Bivins v. Board of Public Education and Orphanage for Bibb County Plaintiffs' Memorandum in Opposition to Defendants' Motion to Dismiss Appeal

    IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT 

NO. 74-1971

SHIRLEY BIVINS, et al.,
Plaintiffs-Appellants,

vs .

BOARD OF PUBLIC EDUCATION AND 
ORPHANAGE FOR BIBB COUNTY, et al.,

Defendants-Appellees.

PLAINTIFFS' MEMORANDUM IN OPPOSITION 
TO DEFENDANTS' MOTION TO DISMISS APPEAL

THOMAS M. JACKSON 
655 New Street 
Macon, Georgia 31201

JACK GREENBERG
NORMAN CHACHKIN

10 Columbus Circle 
New York, New York 10019

NANCY J. MOORE 
299 Park Avenue 
New York, New York 10017

ATTORNEYS FOR APPELLANTS



IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

NO. 74-1971

SHIRLEY BIVINS, et al.,
Plaintiffs-Appellants,

vs.
BOARD OF PUBLIC EDUCATION AND 
ORPHANAGE FOR BIBB COUNTY, et al.,

Defendants-Appellees.

Appeal from the United States District Court 
for the Middle District of Georgia, Macon Division

PLAINTIFFS* MEMORANDUM IN OPPOSITION 
TO DEFENDANTS' MOTION TO DISMISS APPEAL

Plaintiffs Shirley Bivins, et al., submit this 
memorandum in opposition to defendants' motion to dismiss 
plaintiffs' appeal from orders of the United States Dis­
trict Court for the Middle District of Georgia, Macon 
Division, entered March 13, 1974.

PRELIMINARY STATEMENT

This action was initially filed in August 1963
in the Middle District of Georgia, Macon Division, by



fifteen black adult citizens of Bibb County and their 
45 minor children enrolled in the Bibb County school 
system to enjoin the defendant Board of Public Education 
and Orphanage for Bibb County (the "Board") from con­
tinuing to operate and maintain a dual school system 
based on race.

The case has been before this Court on numerous 
occasions. Most recently, in May 1972, this Court issued 
a mandate to the district court to consider the relative 
merits of plans which had been submitted to it in order 
to "eliminate or minimize the existence of one-race ele­
mentary schools in Bibb County" in compliance with Swann 
v. Charlotte-Mecklenburg Board of Education, 401 U.S. 1 
(1971). (See P. 6.-//) Two years have elapsed since this 
Court’s mandate issued, yet the district court has failed 
to order the implementation of a plan to desegregate the 
elementary schools of Bibb County. In fact, there have 
been no proceedings in the district court with respect 
to the merits of this case since August 1973. (P. 90 
Rather, the only orders of any consequence entered by the 
district court since May 3, 1972, the orders from which 
this appeal is taken, will not expedite a decision on the 
merits but will further delay the substantive proceedings

"P" refers to Plaintiffs' Brief on Appeal, 
filed May 14, 1974.

2



through an unnecessary and unwarranted interference with 
the structure of the parties to this litigation.

On October 26, 1973, in response to a motion 
filed by the Board, the district court entered an order 
ruling that because all but one of the original student- 
plaintiffs are no longer enrolled in the public schools 
due to graduations and other causes, plaintiffs are no 
longer adequate representatives of the class. By that 
order, the district court also directed the Board to make 
a random selection of members of the class, using a com­
puter, and announced its intention of joining such randomly 
selected members as parties plaintiff and representatives 
of the class. In addition, the district court, sua sponte, 
announced its intention to join as parties and representa­
tives of a class white students and their parents, to be 
selected in the same manner as the new black plaintiffs.
(P. 11-13.)

Shortly thereafter, petitioners Hope, et al., 
members of the plaintiff class, filed an application to 
intervene and serve as representatives of the class, and, 
on the same day, plaintiffs filed a motion requesting the 
district court to grant petitioners' application to inter­
vene and to reconsider and vacate its order of October 26, 
1973. (P. 13-14.)

3



On March 13 , 1974, the district court entered 
an order denying petitioners’ application to intervene 
and plaintiffs' motion to reconsider and vacate the 
order of October 26, 1973* In a second order entered 
the same day, the court also added the computer-selected 
parties as representatives of the class of black elemen­
tary students and their parents and as representatives 
of a new class of white students and their parents. (P. 14.) 
Plaintiffs timely noticed their appeal from such orders.

Defendants have filed a motion to dismiss this 
appeal, on the grounds (1) that the orders entered 
March 13, 197*1 are not appealable, and (2) that plaintiffs 
have no standing to appeal from that part of the orders 
denying petitioners' application to intervene. Plaintiffs 
oppose this motion on the following grounds:

1. The orders of the district court 
entered March 13, 1974 are appealable:

a. The orders are appealable as final 
orders under 28 U.S.C. § 1291-
b. The orders are appealable under 
28 U.S.C. § 1292(a), since their 
practical effect is to deny the in­
junctive relief sought by plaintiffs.

4



c. This appeal presents novel and 
important questions which cannot be 
effectively reviewed at a later time.
2. Plaintiffs have standing to maintain 

an appeal from all parts of the March 13, 197-U 
orders.

ARGUMENT

I. THE ORDERS OP THE DISTRICT COURT
ENTERED MARCH 13, 197^, ARE APPEALABLE.

In Alexander v. Holmes County Board of Education.
396 U.S. 19 (1969), the Supreme Court held impermissible
all further delays in the implementation of constitutionally
required school desegregation:

[Continued operation of segregated schools under 
a standard of allowing "all deliberate speed" for 
desegregation is no longer constitutionally per­
missible. Under explicit holdings of this Court 
the obligation of every school district is to ter­minate dual school systems and to operate now and 
hereafter only unitary schools. 396 U.S. at 20. (Emphasis added.)

The practical effect of the March 13, 197^ orders, which 
totally restructure the parties to this lawsuit will be 
to delay indefinitely the implementation of a plan to de­
segregate the elementary schools of Bibb County in com­
pliance with Swann, thus finally and irreparably denying 
plaintiffs' right to attend now a school system unburdened

5



of the vestiges of a dual system. Plaintiffs submit 
that in these circumstances such orders are appealable 
both as final orders under 28 U.S.C. § 1291 and as orders 
denying an injunction under 28 U.S.C. § 1292(a).

In addition, the March 13, 1974 orders are 
appealable under the well-recognized exception to the 
final judgment rule which permits appeals from orders 
such as these which raise novel and important questions 
and which cannot be effectively reviewed at a later time.

A. THE ORDERS ARE APPEALABLE AS FINAL 
ORDERS UNDER 28 U.S.C. § 1291.

28 U.S.C. § 1291 provides that an appeal may be 
taken as a matter of right "from all final decisions" of 
the district courts. In determining whether an order is 
"final", the Supreme Court has held that this section 
must be given a "practical rather than a technical con­
struction." Cohen v. Beneficial Industrial Loan Corp., 
337 U.S. 54l, 546 (1949). Moreover, as this Court has 
consistently held, the appealability of an order depends 
not on the terminology used by the parties or the court,

6



but on the "substantial effect of the order made."- 
McCoy v. Louisiana State Bd. of Educ., 345 F.2d 720,
721 (5th Cir. 1965). See also, e.g., Smith v. Grady,
411 F.2d 181, 186 (5th Cir. 1969); Dllworth v. Rlner,
343 F.2d 226, 229 (5th Cir. 1965).

In a suit such as the present one to enjoin
the continued operation of a dual school system based 
on race, where the obligation of the school board is to 
"terminate dual school systems at once", an order which 
has the practical effect of indefinitely delaying the 
implementation of a plan of desegregation in compliance 
with Swann is a final order and appealable under 28 U.S.C. 
§ 1291. Kelley v. Metropolitan County Bd. of Educ., 436 
F.2d 856 (6th Cir. 1970).

Defendants assert that the order of the district 
court joining court-selected members of the class as 
parties and representatives of the class was made pur­
suant to Rule 23, F. R. Civ. P. (Defendants' "Motion to Dismiss", p. 9). Plaintiffs submit that the involun­tary joinder of additional parties is governed not by 
Rule 23 but by Rules 17, 19 and 21, and that none of those Rules authorizes the action taken by the district 
court in its March 13, 1974 orders. P. 29-37. However, 
as the cases cited in the text clearly hold, regardless 
of the terminology used, the appealability of the March 
13, 1974 orders depends on their "substantial effect", 
which Is to totally restructure the parties to this lawsuit, causing further delay In an already protracted
litigation.

7



In Kelley, the Sixth Circuit held that an
order which had the effect of indefinitely staying all 
pupil desegregation proceedings in a long pending case 
was final and appealable:

[T]he instant case is growing hoary with 
age. A whole generation of school children has 
gone through the complete school system of Metro­
politan Nashville in the intervening years under 
circumstances now determined to have been violat­
ive of their constitutional rights. A second 
generation of school children is now attending 
school under similar circumstances— and the remedy 
is nowhere in sight . . . .

It is clear to us that the rights of school 
children to schooling under non-discriminatory and constitutional conditions cannot be recaptured 
for any school semester lived under dual practices.
Nor can any court thereafter devise an effective 
remedial measure. Therefore we have no doubt 
that the District Court order of August 25, 1970, staying pupil integration proceedings for an in­
definite time was final and is appealable under 
28 U.S.C. § 1291. ^36 F.2d at 858, 862.

Like the order in Kelley, the orders entered by 
the district court on March 13, 1974 will have the practical 
effect of indefinitely staying pupil integration in the Bibb 
County elementary schools. This effect has already been 
evidenced by the fact that there have been no proceedings 
in the district court with respect to the merits of this 
lawsuit since August 1973. See p. 2, supra. In addition, 
it is clear that the joinder of additional parties will 
further delay the implementation of a plan to desegregate

8



the elementary schools In Bibb County since "[additional 
parties always take additional time.” (P. 55.)

Moreover, as in Kelley, "the remedy is nowhere 
in sight." Thus, more than eight months after this Court’s 
mandate issued, the Board "responded" by announcing that 
it could not recommend any one of the three updated plans 
then before the court. (P. 7.) Subsequently, the Board 
submitted two new plans, neither of which would eliminate 
or Justify the continued existence of racially identifiable 
schools as required by Swann. (P. 8-9.) Finally, even now 
it is clear that the district court has no intention of 
passing immediately on the merits of the plans presently 
before it, as evidenced by the fact that the court has 
already indicated that it would welcome the submission of 
yet another plan by the newly added class of white students 
and their parents. (P. 59.)

Since the inevitable effect of the March 13, 197*1 
orders will be to cause further delay in this already pro­
tracted litigation, causing irreparable injury to plaintiffs 
in their right to attend now a unitary school system, such 
orders are clearly final and thus are appealable.

9



B. THE ORDERS ARE APPEALABLE UNDER 
28 U.S.C. § 1292(a), SINCE THEIR 
PRACTICAL EFFECT IS TO DENY THE 
INJUNCTIVE RELIEF SOUGHT BY 
PLAINTIFFS._____________________

28 U.S.C. § 1292(a) provides that an appeal 
may be taken as a matter of right from Interlocutory 
orders "granting, continuing, modifying, refusing or 
dissolving injunctions."

In a school desegregation suit, such as the 
present one, where plaintiffs seek to enjoin the defendant 
school board from continuing to maintain and operate a 
dual school system based on race, an order which has the 
practical effect of further delaying the implementation 
of constitutionally required desegregation effectively 
denies the injunctive relief sought by plaintiffs, and 
is thus appealable under section 1292(a). United States 
v. Texas Educ. Agency, 431 F.2d 1313 (5th Cir. 1970).

In Texas Educ. Agency, this Court held that an
order setting the date for a pretrial conference after
the opening of the next school term was appealable:

The effect of the order was to deny the injunc­
tion, since the desegregation plans would not 
be put into operation until some time after the 
opening of schools for the 1970-71 term. 431 
F.2d at 1315.

See also Dllworth v. Rlner, 343 F.2d 226 (5th Cir. 1965); 
United States v. Lynd, 301 F.2d 818, 822 (5th Cir. 1962).

10



It Is clear that the effect of the March 13,
1971* orders will be to delay the implementation of a 
plan to desegregate the elementary schools in Bibb 
County well beyond the start of the next school term, 
particularly in view of the fact that the district court 
has requested the submission of yet another plan from 
the newly added class of white students and parents. 
Therefore, under this Court's holding in Texas Educ.
Agency, these orders effectively denying the Injunctive 
relief sought by plaintiffs are appealable.

C. THIS APPEAL PRESENTS NOVEL AND 
IMPORTANT QUESTIONS WHICH CANNOT 
BE EFFECTIVELY REVIEWED AT A 
LATER TIME._____________________

The historic policy behind the final judgment 
rule has been to prohibit piecemeal disposal of litigation, 
to advance the action expeditiously to an adjudication, 
and to avoid "the delaying action of appellate review of 
skirmishes that were never Important, or which once im­
portant were largely or wholly rendered inconsequential 
by the final judgment." 9 Moore Federal Practice (2d ed. 
1973) H 110.07. Since there are many instances in which 
the non-appealability of an order which is not a final 
judgment terminating the action would frustrate rather 
than serve the policies underlying the final judgment

11



rule and, in addition, would irreparably injure the 
appellants, it is not surprising that this rule has 
traditionally been subject to many qualifications and 
exceptions. Id. at 109.

A notable exception to the final judgment rule 
was recognized by the Supreme Court in Cohen v. Beneficial 
Industrial Loan Corp., 337 U.S. 541 (1949). There the 
Court held that an order requiring a shareholder plaintiff 
in a derivative action in a federal district court to post 
security under a state security-for-expenses statute was 
appealable on the ground, inter alia, that the appeal pre­
sented a "serious and unsettled question" which could not 
be effectively reviewed on final termination of the action 
since at that time whatever right plaintiffs had to avoid 
the burden of posting security would have been lost ir­
reparably :

It is obvious that if Congress had allowed 
appeals only from those final judgments which 
terminate an action this order would not be 
appealable.The effect of the statute [28 USC §1291] is 
to disallow appeal from any decision which is 
tentative, informal or incomplete. Appeal gives 
the upper court a power of review, not one of 
intervention. So long as the matter remains open, 
unfinished or inconclusive, there may be no in­
trusion by appeal. But the District Court's 
action upon this application was concluded and 
closed and its decision final in that sense be­
fore the appeal was taken.

12



Nor does the statute permit appeals, even 
from fully consummated decisions, where they 
are but steps towards final judgment in which 
they will merge. The purpose is to combine in 
one review all stages of the proceeding that 
effectively may be reviewed and corrected if 
and when final judgment results. But this order 
of the District Court did not make any step 
toward final disposition of the merits of the 
case and will not be merged in final Judgment.
When that time comes. it will be too late 
effectively to review the present order and 
the rights conferred bv the statute, if it is 
applicable, will have been lost, probably ir­
reparably . We conclude that the matters em­
braced in the decision appealed from are not 
of such an interlocutory nature as to affect, 
or to be affected by, decision of the merits 
of this case.

This decision appears to fall in that 
small class which finally determine claims of 
right separable from, and collateral to, rights 
asserted in the action, too important to be 
denied review and too independent of the cause 
Itself to require that appellate consideration 
be deferred until the whole case is adjudicated.
The Court has long given this provision of the 
statute this practical rather than a technical construction. 337 U.S. at 546-47. (Emphasis added.)

Like the orders in Cohen, the orders entered 
March 13, 1974, totally restructuring the parties to this 
lawsuit in a wholly unprecedented manner, raise novel ques­
tions which are "serious and unsettled" and which cannot be 
effectively reviewed upon a final judgment terminating 
the action, since by that time plaintiffs will have 
finally and irreparably lost their right to attend now 
a unitary school system.

13



Moreover, since the effect of these orders 
will be to further delay the substantive proceedings, 
causing irreparable injury to plaintiffs, the dismissal 
of this appeal will protract rather than advance the 
expeditious adjudication of this lawsuit, thus frustrating 
the policy underlying the final judgment rule.

II. PLAINTIFFS HAVE STANDING TO 
APPEAL FROM ALL PARTS OF THE 
MARCH 13. 1974 ORDERS.______

It is not disputed that plaintiffs have stand­
ing to maintain an appeal from those parts of the district 
court orders ruling that plaintiffs are no longer adequate 
class representatives and joining randomly selected parties 
as representatives both of the original plaintiff class and 
of a new class of white students and parents. The Board 
contends, however, that plaintiffs have no standing to main­
tain an appeal from that part of the order denying petitioners' 
application to intervene and plaintiffs' motion requesting

-3/the court to grant that application.— Plaintiffs submit 
that, contrary to the Board's assertions, the March 13, 197^ 
orders of the district court denying petitioners' application

3/ Contrary to the Board's assertion ("Motion to 
Dismiss Appeal", p. 6), plaintiffs did file a motion 
requesting the court to join petitioners as parties 
plaintiff, pursuant to their application to inter­
vene. R. 165. ("R" refers to the Record on Appeal 
in this matter.) Such motion was properly made under 
Rule 21, F. R. Civ. P..



to intervene and plaintiffs' motion to reconsider and 
vacate the October 23, 1973 order and joining additional 
court-selected parties are not separable, and since their 
combined effect clearly injures plaintiffs in their right 
to a speedy disposition of the merits of this lawsuit, 
plaintiffs have standing to maintain an appeal from all 
parts of the orders.

A party has an appealable interest
when his property may be diminished, his burdens 
increased or his rights detrimentally affected.
De Korwln v. First National Bank of Chicago, 235 
F.2d 156, 158 (7th Cir. 1969). See also 9 Moore, 
supra, H 206.06, p. 715.

The extent to which plaintiffs' "burdens" are increased 
and their rights are "detrimentally affected" by the 
orders of the court denying petitioners' application to 
intervene and simultaneously joining court-selected 
parties to represent the plaintiff class, was clearly set 
forth in a motion filed by plaintiffs, in which they re­
quested the court to grant petitioners' application and 
to reconsider and vacate the order of October 23, 1973:

Plaintiffs object, and did object to the Court's 
proposed action to effectively expand the liti­
gation. That under the present procedure, it 
appears to plaintiffs that the process of dis­
establishment of the dual system will be prolonged 
rather than expedited as directed by the Fifth 
Circuit's holding.Members of the class represented by plaintiffs 
for the past ten years have applied to intervene 
and incorporate the plaintiffs' complaint as theirs.

15



Should their application be granted, the addition­
al representative parties sought by defendants' 
motion to add parties-plaintiffs will have been 
satisfied and this Court could then proceed to 
carry out the Fifth Circuit's directive. (R. 168.)

Moreover, since minor plaintiffs in school de­
segregation cases are entitled to decrees having system- 
wide effect (P. n. 12), appellants, who remain as plain­
tiffs in this action, clearly have an interest in any 
order which affects the outcome in their individual law­
suits. Since the combined effect of the March 13, 1974 
orders will be to further delay the implementation of a 
plan to desegregate the elementary schools in Bibb County, 
plaintiffs' interest in such orders is substantial and, 
therefore, appealable.

For the reasons set forth above, plaintiffs 
submit that they have standing to appeal from all parts 
of the orders entered by the district court on March 13, 
197 .̂

CONCLUSION

WHEREFORE, for the reasons set forth above, 
appellants respectfully urge this court to deny defendants' 
motion to dismiss this appeal and to confirm that appellants 
have standing to appeal from all parts of the orders entered

16



by the district court on March 13, 1974

Respectfully submitted,
THOMAS M. JACKSON 

655 New Street Macon Georgia 31201
JACK GREENBERG
NORMAN CHACHKIN

10 Columbus Circle 
New York, New York 10019

NANCY J. MOORE 
299 Park Avenue New York, New York 10017

ATTORNEYS FOR APPELLANTS

17



CERTIFICATE OF SERVICE

I hereby certify that on this 15th day of 
May, 197^, I served a copy of Plaintiffs' Memorandum 
in Opposition to Defendants' Motion to Dismiss Appeal 
upon counsel for the defendants herein, by depositing 
same in the United States mail, first class postage 
prepaid, addressed as follows:

Frank C. Jones, Esq.
W. Warren Plowden, Jr., Esq.
500 First National Bank Bldg.
Macon, Georgia 31201

/s/ Nancy J. Moore