568 F2d 456 Southway Discount Center Inc v. City of Birmingham

568 F.2d 456

SOUTHWAY DISCOUNT CENTER, INC., a corporation, Plaintiff-Appellant,
CITY OF BIRMINGHAM, a Municipal Corporation, et al.,

No. 76-1955.

United States Court of Appeals,
Fifth Circuit.

Feb. 27, 1978.

Virgil K. Sandefer, Birmingham, Ala., for plaintiff-appellant.

Wm. C. Walker, Birmingham, Ala., for defendants-appellees.

Appeal from the United States District Court for the Northern District of Alabama.

Before GODBOLD, HILL and FAY, Circuit Judges.


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Plaintiffs appeal from an adverse decision by a three-judge panel1 on their claims seeking injunctive relief from future discriminatory enforcement of the Sunday Blue Laws of Birmingham, Alabama and their contention these ordinances are unconstitutional.


Neither plaintiffs nor defendants question the three-judge panel's holding it was properly convened to hear this cause. We find no basis to question that decision. Appeals from rulings by three-judge courts are governed by 28 U.S.C. § 1253 which provides:


Except as otherwise provided by law, any party may appeal to the Supreme Court from an order granting or denying, after notice and hearing, an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges.


Therefore, because it is not provided otherwise, we find this court to be wrong forum for appeal and dismiss this appeal for lack of jurisdiction.2 See Carter v. Stanton, 405 U.S. 669, 92 S.Ct. 1232, 31 L.Ed.2d 569 (1972); Oldroyd v. Kugler, 461 F.2d 535 (5th Cir. 1972).




Empaneled pursuant to 28 U.S.C. § 2281 (Repealed August 12, 1976). Plaintiffs claim was filed June 19, 1975


Southway cites Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974) to support his position that this court has jurisdiction. The appellant in Steffel did not appeal the denial of injunctive relief by the single judge therefore the Circuit Court of Appeals had jurisdiction. However, in n. 7 in Steffel the Supreme Court states the original suit for injunctive relief should have been before a three-judge panel and concludes the Court of Appeals would not have had jurisdiction