Brief in Support of Board of Education Defendants' Motion to Dismiss Plaintiff-Appellants' Appeal

    IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

RONALD BRADLEY, et al. ,

Plaintiffs-Appellants,

v.

WILLIAM G. MILLIKEN, et al. ,

Defendants-Appellees,

and

DETROIT FEDERATION OF TEACHERS,

Defendant-Intervenor.

No. 21036

BRIEF IN SUPPORT OF BOARD OF EDUCATION 
DEFENDANTS' MOTION TO DISMISS 
PLAINTIFF-APPELLANTS’ APPEAL

Miller, Canfield, Paddock and Stone 
2500 Detroit Bank & Trust Building 
Detroit, Michigan 48226

Telephone: 963-6420

ATTORNEYS FOR

THE DETROIT BOARD OF EDUCATION, DEFENDANTS



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IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

RONALD BRADLEY, et al. ,

Plaintiffs - Appellants,

v.

WILLIAM G. MILLIKEN, et al. ,

Defendants - Appellees,

and

No. 21036

DETROIT FEDERATION OF TEACHERS,

Defendant-Intervenor 0
________________________________________________________________________________ /

BRIEF IN SUPPORT OF BOARD OF EDUCATION 
DEFENDANTS' MOTION TO DISMISS 
PLAINTIFF-APPELLANTS' APPEAL

I. PLAINTIFFS LACK STANDING TO RAISE, AND THIS 
COURT LACKS JURISDICTION TO ENTERTAIN, AN 
APPEAL FROM THAT PORTION OF THE DECEMBER 
3, 1970 ORDER OF THE DISTRICT COURT ORDERING 
IMPLEMENTATION OF THE MAGNET PLAN.

(a) Plaintiffs Are In No Way Aggrieved By that 
Part of the District Court's Order of 
December 3, 1970 Ordering the Board of 
Education to Implement the Magnet Plan.

It is well settled that no appeal may be had from a judgment or order 

entered by a Federal District Court by a party not aggrieved by such order or 

judgment. Sperry Rand Corp. v. Bell Telephone Laboratories, Inc. , 317 F. 2d 

491 (2d Cir. 1963); Milgrim v. Loew's, Inc. , 192 F. 2d 579 (3rd Cir. 1951), 

cert, denied, 343 U. S. 929 (1952); 13 Cyclopedia of Federal Procedure, §58.07. 

For purposes of determining whether such a right to appeal exists, resort must 

be had to:

. . the decretal portion of the decree. It is this and this 
only that becomes the final judgment of the Court from 
which an appeal will lie. "  McGhee v. Leitner, 41 F. Supp. 
674 (W.D. Wis. 1941).

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No feature of that portion of the District Court's Order of December 3, 1970 

ordering implementation of the Magnet Plan denies relief sought by Plaintiffs, 

grants relief against Plaintiffs, or in any way operates adversely to Plaintiffs.

In their "Motion for Summary Reversal or In the Alternative for 

Injunction Pending Appeal" at page 3, Plaintiffs state that the December 3 Order 

" ,  . . den[ied] the request to implement the 'April 7, 1970' plan for the second 

semester of the current school year. "  An examination of this Order demon­

strates the absolute falsity of this representation. In fact, the thrust of this 

Order is to mandate action by the Board of Education Defendants. Further, 

this Court may not indulge in the assumption that the District Court's Order man ­

dating action by the Board of Education Defendants necessarily denies Plaintiffs' 

Motion to Implement Plan, since the testimony in the record is clear that the 

two plans are compatible and not mutually exclusive. (11/19 Tr. at 217).

In addition, the record below makes absolutely clear that none of the 

named plaintiffs would have been affected by the April 7 Plan. (11/25 Tr. at 

316, 361). Since the District Court has not yet rules Plaintiffs' purported class 

action to be appropriate pursuant to F. R. C. P. 23 (c), Defendants-Appellees 

contend that the question of whether Plaintiffs are aggrieved must be determined 

by reference to the named Plaintiffs alone. In fact, none of the name Plaintiffs 

have been so aggrieved.

In short, Plaintiffs premise their appeal to this Court upon the 

District Court's denial of their Motion to Implement Plan. In truth, no such 

denial can be found in the District Judge's Order, his Rulings, or anywhere else 

in the record below. Rather, the District Judge ruled in favor of Plaintiffs- 

Appeliees and mandated action by the Board of Education Defendants. Further, 

no named Plaintiff would have been aggrieved even if the Motion to Implement 

Plan had been denied. Plaintiffs-Appellants may not therefore be heard to com­

plain of the Order entered by the District Court on December 3, 1970.

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•  •

(b) This Court Lacks Jurisdiction To Hear Plaintiffs - 
Appellants' Appeal with Regard To the Magnet 
Plan Since It Is Interlocutory and Does Not Come 
Within the Terms of any of Those Sections of the 
United States Code which Permit Interlocutory 
Appeals.

As jurisdictional bases for their appeal, Plaintiffs-Appellants cite 

28 U. S .C . §291 (c), 292(b), 1254 and 1292(b). None of these sections provides 

this Court with jurisidction to entertain this appeal. Section 291 (c) permits 

designation of a circuit judge to sit as a district judge. Section 292(b) permits 

designation of a district judge to sit in other than his home district. Section 

1254 provides for methods by which cases in the courts of appeal may be re­

viewed by the Supreme Court. Section 1292(b) provides for discretionary review 

by courts of appeal of controlling questions of law certified by order of a district 

court. Clearly none of these sections applies to the case at bar. Indeed, none 

but 1292(b) speaks to the question of interlocutory appeals at all.

The only jurisdictional provision of any relevancy whatsoever to 

Plaintiffs-Appellants' appeal is 28 U. S. C. 1292(a), which provides for inter­

locutory appeals in several situations. However, since this Section carves out 

exceptions to the strong Federal policy against piecemeal appeals from Federal 

District Courts, it must be narrowly construed. Baltimore Contractors, Inc, v, 

Bodinger, 348 U. S. 176 (1955); Switzerland Cheese Ass'n. v, E. Horne's 

Market, Inc. , 351 F. 2d 552 (1st Cir. 1965); Florida v, U. S. , 285 F. 2d 596 

(8th Cir. I960). So construed, this section cannot be read to support an appeal 

by Plaintiffs from the Order entered below.

Among the exceptions contained in this section, only that contained in 

§ 1292(a)(1) applying to injunctions requires discussion here. This section pro­

vides in its entirety:

"The courts of appeals shall have jurisdiction of appeals from: 
Interlocutory orders of the district courts of the United 

States, the United States District Court for the District of the

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Canal Zone, the District Court of Guam, and the District Court 
of the Virgin Islands, or of the judges thereof, granting, con­
tinuing, modifying, refusing or dissolving injunctions, or re­
fusing to dissolve or modify injunctions, except where a direct 
review may be had in the Supreme Court;"

Thus, for Plaintiffs-Appellants to successfully base this Court’ s jurisdiction on 

§ 1292(a)(1), they must show that the District Court's direction to the Board of 

Education Defendants to implement the Magnet Plan presented to the Court 

constitutes an order granting or denying an injunction. They also must show, as 

emphasized in the earlier section of this brief, that the thrust of such in­

junctive order was adverse to them.

Many cases emphasize that not all orders containing words of re­

straint, direction or command constitute injunctive orders. United Bonding 

Ins. Co. v. Stein, 410 F. 2d 483 (3rd Cir. 1969); International Products Corp. v. 

Koons, 325 F. 2d 403 (2d Cir. 1963); Taylor v. Board of Education, 288 F. 2d 

600 (2d Cir. 1961). Certainly the Order-drafted by Appellants and opposed by 

Appellees- which was entered by the District Judge herein is not styled as an 

injunctive order. In this context the cases cited above are yet more persuasive.

In school desegregation cases, there is a split of authority as to whether an order
!

requiring a board of education to submit a plan of desegregation constitutes an 

injunctive order. Taylor v. Board of Education, supra. But cf: Board of Public

Instruction of Duval County, Fla, v. Braxton, 326 F. 2d 616 (5th Cir. 1964), 

cert, denied, 377 U. S. 924 (1964).

Defendants-Appellees submit that the serious question concerning 

whether the Order here involved constitutes an injunction at all, together with 

the patent fact that the Order runs against the Board of Education Defendants and 

not against Plaintiffs-Appellants, requires this Court to decline jurisdiction over 

the instant appeal.

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II. THIS COURT LACKS JURISDICTION TO REVIEW 
THAT PORTION OF THE DECEMBER 3, 1970 
ORDER CONTINUING THE TRIAL OF THIS 
MATTER, SINCE IT IS INTERLOCUTORY AND IS 
NOT INJUNCTIVE IN ANY MANNER.

Even were this Court to assume jurisdiction to review that portion of 

the December 3, 1970 Order requiring implementation of the Magnet Plan on 

the basis that it constitutes an injunctive order, jurisdiction may not similarly 

be conferred upon this Court to review that portion of the Order granting a 

continuance of the trial of this matter. As noted earlier, §1292(a)(1) must be 

narrowly construed, since its effect is to fragment litigation and permit 

multiple appeals arising out of a single lawsuit. However, even if broadly con­

strued, this provision granting interlocutory appeals from injunctive orders 

cannot encompass the District Judge’ s granting of a continuance. Matters such 

as continuances are purely procedural in nature and have no injunctive aspects 

whatsoever.

In their recent letter to this Court, counsel for Plaintiffs-Appellants 

cite United States v. Texas Education Agency, 431 F. 2d 1313 (5th Cir. 1970), 

which held an order setting pretrial conference to be reviewable under § 1292(a) 

(1). However, the order there in question was found to have had the effect of deny 

ing plaintiffs' pending order to show cause why a desegregation plan should not 

be implemented immediately. In short, the order there involved was one deny­

ing Plaintiffs' motion for injunctive relief. In the matter at bar, the District 

Judge's grant of a continuance of trial does not have the effect of denying to 

Plaintiffs-Appellants any injunctive relief whatsoever. Further, Texas

Education Agency, supra, involved a remedial situation wherein the District 

Court's order effectively frustrated compliance, by an admittedly dual system 

of schools, with the mandate of Alexander v. Holmes County Board of Education, 

396 U. S. 19 (1969). In our case, as Judge Roth pointed out in his Ruling on 

Plans, the segregated or dual nature of the Detroit Public Schools may not be 

presumed. Absent the unusual and compelling factors present in Texas

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Educational Agency, supra, an order such as present there would not be 

appealable on an interlocutory basis. See: Scholl v, Felmont Oil Corg. , 327

F. 2d 697 (6th Cir. 1964), holding denial of a continuance not a reviewable 

decision; City of Morgantown, W. Va. v. Royal Insurance Company, 33 t b.S.  

254 (1949), wherein an interlocutory order setting case for trial was held 

unappealable.

Finally, assuming that this Court holds that that portion of the 

December 3 Order pertaining to implementation of the Magnet Plan is properly 

appealable, the portion thereof pertaining to the continuance does not become 

automatically appealable since contained in the same order as the Magnet Plan 

matter. The case law is clear that only those portions of a single interlocutory 

order which grant or refuse injunctive relief are reviewable, and that other 

portions thereof may not be so reviewed. Zwack v . Kraus Bros, h  Co. 23 7 

F. 2d 255 (2d Cir. 1956).

Attorneys for The Detroit Board of 
Education Defendants 

2500 Detroit Bank & Trust Building 
Detroit, Michigan 48226 
Telephone: 963-6420

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