decisions for another case. See 520 F.2d at 67 & n. 115. The court cannot accept, however, defendants' characterization of count one as a substantive attack. The issue raised by count one is purely procedural and, thus, squarely within the holding of Harper.
Defendants' contention that a three-judge court must hear this case is similarly disposed of by Harper. The Harper court held that suits brought under the APA which attack the procedures through which the Attorney General discharges his duties under section five of the Voting Rights Act are not suits brought under section five and, thus, need not be decided by a three-judge tribunal. 520 F.2d at 63. While counts three through five of the complaint may, as defendants contend, present substantive challenges to the Attorney General's decision and, consequently, require decision by a three-judge court, the possibility that count one will dispose of the suit on procedural grounds makes it unnecessary to convene three judges at this time. Even should adjudication of count one fail to dispose of the case, the court, sitting as a single-judge tribunal, would be obligated to determine whether counts three, four, and five are reviewable. See Gonzalez v. Automatic Employees Credit Union, 419 U.S. 90, 100, 42 L. Ed. 2d 249, 95 S. Ct. 289 (1974); Hagans v. Lavine, 415 U.S. 528, 543-45, 39 L. Ed. 2d 577, 94 S. Ct. 1372 (1974); Rosado v. Wyman, 397 U.S. 397, 402-03, 25 L. Ed. 2d 442, 90 S. Ct. 1207 (1970); Nixon v. Richey, 168 U.S. App. D.C. 172, 513 F.2d 430, 445 & n. 129 (1975).
Count two essentially is another procedural attack on the Attorney General's decision to withdraw his prior objection and is properly considered by a single judge at this time. The court finds that the construction of section five urged by plaintiffs in count two is incorrect as a matter of law. Plaintiffs contend that section five allows the Attorney General only 60 days in which to perform his duties under the Act. Once this period expires, the argument goes, he loses the power to revoke objections just as he loses the power to interpose them. The language of section five's 60-day proviso and its place in the overall statutory scheme indicate, however, that Congress intended to limit the Attorney General's power to interpose objections only. Cf. Georgia v. United States, 411 U.S. 526, 539-41, 36 L. Ed. 2d 472, 93 S. Ct. 1702 (1973). Although the Act does not explicitly endow the Attorney General with the power to revoke objections, the power is implied by the power to interpose.
The court will, thus, proceed with a trial on count one. Trial is necessary to establish the facts surrounding the Attorney General's decision to revoke his prior objection and to determine their availability to Georgia. The court's protective order of November 14, 1975 is dissolved insofar as it pertains to information relevant to count one. All remaining aspects of the case are stayed pending adjudication of count one.
An appropriate Order accompanies this Memorandum Opinion.
Thomas A. Flannery / UNITED STATES DISTRICT JUDGE
January 5, 1976
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