ELR Citation: ELR 20305
No(s). 712 (U.S. May 17, 1971)

Petition for certiorari (granted by the Court on Dec. 21, 1970, argument heard on Feb. 22, 1971) is dismissed as improvidently granted. Justices Douglas, Black, Brennan, and Marshall, who had voted to grant the petition originally, dissent. In their opinion, the provisions of the Federal-Aid Highway Act of 1968 were designed to ensure the relocation of persons displaced by federally funded highways, and are applicable to the federal project at issue because on the effective date of the statute (Aug. 23, 1968) construction of the highway segments at issue had not received federal approval and at least 280 persons remained to be removed from the project area. Also, dismissal of the petition for certiorari in this case impairs the integrity of the Court's "rule of four." The dissenters reason that it is improper for the five Justices who originally opposed certiorari to dismiss the case after oral argument unless one of the four who voted to grant the writ so moves. Justice Harlan, in an opinion concurring with the dismissal of the writ, finds appropriate for such action because (1) the statutory provision upon which the suit is premised has been repealed, (2) a new statute has been enacted by Congress that alters the potential impact of a decision in this case, (3) as of the date of oral argument less than 10 persons remained to be displaced, and (4) in their brief on the merits petitioners have almost completely abandoned their original claim for relief and seek instead a broader remedy.

Counsel for Petitioners:
Michael Davidson
Jack Greenberg
10 Columbus Circle
New York, NY 10019
(212) 586-8397

John Boettner Jr.
Appalachian Research and Defense Fund
116-B Kanawha Boulevard, E.
Charleston, WV 25301
(304) 344-9681

Counsel for Federal Respondents:
Erwin N. Griswold Solicitor General
Walter H. Fleischer Attorney
Department of Justice
Washington, DC 20530
(202) 737-8200

Counsel for State Respondents:
Stanley E. Preiser
F. Alden Hunt
1012 Kanawha Boulevard, E.
Charleston, WV 25329
(304) 344-9651