Draft Motion to Dismiss Appeals

    IN THE UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT 

No.

RONALD BRADLEY, et al.,

Plaintiffs-Appellees, 
Cross-Appellants,

VS.
WILLIAM G. MILLIKEN, et al.,

Defendants-Appellants, 
Cross-Appellees,

DETROIT FEDERATION OF TEACHERS, LOCAL 231, 
AMERICAN FEDERATION OF TEACHERS, AFL-CIO,

Defendant-Intervenor- 
Appellee,
and

DENISE MAGDOWSKI, et al.,
Defendants-Intervenor.

Appeal from the United States District Court 
for the Eastern District of Michigan 

Southern Division

MOTION TO DISMISS APPEALS

Plaintiffs-appellees, cross-appellants, respectfully 
move the Court, pursuant to Rule 8(a) of the Sixth Circuit 
Rules, to dismiss the appeals in this cause, the appeals



being not within the jurisdiction of the Court at this 

juncture.
As grounds for this motion, plaintiffs would show 

the following:

BACKGROUND

Procedural History of the Litigation
Plaintiffs commenced this litigation on August 18,

1970, against the Board of Education of the City of 
Detroit, its members and superintendent of schools, the 
Governor, Attorney General, State Board of Education and 
State Superintendent of Public Instruction of the State 
of Michigan. Plaintiffs challenged, on constitutional 
grounds, a legislative enactment of the State of Michigan 
which interferred with the implementation of a voluntary 
plan of partial high school pupil desegregation which had 
been adopted by the Detroit Board of Education. Plaintiffs 
further alleged the existence of a racially identifiable 
pattern of faculty and student assignments in the Detroit 
Public Schools which pattern was the result of official 
policies and practices of the defendants and their predecessors

in office.
At the conclusion of a hearing held upon plaintiffs' 

application for preliminary injunctive relief the district 
court denied all relief on the grounds that the existence 
of racial segregation had not yet been established. The 
court further dismissed the action as to the State defendants. 
On appeal, this Court declared the challenged Michigan statute 

to be unconstitutional and reinstated the State defendants

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as parties. 433 F.2d 897 (6th Cir. 1970).

Upon remand, plaintiffs moved in the district court 
for an order requiring immediate implementation of the volun­
tary plan of partial desegregation which had been impeded by 

the unconstitutional State statute. After receiving 
additional plans preferred by defendants and conducting 
a hearing thereon, the district court entered an order 

approving an alternate plan which plaintiffs opposed
as being constitutionally insufficient. Plaintiffs again 

«appealed, but this Court refused to reach the merits 
of the appeal and remanded the case to the district court 
with instructions that the entire case be tried on its 
merits forthwith. 438 F.2d 945 (6th Cir. 1971).

After a lengthy trial the district court, on 
September 27, 1971, entered its "Ruling on Issue of Segre­
gation." (Attached hereto as Appendix A). The court 
concluded that the public schools in Detroit are "segregated 
on a racial basis" (App. A at 13) and that both state and 

local defendants "have committed acts which have been causal 
factors in the segregated condition...." (App. A at 21)

The court and the parties then turned to the problem 
of relief. Plaintiffs sought (and seek) conversion of the

—^These findings and conclusions pertain to the pattern 
of pupil assignments only, as the court declined to find 
the pattern of faculty assignments to be unconstitutional 
(as alleged by plaintiffs). (App. A at 15-20).

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• •
Detroit school system from a racially segregated to a 

racially unitary one. The intervening parent defendants.?/ 
had filed, at the conclusion of the trial, a motion to add 

as parties defendant numerous suburban school districts "on 
the principal premise or grounds that effective relief 
cannot be achieved or ordered in their [other districts'] 

absence."2/ (App. A at 28). The court, however, deferred 

decision on the content and extent of the remedy until the 
completion of further proceedings. (App. A at 28-29).

On October 4, 1971, the district court conducted 
a pre-trial conference (the transcript of which is attached 
hereto as Appendix B) on the matter of relief. At the 

conclusion of the conference the court directed both the 

Detroit Board defendants and the State defendants to submit 
proposed plans of pupil desegregation on specified dates. 

(App. VB at 26-27). These directions were subsequently 
incorporated into an order filed on November 5, 1971 
(Appendix C, attached hereto). It is from this order that

2/Prior to the trial on the merits the district 
court permitted the Detroit Federation of Teachers and a 
group of white parents to intervene as parties defendant.

3/The parent-intervenors had intervened for the 
purpose of defending the "neighborhood school concept," 
but had lost all hope of success by trial's end. (See 
statement of attorney for parent-intervenors, App. B at 15).

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both the Detroit Board defendants (Appendix D) and the 
State defendants (Appendix E) noticed appeals on December 
3, 1971. Although plaintiffs have, from the outset, 
questioned the "appealability" of the district court's 

order, we filed a protective notice of appeal (Appendix 
F) on December 11, 1971, challenging the court's failure 
to require further faculty desegregation.—^

The Substance of the Order Appealed From
4

At the pre-trial conference of October 4, 1971, 
the district court directed the Detroit Board defendants 
(1) to submit within 30 days a progress report on and an 
evaluation of the Magnet School Plan (under which the 

Board is presently operating), and (2) to submit within 
60 days a plan for the desegregation of the Detroit public 
schools. (App. B at 26-27). Further, the court directed 
the State defendants to submit within 120 days a metro­
politan plan of desegregation, "perhaps in more or less 
skeletal form." (App B at 27)

4/— Plaintiffs question the propriety of their own 
appeal at this juncture also. Plaintiffs feel/ however, 
that their appeal is on sounder grounds than are the appeals 
of defendants, for it would appear that the result which 
plaintiffs challenge (refused to require further faculty 
desegregation) is "final" (see infra), although this may 
not necessarily be so. In any event, should plaintiffs 
prevail in this motion to dismiss defendants' appeals, 
plaintiffs would voluntarily dismiss their own appeal.

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After these directions were delivered, the following 

occurred:
THE COURT: ___ The time table is

understood, is it?
MR. BUSHNELL: Yes, sir.
MR. LUCAS: Yes.
THE COURT: I am not going to— unless you

gentlemen want--to prepare an order, I am not 
going to prepare a formal order.

MR. BUSHNELL: I don't believe it is
necessary, your Honor. We understand the 
the timetable.

THE COURT: Anybody disagree with that?
[No response]

(App. B at 29). Nevertheless, the State defendants sub­
sequently insisted on a formal order (see Appendix G), 

which was entered on November 5, 1971 (App. C).
In accordance with the court's direction the Detroit 

Board defendants filed, on November 3, 1971, a report on 
the Magnet School Program, and on December 3, 1971, they 
submitted two alternative proposed plans for desegregation 
of Detroit schools^/ and a statement setting forth the 
Board's preference for metropolitan desegregation.

The metropolitan plan required to be submitted by 
the State defendants is due to be filed within two weeks.

REASONS WHY THE APPEALS SHOULD BE DISMISSED 
State defendants were correct, of course, in insisting 

upon a formal order, for "[t]he filing of an opinion by 
the District Court does not consitute the entry of an

—^Plaintiffs promptly filed objections to the Detroit 
Board's proposed plans and are presently preparing their 
own alternatives for submission to the district court.

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order, judgment or decree from which an appeal can be taken."

Robinson v. Shelby County Board of Educ., No. 71-1825
(6th Cir., order of Nov. 8, 1971)(attached hereto as Appendix

H). And not even all orders may be appealed, for this Court
only has jurisdiction of appeals from "final decisions"

(28 U.S.C.A. §1291) and certain classes of "interlocutory"

orders (28 U.S.C.A. §1292(a)).6/
Clearly the order appealed from is not a "final

decision" within the meaning of 28 U.S.C.A. §1291.
It [the order] constituted only a 
determination that plaintiffs were entitled 
to relief, the nature and extent of which 
would be the subject of subsequent judi­
cial consideration by [the district court]. 
What remain[s] to be done [is] far more 
than those ministerial duties the pendency 
of which is not fatal to finality and 
consequent appealability....

Taylor v. Board of Educ. of New Rochelle, 288 F .2d 600,

602 (2d Cir. 1961).
The only possible source for this Court's jurisdiction 

over the instant appeals is 28 U.S.C.A. §1292 (a) (1). Taylor, 
supra, 288 F.2d at 603. And for the reasons set forth in 
Judge Friendly's opinion in Taylor, we submit that the Court 
is without jurisdiction to hear the instant appeals.

6/Certain "certified" orders "not otherwise 
appealable" may, with the permission of the court of 
appeals, be appealed pursuant to the provisions of 
28 U.S.C.A. §1292 (b). These provisions have not 
been complied with in the instant case, however.

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§1292 (a)(1), in pertinent part, gives this Court 
jurisdiction of appeals from interlocutory orders "granting, 

continuing, modifying, refusing or dissolving injunctions.... 
The issue here is whether or not the district court has 
entered an "order granting an injunction." We believe 
that no such order has been entered in this case.

The order appealed from does but one thing: it
directs defendants to submit a report and plans for dese­
gregation, and it permits other parties to file objections 
and alternate plans. The order does not require reorgani­
zation of the school system; it does not specify the nature 
or extent of any reorganization that will be required; nor 
does it establish a timetable for any reorganization that 
will be required. At the pre-trial conference of October 
4, 1971, Judge Roth made it clear that he "had no precon­
ceived notion about what the Board of Education should do 
in the way of desegregating its schools nor the outlines 
of a proposed metropolitan plan. The options are completely 
open." (App. B at 27).

To be sure, the ...[order] used the word 
"ordered" with respect to the filing of a 
plan, just as courts often "order" or 
"direct" parties to file briefs, findings 
and other papers. Normally this does not 
mean that the court will hold in contempt 
a party that does not do this....[But] even 
if the order was intended to carry contempt 
sanctions ... a command that relates 
merely to the taking of a step in a judicial 
proceeding is not generally regarded as 
a mandatory injunction, even when its 
effect on the outcome is far greater 
than here. For ... not every order con­
taining words of command is a mandatory 
injunction within [§1292 (a) (1)].

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m •
Taylor, supra, 288 F.2d at 604. Nor may defendants contend

that they will suffer irreparable injury by complying with 
7 /the order.—

[W]hile we understand defendants' dislike 
of presenting a plan of desegregation and 
attending hearings thereon that would be 
unnecessary if the finding of liability 
were ultimately to be annulled, and also 
the possibly unwarranted expectations this 
course may create, this is scarcely 
injury at all in the legal sense and 
surely not an irreparable one.

Id. at 603.
To allow defendants’ appeals at this juncture will 

surely result in either (1) protracted piecemeal appellate 
litigation, depriving the Court of the opportunity for fully 

informed consideration of the important issues to be 
presented, or (2) appellate litigation which may be 

unnecessary as to all or some of the present parties 
appellant and all or some of the issues to be presently 
raised.§/

[T]o permit a hearing on relief to go 
forward in the District Court at the very 
time we are entertaining an appeal, with 
the likelihood, if not indeed the certainty, 
of a second appeal when a final decree is 
entered by the District Court, would not 
be conducive to the informed appellate 
deliberation and the conclusion of this 
controversy with speed consistent with order, 
which the Supreme Court has directed and 
ought to be the objective of all concerned.
In contrast, prompt dismissal of the appeal 
as premature should permit an early con­
clusion of the proceedings in the District 
Court and result in a decree from which 
defendants have a clear right of appeal, 
and as to which they may then seek a stay 
pending appeal if so advised. We —  and 
the Supreme Court, if the case should

See following page. _8/

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— For example, ypon plaintiffs preliminary motion 
to require the Detroit Board to implement its previously- 
adopted voluntary plan (after this Court had declared the 
impeding state statute unconstitutional, 433 F.2d 897), 
defendants contended that they were not constitutionally 
obligated to implement the plan. The district court, however, 
ordered the Board to submit an updated version of that 
plan and/or alternative plans. The Detroit Board, while 
protesting this order, submitted two other plans which 
they preferred, and the court approved and ordered imple­
mented the Magnet School Plan (under which the Board is 
presently operating) to which the Board had assigned first 
priority. Plaintiffs challenged the plan approved as being 
legally insufficient and appealed (438 F.2d 945), but none 
of the defendants appealed. Pursuant to the order which 
is the s*ubject of the instant appeal, the Detroit Board 
defendants have submitted a variation of the Magnet Plan; 
it is not too unrealistic to think that, should the 
court approve the present submission of the Detroit 
Board, these defendants would be content and no appeal 
would be initiated. Furthermore, should the district 
court decide that a metropolitan plan is not necessary 
or is not proper, it is possible that the final decree 
would not require anything of the State. Finally, it is 
possible that, should the district court ultimately deem 
a metropolitan plan to be necessary and proper, the 
court might also require faculty reassignments, as a part 
of any such plan, thereby eliminating the grounds for 
plaintiffs' present complaint. This is not to say that 
this important litigation will never be before this 
Court for review, but it is quite possible that the case 
could come to this Court in an entirely different 
posture and with a different alignment of parties than 
is contemplated by the present appeals.

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go there —  can then consider the decision 
of the District Court, not in pieces but 
as a whole, not as an abstract declara­
tion inviting the contest of one theory 
against another, but in the concrete.

Taylor, supra, 288 F.2d at 605. The Taylor court refers,
critically, to an unreported order of this Court denying
a motion to dismiss in an early appeal in Mapp v. Board of
Educ. of Chattanooga. Judge Friendly's criticism is based,
in part, on the developments in Mapp after the motion to
dismiss the appeal was denied (288 F.2d at 605):

[Mjoreover, the subsequent proceedings 
in the Mapp case, where the District 
Court has already rejected the plan directed 
to be filed and required the submission of 
a new one, with a second appeal taken from 
that order although the first appeal has not 
yet been heard, indicate to us the unwisdom 
of following that decision even if we 
deemed ourselves free to do so.

A situation similar to that in Mapp occurred in 
Robinson v. Shelby County Board of Educ., Nos. 20, 123,
20, 124 (6th Cir., order of June 25, 1970)(attached hereto 
as Appendix I), where the school board had appealed from 
a decision requiring the submission of new plans. While 
the appeals were pending, however, the new plans were 
received by the district court and a new order was entered 
from which a new appeal had been taken. This Court dismissed 
the pending appeals as being most. (App. I at 3).

In the instant case the Detroit Board defendants 
have already submitted plans in accordance with the 
order, and the State defendants will submit their plans 
within two weeks. Thus, long before briefs are filed in 
this appeal, the order from which defendants appeal will

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have, "by its terms, expired." Robinson, supra, App. I

would rest here and rely upon Judge Friendly's 
in Taylor but for a statement in 9 Moore's Federal 
1(110.20 at p. 235 (2d Ed. 1970) , that "the weight 

of authority would appear to be the other way.1110/
Two cases are cited for this proposition: Board of Public
Instruction of Duval County v. Braxton, 326 F.2d 616 
(5th Cir. 1964), cert, denied, 377 U.S. 924 (1964);
Board of Educ. of Oklahoma City v. Dowell, 375 F.2d 158 
(10th Cir. 1967). Braxton is distinguishable on its

at 3.—
We

reasoning 
Practice,

9 /—'The State defendants have attempted to meet this 
problem by stating in their Notice of Appeal (App. E) 
that they appeal "from the order entered herein on November 
5, 1971, which incorporates the findings of fact and con­
clusions of law...." Saying it doesn't make it so, however, 
and even if it did the order is clearly not a "final" 
judgment; State defendants can only challenge what the 
order requires them to do, which will shortly be mooted 
(putting aside the question as to the appealability of 
the order in the first instance).

10/But cf. 9 Moore' s Federal Practice, 1(110.20 
at p. 233: ""it can be broadly stated that an order
incidental to a pending action that does not grant part 
or all of the ultimate injunctive relief sought is not an 
injunction, however mandatory or prohibitory its terms, 
and indeed, notwithstanding the fact that it purports 
to enjoin."

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• •
facts,— / and Judge Tuttle specifically stated that the 
decision in Braxton was not in conflict with the decision in 
Taylor; "What was said here was quite different from the 
limited statement made by Judge Kaufman in his decree 
[in Taylor]." 326 F.2d at 619. In Dowell, supra, the 
issue of appealability of the order was not raised. Even 
so, the order appealed from in Dowell is more clearly 
appealable than the order involved in Braxton, and is 
completely distinguishable from the Taylor order. The

4

Dowell order was much more than a mere direction to submit 
plans; the order encompassed the remedy for the constitutional 
violations: "We conclude that the remedy employed by the
court below ... is appropriate...." 375 F.2d at 168 
(emphasis added).

A recent case in the Fifth Circuit is instructive.
In Cianeros v. Corpus Christi Independent School Dist.,
324 F. Supp. 599 (S.D. Tex. 1970), the district court 
found that Mexican-Americans had been unlawfully separated 
from whites in the public schools as a result of various 
school board practices. The court ordered the school board 
and plaintiffs to submit plans for remedying the constitutional

- -----/The order in Braxton with not only injunctive
language but with injunctive effect, enjoined the school 
board: (1) from operating a segregated school system;
(2) from operating dual attendance patterns; (3) from 
assigning pupils on the basis of race; (4) from expending 
funds to support segregation; (5) from assigning teachers on 
the basis of race. 326 F.2d at 617 n.l. Although the order 
was not to be effective until plans were submitted for the 
implementation of the terms of the order, it is clear that 
.the Braxton order, which defines the remedy, is much 
different than the instant case where "[t]he options are 
completely open." (App. B at 27).

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violations, but the court also certified, pursuant to 
28 U.S.C.A. §1292 (b), that there existed "A controlling 
question of law as to which there is substantial ground for 
differences of opinion...." 324 F. Supp. at 627. Upon 
application by the school board to the Fifth Circuit 
pursuant to §1292 (b), the Court denied leave to appeal 
from the district court's interlocutory order. Cisneros v. 
Corpus Christi Independent School Dist., Misc. No. 1746 
(5th Cir. July 10 , 1970) (order attached hereto as Appendix 
J). The district court subsequently ordered implementation 
of a plan of desegregation, and the school board's appeal 
of the whole case is now pending. See 448 F.2d 1392, 1394-95 
(5th Cir. 1971) (Bell, J., dissenting from refusal hear 
the appeal en banc).

We doubt that Moore's is correct as to the"weight 
of authority"; in any event, we submit that the weight 
of the reasoning compells dismissal of the appeals herein.

WHEREFORE, for the foregoing reasons, plaintiffs 
respectfully pray that, after the time allowed for 
responses to this motion has elapsed, the Court enter an 
order dismissing the appeals herein.

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