City of Rome v. United States, Civ. A. No. 77-0797.

• Decision Date: 22 February 1978
• Docket Number: Civ. A. No. 77-0797.
• Citation: 450 F. Supp. 378
• Parties: CITY OF ROME, Bruce Hamler, and H. F. Hunter, Plaintiffs, v. UNITED STATES of America, Griffin B. Bell, Attorney General of the United States, and Drew S. Days, III, Assistant Attorney General of the United States, Defendants.
• Court: U.S. District Court — District of Columbia

450 F. Supp. 378

CITY OF ROME, Bruce Hamler, and H. F. Hunter, Plaintiffs, v. UNITED STATES of America, Griffin B. Bell, Attorney General of the United States, and Drew S. Days, III, Assistant Attorney General of the United States, Defendants.

Civ. A. No. 77-0797.

United States District Court, District of Columbia.

February 22, 1978.

Robert M. Brinson, Rome, Ga., Joseph W. Dorn, Washington, D. C., William E. Sumner, Atlanta, Ga., for plaintiffs.

Gerald W. Jones, Paul F. Hancock, Carmen L. Jones, Washington, D. C., for defendants.

Before McGOWAN, Circuit Judge, and GASCH and RICHEY, District Judges.

MEMORANDUM

CHARLES R. RICHEY, District Judge.

This case, brought under the Voting Rights Act of 1965, 42 U.S.C. §§ 1971 et seq., is presently before the Court on: (1) defendants' renewed motion to dismiss Counts II, IV, and V of the amended complaint herein; (2) defendants' motion for a protective order to prevent the taking of the deposition of Frederick J. McGrath; (3) plaintiffs' motion to compel discovery; (4) plaintiffs' motion for an order that certain facts be taken as established; (5) defendants' motion for an extension of time within which to complete discovery; and (6) the parties' joint motion for an extension of time within which to file summary judgment motions.

I. DEFENDANTS' RENEWED MOTION TO DISMISS AND THE RELATED DISCOVERY MOTIONS

The initial complaint in this case, filed on May 9, 1977, contained six claims upon which plaintiffs sought relief. Defendants answered on July 12, 1977, and on that same date filed a motion to dismiss three of these claims. The three claims that were the subject of defendants' motion respectively sought declaratory judgments that:

(1) the City of Rome is not required to obtain preclearance of the electoral changes here in issue because no "test or device" within the meaning of 42 U.S.C. § 1973b had been used in Rome during the 17 years prior to the filing of the instant action "for the purpose or with the effect of denying or abridging the right to vote on account of race or color";

(2) section 5 of the Voting Rights Act, 42 U.S.C. § 1973c, is unconstitutional; and

(3) section 5 was applied by the Attorney General of the United States to the City of Rome in an unconstitutional manner.

This Court heard arguments on defendants' motion to dismiss on October 28, 1977; on October 31, 1977, the Court ruled that it would, in the interest of justice, defer ruling on the pending motion to dismiss until plaintiffs had filed their amended complaint and defendants had filed an answer thereto.¹ Thereafter, plaintiffs filed an amended complaint, and defendants, on November 21, 1977, filed the renewed motion to dismiss that is now before the Court. The renewed motion seeks the dismissal of the three claims hereinabove described, respectively termed Counts II, IV, and V of the amended complaint.

After defendants filed the renewed motion to dismiss, the parties undertook extensive discovery. Plaintiffs have sought discovery of, inter alia, facts related to the claims contested in the pending motion to dismiss. In particular, plaintiffs have propounded interrogatories, requests for admission, and requests for the production of documents that relate to Count V of the amended complaint. In addition, plaintiffs noted the deposition of Frederick J. McGrath, an attorney in the Department of Justice who, at the administrative level, reviewed the City of Rome's application for section 5 preclearance. Apparently this deposition was also intended to discover facts related to Count V.

Based on their contention that this Court lacks subject matter jurisdiction over Count V (and that Count V should therefore be dismissed pursuant to Fed.R.Civ.P. 12(b)(1)), defendants refused to answer or produce documents related to Count V. On the same grounds, defendants also opposed the deposition of Mr. McGrath, and they now seek a protective order to block said deposition. Plaintiffs in turn filed a motion to compel answers to all discovery demands they had previously made.

It appears to the Court that it continues to be appropriate and in the interest of justice to defer ruling on defendants' motion to dismiss Counts II and IV of the amended complaint. The Court will consider the parties' respective arguments on these Counts when all discovery is completed and when summary judgment motions, if any, have been filed. However, because the main of the discovery dispute(s) now before the Court is inextricably tied to the dispute with respect to this Court's jurisdiction over Count V, the Court will at this time rule on that aspect of defendants' motion. For the reasons hereinafter stated, the Court will grant defendants' motion to dismiss Count V of the amended complaint.

A. The Attorney General's Interposal of an Objection to the City of Rome's Proposed Electoral Changes Is Not Subject to Judicial Review. Accordingly, the Court Will Dismiss Count V of the Amended Complaint for Lack of Subject Matter Jurisdiction.

Plaintiffs allege in Count V that defendants, by interposing an objection to Rome's proposed electoral changes without conducting a hearing and without making findings, violated article 4, section 4 of, and the first, fifth, ninth, tenth, and fifteenth amendments to, the United States Constitution. Plaintiffs therefore assert that the defendants acted beyond the scope of their authority and that defendants' objection to (i. e., refusal to preclear) the electoral changes here in issue is therefore invalid and without force or effect. Defendants premise their argument for dismissal of this Count on the Supreme Court's recent decisions in Morris v. Gressette, 432 U.S. 491, 97 S.Ct. 2411, 53 L.Ed.2d 506 (1977), and in Briscoe v. Bell, 432 U.S. 404, 97 S.Ct. 2428, 53 L.Ed.2d 439 (1977), and on the District of Columbia Circuit's recent decision in Harris v. Bell, 562 F.2d 772 (1977). According to defendants, these cases preclude this Court from reviewing the Attorney General's exercise of discretion under section 5 of the Voting Rights Act, 42 U.S.C. § 1973c, and thus deprive this Court of subject matter jurisdiction over plaintiffs' Count V claims.

The Court has carefully examined the cases cited by defendants and concludes that these recent decisions do indeed compel the conclusion that this Court is without jurisdiction over plaintiffs' challenge to the procedures used by the Attorney General in deciding to interpose an objection to the City of Rome's proposed electoral changes. Admittedly, all three of the above-cited cases arose in a different posture than the instant case: Morris involved a challenge to the Attorney General's failure to interpose a timely objection to certain proposed electoral changes; Briscoe involved a state's challenge to its classification as a jurisdiction subject to the Act's preclearance requirements; and Harris involved a challenge to the Attorney General's withdrawal of a previously interposed objection. In contrast, this case involves a challenge to the Attorney General's interposal of an objection to certain proposed electoral changes.² The distinction between the instant case and the cases relied upon by defendants does not, however, vitiate the precedential force of the jurisdictional principle established in Morris, and followed in Briscoe and Harris.

In Morris, the Supreme Court held that even though no provision of the Voting Rights Act expressly precludes judicial review of the Attorney General's decision to preclear electoral changes under section 5, the legislative scheme of the Act as a whole compels the conclusion that "Congress intended to preclude all judicial review of the Attorney General's exercise of discretion or failure to act." 432 U.S. at 507 n. 24, 97 S.Ct. at 2422. In support of this reasoning, the Court emphasized the fact that the Attorney General's decision not to interpose an objection to proposed electoral changes is not conclusive of the constitutionality of such changes. Rather, such electoral changes can at any time be challenged in "traditional constitutional litigation." 432 U.S. at 507, 97 S.Ct. 2411.

The legislative scheme of the Act as a whole similarly compels the conclusion that a decision by the Attorney General to interpose an objection to proposed electoral changes, as in the instant case, was also not intended to be subject to judicial review. The administrative preclearance procedure is but one of two preclearance avenues that a state or local jurisdiction can pursue under section 5. It is an entirely optional procedure, and a jurisdiction subject to section 5's preclearance requirement need not apply to the Attorney General for administrative preclearance. It is sufficient if an applicant-jurisdiction seeks and obtains a declaratory judgment from a three-judge court of the United States District Court for the District of Columbia that the proposed electoral change "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, or in contravention of the rights of language minority groups." Moreover, even if, as here, the Attorney General objects to certain proposed electoral changes, the applicant-jurisdiction can always seek such a declaratory judgment from a three-judge court in this District, which is precisely what plaintiffs have done in Count VI of the amended complaint herein. The existence of this "coequal" judicial preclearance procedure persuades this Court that Congress intended there to "be no review of the Attorney General's application of the section 5 standards in deciding whether to interpose an objection within the sixty-day period." Harris v. Bell, 562 F.2d at 774.³ Accordingly, the Court will, pursuant to Fed.R.Civ.P. 12(b)(1), dismiss Count V of the amended complaint for lack of subject matter jurisdiction.

B. The Court Will Grant Defendants' Motion for a Protective Order and Deny Plaintiffs' Motion to Compel, Both Without...