Robert W. Kelley v. The Metropolitan County Board of Education of Nashville and Davidson County, Tennessee

479 F.2d 810, 1973 U.S. App. LEXIS 9575

• Court: Court of Appeals for the Sixth Circuit
• Decided: June 6, 1973
• Docket: 72-2143
• Status: Published

Opinions

ORDER.

On receipt and consideration of a motion to dismiss an appeal and on consideration of the briefs filed therein; and

Finding in the record no abuse of discretion on the part of the District Judge whose order of refusal is sought to be appealed¹ and no clear legal ground for issuance of a writ of mandamus if appellant’s appeal should be considered to be such, Ex Parte American Steel Barrel Co., 230 U.S. 35, 45, 33 S.Ct. 1007, 57 L.Ed. 1379 (1913),

The appeal is hereby dismissed; or alternatively, said petition for writ of mandamus is hereby denied.

1 . We recognize that this court has held that a District Judge’s denial of a motion to disqualify under 28 U.S.C. § 144 (1970), is not a final and appealable order. Collier v. Picard, 237 F.2d 234 (6th Cir. 1956); Albert v. District Court, 283 F.2d 61 (6th Cir. 1960). We do not, however, feel that these cases necessarily control a District Judge’s grant of a motion to disqualify in a case wherein he has already entered a decree in equity, which decree he has a continuing responsibility to administer, along with a substantial background of experience.