several years later in three 
other school desegregation actions on appeal to this Court 
(Etowah County, Talladega City, and Sylacauga City)(R2-26; R3-25; 
R4-27) . In each instance except for the Talladega County case 
dismissed in 1985, the orders recite that "any and all 
injunctions previously entered herein are hereby DISSOLVED 
• • • *" the very least, this explicit language puts the

15



parties on notice of the consequences of the dismissal so that 
they may determine whether or not an appeal is appropriate.

Third, the district court has never suggested that the Joint 
Stipulation is, for some reason, void or unenforceable.

Fourth, the Board of Education agreed to be bound by the 
prior court orders and to adopt affirmative action plans, 
incorporating this commitment into a new decree. For these 
reasons, there simply is no basis for concluding that the prior 
court orders and the commitments embodied in the Joint 
Stipulation of Dismissal were sub silentio extinguished or 
withdrawn by the Judgment and Order of dismissal entered on the 
same date as the Joint Stipulation, March 13, 1985.

It appears from the language of the district court's 
opinion17 and its subsequent order18 that the court was applying 
to this case the precept, set out in several of its recent 
opinions, that once a school district is declared unitary and a 
desegregation case is dismissed, all prior injunctive decrees 
must be vacated or dissolved.19 It was error for the court to do

. 17 ."?n March 15 [sic], 1985 . . . there remained no residual injunction requiring Talladega County Board of Education to do anything" (Rl-7-2).
18 "The action as against Talladega County Board of Education was dismissed by consent in 1985. This necessarily 

meant, and still means, that there are no 'outstanding court 
orders' . . . applicable to Talladega County Board of Education" (Rl-11-3 [emphasis in original]).

19 The district judge in Lee v. Macon County Board ofEducation_(Nunnelley State Technical College^ . 681 F. Supp. 730
(N.D. Ala. 1988) and in the cases resulting in appeals Nos. 88- 
7551, 88-7552, and 88-7553 (consolidated with this case) has

(continued...)
16



so, however, because in this case the dismissal was pursuant to a 
valid consent agreement and was conditioned upon continued 
adherence to the prior orders.

The district court's duty, upon the submission of 
plaintiffs' Motion to Reopen, was to construe and apply the terms 
of the Joint Stipulation. See Paradise v. Prescott. 767 F.2d at 
1525.19 20 Thus, the district court need not have reached (nor need 
this Court reach) the question of the effect —  in the absence of 
a court-approved dismissal agreement —  of a judicial finding 
that a school district has achieved unitary status.

19(...continued)
agreed with the reasoning of the Fourth and Fifth Circuits in
Riddick— v^_School Board of Norfolk. 784 F„2d 521 (4th Cir.)
cert.— denied, 107 S. Ct. 420 (1986) and United States v.
Overton, 834 F;2d 1171 (5th Cir. 1987) (dictum) that once a 
finding of unitary status is made, all injunctive decrees 
previously issued must be vacated. But see United States v.
Bp.ard— of_Education of Jackson Countv. 794 F,2d 1541, 1543 (lith
Cir. 1986)("That school districts have become unitary, however, does not inevitably require the courts to vacate the orders upon which the parties have relied in reaching that state").

Because the Joint Stipulation of Dismissal was "approved" and "entered" by the court, there is no question that 
it is enforceable following dismissal of the action, pursuant to 
its terms. .See Fairfax Countvwide Citizens Association v. County 
of Fairfax, 571 F.2d 1299, 1303-04 (4th Cir.), cert, denied. 43Q U.S. 1047 (1978).

Even if the district court believed that it could not itself 
have dismissed the action in 1985 without vacating prior injunctive orders, it was bound to apply the terms of the Joint 
Stipulation of Dismissal since the parties to a case, through 
consent, may obtain relief broader than that which a court itself
may grant. Local Number 93, International Association of
Firefighters v. City of Cleveland. 478 U.S. at 524-28. Thus, 
where the parties have reached a compromise and the court has 
expressly approved it, the agreement embodied in the judicial 
decree governs matters covered by the decree in the future.

17



In exchange for plaintiffs' consent to dismissal of the 
action, the Talladega County Board of Education agreed to 
continue to comply with all prior court orders in this case and 
to implement affirmative action plans. They remain bound to 
those promises, and the district court committed clear error in 
simply ignoring its own order approving the parties' agreement.

II

The District Court Erred In Ruling That 
It Was Without Jurisdiction 

To Entertain The Motion To Reopen

In its Memorandum Opinion of July 25, 1988, the district
court stated that when the case was dismissed in March of 1985, 
"there was no retention of jurisdiction" (Rl-7-2) . In its July 
30, 1988 Order denying plaintiffs' motion for an injunction
pending appeal, the court explained that it had held on July 25, 
1988 that it was "without jurisdiction to entertain [plaintiffs' 
original] motion, [and, therefore,] it [was] equally without 
jurisdiction to consider [the motion for injunction pending 
appeal]" (Rl-li-2). The conclusion that the district court 
lacked jurisdiction even to entertain plaintiff's motion to 
reopen is simply and clearly wrong as a matter of law and must be 
reversed.

The law is well-established in this and other Circuits that 
federal courts retain the inherent power to enforce, in either 
separate ancillary proceedings or supplemental proceedings in -the

18



same case, injunctive decrees and court-approved agreements 
entered into in settlement of litigation, irrespective of whether 
the action was closed or dismissed after entry of the initial 
relief.

Paradise v. Prescott. 767 F.2d 1514 (11th Cir. 1985), holds 
that a consent decree "has the force of res judicata. and may be 
enforced by judicial sanctions, including a citation for 
contempt." Id. at 1525.21 Applying the same principle, the Court 
of Appeals for the Fifth Circuit ruled in Lee v. Hunt. 631 F.2d 
1171, 1173-74 (5th Cir. [Unit A] 1980), cert, denied. 454 U.S. 
834 (1981),22 that "federal courts possess the inherent power to
enforce agreements entered into in settlement of litigation." 
Id. at 1173-74.

Likewise, the Court of Appeals for the Tenth Circuit, on 
facts similar to those presented here, held in Dowell v. Board of 
Education of Oklahoma Citv. 795 F.2d 1516 (10th Cir.), cert.
denied, 107 S.Ct. 420 (1986), that the district court committed
reversible error in not granting plaintiffs' motion to reopen23 
to enforce injunctive decrees, even after entry of an "Order

21 Accord United States v. Citv of Miami. 664 F.2d at 440 
n*8/ cited— in Local— Number 93, International Association ofFirefighters v . Citv of Cleveland. 478 U.S. at 518.

22 Decisions of the Fifth Circuit prior to creation of the
Eleventh Circuit have binding precedential weiqht. See Bonner v 
City of Prichard, 661 F.2d 1206, 1209-11 (11th Cir. 1981)(enbanc). ' v—

The Tenth Circuit later characterized plaintiffs' motion to reopen in Dowell as being in the nature of a petition for a contempt citation. 795 F.2d at 1523.

19



Terminating Case." The Tenth Circuit specifically acknowledged 
the "inherent equitable power of any court to enforce orders 
which it has never vacated." Id. at 1520.

The Courts of Appeals for the Second, Fourth, and Sixth 
Circuits have all held that the federal courts possess inherent 
authority to enforce such agreements. Aro Corporation v. Allied 
Witan Company, 531 F.2d 1368 (6th Cir. ) , cert, denied. 429 U.S. 
862 (1976) (after dismissal of complaint and counterclaim, court 
retained inherent power to enforce settlement agreement entered 
in litigation)24; Fairfax Countvwide Citizens Association v. 
County of Fairfax, 571 F.2d at 1302-03 ("[UJpon a repudiation of 
a settlement agreement which had terminated litigation pending 
before it, a district court has the authority under Rule 60(b)(6) 
to vacate its prior dismissal order and restore the case to its 
docket. . . . once the proceedings are reopened, the district 
court is necessarily empowered to enforce the settlement 
agreement against the breaching party [if] . . . the agreement 
had been approved and incorporated into an order of the 
court")(footnote omitted); Meetings and Expositions. Inc. v. 
Tandy— Corporation, 490 F.2d 714, 717 (2d Cir. 1974) (after 
dismissal district court had not only the power but the duty to

Aro— Corporation. and some other cases, rely on Fed. R. Civ. P. 60(b)(6) in recognizing the court's authority to enforce 
(by reopening a case) a settlement agreement based upon which 
dismissal was obtained.  ̂ (Rule 60(b)(6) provides: "On motion and
upon such^ terms as are just, the court may relieve a party . 
from a final judgment, order, or proceeding for the following 
reasons . . .  (6) any other reason justifying relief from theoperation of the judgment.") See infra § III.

20



enforce a settlement agreement); see also Joy v. Manufacturing 
Company v. National Mine Service Company. 810 F.2d 1127 (Fed. 
Cir. 1987) (court has ancillary jurisdiction to enforce terms of 
settlement agreement not incorporated into decree dismissing case 
without prejudice); Berman v. Denver Tramway Corporation. 197 
F.2d 946, 950 (10th Cir. 1952) ("A federal court is clothed with
power to secure and preserve to parties the fruits and advantages 
of its judgment or decree . . . jurisdiction of the court to 
entertain such a supplemental proceeding is not lost by the 
intervention of time or the discharge of the res from the custody 
of the court").

Thus the district court erred in denying, for lack of 
jurisdiction, plaintiffs' motion to reopen.

Ill
The District Court Erred In Ruling 

That Plaintiffs-Appellants Could Not Reopen The Case Pursuant To Fed. R. Civ. P. 60rbW5) or (bjl6J

-̂he district court, plaintiffs moved to reopen in order 
"to enforce existing court orders" (Ri-i-i).25 In addition,

In their Memorandum of Points and Authorities in Support of Motion to Reopen, (lSR-29-Exh. C at 10), plaintiffs explained:
The injunctions entered in this case have not been 
vacated and remain binding on defendants. As a 
condition of dismissal, defendants consented to abide 
by _ the outstanding court orders. (Exhibit A). 
Plaintiffs seek to reopen this case to enforce the 
outstanding relief granted and consented to by defendants.

21



plaintiffs alternatively sought relief under Fed. R. Civ. P. 
60(b)(5) and (b)(6) from the final judgment of dismissal, in 
order to permit the court to enforce the terms of the parties' 
settlement agreement. The district court refused to grant any 
relief, although it is somewhat difficult to identify the grounds 
for its refusal to act under Fed. R. Civ. P. 60.

In its memorandum opinion of July 25, 1988, the district
court appears to have assumed that plaintiffs had not invoked 
Rule 60.26 The district court went on, however, to describe
relief from judgment through a rule 60 motion as not being 
available "under the allegations made by plaintiffs" in this case 
(Rl-7-2). In its subsequent order denying the request for 
injunction pending appeal, the court described its July 25 
opinion as holding that "it was without jurisdiction to entertain 
an untimely post-judgment motion" (Rl-ll-2). The apparent

26 The district court stated that plaintiffs "invoke neither Rule 59, F.R.Civ.P., nor Rule 60, F.R.Civ.P.," as a. basis for reopening the case (Rl-7-2). This statement is incorrect. 
Plaintiffs' Memorandum of Points and Authorities in Support of 
Motion to Reopen specifically cited the Rule (lSR-29-Exh. C at 
11-12), quoted the language of sections (b)(5) and (b)(6), and 
explained its  ̂ applicability, with supporting precedent. 
Plaintiffs explicitly advised the district court, for example that: '

An alternative ground for reopening the case exists 
pursuant to Fed. R. Civ. P. 60(b). Rule 60(b)(5) 
provides relief from a final judgment "where [quoting 
language]." Thus, where there has been a fundamental 
change in the legal predicates upon which a dismissal 
is based, it is appropriate for the court to grant 
relief under Fed. R. Civ. P. 60(b)(5). Theriault v. 
Smith, 523 F,2d 601 (1st Cir. 1975) . There has beensuch a change in this case.

Id. at 11.
22



grounds for the district court's denial of Rule 60(b) relief in
this case cannot withstand scrutiny.

We first consider the timeliness of plaintiffs' Motion to
Reopen. It appears that the district court may have mistakenly
believed that the one-year time limit applicable to motions under
Rule 60(b)(1), (b)(2), or (b)(3), governed plaintiffs' motion.
However, motions under Rule 60(b)(5) and (6) are not governed by
the one-year time limit; rather, the only limit is that the
motion be brought within a "reasonable" time:

The motion shall be made within a reasonable time, and 
for reasons (1) , (2) , and (3) not more than one year
after the judgment, order, or proceeding was entered or taken.

(Fed. R. Civ. P. 60(b).) The district court did not state that 
plaintiff-appellants' motion was not brought within a reasonable 
time, nor could it have justified such a holding on the facts 
alleged by plaintiffs (where the Motion to Reopen was filed 
promptly after plaintiffs learned of the School System's planned 
school construction and closing plan).

The mere passage of time after entry of the original 
judgment does not control the reasonableness of invoking Rule 
60(b)(5) or (b)(6) at any particular point. Thus, for example, 
in United— States v. Timmons. 672 F.2d 1373, 1377 (11th Cir. 
1982) , the district court adjudicated, on the merits, a Rule 
60(b)(4) and (b)(6) motion filed some thirty-three years after 
the initial judgment, and this Court gave res iudicata effect to

23



the district court's substantive ruling.27 Plaintiffs' motion 
was clearly brought within a reasonable time.

It is equally well settled that relief under Rule 60(b)(5) 
or (b) (6) should have been granted by the district court "under 
the allegations made by plaintiffs" (Rl-7-2). These provisions 
authorize a court to grant relief from a final judgment "where a 
prior judgment upon which it is based has been reversed or 
otherwise vacated, or it is no longer equitable that the judgment 
should have prospective application; or (6) any other reason 
justifying relief from operation of the judgment."28 The Court
i-n United_States v. Georgia Power Company. 634 F.2d 929, 932-34
(5th Circuit [Unit B] 1981), vacated on other grounds. 456 U.S.
952 (1982), original opinion affirmed and reinstated. 695 F.2d
890 (5th Cir. 1983), held, after extensive discussion, that Rule 
60(b)(5) provides a proper basis for granting relief from a 
judgment where there has been a "significant modification in

See, £-• 9 • , Ridley_v. Phillips Petroleum Company. 427F.2d 19 (10th Cir. 1970)(motion filed fourteen years afterjudgment); Humble Oil & Refining Company v. American Oil Company 
405 F.2d 803 (8th Cir. 1969)(complaint seeking Rule 60(b) relief 
filed twenty-six years after issuance of injunction)? UnitedStates— v_.--Swift_&_Company. 189 F. Supp. 885, 906 (N.D. 111.
1960)(thirty-six years after entry of consent decree). aff'd npr curiam. 367 U.S. 909 (1961). ------H--

. -̂s clear that plaintiffs could proceed by way of amotion to reopen, rather than through an independent action. Rule 60 "provides two types of procedure to obtain relief from 
judgments. The usual procedure is by motion in the court and in 
the action in which the judgment was rendered. . . . The other
procedure is by a new and independent action to obtain relief 
from a judgment, which action may, but need not, be begun in the 
court that rendered the judgment." 11 c. Wright and A. Miller Federal Practice and Procedure § 2851, at 141-42 (1973).

24



decisional law" upon which a judgment was based. Accord
Theriault v. Smith. 523 F.2d 601 (1st Cir. 1975). As we describe 
below, these conditions were met in the present case.

The language of the 1985 Joint Stipulation of Dismissal 
indicates that all parties understood that the prior court 
orders, and the new promise of the school district to comply with 
them and to adopt affirmative action plans, would survive the 
dismissal of the action. Moreover, that expectation was 
consistent with substantial precedent in this Circuit. For 
example, in nearly every individual school district's Lee v. 
^acon— County case in the Northern District of Alabama except 
Talladega County, the school system was declared "unitary" in the 
mid-1970's and, simultaneously, the district court substituted a 
general permanent injunction for the previous detailed regulatory 
decrees and placed the case on the inactive docket -- rather than 
vacating all injunctive orders and dismissing the action.29 
Similarly, in the Georgia state—wide school desegregation case 
declarations of unitariness were made pursuant to consent and the 
court simultaneously entered general permanent injunctions.30 
Dismissal was therefore not the common, much less inevitable,

O Q See e.g., lSR-29-Exhs. F, G, and H.
30 See United States v. Georgia. 691 F. Supp. 1440 (M.D.Ga. 198 8) ; Georgia State Conference of Branches of NAACP v. 

Georgia, 775 F.2d 1403, 1413 n.ll (11th Cir. 1985). See also!
Monteilh_v. St. Landry Parish School Board. 848 F.2d 625*

629, text at nn. 8, 9 (5th Cir. 1988); United States v. Board of
Education of Jackson County. 794 F.2d 1541 (11th Cir. 1986);
United_States v. Lawrence County School District. 799 F 2d 10311037-38 (5th Cir. 1986). '

25



nor were such findingsresult of a finding of "unitariness," 
regarded as the signal to dissolve all court orders.

When the Motion to Reopen was submitted, however, the 
district court attached different collateral legal consequences 
to the 1985 dismissal order by virtue of its recitation that the 
school system had achieved "unitary status." See supra note 19 
and accompanying text. Specifically, the district court held 
that the order "made it perfectly clear, if it were not already 
clear, that this case was in all respects concluded as to 
Talladega County Board of Education" (Rl-7-1), and that even 
though the 1985 order did not explicitly vacate prior injunctive 
decrees "there was no retention of jurisdiction by this court and 
there remained no residual injunction requiring Talladega County 
Board of Education to do or not to do anything" (Ri-7-2).31

The district court appears to have focused upon the recitations in the March 13, 1985 Joint Stipulation of Dismissal, 
and the Judgment and Order entered on the same date, concerning
the operation of a "unitary school system" or "unitary status"__
and to have applied_ rulings from other Circuits announced 
subsequent to the dismissal of this case that require termination 
of ^11 jurisdiction and dissolution of all court orders when a 

of "unitary status" is made. See Lee v, Macon County Board— of— Education (Nunnelley State Technical College^ . 681 F.
Supp. 730, 736-38 (N.D. Ala 1988) (discussing cases) and the
opinions entered by the district court in the three cases
consolidated on appeal with this one (R2-25; R3-24; and R4-26).

As we have earlier suggested (supra at 17), it is
unnecessary for the Court to consider these issues in the
Talladega_County matter. Plaintiffs are entitled to reversal of
the judgment below either because of the explicit terms of the 
Joint Stipulation of Dismissal (§ I of this Brief) , because the 
court should have enforced the Stipulation as a settlement 
agreement (§ II of this Brief), or because they were entitled to 
relief from the dismissal, and any collateral consequences
thereof, under Fed. R. Civ. P. 60(b)(5) and (b)(6) (seediscussion in this section).

26



Even if we were to assume that the district court correctly 
interpreted and stated the present law, its holding represents 
the very sort of change which Rule 60(b)(5) is intended to reach. 
See United States v. Georgia Power Company. It indeed would be 
"no longer equitable" to enforce the final order of dismissal if 
the terms upon which plaintiffs consented to that dismissal in 
1985 no longer apply in 1988. Otherwise, by virtue of the 
district court's recently adopted position, without any notice 
plaintiffs will have lost everything they bargained for in 1985.

In similar circumstances involving an ultimate 
interpretation of a decree by the district court that was at odds 
with the interpretation of the parties and inconsistent with an 
intervening substantive ruling, the Supreme Court in Pasadena 
City Board of Education v. Spangler. 427 U.S. 424, 437-38 (1976) 
(Rehnquist, J.), reversed the district court's refusal to modify 
its earlier injunction, relying on the "well-established rules 
governing modification of even a final decree entered by a court 
of equity" and "the fact that the parties to the decree 
interpreted it in a manner contrary to the interpretation 
ultimately placed upon it by the District Court."

Accordingly, the district court's current interpretation of 
the effect of the dismissal, which is based upon legal decisions 
that postdate the Joint Stipulation and which is clearly at odds 
with the plain language of the Joint Stipulation, provides the 
basis upon which relief from the judgment of dismissal should 
hsve been granted. It was an abuse of discretion for the

27



district court not to grant relief under Fed. R. Civ. P. 60(b)(5) 
and (6).

For the reasons stated above, plaintiffs-appellants 
respectfully pray that the July 25, 1988 orders of the district 
court denying their Motion to Reopen this case to enforce the 
terms of the Joint Stipulation of Dismissal and the attendant 
requests to add parties and take discovery be reversed.

Conclusion

Anniston, AL 36202 
(205) 236-1240

JULIUS L. CHAMBERS 
NORMAN J . CHACHKIN
JANELL M. BYRD

99 Hudson Street, 16th FI. 
New York, New York 10013 (212) 219-1900

December lb , 1988 Counsel for Plaintiffs- Appellants

28



Certificate of Service
I hereby certify that on this day of December, 1988

served two copies of the Brief for Appellants upon counsel 
the other parties to this appeal, by depositing the same in 
United States mail, first-class postage prepaid, addressed follows:

George C. Douglas, Jr., Esq. Ralph Gaines, Jr., Esq. 
Gaines, Gaines & Gaines, P.C. Attorneys at Law 
127 North Street 
Talladega, Alabama 35106

Thomas E. Chandler, Esq. Dennis J. Dimsey, Esq. 
Appellate Section 
Civil Rights Division 
U.S. Dept, of Justice P. O. Box 66078 
Washington, D.C. 20035-6078
Frank Donaldson, Esq.
Caryl Privett, Esq.
Office of the U.S. Attorney 
1800 Fifth Avenue North 
Birmingham, Alabama 35203
Solomon S. Seay Jr., Esq.
P. 0. Box 6215 
Montgomery, Alabama 36106
Donald B. Sweeney, Jr., Esq. 
Rives & Peterson 
1700 Financial Center 
Birmingham, Alabama 35203
James R. Turnbach, Esq. 
Pruitt, Turnbach & Warren P.O. Box 29
Gadsden, Alabama 35902

, I for 
the 
as

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