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253 chapter twenty-one The Houston Conference On Tuttle’s court, the Fifth Circuit, Birmingham festered. Earlier in the week, Tuttle had sent all members of the court a letter enclosing the agenda for the judicial council meeting scheduled for May 29. Judge Griffin Bell received his copy on the morning of May 23, the day after Tuttle’s ruling in the Birmingham school case. Later that day Bell sent his colleagues an eight-page letter in which he argued that Tuttle was wrong in his assertion that a single circuit court judge could vacate an injunction (the Albany case), or reinstate one after the district court judge had stayed it (the desegregation of the University of Georgia), or enter an injunction that a district court judge had declined to enter (Birmingham). He thought the matter should be discussed, and he informed his colleagues that he would, at the Wednesday meeting, make the following motion: “That the order entered by Judge Tuttle in the Birmingham case be vacated and set aside on the basis that it was improvidently granted, a single circuit judge not having the power under the law appertaining to enter such an order; without prejudice however, to the right of appellants in that case to apply for similar relief to a panel of this court consisting of three judges.”1 The next day Judge Walter Gewin weighed in on Judge Bell’s side: “First, let me say that I think Judge Bell has raised a vital question in his excellent letter of May 23, 1963.”2 He went on to note that his own office in Tuscaloosa was only 58 miles from the federal courthouse in Birmingham, and Judge Rives’s office in Montgomery was only 100 miles away. Tuttle’s office in Atlanta, in contrast, was approximately 170 miles away, and in another state. This looked like judge shopping, he suggested, and could only erode regard for the court. At the conference, Judge Bell’s motion did not pass, and Tuttle’s ruling stood undisturbed, pending the full appeal to a panel of the court. Nor did the court articulate a position on the power of a single judge to act. 254 « chapter twenty-one There was no consensus, as a note in the minutes explained: “The power of a single Circuit Judge to act in certain instances, including the power to grant injunctive relief, was next discussed. It was not possible to resolve the question of power by rule or otherwise due to an even division among the members of the Council as to the presence or absence of such power, and because some felt that it was not the appropriate subject matter of a rule.”3 The even division consisted of Brown, Rives, Tuttle, and Wisdom on one side and Bell, Cameron, Gewin, and Jones on the other. Judge Hutcheson did not attend due to poor health.4 In time, the Birmingham School Board’s appeal was heard by Judges Jones and Rives of the Fifth Circuit and Judge Bootle of the Middle District of Georgia. On July 24, 1964, the panel, Jones writing, unanimously affirmed Tuttle’s ruling that the plaintiff children had been entitled to an injunction restraining the school board from expelling them.5 No mention was made of the controversy over whether Tuttle had acted correctly in acting alone.6 From a jurisprudential point of view, the Birmingham case raises the most serious questions. In the University of Georgia litigation, Tuttle’s action , vacating a stay entered by Judge Bootle to allow a full appeal before his order took effect, simply reinstated the order. In the Albany litigation, when Tuttle vacated an order entered by Judge Elliott, he restored the status quo. But in Birmingham, Tuttle sitting alone entered an injunction that Judge Allgood had declined to enter; in other words, he granted positive relief, sitting alone, where the trial court judge had found that relief was not warranted. Judge Bell’s point was not insignificant. Under ordinary protocols, federal judges on circuit courts of appeal sit either in panels of three or en banc.7 Appellate judges rarely enter individual orders, with the exception of stays or injunctions pending appeal.8 They do have the power to act unilaterally, however, under Federal Rule of Civil Procedure 62 (g) (1): “This rule does not limit the power of the appellate court or one of its judges or justices . . . to stay proceedings—or suspend, modify, restore, or grant an injunction—while...

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