387 F2d 862 Zuber v. Allen

387 F.2d 862

Frederick T. ZUBER et al., Appellants,
Russell ALLEN et al., Appellees.

No. 20931.

United States Court of Appeals District of Columbia Circuit.

July 5, 1967.

Mr. Lawrence D. Hollman, Washington, D. C., with whom Mr. Carlyle C. Ring, Jr., Washington, D. C., was on the pleadings for appellants. Mr. James R. Worsley, Jr., Washington, D. C., also entered an appearance for appellants.

Mr. Charles Patrick Ryan, Washington, D. C., for appellees.

Before DANAHER, McGOWAN and ROBINSON, Circuit Judges.



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These appellants having heretofore appealed from the District Court's denial of their motion to intervene and having thereupon moved for summary reversal and this court having entered its order of May 5, 1967 denying the motion for summary reversal but having noted that our order was without prejudice and that the appellants might receive in the District Court all relief to which they could be said to be entitled;


and the District Court having on the 15th day of June 1967 entered its order granting summary judgment in favor of the appellees basing its judgment on Blair v. Freeman, 125 U.S.App.D.C. 207, 370 F.2d 229 (1966), no review having been sought;


and it having appeared that the Department of Justice contemplates no effort to stay the District Court's judgment and that the Secretary has until August 14th within which to perfect an appeal;


and these appellants having now sought to stay the effect of the order of the District Court following summary judgment, and it having appeared to the satisfaction of the court that although there is no reason to believe that the interests of appellants were not adequately represented in the District Court proceedings, it is not clear that those interests will receive the protection of appellate review, and on that account that these appellants should be entitled to be admitted as intervenors in the action in the District Court for the purpose, if they be so advised, of prosecuting an appeal from the judgment of the District Court;


and this court being further of the view that no such showing has been made as would entitle these appellants to an order staying the effectiveness of the District Court's judgment;


Now, upon consideration of the foregoing, the memoranda filed by the Commonwealth of Massachusetts and the State of Connecticut, respectively, as amici curiae, the motion for stay filed by these appellants, the opposition thereto, and after oral argument, and on the record of proceedings in the District Court, judicial notice of which has been taken,

It is by the court ordered:


(1) The motion for stay of the effectiveness of the District Court's order is denied;

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(2) That this court's order of May 5, 1967 is vacated;


(3) The District Court is directed to grant the motion of these appellants for leave to intervene for the purpose of prosecuting an appeal from the judgment of the District Court entered June 15, 1967;


(4) The appellants are directed to inform the court within 15 days following allowance of their motion to intervene in the District Court whether or not they intend to prosecute an appeal from the judgment and if they shall decide to do so, the parties shall work out with the Clerk of this court an expedited briefing and hearing schedule and the appellants' appeal in No. 20931 will thereupon become moot;


(5) The order of this court herein shall be without prejudice to such order as the District Court shall find itself advised to enter respecting preservation of the status quo pending appeal or the further order of this court.