Mapp Et Al v Board of Education of the City of Chattanooga TN Brief in Opposition to Certiorari

    In the

ûprrmr ©nurt nf % luttrft States
October Term, 1973

No. 73-178

B oard of E ducation  of th e  C it y  of C hattanooga , 
T ennessee , et al.

vs.

J am es J o n ath an  M a pp , et al.

No. 73-188

B oard of C omm issioners of th e  C it y  of C hattanooga, 
T ennessee , et al.

vs.

J am es J o n ath an  M app , et al.

petition s  for w r its  of certiorari to t h e  u n ited  states 
court of appeals for th e  six th  circuit

BRIEF IN OPPOSITION TO CERTIORARI

A von  N. W illiam s , J r .
1414 Parkway Towers
404 James Robertson Parkway
Nashville, Tennessee 37219

J ack  Greenberg 
J ack  M . N abrit , I I I  
N orman  J. C h a c h k in  
S ylvia  D rew

10 Columbus Circle 
New York, New York 10019

Attorneys for Respondents



TABLE OF CONTENTS

PAGE

Opinions B elow ................................................ .................  1

Jurisdiction ....................................................................... 2

Questions Presented ........................................................  2

Statement ................................................ .........................  2

R easons for D en y in g  th e  W rits—

I. The School Board Raises No Issues of Substance 
Which Merit Consideration by This Court..............  9

II. The Issue Sought to Be Presented by the City of 
Chattanooga Is Not Developed on This Record .... 11

C o n c l u s io n ..........................................................................................  14

A ppendix— •

Order of District Court Entered February 25,1972 la 

TABLE OF CASES

Alexander v. Holmes County Bd. of Educ., 396 U.S. 19 
(1969) ............................................................................. 3

Board of Educ. of Memphis v. Northcross, 409 U.S. 909
(1972) ...............   8n

Brown v. Board of Educ., 349 U.S. 294 (1955) ..............  10

City of Kenosha v. Bruno, 37 L. Ed. 2d 109 (1973)....... 13n

Drummond v. Acree, 409 U.S. 1228 (1972) ..................  8n



11

PAGE

Green v. County School Bd. of New Kent County, 391
U.S. 430 (1968) ............................................ ................ 9,11

Griffin y. County School Bd. of Prince Edward County,
377 U.S. 218 (1964) ......................................................  13

Lee v. Nyquist, 318 F.Supp. 710 (W.D.N.Y. 1970), aff’d 
402 U.S. 935 (1971) ............... ................................... . 8n

North Carolina State Bd. of Educ. v. Swann, 402 U.S.
43 (1971) ................................................................. 7, 8n, 12

Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S.
1 (1971) ............................................................2,9,10,11



In the

GImtrt nt % lllmUh States
October Term, 1973

No. 73-178

B oard o r  E ducation  op th e  C it y  op Chattanooga , 
T ennessee , et al.

vs.

J am es J o n ath an  M app , et al.

No. 73-188
B oard op C omm issioners op th e  C it y  op C hattanooga, 

T ennessee , et al.

vs.

J ames J o n ath an  M app , et al.

P E T IT IO N S FOR W R IT S  o p  CERTIORARI TO THE! U N IT E D  STATES  

COURT OP APPE A LS FOR T H E  S IX T H  C IR C U IT

BRIEF IN OPPOSITION TO CERTIORARI

Opinions Below

The opinion of the United States Court of Appeals for 
the Sixth Circuit, sitting en banc, is now reported at 477 
F.2d 851.



2

Jurisdiction

The jurisdiction of this Court is invoked pursuant to 
28 U.S.C. §1254(1).

Questions Presented

1. Must a district court make a finding of “bad faith” 
before it may require a school board which operated a 
dual school system to desegregate its schools by using 
the techniques approved by this Court in Swann?

2. May a federal district court properly enjoin city 
officials from respecting a state court injunction order 
which seeks to prohibit pupil transportation for desegre­
gation pursuant to an unconstitutional state statute?

Statement

These petitions for certiorari are filed by the Board of 
Education of Chattanooga, Tennessee and its funding 
agency, the City Commission of Chattanooga. They seek 
to review a judgment of the United States Court of Ap­
peals for the Sixth Circuit, which disposed of separate 
appeals taken by the parties from district court orders 
of August 5, 1971 and February 4, 1972.1

1 The 1971 district court order in this school desegregation action 
approved a school board desegregation plan for elementary and 
junior high schools (reserving for later consideration the matter 
of high school integregation), provided for implementation of the 
plan as soon as the school board could acquire and operate the 
vehicles necessary for the pupil transportation contemplated by the 
plan, but did not establish a deadline for the completion of these 
processes. The 1972 district court order enjoined the school board, 
the City Commission, and its members (all added defendants), 
from, attempting to enforce a state court injunction running 
against the City and purporting to prohibit the expenditure of 
public funds to provide the pupil transportation required by the 
desegregation plan.



3

The Statements of the Case contained in the petitions 
fail to adequately describe the circumstances confronting 
the district court prior to entry of its August 5, 1971 
order. Considerably greater detail concerning the back­
ground of this case, and the degree to which the Chat­
tanooga public schools remained segregated at the time 
the district court acted, may be found in the opinion of 
Judge Edwards dissenting' from the original panel deci­
sion in this cause. The panel decision was subsequently 
vacated by a grant of rehearing en banc.2

The history of this litigation may be summarized briefly 
as follows: This action was commenced on April 6, 1960 
seeking to desegregate the Chattanooga public schools. 
Following considerable litigation over the years, a mo­
tion for further relief was filed by the plaintiffs on De­
cember 31, 1968; and on November 14, 1969 plaintiffs 
filed a motion for immediate relief, relying upon this 
Court’s decision in Alexander v. Holmes County Board of 
Educ., 396 U.S. 19 (1969). Hearings were ultimately held 
in April and May of 1971, at the conclusion of which the 
district court ruled orally that further desegregation was 
constitutionally required. It directed submission of a plan 
by the school board.

The district court summarized the salient facts as fol­
lows:

Coming back to the facts in this case, the facts in 
this case are largely undisputed. With regard to the 
matter of student desegregation in the various schools, 
the facts are set forth quite clearly in various ex­
hibits in the record. They are certainly set forth in 
Exhibit No. 3, and I might just point out what those

2 Judge Edwards’ opinion is reprinted at pp. 42-72 of the Peti­
tion in No. 73-188.



4

facts indicate. For example, in the year 1970-71, there 
were no white students at Howard High. It was a 
totally segregated school. There was one in River­
side High. There were no white students in Orchard 
Knob. It was totally segregated in Donaldson. There 
was total segregation in Henry. There was total seg­
regation in Trotter. In all of the former Negro schools 
there was a total of only 48 white students as com­
pared with 9,223 black students.

The record in regard to white schools is somewhat 
better than that, but even with reference to white 
schools there are schools with either no black stu­
dents in them or one black student as, for example, 
was the case at East Lake, or as, for example, at 
Barger where there were two black students. The sum 
total of the situation is that in the former black schools, 
there were 9,223 black students and 48 white students. 
In the former white schools, there were 3,446 black 
students and 13,250 white students. Those statistics 
speak for themselves.

With regard to faculty desegregation, these matters 
are also set forth clearly in numerous exhibits. They 
are set forth in Defendants’ Exhibit No. 70. Without 
taking up each school in the system, it is sufficient 
to say that in every instance, save possibly one, where 
the school was formerly a black school it still has a 
predominance of black staff and teachers, quite a heavy 
predominance. For example, 343 black teachers as 
compared to 74 white teachers in former black schools. 
In the former white schools, the record is somewhat 
better. Progress has been made, but there, too, the 
record indicates that out of a total of 636 white teachers, 
562 of them teach in white schools or former white 
schools. Out of 487 black teachers, 343 of them teach 
in former black schools and only 144 of them teach in



5

former white schools. These, as I say, are matters 
that are undisputed in the record.

Well, it is of course obvious and apparent, and has 
been quite frankly admitted by counsel for the defense 
in his argument, that the Chattanooga School System 
does not comply with the law as that law stands at the 
present time and as that law has been enunciated by 
both the United States Supreme Court and the Court 
of Appeals for this Circuit. It does not comply with 
respect to either of the five issues that were defined 
as being at issue in this case.

Accordingly, the School Board is going to be re­
quired to submit a plan for the desegregation of the 
Chattanooga schools, including the matter of rezoning 
those schools, bearing in mind all of the various means 
available as they have been defined in various cases, 
including Sivann, and other means that may occur to 
the School Board for accomplishing the purposes which 
they have been mandated to accomplish.3

8_ Judge Edwards further elaborated upon the segregation re­
maining in Chattanooga by quoting two paragraphs from the dis­
trict court’s subsequent July 26, 1971 opinion:

Elementary Schools
During the school year 1970-71, the Chattanooga School 

System operated 33 elementary schools. Of the ten former 
black elementary schools within the system, four remained 
all black and a total of only 30 white students attended the 
other six. In the 23 former white elementary schools there 
were 13,250 white children and 3,446 black children. Four 
former white elementary schools (Cedar Hill, Normal Park, 
Pineville, and Rivermont) remained all white. Barger had 
only two black students and East Lake had only three black 
students. Two former white elementary schools (Avondale 
and Glen wood) had changed to all black schools, having only 
three white students between them. The remainder of the 
former white elementary schools had ratios of black students 
varying from a low of 4% to a high of 64%. . . .



6

The school hoard filed its desegregation plan (plain­
tiffs had previously presented an alternative plan at the 
April hearings) and hearings were held. On July 26, 1971, 
the district court issued a memorandum opinion adopting 
the board’s elementary and junior high school plan and 
reserving judgment upon an appropriate high school de­
segregation plan. On August 5, 1971, the court entered 
an order in accordance with its opinion.3 4 The school board 
and the plaintiffs cross-appealed.

3 (continued)
Junior High Schools

During the school year 1970-71, the Chattanooga School 
System operated 12 junior high schools. Of the four formerly 
black junior high schools within the system, two remained 
all black and a total of only 9 white students attended the 
other two. In the eight formerly white junior high schools, 
there were 3,341 white students and 908 black students. One 
formerly white junior high school (East Lake) had only one 
black student. The remainder of the formerly white junior 
high schools had ratios of black students varying from a low 
of 8% to a high of 70%. . . . (329 P. Supp. 1374, 1381, 1383; 
Petition in No. 73-188, pp. 51-52)

4 The court directed implementation of the board’s plan with 
the following proviso:

4. All provisions of said amended plan of desegregation 
filed by defendants will be implemented in time for the com­
mencement of the 1971-72 school term; provided however, that 
in implementing any portion of said amended plan regarding 
student assignments in the elementary and junior high schools 
as is dependent upon acquiring, staffing, and scheduling trans­
portation facilities not now available to the schools, the defen­
dants shall implement such portions of said plan as may be 
feasible with the transportation facilities reasonably available 
to it at the commencement of the September term of school, 
and may delay the implementation of any remaining por­
tions of said student assignment plans in the elementary and/ 
or junior high schools until the transportation facilities neces­
sary therefor can be acquired in the prompt but orderly 
process of school administration and of local governmental 
affairs, and until such facilities can be placed in use with 
safety and with a minimum interruption to the educational 
program. As soon as the defendants can formalize their plans



7

In accordance with the order, certain portions (de­
scribed by the school board as its “operational” plan) of 
the elementary and junior high school proposals were im­
plemented during the 1971-72 school year. This partial 
implementation did not include any pupil transportation 
from noncontiguous zones and resulted, in a school system 
which was then 57% black, in the attendance of 69% of all 
black elementary students, 63% of all black junior high 
school students, and 55% of all black senior high school 
students, in virtually all-black schools.

As the 1972-73 school year approached, the board began 
making preparations to implement the remaining portions 
of its elementary and junior high school plan, and to ac­
quire and operate the necessary pupil transportation fa­
cilities. Coincident with this planning, a state court ac­
tion was brought by individual residents of Chattanooga 
against the City Commission. Pursuant to a recently en­
acted Tennessee statute (see Petition in No. 73-188 at pp. 
59-60), nearly identical with that held unconstitutional in 
North Carolina State Board of Education v. Swann, 402 
U.S. 43 (1971), these residents sought to restrain the City 
from making funds available to the school board for the 
purpose of transporting children “ for racial balance.”

On January 18, 1972, the state court issued a permanent 
injunction barring the use of city funds to transport stu­
dents “ from one school to another or from one school dis­
trict established for his neighborhood to another.”  That 
injunction, if valid, would reach even the few contiguous 
pairings which had already been implemented by the school 
board. *

in this regard, and in no event later than within thirty days, 
the defendants will advise the Court of their proposed imple­
mentation schedule in accordance with the foregoing, furnish­
ing copy thereof to counsel for the plaintiffs.



8

Although the City of Chattanooga purportedly took the 
position in state court that the Tennessee statute conflicted 
with the Fourteenth Amendment,5 it announced that it 
would not appeal, and it notified the school board that it 
viewed the injunction as a valid order which the city would 
obey. In turn, the Chattanooga School Board brought 
these events to the attention of the federal court and pe­
titioned for further instructions. On January 25, 1972, 
the district court directed the plaintiffs to file supple­
mental pleadings and add the state court proceeding par­
ties as defendants in this cause; a petition for temporary 
restraining order and injunctive relief, and to add parties,6 
was filed January 26, 1972 and a show cause order issued 
that day.

Following a hearing, the district court permanently en­
joined the added defendants from attempting to enforce 
the state court order.7 The court also amended its August 
5, 1971 decree so as to require complete implementation 
of the elementary and junior high school plan not later 
than the commencement of the 1972-73 school year.8 The

6 North Carolina State Bd. of Educ. v. Swann, 402 U.S. 43 
(1971); Lee v. Nyquist, 318 F. Supp. 710 (W.D.N.Y. 1970), aff’d 
402 U.S. 935 (1971).

6 Added as defendants were the City of Chattanooga, its Mayor, 
City Commissioners, and City Auditor; the plaintiffs in the state 
court litigation, and their attorneys.

7 The district court’s opinion of February 4 is reported at 341 
F. Supp. 193. Its accompanying order is reprinted in the Petition 
for Certiorari in No. 73-188 at pp. 25-27.

8 On August 11, 1972, the district court stayed its orders insofar 
as they “necessarily involve [d] the transportation of elementary 
and junior high school students” pending appeal pursuant to its 
interpretation of §803 of the Education Amendments of 1972. 
Compare Drummond v. Acree, 409 U.S. 1228 (1972); Board of 
Educ. of Memphis v. Northcross, 409 U.S. 909 (1972). Plaintiffs 
’mmediately appealed that order and sought summary reversal



9

school board and City Commissioners appealed from this 
order.

SEASONS FOR DENYING THE WRITS

I.

The School Board Raises No Issues o f Substance 
Which Merit Consideration by This Court.

The Chattanooga School Board’s complex set of “issues 
presented” and its elaborately structured argument (No. 
73-178) reduce themselves to contentions long since re­
jected by this Court. Despite the undisputed statistical 
showing of segregation remaining in the Chattanooga 
schools in 1970-71 (see pp. 3-6 supra), this school board 
strenuously resisted taking adequate remedial measures. 
The fundamental notion which underlies its argument is 
that a district court may not require affirmative, race­
conscious action to effectively desegregate a school system 
unless the school board is “in default,” which term is then 
defined to mean only that a school board has not violated 
past court orders, without reference to whether its schools 
are actually desegregated.

This is nothing but “good faith” revisited. This Court 
rejected “good faith” as an excuse for failing to desegre­
gate in Green v. County School Bd. of New Kent County, 
391 U.8. 430 (1968), and approved even “awkward” or 
“bizarre” measures if necessary in order to desegregate, 
in Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 
1 (1971). The Chattanooga board, however, attempts to 
support its position by a deliberate misconstruction of the

and vacation of the stay; however, the Court of Appeals has never 
acted upon plaintiffs’ motions. Thus, as of the date of the Court 
of Appeals’ en banc decision in the spring of 1973, the district 
court’s August 5. 1971 decree had never been fully implemented.



1 0

“default” language in Swann. There, the Charlotte school 
board’s refusal to submit an adequate desegregation plan 
was a “default” justifying the district court’s appoint­
ment of its own expert to prepare one. But the basic 
Brown II primary obligation of a school board to desegre­
gate does not depend upon such a “default” or “bad faith.” 
Compare Petition in No. 73-178, pp. 8-14. Swann was 
properly in federal court because the Charlotte schools 
were still segregated.

Chattanooga’s suggestion that no constitutional viola­
tion was ever shown in this ease (Petition in No. 73-178, 
at p. 5) is ludicrous on this record, which thoroughly sup­
ports the action of the district court in requiring real 
and meaningful desegregation. The August 5, 1971 de­
cree was premised upon more than the compelling statis­
tical showing referred to above. At the hearings, the 
board’s own witnesses acknowledged the continuing sub­
stantial segregation of the Chattanooga public schools, 
both as to students (Tr. 277, 717, 774, 862)9 and as to 
faculty (Tr. 717, 861). At the high school level, Chat­
tanooga in. 1970-71 still used “freedom of choice” assign­
ments, which the board’s own personnel testified did not 
bring about desegregation (Tr. 773 [Assistant Superinten­
dent]; Tr. 878 [Superintendent of Schools]). At the ele­
mentary and junior high school level, extensive testimony 
and evidence revealed that the then applicable zone lines 
for the vast majority of public schools were remarkably 
similar to the pre-litigation dual overlapping zone lines 
(Ex. 1, 2, 4, 19; Tr. 412). The Superintendent of Schools 
admitted that segregation in the system as a whole had 
not been eliminated since 1962 (Tr. 862) because the single

9 Citations are to the transcript of the 1971 hearings. Exhibit 
references also refer to documentary and demonstrative evidence 
introduced at these hearings.



1 1

boundaries substituted for the dual overlapping zone lines 
maintained segregation (Tr. 877). The evidence also re­
viewed the school system’s creation, after 1962, of optional 
attendance areas in the lower grades which made it possible 
for students to avoid attending desegregated facilities (Tr. 
312-15).

There is little or no dispute among the parties about 
these factual matters. The school board’s only defense is 
that since it arguably had not directly violated court orders 
between 1962 and 1970 when it failed to affirmatively re­
draw zone lines and take other steps to achieve desegrega­
tion, the court could not require it to adopt effective 
integration measures now.

This case, then, is a classic post-Crree« school desegrega­
tion action in which a school board which has never ef­
fectively desegregated its schools still seeks to avoid taking 
the necessary steps to achieve the constitutionally required 
result. Review by this Court, as proposed by the Chat­
tanooga board, would present no novel matters which were 
not considered and resolved in Swann, supra. That de­
cision was correctly applied by the Court of Appeals in 
affirming the judgment of the district court on the school 
board’s appeal.

II.
The Issue Sought t© Be Presented by the City o f 

Chattanooga Is Not Developed on This Record.

The City of Chattanooga (Petitioner in No. 73-188) seeks 
review of issues which are simply not presented on this 
record. Notwithstanding their contrary contentions, nei­
ther the City of Chattanooga nor its commissioners, mayor 
or city auditor, have to date been placed under any order 
by the district court in this case “to appropriate funds to 
pay for the purchase, maintenance and operation of a



1 2

school bus system to promote a board of education’s de­
segregation plan” (Petition, p. 2). While that result is 
conceivable under certain circumstances in the future, the 
plain fact is that it has not yet come to pass. Therefore, 
this case presents no opportunity for this Court to rule 
upon issues related to this hypothetical event.

As noted in the Statement, above, the city and its officers 
were joined because they were defendants in a state court 
proceeding which was determined by the district court to 
violate North Carolina State Bd. of Educ. v. Swann, supra. 
The only relief which has ever been ordered against the 
city defendants restrains them “ from in any manner seek­
ing enforcement of or in any manner complying with” the 
state court ruling (Petition at p. 26).10 And while the 
city defendants sought reconsideration of the district 
court’s injunctive order so as to obtain the district court’s 
opinion about other matters,11 the court acted well within 
its discretion in declining, in the absence of appropriate 
pleadings, to enlarge the scope of its consideration be­
yond “ the validity or invalidity of the state court order, 
the matter passed upon in the order of this Court en­
tered February 4, 1972.” 12

10 The modification of the district court’s previous order (see 
Petition in No. 73-188 at p. 26) related to provisions of the order 
binding only upon the school board defendants.' See note 4 supra.

11 The city’s Motion for a New Trial or Rehearing stated in part: 
. . . move the Court for a new trial or rehearing limited to 
the following legal issues whicli should be resolved at this 
stage of the proceedings so that the defendant Board of Com­
missioners will know . . . : (a) Does the defendant Board of 
Commissioners . . . have the legislative discretion to decide 
whether or not to make appropriations . . . .  [emphasis in 
original]

12 The district court’s order of February 25, 1972 denying re­
hearing was not reprinted by Petitioners but may be found infra, 
pp. la-2a.



13

The city defendants on several occasions have expressed 
their concern about the scope of their discretion to deter­
mine the annual appropriation of funds to the public 
school system. However, even after their joinder as addi­
tional defendants in this cause for the limited purpose of 
restraining compliance with the state court ruling, the 
city defendants made no attempt to obtain a declaration of 
their rights by appropriate pleadings or otherwise to pre­
sent these claims in the orderly course of the litigation.

Under the circumstances, none of the issues described in 
the Petition of the city defendants are ripe for this Court’s 
review. At some point in the future, the city commission 
may attempt to reduce the school board’s budget by an 
amount equal to the cost of pupil transportation for de­
segregation, or otherwise attempt to directly interfere 
with the execution of a district court order. That will be 
sufficient time to consider the legal principles involved, in 
the context of an actual controversy.

Finally, there can be little doubt that a district court 
may protect its jurisdiction and enforce its orders against 
direct or indirect attack without reopening the question 
whether the Fourteenth Amendment was ever violated in 
Chattanooga. Cf. Griffin v. County School Bd. of Prince 
Edward County, 377 U.S. 218 (1964). A decision upon 
that issue in this case would also be measurably affected 
by the fact that the City Attorney acted as co-counsel for 
the school board from the inception of this lawsuit until 
he withdrew from such representation while the matter 
was on appeal below.13 * * * * 18

13 Petitioners also make passing reference to last Term’s ruling
in City of Kenosha v. Bruno, 37 L.Ed.2d 109 (1973). This Court 
was careful to note therein that only the municipality was named
as a defendant, but if the district court’s ruling in this ease was
in error insofar as it ran against the city itself, the matter can
be easily rectified since the individual city officers were also made
parties defendant subject to the order.



14

CONCLUSION

For the foregoing reasons, the writs of certiorari should 
be denied.

Respectfully submitted,

A von  N. W il l ia m s , J r .
1414 Parkway Towers
404 James Robertson Parkway
Nashville, Tennessee 37219

J ack  Greenberg 
J ack  M. N abrit , III 
N orman  J . C h a c h k in  
S ylvia  D rew

10 Columbus Circle 
New York, New York 10019

Attorneys for Respondents



APPENDIX



Order of District Court of 2-25-72

ORDER

(Filed February 25, 1972)

This case is presently before the Court upon the fol­
lowing motions: (1) motion of the defendant school board 
for additional findings of fact in connection with the show 
cause hearing held upon January 28, 1972; and (2) mo­
tion on behalf of certain defendants who are members of 
the Board of Commissioners of the City of Chattanooga 
for (a) additional findings of fact in connection with the 
order of the Court entered on a show cause hearing held 
on January 28, 1972, and (b) a new trial or rehearing 
upon other issues.

Turning first to the motion of the defendant School 
Board, it is requested that the Court make additional find­
ings as to the extent of student transportation prior to the 
current school year. While the record has heretofore es­
tablished the fact of student transportation by the Board 
of Education, the purposes and extent of that transportation 
have not previously been placed in the record. The Court’s 
statement regarding the fact of prior student transporta­
tion, as set forth in its order entered upon February 4, 
1972, is believed to be in accord with the record. Should 
the nature and extent of such prior student transportation 
become relevant upon appeal, it would appear that the 
parties could stipulate upon those matters.

Turning next to the motion on behalf of members of 
the Board of Commissioners and other officials of the City 
of Chattanooga, insofar as the said defendants seek addi­
tional findings of fact, it appears that the additional findings 
requested relate only to the issue of good faith or bad

la



faith on the part of any parties and do not relate in any 
manner to the validity or invalidity of the state court or­
der, the matter passed upon in the order of this Court 
entered February 4, 1972. The issue of good faith or 
bad faith has not been adjudicated, as it relates only to 
the question of costs, a matter which can appropriately be 
further considered at a later stage in this litigation.

The essence of the motion seeking a rehearing or new 
trial appears to be a request by those city officials who are 
parties to the motion to be permitted to relitigate matters 
previously litigated by other city officials. Apart from the 
standing of one set of city officials to relitigate matters previ­
ously litigated by other city officials, the matters sought to 
be relitigated are now on appeal. This Court would have 
no jurisdiction over matters now on appeal. Rule 3, Fed­
eral Rules of Appellate Procedure. See also Hogg v. United 
States, 411 F.2d 578 (C.A. 6, 1969) ; Koehane v. Swarco, 
Inc., 320 F.2d 429 (C.A. 6, 1963) . All matters sought to 
be raised in the motion can be raised in the Court of 
Appeals.

The motion of the defendant School Board for addi­
tional findings of fact will accordingly be denied. The mo­
tion of the defendant City Commissioners for further con­
sideration of matters relating to good faith or bad faith are 
reserved for further proceedings in connection with the 
taxation of costs and the motion of the defendant City 
Commissioners for a new trial or rehearing will be denied 
for lack of jurisdiction in this court.

It is SO ORDERED.

APPROVED FOR ENTRY.

/s /  FRANK W. WILSON
United States District Judge

Order of District Court of 2-25-72

2a



MEILEN PRESS IN C  — N. Y, C. 219