Order Denying Application for Stay

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UNITED STATES COURT OF APPEALS 

FOURTH CIRCUIT 

SAMUEL W. PHILLIPS TELEPHONE 643-5592 
CLERK Augus t 18 ’ 1970 AREA CODE 703 

TENTH AND MAIN STREETS 

RICHMOND. VIRGINIA 23219 

J. LeVonne Chambers, Esq. 

216 West Tenth Street 

Charlotte, North Carolina 

Jack Greenberg, Esq. 
10 Columbus Circle 

New York, New York 

Conrad 0, Pearson, Esq. 

203-1/2 East Chapel Hill Street 
Durham, North Carolina 

William J. Waggoner, Esq. 

1100 Barringer Office Tower 

Charlotte, North Carolina 

Benjamin S. Horack, Esq. 

806 East Trade Street 

Charlotte, North Carolina 
Erwin N. Griswold, Esq. 

Solicitor General 

Jerris Leonard, Esq. 

Assistant Attorney General 

Department of Justice 
Washington, D. C. 20530 

Misc. No. 681, James E. Swann, et al., v. Charlotte- 

Mecklenburg Board of Education, et al. 

Gentlemen: 

Enclosed is certified copy of the order of this 

Court filed August 17, 1970, denying the application for 

a stay of the District Court's order directing desegregation. 

Sincerely yours, 

SAMUEL W. PHILLIPS, CLERK 

g8/ Carol R. Lemon 

  By 
Carol R. Lemon, 
Chief Deputy Clerk. 

CRL/mpj 

Enclosure:  



  

UNITED STATES COURT OF APPEALS E I [ = D 

FOR THE FOURTH CIRCUIT EE 
AUG 1 | 14/0) JW 

MISC. No. 681. 
SAMUEL W. PHILLIPS 

  

CLERK 

JAMES E. SWANN, et al., 

Appellees, 

versus 

CHARLOTTE-MECKLENBURG BOARD 

OF EDUCATION, et al., 

Appellants. 

ORDER 

  

Counsel for the School Board have submitted to me 

an application for a stay of the August 3, 1970 order of the 

United States District Court for the Western District of North 

Carolina. I decline the application, because I find myself 

without power to consider its merits. 

On May 26, 1970, the Court of Appeals for the Fourth 

Circuit vacated a previous order of the District Court and 

remanded the case to that Court for further proceedings. On 

June 29, 1970, the Supreme Court granted a writ of certiorari 

to the Court of Appeals, expressing approval of the judgment of 

the Court of Appeals insofar as it remanded the case for further 

See ott ues in the District Court, and specifically authorized 

the forener proceedings in the District Court. The Court of 

Appeals' vacation of the District Court's order, however, was, 

itself, vacated by the Supreme Court, and the District Court's 

order reinstated, to remain in effect pending the authorized 

proceedings in the District Court. 

It is thus apparent that the case is now pending in 

 



  

the Supreme Court of the United States and that further 

proceedings in the lower courts are appropriate only to the 

extent that they have been authorized by the Supreme Court. 

Cf. Hermann v. Brownell, 9 Cir., 274 F.2d 842. The Supreme 
  

Court has authorized such proceedings in the District Court, 

but not in the Court of Appeals. 

I requested the lawyers for the parties to submit 

to me memoranda expressing their views on my authority to act. 

Those memoranda were received by me this morning, and have been 

considered. They express differing views of my authority. 

The lawyers for the School Board find in the Supreme 

Court's authorization of further proceedings in the District 

Court an implicit authorization of further proceedings in the 

Court of Appeals. This they attempt to support by reference 

to the suggestion of the United States in a brief filed with 

the Supreme Court as Amicus Curiae in response to the plaintiffs’ 
  

petition for a writ of certiorari. Earlier in that brief the 

United States had expressed the view that the case was not 

ripe for full review in the Supreme Court, and that, while 

expressing general agreement with the judgment of the Court 

of Appeals, it was thought that general review in the Supreme 

Cotirt should await the contemplated filing of additional plans 

and further proceedings in the District Court and, possibly, 

in the Court of Appeals. Its ultimate suggestion was that 

the Supreme Court grant the writ of certiorari, that the Court 

of Appeals' authorization of further proceedings in the 

District Court be lef: undisturbed, but that the District 

Court's prior judgment be left in effect pending further 

 



  

proceedings in the District Court. That ultimate suggestion 

was substantially what the Supreme Court did, but I cannot 

read the Government's suggestion as impliedly contemplating 

further proceedings in the Court of Appeals any more than I 

can find such authorization implicit in the Supreme Court's 

order. The earlier reference in the Government's brief to the 

possibility of further proceedings in the Court of Appeals 

simply was not carried forward in the Government's final 

suggestion or in the Supreme Court's order. 

It would be most unbecoming for the Court of Appeals 

to undertake a review of the District Court's order of 

August 3, 1970 under the standards enunciated in the opinion 

of the Court of Appeals of May 26, 1970, when the Supreme Court 

clearly has vacated that judgment to the extent that it enunciates 

such standards and directed the reinstatement of the District 

Court's earlier order, subject to such modifications as might 

be made by the District Court after further hearings. If the 

Supreme Court had intended subsequent orders of the District 

Court to be generally reviewable in the Court of Appeals, it 

seems to me that such proceedings would have been expressly 

Shbrized by the Supreme Court just as it expressly authorized 

fopiher proceedings in the District Court. 

When the Supreme Court granted the writ of certiorari, 

it foreclosed all further proceedings in the lower courts, 

except to the extent the Supreme Court has authorized such 

proceedings. Such authorization usually is explicit; it ought 

not be lightly inferred. 

For such reasons, I conclude that I have no authority 

 



  

to entertain the application for a stay, and I think it would 

serve no useful purpose, as an alternative, to attempt to 

convene the Court of Appeals for an expedited review of the 

District Court's order of August 3, 1970. 

In the interest of time I am acting upon the applica- 

tion alone without a formal submission of the application to 

a panel of the Court of Appeals. Informally, however, I have 

consulted with my brothers Winter and Butzner, who, without 

having had an opportunity to see the papers, on the basis of 

my statement to them of the problem, have authorized me to say 

that they are in agreement with my view. 

IT IS NOW, THEREFORE, ORDERED that the application 

for a stay of the order of the United States District Court 

for the Western District of North Carolina of August 3, 1970 

be, and it hereby is, denied. 

A Vi Ye: ui / 2 AALS ud 
Chief Judge, Font] Circuit 

August 17, 1970 

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