JAKE AYERS, JR, Etc v. RONNIE MUSGROVE, Governor, State of Mississippi

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 01-60930
_____________________
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)
_________________________________________________________________

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* 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that this opinion should not be published and is not precedent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
December 28, 2001
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 a motion for leave to opt out of the
class. The district court entered an order denying Appellants’
motion to opt out, and Appellants appeal that order.
We dismiss Appellants’ appeal because the district court’s
order is not currently appealable. First, the district court’s
order is not appealable under 28 U.S.C. § 1291 because it is not
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 order is not appealable under 28
U.S.C. § 1292(a)(1) as an injunction because the order does not
command action from any party, does not threaten contempt for
non-action, and does not accord substantive relief to any party.
See Police Ass’n of New Orleans v. City of New Orleans, 100 F.3d

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3
1159, 1166 (5th Cir. 1996). Third, the district court’s order is
not appealable as a class certification order under Federal Rule
of Civil Procedure 23(f). FED. R. CIV. PRO. 23(f). Finally, the
district court’s order is not appealable as a collateral order
because it does not resolve questions separate from the merits
and is effectively reviewable on appeal from the final judgment.
See Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 & n.12
(1978).
Appeal DISMISSED.

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