Riddick v The School Board of the City of Norfolk Reply Brief

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

PAUL R. RIDDICK, et al.,
Appellants,

v.

THE SCHOOL BOARD OF THE CITY OF 
NORFOLK, et al.,

Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF VIRGINIA 

NORFOLK DIVISION
REPLY BRIEF TO APPELLEES' BRIEF IN OPPOSITION TO 
APPELLANTS' REQUEST FOR AN INJUNCTION PENDING THE FILING OF A PETITION FOR WRIT OF CERTIORARI TO 

THE SUPREME COURT

GWENDOLYN JONES JACKSON DELK, JAMES & JACKSON305 Greater Norfolk Plaza 
555 Fenchurch Street 
Norfolk, VA 23510-2833 
(804) 622-9031

JULIUS LeVONNE CHAMBERS 
JAMES M. NABRIT, III NAPOLEON B. WILLIAMS, JR.

99 Hudson Street 
16th FloorNew York, New York 10013 
(212) 219-1900

Dated: Mav 1986

HENRY L. MARSH, III 
S. W. TUCKER RANDALL G. JOHNSON 
HILL, TUCKER & MARSH509 North Third Street 

P.O. Box 27363 Richmond, VA 23219 
(804) 648-9073

ELIZABETH TURLEY 
LITTLE, PARSLEY &
CLUVERIUS, P.C.1300 Federal Reserve 

Bank Building 
P.O. Box 555 Richmond, VA 23204 
(804) 644-4100

ATTORNEYS FOR APPELLANTS



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

.PAUL R. RIDDICK, et al.,
Appellants, 

v.
THE SCHOOL BOARD OF THE CITY OF 
NORFOLK, et al.,

Appellees.

REPLY BRIEF TO APPELLEES' BRIEF IN OPPOSITION 
TO APPELLANTS' REQUEST FOR INJUNCTION PENDING 

THE FILING OF A PETITION FOR WRIT OF CERTIORARI

Appellees' opposition to appellants' reauest for an injunc­
tion pending the filing of a petition for a writ of certiorari is 
based primarily upon two arguments. First, appellees claim that 
this Court, having issued its mandate, has no power to grant an 
injunction preserving the status auo pending the filing of a 
petition for a writ of certiorari. Second, appellees claim, on 
the basis of general allegations, that they would be harmed if an 
iniunction were granted. For the reasons stated below, ooth 
arguments are without merit.



ARGUMENT

I. COURTS OF APPEALS HAVE AUTHORITY TO ISSUE INJUNCTIONS AFTER 
THE ISSUANCE OF THE MANDATE TO PRESERVE THE STATUS QUO 
PENDING THE FILING OF A PETITION FOR A WRIT OF CERTIORARI

The issue raised by appellees concerning the judicial 
power of a Court of Appeals to issue an injunction, after 
issuance of its mandate, in order to preserve the status quo 
pending the filina of papers seeking review in the Supreme Court, 
arose in Hawaii Housing Authority, et al. v. Midkiff, 463 U.S. 
1323 (1983). The case involved an application to Justice 
Rehnauist for a stay of an injunction entered by the Court of 
Appeals for the Ninth Circuit.

In that case, the Court of Appeals, four months after 
rendering its opinion on the merits, recalled its mandate for 
clarification and, pending such clarification, enjoined the 
applicants for the stay from pursuing administrative or judicial 
remedies under state law. Justice Rehnquist denied the request 
for the stay on the following grounds:

Applicants base their request for a stay on three 
arguments. First, they argue that because a notice of 
appeal to this Court was filed with the Court of Appeals on July 18, 1983, the Court of Appeals lacked 
the power to recall and clarify its mandate on August 11, 1983. Jurisdiction over this case, they claim, had 
shifted to this Court. I find this reasoning unper­
suasive. Whatever the current application of the

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so-called jurisdictional shift theory to modern appellate procedure, it is well settled tnat a court 
retains the power to grant injunctive relief to a party 
to preserve the status quo during the pendency of an 
appeal, even to this Court. See, e.g., Newton v Consolidated Gas Co., 253 US 165, 177, 66 L Ed 538, 42 
S Ct 264 (1922); Merrimack River Savings Bank v Clay 
Center, 219 US 527, 531-535, 55 L Ed 320, 31 S Ct 295 
(1911); Fed Rule Civ Proc 62.

•

463 U.S. at 1324.
Justice Rehnquist's decision in Hawaii Housing Authority, 

supra, follows in the wake of numerous Supreme Court decisions 
holding that:

It is a general rule of the lav/, that all the 
judaments, decrees or other orders of the courts, 
however conclusive in their character, are under the 
control of the court which pronounces them during the Term at which they are rendered or entered of record, 
and may then be set aside, vacated, modified or 
annulled by that court.

Bronson v. Schulten, 104 U.S. 410, 415 (1882). See also 
Huddleston v. Dwyer, 322 U.S. 232 (1944). Also see the Second 
Circuit decision in Braniff Airways, Inc, v. Curtiss-Wright 
Corp., 424 F.2d 427, 429-430 (2d Cir. 1976).

Similarly, in United States v. United States District Court 
for the Southern District of New York, 344 U.S. 258 (1948), the 
Supreme Court affirmed the power of the Court of Appeals to issue

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mandamus or injunctions even in cases "where there is no existing 
or future appellate jurisdiction to which it can relate." Id.
334 U.S. at 263.

The issue in the case was whether the Court of Appeals had 
jurisdiction•to issue mandamus concerning an issue which was 
likely to come before the Supreme Court on appeal.

Justice Douqlas, writing for the majority, said:

Section 262 of the Judicial Code, 23 USCA § 377, 8 
FCA title 28, § 377, provides that the federal courts 
"shall have power to issue all writs not specifically 
provided for by statute, which may be necessary for the 
exercise of their respective jurisdictions, and •agreeable to the usages and principles of law." It was 
early recognized that the power to issue a mandamus 
extended to cases where its issuance was either an 
exercise of appellate jurisdiction or in aid of 
appellate jurisdiction. . . . That power protects the 
appellate jurisdiction which might be otherwise 
defeated and extends to support an ultimate power of 
review, though it not be immediately and directly 
involved. . . .

3ut the fact that mandamus is closely connected with the appellate power does not necessarily mean that 
the power to issue it is absent where there is no existing or future appellate jurisdiction to which it 
can relate. Cf. Chickaming v. Carpenter, 106 US 663, 
665, 27 L ed 307, 308, 1 S Ct 620. Re Washington & G. 
R. Co. 140 US 91, 35 L ed 339, 11 S Ct 673, is a case 
in point. . . .  It is, indeed, a high function of mandamus to keep a lower tribunal from interposing unauthorized obstructions to enforcement of a judgment 
of a higher court. . . . That function may be asimportant in protecting a past exercise of jurisdiction 
as in safeguarding a present or future one. When Congress authorized "the case" to be certified to the 
Circuit Court of Appeals, it excepted none of the powers of that court which might be brought to bear on 
the litigation. Those powers include the power to

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issue mandamus to protect the mandate of the Circuit 
Court of Appeals, even though we assume arguendo that 
all further appeals in the case would come here.

Id. 334 13.S. at 263-264.
These decisions by the Supreme Court show irrefutably that 

the All Writs Act, 28 U.S.C. § 1651, authorizes the Court of 
Appeals to issue injunctions pending review in the Supreme Court 
irrespective of whether the mandate of the Court of Appeals nas 
previously been issued.

Moreover, this Court has previously recognized its power to 
act in a case after the mandate has been issued. See, Uzzell v. 
Friday, 625 F.2d 1117, 1119 (4th Cir. 1980), cert, denied 446 
U.S. 951. Furthermore, the Supreme Court, in a string of 
decisions, has authorized the issuance of injunctive orders in 
school desegregation cases pending the filing of petitions for 
writs of certiorari. See, Carter v. West Feliciana Parish School 
Board, 396 U.S. 226 (1969). See, also Davis v. Board of School
Commissioners of Mobile, ___ U.S. ___, 38 U.S.L.W. 3220 (Dec. 13,
1969) .

For these reasons, appellants assert that the Court has 
power herein to issue an injunction to preserve the status quo 
pending the filing of a petition for a writ of certiorari.

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II. APPELLEES WILL NOT BE HARMED BY THE GRANTING OF AN IN­JUNCTION PRESERVING THE STATUS QUO PENDING THE FILING OF A 
PETITION FOR A WRIT OF CERTIORARI.___________________

Although appellees assert that they will be harmed if an 
injunction pending further review is granted, a close analysis of 
their brief shows that appellees make no allegations of any 
specific harm that will occur to them or to the school system if 
appellants' motion for an injunction is granted.

' Given the specificity with which appellants have set forth 
in their brief the irreparable harm that will occur to appellants 
if the injunction is not granted and the absence of any harm to 
appellees if the Court grants the request for an injunction, it 
is incumbent upon appellees to do more than allege generally that 
they will be harmed by the granting of an injunction. Having 
failed to make such a specific showing, appellees' opposition to 
the motion for an injunction should be overruled.

For the reasons stated above, appellants' motion for an 
iniunction preserving the status quo pending the filing of a 
petition for a writ of certiorari should be granted.

CONCLUSION

Respectfully submitted,

GWENDOLYN JONES JACKSON HENRY L. MARSH, III

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DELK, JAMES & JACKSON305 Greater Norfolk Plaza 555 Fenchurch Street 
Norfolk, VA 23510-2883 
(804) 622-9031

S. W. TUCKER RANDALL G. JOHNSON HILL, TUCKER & MARSH509 North Third Street 
P.O. Box 27363 Richmond, VA 23219 
(804) 648-9073

JULIUS LeVONNE CHAMBERS 
JAMES M. NABRIT, III NAPOLEON B. WILLIAMS, JR.

99 Hudson Street 
16th FloorNew York, New York 10013 
(212) 219-1900

ELIZABETH TURLEY 
LITTLE, PARSLEY & 
CLUVERIUS, P.C.1300 Federal Reserve 

Bank Building 
P.O. Box 555 Richmond, VA 23204 
(804) 644-4100

Dated: May 5, 1986 ATTORNEYS FOR APPELLANTS

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CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Reply Brief in 

Support of an injunction pending review in the Supreme Court was 
served May 2, 1986, on counsel described below by United States 
mail, postage prepaid, as follows:

Jack E. Greer, Esa.Williams, Worrell, Kelly & Greer, P.C. 
600 United Virginia Bank Building 
Five Main Plaza dsEast 
Post Office Box 3416 Norfolk, Virginia 23514
Wm. Bradford Reynolds, Esq. 
Charles J. Cooper, Esq.
Machel Carvin, Esq.
Department of Justice10th & Pennsylvania Avenue, N.W.
Washington, D.C. 20530
Conrad K. Harper, Esq.William L. Robinson, Esq.
Norman J. Chachkin, Esq.Lawyers Committee for Civil Rights 

Under Law 1400 'Eye' Street 
Suite 400Washington, D.C. 20005

X)

y fx v - t .. ...COUNSEL FOR PLAINTIFFS-APPELLANTS

Dated: May 2, 1986.

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