Appalachian Volunteers, Inc. v. Clark

Decision Date11 September 1970
Docket NumberNo. 20255-20256.,20255-20256.
Citation432 F.2d 530
PartiesAPPALACHIAN VOLUNTEERS, INC., et al., Petitioners-Appellants, v. Charles CLARK et al., Respondents-Appellees. Edward Lee BLANKENSHIP et al., Plaintiffs-Appellants, v. Clarles CLARK et al., Defendants-Appellees.
CourtU.S. Court of Appeals — Sixth Circuit

Thomas M. Place, Prestonsburg, Ky. (Howard Thorkelson Prestonsburg, Ky., on the brief), for appellants. Laurence E. Norton, II, of counsel.

C. Kilmer Combs, Pikeville, Ky., and W. W. Burchett, Prestonsburg, Ky. (Barkley J. Sturgill, Prestonsburg, Ky., on the brief), for appellees.

Before WEICK, McCREE, and BROOKS, Circuit Judges.

McCREE, Circuit Judge.

These consolidated appeals present issues related to appellants' attempts to invoke the jurisdiction of the federal district court. Appellants are members of Volunteers in Service to America (VISTA), members of Appalachian Volunteers, Inc., and local residents of Floyd County, Kentucky who are active in citizens' groups interested in the administration of welfare programs. In case number 20255, they appeal from an order of the District Court remanding to the Floyd County, Kentucky Circuit Court an action for injunctive relief originally commenced by defendants-appellees in the state court but subsequently removed to the federal district court by appellants. In case number 20256, they appeal from an order of the District Court dismissing their complaint requesting declaratory and injunctive relief pursuant to 28 U.S.C. § 2201 and 42 U.S.C. § 1983 respectively.

The dispute which spawned this litigation began in November, 1968. Some of the appellants, acting as representatives of the Eastern Kentucky Welfare Rights Organization, met with the Superintendent of Schools of Floyd County, Charles Clark, in an effort to obtain information about his plans for compliance with a newly issued set of Department of Agriculture regulations promulgated pursuant to the National School Lunch Act, 42 U.S.C. § 1751 et seq., and designed to enable local school authorities to utilize the Act's free and reduced-price lunch program. The representatives discovered that Superintendent Clark was unfamiliar with the new regulations, but took no further action until March, 1969, when a revised set of guidelines was issued by the Department of Agriculture. After the announcement of the new guidelines, the representatives of the Eastern Kentucky Welfare Rights Organization again met with Superintendent Clark in an effort to learn about his plans for compliance. This meeting was following over a period of months by several other meetings, some of which were attended by appellant Brooks, a VISTA worker.

The meetings apparently succeeded only in creating strained relations between the parties involved, and, on July 21, 1969, the members of the Board of Education of Floyd County reacted by adopting a resolution which declared "all schools and school property off limits to the Vista and Appalachian Volunteers". Despite this resolution, appellant Brooks and other VISTA workers attempted twice to meet with Superintendent Clark at his office in order to ascertain whether a compliance policy had been adopted. However, they were ejected from the premises both times. Moreover, on August 12, 1969, Superintendent Clark and the Board of Education, acting in their official capacities, filed a complaint in the Floyd County Circuit Court to enjoin appellants "from trespassing upon any property under the ownership, control or operation of the Floyd County Board of Education". Although the Circuit Judge was absent from Floyd County at the time the complaint was filed, the Floyd County Circuit Court Clerk signed, ex parte, a temporary restraining order pursuant to his authority under Rule 65.03, Kentucky Rules of Civil Procedure.1 This order, which had no termination date, restrained appellants "from trespassing upon the property of the Floyd County Board of Education".

It does not appear in the record how long the Circuit Judge was absent from the County. However, on September 2, 1969, appellants filed a removal petition in the federal district court, predicated upon either 28 U.S.C. § 1442 or 28 U.S.C. § 1443. Three days later, on September 5, 1969, appellants also filed an original action for declaratory and injunctive relief under 28 U.S.C. § 2201 and 42 U.S.C. § 1983. In this action, appellants sought a declaration that the resolution of the Board of Education and the temporary restraining order enforcing it are invalid under the United States Constitution. They also sought an injunction prohibiting Superintendent Clark and the members of the Board of Education from enforcing the resolution and temporary restraining order and from further attempting to prevent appellants' peaceable presentation of grievances to the Board.

More than four months later, on January 14, 1970, the District Judge entered an order remanding to the Floyd County Circuit Court the cause of action in which Superintendent Clark and the Board of Education sought injunctive relief. Two days later, the District Judge dismissed appellants' action for declaratory and injunctive relief.

Case No. 20255

At the outset, we consider appellants' motion, filed prior to oral argument on appeal, "to enter the previous termination of, or in the alternative, to dissolve the restraining order" originally obtained in the Floyd County Circuit Court.2 Appellants observe that jurisdiction of appellees' injunction proceeding automatically vested in the federal district court upon compliance with the procedural requirements for removal contained in 28 U.S.C. § 1446. See 28 U.S. C. § 1446(e); Wood v. De Weese, 305 F.Supp. 939, 941 (W.D.Ky.1969). Appellants therefore contend that under Rule 81(c), Fed.R.Civ.P., which provides that the Federal Rules of Civil Procedure apply to all removed actions, Rule 65(b), Fed.R.Civ.P., became the rule of procedure governing the ex parte temporary restraining order issued by the Clerk of the Floyd County Circuit Court. Rule 65(b) provides, in pertinent part:

Every temporary restraining order granted without notice * * * shall expire by its terms within such time after entry, not to exceed 10 days, as the court fixes, unless within the time so fixed the order, for good cause shown, is extended for a like period * * *.

Accordingly, appellants assert that the temporary restraining order expired no later than ten days after their removal petition was filed and that this court should enter an order confirming that fact.

The answer to this contention is that 28 U.S.C. § 1450 expressly provides that:

All injunctions, orders, and other proceedings had in a removed action prior to its removal shall remain in full force and effect until dissolved or modified by the district court.

This clear statutory command must take precedence over the arguably contrary rule of procedure, and it would seem to preclude the automatic termination of the temporary restraining order obtained in the state court.

Appellants contend, however, that even if the temporary restraining order did not automatically expire under Rule 65 (b), the District Judge's failure to enter an order dissolving it was tantamount to granting a preliminary injunction, since the effect of his inaction was to extend the temporary restraining order beyond the twenty day limit authorized by Rule 65(b), Fed.R.Civ.P. Cf. National Mediation Board v. Air Line Pilots Ass'n, Int'l, 323 F.2d 305 (D.C. Cir. 1963); Pan American World Airways v. Flight Eng'rs Int'l Ass'n, 306 F.2d 840 (2d Cir. 1962). Appellants further contend that the implied grant of the preliminary injunction was appealable under 28 U.S.C. § 1292(a) (1) and that we should dissolve the preliminary injunction since it is not supported by "findings of fact and conclusions of law" as required by Rule 52(a), Fed.R.Civ.P.

Even if appellants are correct about the effect of the District Judge's inaction following removal, they did not pursue an interlocutory appeal under 28 U.S.C. § 1292(a) (1) to test their contention that there was an implied grant of a preliminary injunction. Accordingly, we can review this issue, if review is appropriate, only as an incident of the appeal from the District Judge's order remanding the case to the state court. Because of the limited scope of appellate review of remand orders authorized by 28 U.S.C. § 1447(d), we consider such review inappropriate. Section 1447(d) provides:

An order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise, except that an order remanding a case to the State court from which it was removed pursuant to section 1443 of this title shall be reviewable by appeal or otherwise.

The obvious purpose of this section is to avoid the delays which would result if appeals from remand orders were permitted. Kloeb v. Armour & Co., 311 U.S. 199, 204, 61 S.Ct. 213, 85 L.Ed. 124 (1940); Matter of MacNeil Bros. Co., 259 F.2d 386, 388 (1st Cir. 1958). Moreover, even when removal is based on 28 U.S.C. § 1443 and an appeal is authorized, the review of issues other than those directly related to the propriety of the remand order itself would frustrate the clear Congressional policy of expedition, and we decline to do so. We consider this approach particularly appropriate when, as here, we affirm the remand order of the District Judge (see infra).

Appellants alleged in their original removal petition that removal was proper either under 28 U.S.C. § 1442 or under 28 U.S.C. § 1443. They did not, however, specify under which subsection of either of these statutory provisions removal was authorized. The District Judge held that the failure to aver under which subsection of section 1442 removal was appropriate, and the failure to expressly allege that the VISTA workers were persons acting under an officer of the United States, necessitated a remand to the state court. This ruling presumably was...

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