The opinion of the court was delivered by: RICHEY
By 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
(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 interests of justice, defer ruling on the pending motion to dismiss until plaintiffs had filed their amended complaint and defendants had filed an answer thereto.
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 interests 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 (disputes) 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, 53 L. Ed. 2d 506, 97 S. Ct. 2411 (1977), and in Briscoe v. Bell, 432 U.S. 404, 53 L. Ed. 2d 439, 97 S. Ct. 2428 (1977), and on the District of Columbia Circuit's recent decision in Harris v. Bell, 183 U.S. App. D.C. 253, 562 F.2d 772 (1977). According to defendants, these ...