Correspondence from Lani Guinier to Chambers, Williams, Schnapper, Hair, Karlan, Ellis, Patrick, Reed, and Berger Re Fourth Circuit Decision, Collins v. City of Norfolk

    U N IT E D  S TA TE S

COURT OF A P P E A L S
For the Fifth Circuit

No. 13215
G ladys N oel B ates and R ichard  J e ss  B row n, Individually 

and on Behalf of the Negro Teachers and Principals in 
the Jackson Separate School District, Appellants,

v.
J o h n  C. B a tte , President; R. M. H ederm a n , J r ., Secretary; 

R. \Y. N a e f , W. R. N ew m a n , J r., and W. D. M cC a in , 
Constituting the Board of Trustees of Jackson Separate 
School District and K. P. W a l k e r , Superintendent of 
Jackson Separate Schools, Appellees.

A P P EA L PROM  T H E  U N IT E D  ST A T E S D IST R IC T  COURT, SO U T H E R N  

D IST R IC T  OF M IS S IS S IP P I , JA C K S O N  DIVISIO N

BRIEF IN OPPOSITION TO APPELLEES’ 
MOTION TO DISMISS.

R obert L. C arter , 
C o nstance  B . M o tley , 
T hurgood M a r sh a ll ,

20 West 40th Street, 
New York 18, New York,

J a m es A. B u r n s ,
' 2513 Fifth Street, 

Meridian, Mississippi,
A. P. T ureaud , Attorneys for Appellants.

Of Counsel.



U n i te d  S ta te s  C ou rt  of A p p e a l s
F o r  th e  F if th  C ircu it

N o. 1 3 2 1 5

G ladys N o el B ates and R ichard J ess  
B row n , Individually and on Behalf of 
the Negro Teachers and Principals in 
the Jackson Separate School District,

Appellants, 
v.

J o h n  C. B a tte , President; R. M. H eder- 
m an , J r ., Secretary; R. W. N a e f , W. R. 
N ew m a n , J r ., and W. D. M cC a in , Con­
stituting the Board of Trustees of 
Jackson Separate School District and 
K. P. W a l k e r , Superintendent of Jack- 
son Separate Schools,

Appellees.

BRIEF IN OPPOSITION TO APPELLEES’ 
MOTION TO DISMISS.

Appellees have filed a motion to dismiss on the ground 
that appellants’ notice of appeal was prematurely filed, 
and that no appeal was taken from the final judgment which 
appellants are now seeking to have this Court review and 
reverse. It is to this motion that the instant brief is 
addressed.

Summary Statement of the Matter Involved.
This case was tried on December 12-14, 1949, and on 

February 22, 1950, the court below rendered an opinion



2

dismissing the complaint on the ground that plaintiffs- 
appellants had failed to exhaust administrative remedies 
and that therefore resort to the courts was premature in 
view of this Court’s decision in Cook v. Davis, 178 F. 2d 
595 (E. 245). Although dismissing the complaint, the court 
below made findings on the merits favorable to the appel­
lants in order that on appeal this Court might have before 
it a complete picture of the controversy.

Upon receipt of the court’s opinion appellants erro­
neously believed that judgment dismissing the complaint 
had been entered at the same time. When it was subse­
quently learned, on March 21, 1950, after the notice of ap­
peal had been filed, that no judgment as such had been 
rendered, it was appellants’ belief that the failure to file 
the judgment had been an oversight and that judgment, 
when entered, would be dated and effective as of February 
22, 1950.

Appellants were of the opinion that time for filing notice 
of appeal began to run from February 22, 1950, and there­
fore on March 19, 1950, appellants’ counsel in New York 
made a trip to Jackson, Mississippi, for the specific pur­
pose of filing the notice of appeal, securing the appeal bond 
and checking the docket entries and file of the trial court 
for the purpose of designating the record on appeal.

On March 20, 1950, the appeal bond was secured and 
it, along with the notice of appeal, was filed in the court 
below. Up until that point, counsel for appellants believed 
that judgment dismissing the complaint had been entered 
and did not know that the court had not signed and filed a 
final decree.

On the following day, March 21, 1950, counsel for ap­
pellants personally checked the court docket entries and 
file in order to determine what portions of the record should



3

be designated for printing as the record on appeal. In so 
doing, counsel then discovered for the first time that no 
final judgment had been filed.

Arrangements had been made to meet opposing counsel 
for the purpose of attempting to reach an agreement as 
to what the record on appeal should contain. When oppos­
ing counsel arrived, he was told that a final judgment was 
not among the docket entries and that counsel for appel­
lants believed this to be an oversight and that the judgment, 
when entered, would be pre-dated February 22, 1950.

On March 27,1950, appellants received a communication 
from appellees enclosing a copy of the judgment which 
the court had entered. It must be here admitted that at 
that point, counsel could have and should have discovered 
that the actual date of judgment was March 22, 1950, and 
not February 22, 1950, as was supposed. The fact is, 
however, that this discrepancy was not discovered. It is 
now recognized that failure to examine the date of the 
decree and to consider its effect on the notice of appeal was 
a gross error, and that had counsel for appellants done this 
it would have been impossible for appellees to raise this 
technical objection to this Court’s jurisdiction on this 
appeal.

On March 27, appellants filed their designation of the 
record and a request to print the record prior to transmis­
sion (E. 261) and served copies of the same on appellees. 
On March 29, appellees filed their designation of the record 
requesting additional portions of the record to be printed 
(E. 263). Appellants filed a motion in the court below to 
be relieved of the necessity of printing the additional por­
tions of the record requested by appellees. The court, 
however, on April 6, 1950, overruled appellants’ motion 
and appellants, thereupon, included in the printed record



4

filed those portions of the proceedings designated by appel­
lees. The printed record was filed on April 25, 1950. 
Through inadvertence the clerk failed to include the final 
judgment in the record as transmitted, and it was subse­
quently printed and filed as a supplemental record.

Appellants discovered the discrepancy between the date 
of the notice of appeal and the date of the final judgment 
upon being served with appellees’ motion to dismiss. Pur­
suant to Rule 75(h) of the Federal Rules of Civil Pro­
cedure, a motion to amend nunc pro tunc the notice of 
appeal or in the alternative for an order directing that 
the final judgment be entered nunc pro tunc as of February 
22 was filed in the lower court. This motion was heard on 
November 8, 1950, and denied on November 9, 1950. The 
court entered findings of fact and concluded as a matter of 
law that appellants’ failure to discover the errors and 
omissions complained of was due to the non-excusable neg­
lect of appellants’ counsel. The record of these proceed­
ings, pursuant to permission of this Court, has been trans­
mitted here in its original form and is therefore properly 
a part of the record before this Court.

I.

This appeal should not be dismissed as premature as 
final judgment has in fact been entered and is before 
this Court for review.

Appellees argue in substance that this is a case in which 
such a substantial error has occurred in perfecting the ap­
peal that this Court is without jurisdiction to hear and 
decide the appeal on the merits. In support of their basic 
contention, appellees cite a number of cases, but only those 
cited under Points V and VI on pages 7 and 8 of their brief 
in support of motion to dismiss have any bearing on this



5

case. And of the cases cited, only one, Hardin v. Messick, 
78 F. 2d 743 (C. C. A. 7th 1935), is directly in point.

It should be remembered that this is not a case in which 
the record fails to disclose entry of final judgment. Final 
judgment was entered and is properly before this Court. 
The only question, therefore, is whether appellants, in 
filing a notice of appeal two days before entry of judgment, 
and in failing to amend the notice of appeal to conform to 
the actual entry of judgment or to file a new notice of ap­
peal after March 22, 1950 was fatal to the jurisdiction of 
this Court.

Appellees cite United States v. Long Branch Distilling 
Co., 262 Fed. 768 (C. C. A. 5th 1920); Herrick v. Cutcheon, 
55 Fed. 6 (C. C. A. 1st 1893); Meeker v. Baxter, 83 F. 2d 
183 (C. C. A. 2d 1936); McAlister v. Dick Towing Co., 175 
F. 2d 652 (C. C. A. 3rd 1949); St. Louis Amusement Co. v. 
Paramount, 156 F. 2d 400 (C. C. A. 8th 1946); St. Louis 
Amusement Co. v. Paramount, 158 F. 2d 30 (C. C. A. 8th 
1946) ; Wright v. Gibson, 128 F. 2d 865 (C. C. A. 9th 1942); 
Uhl v. Dalton, 151 F. 2d 502 (C. C. A. 9th 1945). In all of 
these cases the fatal barrier to jurisdiction in the appellate 
court was not a premature filing of a notice of appeal in 
itself, but more fundamentally the absence of a final judg­
ment. Hence, since the appellate jurisdiction of United 
States Courts of Appeal is limited to appeals from final 
judgments, there was no authority to hear and decide the 
appeal. Appellants in these cases did not thereby lose their 
right to appeal but had the opportunity to properly present 
the controversy to the Court of Appeals as soon as the 
lower court entered a final judgment or decree.

These cases, we submit, do not dispose of the instant 
case. Here a final judgment has been entered and is before 
this Court. I f appellees’ motion to dismiss is granted,



6

appellants will have no opportunity to have this case re­
viewed on the merits.1

Appellees cite Hunteman v. New Orleans Public Service, 
119 F. 2d 465 (C. C. A. 5th 1941); and Studer v. Moore, 153 
F. 2d 902 (C. C. A. 2d 1946).2 In these cases the court re­
fused to allow the appeal because, although a final decision 
had been reached as to one of the questions involved, the 
lower court had not disposed of the whole case. The appeal 
thus attempted being fragmentary, it was deemed advisable 
to withhold a decision on the merits until the whole case 
had been disposed of. No such question is presented in this 
case.

In Florian v. United States, 114 F. 2d 990 (C. C. A. 7th 
1940), which appellees also cite,3 after decision by the Court 
of Appeals dismissing the appeal, the lower court amended 
its order nunc pro tunc to disclose a final judgment. A 
certified copy of this amended order was included in the 
record by stipulation, and on petition for rehearing the 
court entertained the appeal. The controlling issue in this 
case was whether a final judgment had been entered, and 
not whether a notice of appeal had been filed prior to entry 
of such final judgment.4 Once the court was satisfied that 
a final judgment had been issued, it accepted jurisdiction.

1 It should be noted in this connection that in Rardin v. Messick, 
supra, where a motion to dismiss, in a similar case, was granted that 
the Court also carefully reviewed the case on the merits. One is 
inclined to feel from the Court’s language that the motion to dismiss 
was granted because the Court considered the case on the merits to 
be lacking in substance. Thus had the appeal been heard, judgment 
would have been affirmed.

2 See Point V, pages 7 and 8 of appellees’ brief in support of 
motion to dismiss.

8 See page 8 of appellees’ brief.
4 The United States Supreme Court reversed, 312 U. S. 656, be­

cause it felt no judgment could be properly entered without a deter­
mination of the very issues which the lower court refused to decide.



7

This case would seem to overrule, or at least to be a modifi­
cation of the decision of the 7th Circuit enunciated in 
Rardin v. Messick, supra, on which appellees must place 
chief reliance.

We fail to see how this decision gives any support what­
soever to appellees’ position. On the contrary, the case 
indicates the willingness of the appellate courts to brush 
aside technical considerations once convinced basic juris­
dictional requirements have been satisfied.

In Peoples Bank v. Federal Reserve Bank, 149 F. 2d 
850 (C. C. A. 9th 1945) the appeal was dismissed because 
it was taken from an order and not from a final judgment. 
In Amsinck v. Springfield Grocer Co., 7 F. 2d 855 (C. C. A. 
8th 1925) the question was whether a court memorandum, 
entered in 1923, was a final judgment so as to prohibit the 
court from reopening the case and entering a judgment in 
1924. In Breeding Motor Freight Lines v. Reconstruction 
Finance Corp., 172 F. 2d 416 (C. C. A. 10th 1949) it was 
held that an appeal could not be taken from findings of 
facts and conclusions of law.5 It is submitted that it is 
plainly evident that none of these cases have anything in 
common with the issues raised in appellees’ motion to 
dismiss.

Appellees also cite Veritas Oil Corp. v. McLain, 4 F. 
2d 389 (C. C. A. 5th 1925); Vaughan v. American Insurance 
Co., 15 F. 2d 526 ( 0. C. A. 5th 1926); Morrow v. Wood, 126 
F. 2d 1021 (C. C. A. 5th 1942) in support of their conten­
tions.'6 In those cases, appellant attempted to take appeal 
after the time had expired in which appeals must be per­
fected. These cases, we submit, do not support appellees’ 
contentions. Appellants have not waited too late to take

5 These three cases are cited at page 8 of appellees’ brief.
6 Id.



those steps essential to perfect an appeal to this Court. 
Eather, the question, raised by appellees’ motion is whether 
appellants took those steps too soon to give this Court 
jurisdiction.

The only case cited by appellees which supports their 
contentions is Rardin v. Messick, supra. The opinion of 
the lower court was filed on March 6, 1934. Notice of ap­
peal was filed on March 19, 1934. Final judgment was 
entered on March 26, 1934. While the appeal was pending, 
the Court of Appeals permitted appellants to withdraw the 
record to present a motion for a nunc pro tunc order in the 
District Court. The District Court granted the motion, but 
the Court of Appeals dismissed the appeal on the theory 
that this was not a proper case for entry of a nunc pro tunc 
order, and decided that the appeal had been taken pre­
maturely and should be dismissed. This strict view has 
not been followed in other circuits and can no longer be 
considered the law in the seventh circuit in view of its 
more recent decision in Florian v. United States, supra.

The Rardin case cannot be considered controlling in 
any event since it antedates the adoption in 1937 of the 
Federal Rules of Civil Procedure. The primary reason 
for adopting these rules was to liberalize federal procedure 
and prevent technicalities in the law from defeating sub­
stantive rights in the federal courts. Certainly the Rardin 
case has not been followed in this circuit. See Milton v. 
United States, 120 F. 2d 794 (C. C. A. 5th 1941); Wilson 
v. Southern Ry. Co., 147 F. 2d 165 (C. C. A. 5th 1945); 
Morrow v. Wood, 126 F. 2d 1021, 1022 (C. C. A. 5th 1942); 
Crump v. Hill, 104 F. 2d 36 (C. C. A. 5th 1939); Falls v. 
Merrill, 142 F. 2d 651 (C. C. A. 5th 1944).



9

II.
The filing of a premature notice of appeal in this 

case raises no substantial jurisdictional question.
Appellees contend that appellants have lost their right 

to appeal because their notice of appeal was filed two days 
before the actual entry of judgment. Appellees ’ contention 
has weight only if formal and rigorous adherence to techni­
cal requirements are given greater weight than substantive 
rights. The very intent and purpose of the Federal Rules 
of Civil Procedure is to avoid allowing technicalities and 
formality to delay or defeat the prosecution of a valid 
claim in the courts of the United States. Appellees cannot 
contend that the filing of the premature notice of appeal 
aversely affected their rights or that they were thereby 
confused and misled.

Appellees knew that appellants, in filing the notice of 
appeal on March 20, were attempting to perfect an appeal 
to this Court from the final judgment of the court below. 
Appellees joined in the perfection of the appeal by filing 
their own designation of the record (R. 263). In our view 
their action constitutes more of a waiver of their right to 
object to the premature filing of the notice of appeal than 
did appellees action in Crump v. Hill, 104 F. 2d 36 (C. C. A. 
5th 1939).

In that case appellant secured from appellees a written 
acknowledgment of service of notice of appeal and desig­
nation of the record and entry of appearance. This was 
filed, together with the transcript of testimony, with the 
clerk. Shortly thereafter appellees filed their designation 
of portions of the proceedings to be contained in the record 
on appeal. After the time had expired, appellants filed 
a notice of appeal. Appellees contended that the notice of



10
appeal being filed too late, this Court did not have jurisdic­
tion to hear the appeal. It was held that the appellees had 
waived their right to object to the failure to file the notice 
of appeal, and that the filing of the acknowledgment of ap­
pellants ’ service of the notice of appeal and the designation 
of the record and entry of appearance, together with the 
transcript of the record, was substantial compliance with 
the letter of Rule 73 of the Federal Rules of Civil Pro­
cedure, and that the denial of the motion to dismiss on the 
ground that no notice of appeal had in fact been filed in 
view of the circumstance of the case accorded with the 
substance and spirit of the Rules of Civil Procedure.

We submit that the instant case is even stronger for the 
added reason that although the notice of appeal was filed 
on March 20 as from a judgment entered on February 22, 
this error was corrected by the memorandum to the Clerk 
of this Court which appears at page 1 of the transcript of 
the record and reads as follows: “ (From Final Judgment 
dated March 22, 1950, dismissing the Complaint without 
prejudice, Plaintiffs’ Appeal).”  Whatever error may have 
occurred in the filing of the notice of appeal, we submit, 
was cured by this memorandum which is a part of the 
record in this case.

We further submit that this case should be governed by 
the principals ennunciated in Milton v. United States, 
supra; Luckenbach Steamship Co. v. United States, 272 
IT. S. 533; Hamilton v. United States, 140 F. 2d 679, C. C. A. 
D. C. 1944; Fislce v. Wallace, 115 F. 2d 1003 (C. C. A. 8th 
1940); and Sauri v. Sauri, 45 F. 2d 90 (C. C. A. 1st 1930) 
in which errors and omissions in perfecting the appeals in 
question were not considered as warranting the granting 
of a motion to dismiss.



11
In the Milton case the court allowed an appeal from an 

order denying a new trial on the ground that overruling 
of a motion for a new trial and the verdict of the jury con­
sidered together constituted a final determination of the 
case. Hence, even though no judgment had actually been 
entered on the verdict, it was held that this Court had juris­
diction to decide the appeal on the merits. Under Rule 58 
of the Federal Rules of Civil Procedure, the clerk of the 
trial court should have entered judgment on the verdict 
after the motion for a new trial was overruled, but he failed 
to do so. In overruling the motion to dismiss, this Court 
stated that the Federal Rules of Civil Procedure were 
adopted to abolish technicalities and to expedite due ad­
ministration of justice. It was held that if appellants had 
appealed before entry of final judgment, it would have been 
premature, but that this would not have required the dis­
missal of the appeal. The court disregarded the motion to 
dismiss and decided the case on the merits. We hasten to 
add in connection with this case that the Court specifically 
stated that its decision was not to be considered as a prece­
dent. This language does not promise, we submit, that this 
Court will be less willing to brush aside technicalities in 
order to give effect to substantive rights than it was in the 
Milton case. We take that admonition to cover only those 
cases, unlike the instant case, in which an appeal is taken 
when the record fails to disclose the entry of a final judg­
ment. For that reason we believe the Milton ease is a 
precedent in our favor.

In the Lucicenbach case, the Hamilton case, the Sauri 
case and the Fiske case, supra, appeals were filed after 
judgment but before pending motions for new trial or re­
consideration had been decided. In each instance the pend­
ing motions were subsequently overruled. It was uniformly 
held that although the appeal was taken prematurely that



12
once the pending motions in question were overruled, no 
reason existed for dismissing the appeal.

In discussing this point, the United States Supreme 
Court in the Luckenbach case said at page 535:

“ The only infirmity suggested is that the appli­
cation was premature in that it was made before the 
motion for a new trial and amended findings was 
disposed of. It is true that with that motion pending 
the judgment was not so far final as to cause time 
to run against the right to appeal * * * ; but while the 
application was thus premature it was not a nullity. 
Evidently it was intended to be pressed only if and 
when the motion for a new trial and amended find­
ings was denied. The court so regarded it, and there­
fore gave effect to it after disposing of the pending 
motion. ’ ’

These cases would appear to support the view that although 
the notice of appeal on March 20 was prematurely filed, it 
took effect after the entry of judgment on March 22, and 
that no good reason exists for dismissing the appeal as re­
quested by the appellees.

The fact that the notice of appeal states that it is from 
the judgment entered on February 22, 1950, and the judg­
ment was in fact entered on March 22, 1950, is immaterial. 
Shannon v. Retail Clerks International Protective Assn., 
128 F. 2d 553 (C. C. A. 7th 1942); Wilson v. Southern Ry. 
Co., 147 F. 2d 165 (C. C. A. 5th 1945); Porter v. Borden’s 
Dairy Delivery Co., 156 F. 2d 798 (C. C. A. 9th 1946); 
Martin v. Clarke, 105 F. 2d 685 (C. C. A. 7th 1939). In the 
latter case the court said at page 686:

“ The object of the notice is merely to advise the 
opposite party that an appeal has been taken from 
a specific judgment in a particular case; if the 
notice is plain and explicit in this particular and 
sufficient in all other respects, it ought not to be



13

declared ineffectual because of some slight mistake 
in the description of the judgment * * * . Courts 
are liberal in construing the sufficiency of a notice 
of appeal, and where it appears from the notice * * * 
that there is sufficient information acquainting ap­
pellee as to the judgment appealed from (the appellee 
not being prejudiced or misled) the mere fact that 
the designation of plaintiff and defendant was in­
terchanged is no ground for dismissing the appeal.”

Further, as stated previously, the memorandum to the 
clerk of the Court of Appeals at page one of the record, 
which clearly states that the appeal is taken from a final 
judgment dated March 22, 1950, dismissing the complaint 
without prejudice, ought to be considered as curing the de­
fect in the notice of appeal, and the case as it is now pre­
sented is therefore in substantial compliance with the 
jurisdictional requirements of this Court.

Conclusion.

Appellees’ view could only prevail if our courts were 
still stressing adherence to formal and technical require­
ments. The Federal Rules of Civil Procedure were initially 
adopted in 1937 in order to make it possible for federal 
courts to decide substantive rights without being unduly 
hampered by an insistence upon rigid adherence to formal 
requirements of the law.

To grant appellees’ motion to dismiss would seriously 
defeat the substantive rights of appellants. No sound 
reason exists for granting appellees’ motion in view of the 
fact that appellees have been injured in no way, and the 
jurisdictional requirements for hearing an appeal by this 
Court has been met since a final judgment has been entered 
and is properly before this Court.



14

W h er efo r e , i t  is  re sp e c tfu lly  su b m itted  th a t the a p p e l­
le e s ’ m otion  to d ism iss  sh ou ld  be ov erru led .

R obert L. C arter ,

A. P. T u eea u d ,
Of Counsel.

C o nsta nce  B. M o tley ,

20 West 40th Street, 
New York 18, New York,

J a m es  A. B u r n s ,
2513 Fifth Street, 
Meridian, Mississippi, 

Attorneys for Appellants.

Certificate of Service.
It is hereby certified that a copy of this brief has this 

day been mailed to Rufus Creekmore, 821 Standard Life 
Building, Jackson, Mississippi, attorney for Appellees.

Attorney for Appellants.

Dated: December 21, 1950.



. 212 [8141]

L awyers P r ess , I nc ., 165 W illiam St., N. Y. C. 7 ; ’Phone: BEekman 3-2300