Armstrong v. O'CONNELL

Citation416 F. Supp. 1325
Decision Date26 May 1976
Docket NumberNo. 65-C-173.,65-C-173.
CourtU.S. District Court — Eastern District of Wisconsin
PartiesKevin ARMSTRONG et al., Plaintiffs, v. Donald J. O'CONNELL et al., Defendants, Milwaukee Teachers' Education Association, Undesignated Intervenor.



Lloyd A. Barbee, Milwaukee, Wis., for named plaintiffs.

Irvin B. Charne, Milwaukee, Wis., for the absent members of plaintiff classes.

L. C. Hammond, Jr., Ross R. Kinney, and Patrick W. Schmidt, Milwaukee, Wis., for defendants.

Curry First, Milwaukee, Wis., for Milwaukee Teachers' Education Association, undesignated intervenor.


REYNOLDS, Chief Judge.


On January 19, 1976, this Court issued a decision and order in the above-captioned case. The major portion of that decision consisted of findings of fact and conclusions of law which provided the basis for the Court's conclusion that the defendants in this action had intentionally created and maintained unlawful segregation in the public school system of the City of Milwaukee. On the basis of that conclusion, the Court ordered that a partial judgment be entered permanently enjoining the defendants from discriminating on the basis of race in the operation of the public schools of the City of Milwaukee and from creating, promoting, or maintaining racial segregation in any school or other facility in the Milwaukee school system. The aforementioned partial judgment also ordered the defendants to immediately begin the formulation of plans to eliminate every form of racial segregation from the public schools of Milwaukee, including all consequences and vestiges of segregation previously practiced by the defendants.

In the remaining portions of its decision and order, the Court considered and decided certain related matters. In particular, the Court dismissed as parties to the action certain named plaintiffs and the defendant Board of School Directors, ordered that certain persons be substituted for the defendants originally named in the amended complaint, determined that the remaining plaintiffs could maintain the action on behalf of two designated classes, appointed separate counsel to represent the absent members of the plaintiff classes, and appointed a special master to assist the court in the task of formulating a remedial decree. In addition, the Court adverted to the question of attorneys' fees by indicating that an immediate award of attorneys' fees was authorized by 20 U.S.C. § 1617.

On January 28, 1976, the defendants filed a motion with this court seeking the entry of an order suspending the permanent injunction entered against the defendants pending the resolution of an appeal of the decision and order of January 19, 1976. The defendants also requested that the Court stay all proceedings relating to the payment of costs and counsel fees incurred by the plaintiffs pending resolution of the aforementioned appeal.1 Finally, the defendants requested that the Court revoke the appointments of the special master and the counsel representing the absent members of the plaintiff classes; in the alternative, defendants requested that the activities of these persons be stayed pending the disposition of defendants' appeal.

On February 4, 1976, the United States Court of Appeals for the Seventh Circuit accepted an appeal by the defendants limited to the injunctive portions of the Court's decision and order embodied in the partial judgment entered on January 19, 1976, i. e., the proscription against prospective discrimination and the directive relating to the defendants' formulation of a remedial plan. By an order dated February 9, 1976, the court of appeals established a schedule for defendants' appeal, which together with any cross-appeals will culminate in the hearing of oral argument during the week of June 1, 1976. These appellate actions are mentioned here since they provide the jurisdictional context in which the defendants' motions must be considered.


Ordinarily, the taking of an appeal operates to transfer jurisdiction of the case to the court of appeals, and thereafter the district court is without jurisdiction to proceed further in the case. The foregoing rule does not obtain, however, in an appeal from an interlocutory order granting an injunction, and the fact of such an appeal does not divest the district court of jurisdiction to proceed with respect to matters not involved in the appeal. Janousek v. Doyle, 313 F.2d 916, 920 (8th Cir. 1963); United States v. Board of School Commissioners of the City of Indianapolis, Indiana, 503 F.2d 68, 81 (7th Cir. 1924), cert. denied 421 U.S. 929, 96 S.Ct. 1655, 44 L.Ed.2d 86 (1975).

With respect to the interlocutory order of injunction which has been appealed, the general rule of jurisdictional divestiture applies, and it would be improper for this Court to take any action which might be inconsistent with or in derogation of the appellate court's jurisdiction. Turner v. HMH Publishing Co., 328 F.2d 136, 137 (5th Cir. 1964). Rule 62 of the Federal Rules of Civil Procedure recognizes, however, that a trial court may suspend or modify the operation of an interlocutory injunction during the pendency of an appeal therefrom. United States v. El-O-Pathic Pharmacy, 192 F.2d 62, 79 (9th Cir. 1951).

Applying these principles to the facts at hand, this Court concludes that it has jurisdiction to consider the defendants' motion for a suspension of those injunctive portions of the partial judgment of January 19, 1976, which are presently on appeal. The remaining items of relief requested by the defendants relate to matters which are independent and not part of the pending appeal, and this Court accordingly is possessed of jurisdiction to consider them fully.

The parties have submitted extensive briefs on the issues raised by the defendants' motion. On the basis of those briefs and the record in this case, the Court has determined that defendants' motion must be denied. In setting out its reasons for this conclusion, it will be helpful to consider separately each item of relief requested by the defendants.


Rule 62(c) of the Federal Rules of Civil Procedure provides:

"When an appeal is taken from an interlocutory or final judgment granting * * * an injunction, the court in its discretion may suspend or modify * * an injunction during the pendency of the appeal * * *." (Emphasis added.)

Defendants have offered the following statement of factors to be considered by this Court in determining whether its discretion should be exercised in favor of a suspension or modification of the injunctive judgment at issue:

"The legal principles by which an application for a stay of an order of a district court pending appeal is to be judged may be simply stated. * * * Briefly stated, a party seeking a stay must show (1) that he will likely prevail on the merits of the appeal, (2) that he will suffer irreparable injury if the stay is denied, (3) that other parties will not be substantially harmed by the stay, and (4) that the public interest will be served by granting the stay." Long v. Robinson, 432 F.2d 977, 979 (4th Cir. 1970).2

The aforementioned factors are guides to the Court's exercise of its discretion. By definition, discretion is synergistic, and the criteria in question do not constitute a mechanistic formula. Each factor must be considered in relation to the others, and the interaction of all four must be weighed. Failure to meet one factor may be excused in light of a particularly strong showing with respect to another factor. Similarly, particularly weak showings with respect to all four factors would not necessarily entitle the defendants to the relief they seek. With these considerations in mind, the Court turns to the merits of the motion to suspend the injunction.

The first factor—the likelihood of success on appeal—is perhaps the most difficult for this Court to objectively assess. On the one hand, this Court's reading of the applicable law was the basis for its decision to enter the injunction in question. On the other hand, however, "Rule 62 does not intend that the District Court may refuse to stay its order upon precisely the same grounds as those on which it issued the order," Friends of the Earth v. Armstrong, 360 F.Supp. 165, 196 (D.Utah, 1973), vacated on other grounds 485 F.2d 1 (10th Cir. 1973), cert. denied 414 U.S. 1171, 94 S.Ct. 933, 39 L.Ed.2d 120 (1974), rehearing denied 416 U.S. 952, 94 S.Ct. 1964, 40 L.Ed.2d 303 (1974).

The defendants assert that the Court's decision is deficient in various respects. But the likelihood of prevailing on appeal which this court must assess is the likelihood of success on the merits. The defendants' main contention on the merits seems to be that the "neighborhood school policy" will be sustained on appeal. The concept of "likelihood" encompasses something more than a mere chance of success; in common parlance, "likelihood" means more likely than not. Defendants rest on the "still viable" decision of Bell v. School City of Gary, Indiana, 324 F.2d 209 (7th Cir. 1963), cert. denied 377 U.S. 924, 84 S.Ct. 1223, 12 L.Ed.2d 216 (1964), and the Supreme Court's declination to rule directly on the neighborhood school policy in Keyes v. School District No. 1, Denver, Colorado, 413 U.S. 189, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973). Given the totality of the court decisions since Bell was decided almost thirteen years ago, the Court must conclude that the legal conclusion attendant to its findings of intentional segregative acts on the part of the defendants is not likely to be obviated by the interposition of the neighborhood school policy.

A second factor which this Court must consider in passing on the defendants' motion is whether the plaintiffs would be substantially harmed in the event that the motion is granted. As previously noted, the Court's...

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