Ayers v. Musgrove ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 01-60969
Summary Calendar
_____________________
JAKE AYERS, JR, Etc; ET AL
Plaintiffs
JAKE AYERS, JR, Private Plaintiffs
Plaintiff - Appellant
LILLIE B AYERS; LEOLA BLACKMON; RANDOLPH WALKER; HENRY BERNARD
AYERS; DR IVORY PHILLIPS; APPROXIMATELY 4,000 PETITIONERS,
AFFIANTS, PARTIES IN INTEREST AND OTHERWISE PARTICIPANTS IN THE
AYERS CONTROVERSY, also known as Lillie B Ayers Private
Plaintiffs
Appellants
v.
RONNIE MUSGROVE, Governor, State of Mississippi
Defendant - Appellee
BOARD OF TRUSTEES OF STATE INSTITUTION OF HIGHER LEARNING; DELTA
STATE UNIVERSITY; MISSISSIPPI STATE UNIVERSITY; UNIVERSITY OF
SOUTHERN MISSISSIPPI; UNIVERSITY OF MISSISSIPPI; MISSISSIPPI
UNIVERSITY FOR WOMEN
Appellees
v.
LOUIS ARMSTRONG
Movant - Appellant
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Mississippi
4:75-CV-9-B
_________________________________________________________________
April 23, 2002
Before KING, Chief Judge, and JOLLY and DENNIS, Circuit Judges.
PER CURIAM:*
Appellants are members of a class certified under Federal
Rule of Civil Procedure 23(b)(2). FED. R. CIV. PRO. 23(b)(2).
After other members of the class proposed a settlement agreement
but before the district court approved or rejected that
agreement, Appellants filed two motions: (1) Motion For
Injunctive Relief Against State of Mississippi For Non-Compliance
With Mandate of Court Or Stay Or Injunction Pending Appeal and
(2) Second Motion For Injunctive Relief Against State of
Mississippi For Non-Compliance With Mandate of Court Or Stay Or
Injunction Pending Appeal. The district court entered an order
dismissing Appellants’ first motion on the ground that Appellants
lacked standing to act separate and apart from the class. The
district court entered a second order denying Appellants’ second
motion on the ground that the motion was moot. Appellants appeal
these orders.
We dismiss Appellants’ appeal because the district court’s
orders are not currently appealable. First, the district court’s
orders are not appealable under 28 U.S.C. § 1291 because neither
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
2
order constitutes a final decision “that ends the litigation on
the merits and leaves nothing more for the court to do but
execute the judgment.” Green Tree Fin. Corp.-Alabama v.
Randolph, 531 U.S. 79, 86 (2000) (internal citations and
quotations omitted). Second, the district court’s orders are not
appealable under 28 U.S.C. § 1292(a)(1) as denials of injunctions
because the orders do not command action from any party, do not
threaten contempt for non-action, and do not accord substantive
relief to any party. See Police Ass’n of New Orleans v. City of
New Orleans, 100 F.3d 1159, 1166 (5th Cir. 1996). Finally, the
district court’s orders are not appealable as collateral orders
because they do not resolve questions separate from the merits
and are effectively reviewable on appeal from the final judgment.
See Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 & n.12
(1978).
Appeal DISMISSED. Costs shall be borne by Appellants.
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