Board of Education of the City of Birmingham v. Armstrong Petitioners' Reply

    IN THE

i>itpnmtT ©curt ni %  Inttefc BtaUz
OCTOBER TERM, 1963

No. 670

T h e  B oard of E ducation  of t h e  C it y  of 
B ir m in g h a m , et al.,

Petitioners,
v.

D w ig h t  A rm strong , et al.,
Respondents.

L inda  S u e  G ib so n , et al.,
Petitioners,

v.

C arolyn  E leanor  H arris, et al.,
Respondents.

L aw rence  R oberts, et al.,

v.
Petitioners,

R a l ph S t e l l , et al.,
Respondents.

PETITIONERS’ REPLY
Petitioners, having this day received respondents’ brief 
opposition, respectfully submit for their reply:

J A'M£s . M. NABRjU, IU



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I.
1. Timeliness as to all three cases arises from the 

authority of 28 USC §2101(e) to apply for writ of 
certiorari “at any time before judgment [in the Court of 
Appeals].”

2. Additionally, timeliness of the application as to 
Gibson is conceded. Since the single petition authorized 
by Rule 23(5) is timely in part, it must be timely as to 
all, since the issue is unitary in character.

3. Respondents argue without citation that this Court 
is limited under §2101 (e) to consideration of the merits 
of the action of the District Court which the Court of 
Appeals is reviewing.

(a) There is no such limitation in the statutory 
language.

(b) It is §2101 (c)—the 90 day provision—rather 
than 2101(e) which is limited to “judgment or 
decree” as opposed to the authority of this Court 
under §2106 over “judgment, decree, or order.” 
The questioned rulings are clearly “orders” in this 
legislative classification.

4. There has been no delay. One or two such orders 
as are here complained of may be error, but they do not 
rise to the status of a judicial practice meriting extra­
ordinary review. It is the cumulation of the four uniquely 
similar orders that creates the situation of “imperative 
public importance” described in Rule 20.

II.
The merits are not here in issue, and petitioners accord­

ingly have been prejudiced by respondents’ characteriza­
tions and comments on the lower court rulings. If the



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underlying issues are deemed pertinent to the Court’s 
decision, petitioners pray an opportunity to be heard in 
opposition.

III.
The absence of any citation of precedent or textual 

support in respondents’ brief for the assertion of sub­
stantially unlimited writ powers in Courts of Appeals 
confirms the conclusion of our own research that no orders 
of the character of the four here sought to be reviewed 
have ever previously been issued by any Court of the 
United States.

Geo . S t e p h e n  L eonard

R eid B . B arnes

1730 K Street, N. W. 
Washington 6, D. C. 
Counsel for Petitioners

January 17, 1964