Notice of Hearing; Conditional Motions for F.R.C.P. 62(d) Stay and 54(b) Revision of June 14, 1972 Ruling and Order

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R O B E R T  J. L O R D

Attorney at Law 

S388 D ixie H ighway

Fair Haven, M ichigan 48023

July 7, 1972

Honorable Stephen J. Roth 
United States District Judge 
Federal Building 
Flint, Michigan 48502
Re: Bradley v. Milliken

No. 35257
Dear Judge Roth:

Enclosed please find Conditional Motions for F.R.P.C. 62(d) 
Stay and 54(b) Revision of June 14, 1972 Ruling and Order, 
filed by defendants-intervenor Kerry Green, et al., together 
with notice of hearing and memorandum of law, this July 7.
Written requests for concurrence in the Rule 54(b) and Rule 
62(d) motions were mailed June 16 and June 23 respectively.
No counsel response has been received except from Mr. Lucas 
who has no opposition to the Rule 54(b) motion but opposes 
the Rule 62(d) motion.

Very truly yours

Robert J. Lord
RJL:ab

cc: All counsel on attached certificate of service



UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

RONALD BRADLEY, et al., )
)

Plaintiffs, )
)-vs- )
)WILLIAM Go MILLIKEN, et al., )
)Defendants, )
)DETROIT FEDERATION OF TEACHERS, )

LOCAL #231, AMERICAN FEDERATION )
OF TEACHERS, AFL-CIO, )

)Defendant- )
Intervenor, )

)and )
)DENISE MAGDOWSKI, et al., )
)Defendants- )

Intervenor, )
)et al. )

------------------------------------------- )

CIVIL ACTION 
NO. 35257

NOTICE OF HEARING

TO: Counsel for all parties
SIRS:

Please take notice that the within motions will be brought on for 
hearing before the Honorable Stephen J. Roth in the Federal Building, Detroit, 
Michigan, on a day and at a time convenient to the Court.

ROBERT Jo LORD
Attorney for Defendants-Intervenor 
Kerry Green, et al.
8388 Dixie Highway
Fair Haven, Michigan 48023
Telephone: 725-4231



UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF MICHIGAN 

SOUTHERN DIVISION

RONALD BRADLEY, et al., )
)

Plaintiffs, )
)

-vs- )
)

WILLIAM G. MILLIKEN, et al., )
)

Defendants, )
)

DETROIT FEDERATION OF TEACHERS, )
LOCAL #231, AMERICAN FEDERATION )
OF TEACHERS, AFL-CIO, )

)
Defendant- )
Intervenor, )

)and )
)DENISE MAGDOWSKI, et al., )
)Defendants- )

Intervenor, )
)et al. )

___________________________________________)

CIVIL ACTION 
NO. 35257

CONDITIONAL MOTIONS FOR F.R.C.P. 62(d) STAY AND 
54(b) REVISION OF JUNE 14,1972 RULING AND ORDER

If the State defendants' pending emergency motion for a stay is denied 
then in that event defendants-intervenor Kerry Green, et al., move the Court 
for entry of an appropriate order staying enforcement in 1972 of the final 
decision, forcefully arguable within the meaning of 28 U.S.C. 1291, of the 
Court1s "Ruling on Desegregation Area and Order for Development of Plan of 
Desegregation” (June 14, 1972), altogether in the exercise of the Court's 
sound discretion pursuant to Rule 62(d) upon the following grounds:

1. The several appeals, including the appeal of defendants-intervenoi;

taken from said June 14, 1972 "Ruling" and "Order" pursuant to 28 U.S.C. 1291
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will be diligently prosecuted.
2. The probability of appellants' success on the merits of appeal is 

substantial and likely for the compelling reasons (a) that Brown II (349 U0S„ 
at 300-301) is not dispositive of the unprecedented, threshold and landmark 
question for timely appellate review of the propriety of the metropolitan 
desegregation remedy granted, assuming arguendo that the Court's challenged 
findings (September 27, 1971) of state-enforced separation of races in the 
Detroit public schools will be affirmed on appeal, and (b) that said "Ruling" 
and "Order" is inconsistent with and contrary to the admonitions of Swann 
(402 UcS. at 22-24).

3. All the appellants will suffer irreparable injury unless a stay is 
granted.

4. Not having claimed or shown state-enforced separation of races in 
the suburban public schools within the metropolitan desegregation area as 
ordered, the plaintiffs cannot be substantially harmed if a stay is granted.

5. The public interest, local and national, will be served by a stay.
If the aforesaid motion for a stay is granted, then in that event the

defendants-intervenor move the Court for an appropriate order revising said 
June 14, 1972 "Ruling" and "Order” so as (a) to contain the language and the 
express determinations, to wit: "There is no just reason for delay and entry 
of judgment is expressly directed.", as provided by Rule 54(b), and so as (b) 
to make the said "Ruling" and "Order”, so revised, an appealable Rule 54(b) 
judgment for entry pursuant to Rule 58 not only against defendants-intervenor
Kerry Green, et al., but also against the parties already having filed their

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notices of appeal or parties joining in this motion or otherwise expressing 
a desire to appeal, altogether upon the following grounds:

1. The Supreme Court has long recognized that whether a ruling is 
"final" within the meaning of 28 U.S.C. 1291 is frequently so close a question

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that decision of that issue either way can be supported with equally forceful 
arguments, and that it is impossible to devise a formula to resolve all the 
marginal cases coming within what might be called the ’’twilight zone” of 
finality. Gillespie v. United States Steel Corn.. 379 U.S. at 152.

2. A "final decision" within the meaning of 28 U.S.C. 1291, the basic 
statute authorizing appeals to the courts of appeal, and its predecessors 
going back to §§ 21 and 22 of the Act of September 24, 1789, c. 20, Stat. 73, 
83-84, is one which ends the litigation on the merits and leaves nothing for 
the court to do but execute the judgment. Taylor v. Board of Education.
288 F2d at 602, citing Catlin v. United States. 324 U.S. at 233.

3. The several appeals taken from said "Ruling" and "Order", in the 
probable event of procedural challenge, could be supported with forceful 
arguments that the same is a "final decision" within the meaning of § 1291, 
particularly applying a "practical" rather than a "technical" construction 
as held in Gillespie at 152.

4. On the other hand, said "Ruling” and "Order" on its face does not 
appear to be a final decision, the concluding sentence particularly providing 
that hearings on a final plan of desegregation will be set as circumstances 
require; and a probable procedural challenge to the several appeals already 
taken, therefore, could be supported with forceful arguments that the same
is not a "final decision" and subject to dismissal for failure of any party 
to seek a Rule 54(b) judgment or a 28 U.S.C. 1292(b) certificate.

5. Absent merely an already provided continuing order of complete and 
final desegregation of the desegregation area public schools to proceed no 
later than the fall 1973 term, said "Ruling" and "Order", when read together 
with all other findings made and entered, substantially and realistically 
constitutes a decision which ends the litigation on the merits and leaves 
nothing for the Court to do but to execute the judgment, a judgment which is

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not only unprecedented, threshold and landmark in import and scope but also 
of major significance to the school desegregation jurisprudence of the United
States.

6. No just reason exists for delay in appeal for "technical" challenge.
7. To obviate another procedural appeal challenge, on the present 

record of this action, Rule 54(b) determinations present a more practical and 
less restrictive appeal route than a 28 U.S.C. 1292(b) certification of a
question of law only, for the reason particularly that the metropolitan 
desegregation area and plan as ordered is predicated in part on findings of 
fact set forth in the Court's March 28, 1972 "Findings of Fact and Conclusions 
of Law on Detroit-Only Plans of Desegregation".

8. Granting Rule 54(b) determinations as requested would not only be 
within the Court's sound discretion but would also serve the public interest 
in conserving judicial energies.

ROBERT J. LORD
Attorney for Defendants-Intervenor 
Kerry Green, et al.
8388 Dixie Highway
Fair Haven, Michigan 48023
Telephone: 725-4231

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