Order Dismissing Appeal

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NORWOOD v. HARRISON 

Delores NORWOOD, by her father 

Calvin Norwood, et al., 

Plaintiffs-Appellees, 

V. 

D. L. HARRISON, Sr., et al, 
Defendants-Appellants. 

No. 76-1865. 

United States Court of Appeals, 
Fifth Circuit. 

Nov. 21, 1971. 

On motion for award of attorney 
fees, the United States District Court for 
the Northern District of Mississippi, at 
Oxford, William C. Keady, J. 410 
F.Supp. 133, concluded that plaintiffs 
were entitled to recover fees from mem- 
bers and executive secretary of Missis- 
sippi State Textbook Purchasing Board 
and their successors in office, “in their 
official capacity,” and appeal was taken. 
The Court of Appeals held that order, 
which on its face negated idea that it 
was a final judgment, was interlocutory 
rather than a final appealable decision. 

Appeal dismissed. 

Federal Courts ¢=585 
Order, which was entered by the dis- 

trict court following its conclusion that 
plaintiffs were entitled to recover attor- 
ney fees from members and executive 
secretary of the Mississippi State Text- 
book Purchasing Board and their succes- 

1. This litigation challenged the constitutionali- 

ty of §§ 6634 et seq., Mississippi Code Anno- 

tated (1942), which authorized the distribution, 

free, of state-owned textbooks to all pupils in 

elementary and secondary schools in Missis- 

sippi, regardless of whether the schools were 

public or private. A 3-Judge Court sustained 

the constitutionality of the statute, Norwood v. 

758 

sors in office, which recited that Board 
members and their successors were “as- 
sessed * * * with liability,” but 
which named no board members and en- 
tered no judgment against anybody or 
against Board as official arm of state, 
had to be classified as interlocutory rath- 
er than as a final appealable decision. 
28 U.S.C.A. §§ 1291, 1292. 

Appeal from the United States Dis- 
trict Court for the Northern District of 
Mississippi. 

Before COLEMAN, SIMPSON and 
TJOFLAT, Circuit Judges. 

PER CURIAM: 

The plaintiffs-appellees sought an 
award of attorneys’ fees for services ren- 
dered in Norwood v. Harrison, 413 U.S. 
455, 93 S.Ct. 2804, 37 L.Ed.2d 723 (1973).! 
In a memorandum opinion the District 
Court concluded that they were entitled 
to recover the fees from the members 
and the Executive Secretary of the Mis- 
sissippi State Textbook Purchasing 
Board, and their successors in office, “in 
their official capacity”. An order was 
accordingly entered, as follows: 

ORDER 

Upon motion of plaintiffs for an 
award of counsel fees, and after due 
consideration of all matters pertinent 
to a correct decision, and having con- 
cluded, for the reasons set forth in 
Memorandum Opinion this date re- 
leased, that plaintiffs’ counsel are enti- 

Harrison, 340 F.Supp. 1003 (N.D.Miss., 1972). 
The Supreme Court vacated that decision, and, 

upon remand, the District Court enjoined the 

distribution of state-owned textbooks to any 

private school in Mississippi which discrimi- 

nates on the basis of race, Norwood v. Harri- 

son, 382 F.Supp. 921 (N.D.Miss., 1974). 

Synopses, Syllabi and Key Number Classification 

COPYRIGHT (@© 1977, by WEST PUBLISHING CO. 

The Synopses, Syllabi and Key Number Classifi- 

cation constitute no part of the opinion of the court.  



759 

tled to an award of attorneys’ fees and 
costs for their successful prosecution 
of the within cause, it is 

ORDERED 

That the members and Executive 
Secretary of the Mississippi State 
Textbook Purchasing Board, and their 
successors in office, be assessed in 
their official capacity with liability for 
the sum of $23,852 as attorneys’ fees 
due and payable to plaintiffs’ counsel 
($22,102 to Melvyn R. Leventhal, 
$1,750 to James M. Nabrit, III), and 
$4,999.94 taxable costs incurred by 
plaintiffs in the prosecution of the 
suit. 

Jurisdiction is reserved to implement 
the mandate of this order. 

This, 2nd day of March, 1976. 

/s/ William * C. Keady 
Chief Judge 
United States 
District Court 

Notice of appeal was filed and the 
case was orally argued in this Court on 
October 17, 1977. 

2. We do not reach, and indicate no opinion on, 

the issue of whether the Board is vested with 

the authority to issue such a warrant. Nor 

have we considered the matter of whether a 

» 
NORWOOD v. HARRISON 

For the lack of an appealable final 
decision, 28 U.S.C., § 1291, we must dis- 
miss the appeal. 

On its face, the order negates the idea 
that it is a final judgment. It recites 
that board members and their successors 
in office are “assessed with 
liability”. No board members are named 
and no judgment is entered against any- 
body or against the Board as an official 
arm of the State. We are unable to see 
how a writ of execution could issue 
against anybody on the strength of this 
document. The reservation of jurisdic- 
tion to implement the order may be a 
hint that the Court was considering the 
possibility of a mandatory injunction di- 
recting the Board to issue a pay warrant 
against the state treasury for the pay- 
ment of the money.2 

In short, we are convinced that the 
order from which the appeal is sought 
must at this point be classified as inter- 
locutory rather than final, 28 U.S.C., 

§§ 1291, 1292; Catlin v. United States, 
324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 
911 (1945). 

The appeal is 

DISMISSED. 

judgment in this case could be entered against 

individuals or boards who were not, or could 

not be, made parties to the litigation. 

Adm. Office, U.S. Courts—West Publishing Company, Saint Paul, Minn. [||820e975b-f944-4a48-8ae7-c30559ff7b74||]