(iii) Stearns-Roger Mfg. Co. v. Brown, 114 Fed. 939 (8th Cir. 1902) Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. Tank Truck Rentals, Inc. v. Comm'r, 356 U.S. 30 (1958)... Page 7 12, 14 14 8 14 JOHN B. CONNALLY, JR., Appellees APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA MOTION TO DISMISS OR AFFIRM Plaintiffs-appellees move the Court pursuant to Rule 16 of the Rules of this Court to dismiss this appeal for lack of jurisdiction or, in the alternative, to affirm the final order of the District Court on the grounds that there has been no showing of an abuse of discretion and that the issues raised by appellants are without substantial merit. STATEMENT OF THE CASE The appellants, who are intervenors in this action, seek a direct appeal from the Order for Declaratory Relief and Permanent Injunction entered by the District Court on June 30, 1971, construing certain provisions of the Internal Revenue Code, §§ 501(c)(3) (tax exempt status for educational institutions) and 170 (a) - (c) (allowing deductions for charitable and educational contributions) to deny tax benefits to all-white, racially segregated private schools and establishing compliance procedures for the Internal Revenue Service to follow regarding private schools in Mississippi. As we shall more fully discuss infra, this Court lacks jurisdiction of this appeal because appellants seek review of an order which does not affect or injure any identifiable legal interest which they have claimed and because the decision of the District Court does not represent the kind of constitutional adjudication which requires direct review in this Court. Alternatively, the issues raised by appellants lack sufficient substantiality and merit to require this Court to reverse the discretionary order of the District Court. Plaintiffs filed this action on May 21, 1969, as representatives of the class of Federal taxpayers and black parents and schoolchildren attending public schools in Mississippi for injunctive relief against the then-existing policy of the defendants, the Secretary of the Treasury and the Commissioner of Internal Revenue, of granting tax exempt status and recognizing the deductibility of contributions to racially segregated, all-white private schools. On January 12, 1970, the District Court issued a preliminary injunction upon finding that "threatened federal support for the maintenance of separate school systems for white and black" constituted irreparable injury to the plaintiffs and to the public interest, and that preliminary injunctive relief was necessary because "in view of the court-ordered integration in the public schools of Mississippi, see Alexander v. Holmes County Board of Education [396 U. S. 191, exempt status will be given to segregated schools and this exemption and assurance of deductibility will lead to larger and more numerous contributions than would otherwise have been made, and to construction of private segregated schools ***" Green v. Kennedy, 309 F.Supp. 1127, 1139 (D.D.C. 1970). The defendants were preliminarily enjoined from issuing any further exemption rulings or assurances of deductibility to private schools in Mississippi which were "part of a system of private schools operated on a racially segregated basis as an alternative to white students seeking to avoid desegregated private schools." Id. at 1140. On June 26, 1970, after the submission to the court of additional statistics indicating that great numbers of white students were leaving public schools to enroll in segregated, white-only private schools in Mississippi in the wake of court-ordered integration of the public schools, the District Court modified its preliminary injunction, and directed the defendants to "forthwith order *** the suspension of the advance assurance[s] of deductibility of contributions" to certain segregated private schools in Mississippi during the pendency of the litigation. On July 10, 1970, the Internal Revenue Service announced a change in policy, and declared that "it can no longer legally justify allowing tax-exempt status to private schools which practice racial discrimination nor can it treat gifts to such schools as charitable deductions for income tax purposes." I.R.S. Press Release, 7 CCH 1970 Stand. Fed. Tax Rep. ¶ 6790. Intervenors are a white parent and his children who reside in Mississippi and who support or attend a private school there. On January 21, 1970, the District Court allowed their intervention as representatives "of the class of parents and children who support or attend private, non-profit, taxexempt schools in Mississippi having an enrollment consisting only of members of the white race and established as an alternative for white students seeking to avoid desegregated public schools ***” (App. A6). The intervenors previously appealed to this Court from the limited grant of intervention by the District Court and from the January 12, 1970, prelim The abbreviation "App." refers to the Appendix of the Intervenors. Appellants' Jurisdictional Statement, filed September 24, 1971. 4 inary injunction, but the appeal was dismissed on June 15, 1970, for lack of jurisdiction. Cannon v. Green, 398 U.S. 956 (1970). On July 6, 1970, they moved to set aside the June 26 District Court order for supplemental relief, and, after their motion was denied by the District Court on September 14, 1970, they filed a notice of appeal to this Court from the District Court orders of January 12, June 26, and September 14. That appeal, too, was dismissed for want of jurisdiction. Coit v. Green, 400 U.S. 986 (1971). On June 30, 1971, the District Court entered an order for declaratory relief and permanent injunction, declaring that: "Section 501(c)(3) of the Internal Revenue Code of 1954 does not provide a tax exemption for, and Section 170 (a) (c) of the Code, does not provide a deduction for a contribution to, any organization that is operated for educational purposes unless the school or other educational institution involved has a racially nondiscriminatory policy as to students." App. A53. The permanent injunction requires that as a condition to granting or continuing tax exempt status and assurance of deductibility of contributions to private schools in Mississippi, the defendants must gain assurances from affected schools and extensive information indicating that eligible schools have a racially nondiscriminatory policy as to students. If the required assurances, information and proof of publication of a racially nondiscriminatory policy as to students are not supplied to IRS within 90 days from the date of issuance of the Order, then the tax exemption rulings issued to non-complying Mississippi private schools are to be revoked and deductions for contributions to such ineligible private schools made since June 26, 1970, the date of the supplemental preliminary order of the court, are to be disallowed. App. A56. As the Government pointed out in its memorandum in opposition to appellants' motion for a stay of this injunction, the District Court's order of June 30, 1971, substantially confirms the new policy of IRS in effect since July 10, 1970: "It adds only the requirement that the schools' nondiscrimination statements meet certain further |