Meredith v. Fair, No. 19475.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: BROWN and WISDOM, Circuit , and DeVANE
• Citation: 306 F.2d 374
• Parties: James H. MEREDITH, on behalf of himself and others similarly situated, Appellant, v. Charles Dickson FAIR, President of the Board of Trustees of the State Institutions of Higher Learning, et al., Appellees.
• Decision Date: 27 July 1962
• Docket Number: No. 19475.

306 F.2d 374 (1962)

James H. MEREDITH, on behalf of himself and others similarly situated, Appellant,
v.
Charles Dickson FAIR, President of the Board of Trustees of the State Institutions of Higher Learning, et al., Appellees.

No. 19475.

United States Court of Appeals Fifth Circuit.

July 27, 1962.

306 F.2d 375

Mrs. C. B. Motley, New York City, R. Jess Brown, Vicksburg, Miss., for appellant.

Chas. Clark, Dugas Shands, Asst. Atty. Gen., Joe T. Patterson, Atty. Gen., Jackson, Miss., for appellees.

Before BROWN and WISDOM, Circuit Judges, and DeVANE, District Judge.

WISDOM, Circuit Judge.

In this case time is now of the quintessence. Time has been of the essence since January 1961 when James Meredith, in the middle of his junior year at Jackson State College (for Negroes), applied for admission to the University of Mississippi.

This Court heard three appeals of the case. In our opinion on the last appeal, 305 F.2d 341, we concluded:

"* * * From the moment the defendants discovered Meredith was a Negro they engaged in a carefully calculated campaign of delay, harassment, and masterly inactivity. It was a defense designed to discourage and to defeat by evasive tactics which would have been a credit to Quintus Fabius Maximus. * * * We see no valid, non-discriminatory reason for the University\'s not accepting Meredith. Instead, we see a well-defined pattern of delays and frustrations, part of a Fabian policy of worrying the enemy into defeat while time worked for the defenders."

Chronology highlights this case. June 25, 1962, this Court reversed the district court and remanded the case with instructions that the district court grant the injunction prayed for in the complaint. 305 F.2d 343. Rule 32 of the Rules of the Fifth Circuit, in part, reads:

"Mandate shall issue at any time after twenty-one days from the date of the decision, unless an application for rehearing has been granted or is pending. If such application is denied the mandate will be stayed for a further period of ten days. No further stay will be granted unless applied for within the delay given above. A mandate once issued will not be recalled except by the court and to prevent injustice."

During the twenty-one day period the defendants did not apply to this Court for a rehearing or for a stay of mandate. July 17 the mandate went down. Bright and early July 18, the attorney for the defendant presented to the Clerk for filing an order staying "the execution and enforcement of the mandate". The order, dated July 18 at Meridian, Mississippi, was signed by the Honorable Ben F. Cameron, United States Circuit Judge. Judge Cameron was not a member of the Court which heard any of Meredith's appeals. The Court which determined the cause was composed of Circuit Judges Brown and Wisdom and District Judge DeVane, sitting by designation. July 19 the Clerk, acting under instructions from this Court, telegraphed the parties through their counsel, requesting that they exchange and file, within five days, "statements of their positions with memorandum briefs for or against the granting of any stays, including the vacating of the stay entered by Judge Cameron, the issuance by this Court of injunctions pending further appeal, or other appropriate action." The Court has now received and considered the statements and their supporting briefs.

It is unnecessary to decide whether a judge who is not a member of the Court determining the cause is or is not "a

306 F.2d 376

judge of the court rendering the judgment or decree" within the meaning of 28 U.S.C.A. § 2101(f). Cf. Application of Chessman, 1954, 43 Cal.2d 391, 408, 274 P.2d 645

The Court is bigger than a single judge. Assuming, but without deciding, that Judge Cameron is indeed a judge of "the court rendering the judgment", we hold that the court determining the cause has inherent power to review the action of the single judge, whether or not the single judge is a member of the panel. Rosenberg v. United States, 1953, 346 U.S. 273, 73 S.Ct. 1152, 97 L.Ed. 1607, reconsideration denied, 346 U.S. 324, 73 S.Ct. 1178, 97 L.Ed. 1634, reconsideration denied, 346 U.S. 324, 73 S.Ct. 1178, 97 L.Ed. 1634. A contrary position would allow a judge in the minority, were he a member of the panel deciding the case, to frustrate the mandate of the majority. And, it is unthinkable that a judge who was not a member of the panel should be allowed to frustrate the mandate of the Court.

All of the members of this Court agree that when a mandate has been issued, it is logically and legally too late to stay it. Unless the Court should recall the mandate, the Court's control over the judgment below comes to an end after the mandate has been issued. That is the plain meaning of Rule 32. The authorities fully support the rule. Omaha Electric Light & Power Co. v. City of Omaha, 8 Cir., 216 F. 848, setting aside on rehearing decree in 179 F. 455, which aff'd 172 F. 494, appeal dismissed 230 U.S. 123, 33 S.Ct. 974, 57 L.Ed. 1419; in re Nevada-Utah Mines & Smelters Corp., 204 F. 982, denying rehearing 2 Cir., 202 F. 126. For this reason the purported stay is vacated and set aside.

Judge Brown and Judge Wisdom are also of the opinion that even if the law should give residual control to an apellate court over an issued mandate broad enough to support a stay in exceptional cases, here the stay order should be vacated and set aside on the ground that it was improvidently granted.

Judge Cameron did not sit on this case. He did not have the opportunity of a sitting judge to study the record, to hear the argument, to discuss the facts and the law in the judges'...