author: Mr. Justice Black, Mr. Justice Douglas,

text:
    No. 1101.
    Named Individual Members of the San Antonio Conservation Society v. Texas Highway Department et al.
   Petition for certiorari before judgment

to C. A. 5th Cir. Certiorari denied.

Mr. Justice Black,

with whom Mr. Justice Douglas and Mr. Justice Brennan join,

dissenting.

This cáse disturbs me greatly. On December 7, 1970, •this Court stayed the construction' of two federally funded highways in order to save two public parks, ante, p. 939. One park serves the people of Memphis, Tennessee. The park, in this case is for the rest and recreation of the people of San Antonio, Texas. Both cases involve important and timely problems of interpretation of § 18 (a) of the. Federal-Aid Highway Act of 1968, 23 U. S. C. § 138 (1964 ed., Supp. V), passed by Congress to stem the destruction of our Nation’s parks by highway builders. These cases give this Court an opportunity to insure that lower courts and certain federal agencies administer this vital environment-saving legislation in the way that Congress intended. The Tennessee case is still scheduled for oral argument at the earliest possible date — January 11, 1971. Yet, the Court now dissolves the stay previously entered in the San Antonio case by denying certiorari. I respectfully dissent from such .action.

The San Antonio park has two golf courses, a zoo, a sunken garden, an open-air theater and many acres of open space, covered with trees, flowers, and running brooks. It is a lovely place for people to retreat from the frantic pace of bustling urban life to enjoy the simple pleasures of open space, quiet solitude, and clean air. It is a refuge for young and old alike — the kind of a park where a family man can take his wife and children or lovers can while away a sunny Sunday afternoon together. After today’s decision, the people of San Antonio and the birds and animals that make their home in the park will share their quiet retreat with an ugly, smelly stream of traffic pouring down a super six-lane “North Expressway.” Trees, shrubs, and flowers will be mown down. The cars will spew forth air and noise pollution contaminating those acres not buried under concrete. Mothers will grow anxious and desert the park lest their children be crushed beneath the massive wheels of interstate trucks.

The San Antonio Conservation Society and its individual members filed suit to block federal approval and funding of this expressway. The United. States District Court held that the Secretary of Transportation and state officials were free to proceed with federal funding and construction of two segments of the road coming into the park from north and south. It retained jurisdiction to review any later decision on the design and routing of the connecting middle section, which had not been formally approved by the Secretary.

In addition to substantial questions under the Federal-Aid Highway Act, this case involves the newly enacted National Environmental Policy Act of 1969, Pub. L. 91-190, 83 Stat. 852. The latter requires a detailed, study of the probable effects before approval of “major Federal actions significantly affecting the quality of the human environment.” 42 U. S. C. § 4332 (C) (1964 ed., Supp. V). Even respondent Secretary of Transportation appears to concede that the decision to fund this expressway is a “major federal action” requiring careful study because he has promised that a study will be made before the middle section is approved. However, the approval of the two end segments took place in August 1970, eight months after the effective date of the Act. It is undisputed that no. environmental study has been made with respect to these two segments, which themselves desecrate parklands and which make the. destruction of further parkland inevitable.

Section 18 (a) of the Federal-Aid .Highway Act provides:

“It is hereby declared to be the national policy that special effort should be made to preserve the natural beauty of the countryside and public park and recreation lands .... [T]he Secretary shall not approve any program or project which requires the use of any publicly owned land from a public park, recreation area, or wildlife and waterfowl refuge of national, "State, or local significance as determined by the Federal, State, or local officials having jurisdiction thereof.... as so determined by such officials unless (I) there is no feasible and prudent alternative to the use of such land, and (2) such program includes all possible planning to minimize harm to such park . , . .” (Emphasis added.)

Even the Secretary admits that he. has failed to make .formal findings about . feasible and prudent alternative routes. Respondents have argued that formal findings are unnecessary. This' seems an unlikely reading of the Act because without findings it will be difficult for courts to review the Secretary’s determinations, and the intent of Congress to protect parklands is likely to be frustrated. Furthermore, it is simply not realistic to consider the construction of this expressway “section by section” as the District Court and the Secretary of Transportation have done here. Once, construction is begun and heavy investment made on the two end segments, the available options for routing the middle segment .are severely limited. In the .words of the Act alternatives for the middle segment which were “feasible and prudent” will no longer be “feasible” once the two end segments are constructed.

In the last several years, Congress has enacted coordinated legislation- designed to protect our Nation’s environment from destruction by water pollution, air pollution, and noise pollution. This legislation has come about in response to aroused citizens who have awakened to the importance of a decent environment for our Nation’s well-being and our very survival.- Section 18 (a) of the Federal-Aid Highway Act and the National Environmental Policy Act are two major parts of this broad plan. The former was designed to prevent the systematic and thoughtless burial of public parks under the concrete of federally funded highways. The implementation of this legislation by the Department of Transportation is disheartening. ' The Act prohibits the Secretary from approving highway construction through parklands unless there is no “feasible and prudent’’ alternative. Congress has assigned a high value to parks, trees, and clean air. Parks are not to be condemned and taken in order to try to save a few dollars on a multimillion-dollar highway project. Congress was willing to sacrifice parks only when there is “no feasible alternative.” Yet the Secretary has proceeded without formal findings to approve two segments of a highway which devour parkland. And the two segments now approved stand like gun barrels pointing into the heartland of the park. The Secretary and his staff are not wholly inexperienced in highway construction. They know full well the difficulty of preserving the park’s heartland once the barrels have been loaded and the guns cocked. The efforts of our citizens and the Congress to,save our parklands and to preserve our environment deserve a more hospitable reception and more faithful observance than they have apparently found either in the Executive Branch or, thus far, in the courts.

Mr. Justice Douglas,

with whom Mr. Justice Black and Mr. Justice Brennan- concur,

dissenting.

This case is here on a stay presented to Mr. Justice Black and by him referred to the Court. We granted a stay pending consideration of a petition for certiorari before judgment of the Court of Appeals for the Fifth Circuit, ante, p. 939, which has now been filed. The Court dissolves the stay and denies certiorari, without any opinion. I dissent. This is an important case that involves the construction of 9.6 miles of an expressway through 250 acres of the Brackenridge-Olmos Basin park-lands situated at the headwaters of the San Antonio River within the city of San Antonio. It involves the application of a new law — the National Environmental Policy Act of 1969, 42 U. S. C, § 4331 (1964 éd., Supp. Y), which was signed by the President on January 1, 1970. The new Act applies by § 102 (2) to “all agencies of the Federal Government” and provides that such agencies shall include in every recommendation for

“major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on — (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.” . § 102 (2) (C).

There can be no doubt that federal funding of a state highway project is covered by the 1969 Act. The most controversial aspect of the highway design and location is that it proposes to run a massive elevated eight- and six-lane expressway through a park in San Antonio. The Brackenridge-Olmos Basin parklands is a unique park, recreational, and open-spaces area. Specific land uses include the original Brackenridge Park grant, the Sunken Gardens, and adjacent outdoor amphitheater, the San Jacinto Park, the Alamo Stadium, the San Antonio Zoo, the Olmos Basin picnic area, the Franklin Fields, and numerous other parks, public, and open-space areas.

Many, including Senator Metcalf of Montana, had sounded the alarm over the devastation caused by federal highways:

“Today the land is being covered by four and six lane highways,, supermarket parking lots, suburban, high rise apartment buildings and lost to itself and to the people alike.”

Parks — the breathing space of urban centers — were part of the concern of Congress, not only wilderness areas, rivers, lakes, and other aspects of the biosphere. The Senate Committee stated in its report:

“The inadequacy of present knowledge, policies, and institutions is reflected in our Nation's history, in our national attitudes, and in our contemporary life. We see increasing evidence of this inadequacy all around us: haphazard urban and suburban growth; crowding, congestion, and conditions within our central cities which result in civil unrest and detract from man’s social and psychological well-being; the loss of valuable open spaces; inconsistent and, often, incoherent rural and urban land-use policies; critical air and water pollution problems; diminishing recreational opportunity; continuing soil erosion; the degradation of unique ecosystems; needless deforestation; the decline and extinction of fish and wildlife species; faltering and poorly de signed transportation systems; poor architectural design and ugliness in public and private structures; rising levels of noise; the continued proliferation of pesticides and chemicals without adequate consideration of the consequences; radiation hazards; thermal pollution; an increasingly ugly landscape cluttered with billboards, powerlines, and junkyards; and many, many other environmental quality problems.” S. Rep. No. 91-296, p. 4. (Italics added.)

The report noted that environmental programs were administered by 63 federal agencies located within 10 of the 13 departments, as well as in 16 independent agencies. Id., at 6.

, “[P]oor land-use policies and urban decay” can no longer be deferred, the report stated. Id., at 5.

“We no longer have the margins' for error that we once enjoyed. The Ultimate issue posed by shortsighted, conflicting, and often selfish demands and pressures upon the finite resources of the earth are clear.” Ibid.

And so the Act was drafted “to assure that all Federal agencies plan and work toward meeting the chal-enge of a better environment.” Id., at 9,

Yet in spite of this mandate embodied in § 102 (2) (C) the Department of Transportation has made no findings on the impact of this massive elevated freeway on the environment of San Antonio. The Court does not tell us why none need be made.

Oh August 4, 1970, the State, after revising its plans, agreed to the federal plan for the end segments of the projects. But we are advised that it was not until August 13, 1970, that the Secretary of Transportation approved the construction by Texas of the two end segments; and he has not yet approved the middle section. It is said:

“The Secretary expressly reserved final approval on the middle section because there is much parkland contained in the middle section.
“As a matter of fact, one of the primary reasons the Secretary has not approved the middle section is due to the consideration of the views expressed by plaintiffs in opposition to the proposed route the middle section will take through the parklands.”

We were told on November 16, 1970, that there are “at least four (4) possible alternative routes on which the middle section could be constructed to connect the two ends which the District Court has approved.”

That is to say, 11 months after the Environmental Policy Act became effective,-the. gist of the location problem so far as the park is concerned had not been resolved.

The Solicitor General contends that the two end segments were approved in 1969. But the facts are that while Secretary Volpe gave preliminary approval of these segments on December 23, 1969, he withheld authorization of federal funds “pending an agreement by the State to. study further the middle segment. As already stated, Texas agreed to the end segments on August 4, 1970, and the Secretary gave his “unqualified approval” and authorization of them on August 13, 1970, long after the new Act became effective. Yet no findings under the 1969 Act were made.

It seems obvious, moreover, that approval of the two end segments has some effect on the alternatives for the middle section. For, once the expressway is split into segments and each segment considered separately, the environmental impact of the entire project will turn, at least in part, on the fact that the two ends-are already built.

The Solicitor General states: “The Secretary could well approve a route in the middle segment that would involve little or no use of parklands, or substantially less than the proposed route location now contemplates.”

Thus we have a fair indication that some of the park is going to be a freeway regardless. Yet as I read the Act a federal highway project “significantly affecting” even an acre of parkland cannot be launched without a finding on the environmental consequences.

The legal questions posed by § 102 (2) (C) include at least the following:

Should any piece of the park be destroyed to accommodate the freeway?

How can end segments of a highway aimed at the heart of a park be approved without appraising the dangers of drawing a dotted line between the two segments?

How important is the park to the people of San Antonio? How many use it? For what purposes? What wildlife does it embrace? To what extent will a massive eight- and six-lane highway decrease the value of the park as a place of'solitude or recreation?

What are the alternatives that would save the park completely? Could a passage by way of tunnels be devised? Could the freeway be rerouted so as to avoid the parklands completely and leave it as a sanctuary?

Is not the ruination of a sanctuary created for urban people an “irreversible and irretrievable” loss within the meaning of § 102 (2) (C) ?

I dó not think we will have a more important case this Term. Congress has. been moving with alarm against the perils of the environment. One need not be an expert to realize how awful the consequences are when urban sanctuaries are filled with structures, paved with concrete or asphalt, and converted into thoroughfares of high-speed modern traffic.

Those are some of the things with which Congress was concerned in the 1969 Act.

No federal' question would, of course, be presented if Texas or San Antonio decided to turn these parklánds into a biological desert. But when Congress helps finance a project like this freeway, it becomes a federal project. See Wickard v. Filburn, 317 U. S. 111, 131; Ivanhoe Irrig. Dist. v. McCracken, 357 U. S. 275, 295; Simkins v. Memorial Hosp., 323 F. 2d 959. And if one thing is clear from the legislative history of this 1969 Act, it is that Congress has resolved that it will not allow federal agencies or federal funds to be used in a predatory manner so far as the environment is concerned. Congress has, indeed, gone further and said that the Department of Transportation, like other federal agencies, may no longer act as engineers alone and design and construct freeways solely, by engineering standards. Congress has said that ecology has become paramount and that nothing must be done by federal agencies which does ecological harm when there are alternative, albeit more expensive, ways of achieving the result.

I would continue the stay, grant the petition for certi-orari before judgment, 28 U. S. C. § 1254 (1), and let the bureaucracy know that § 102 (2)(C) is the law of the. land to be observed meticulously.

APPENDIX TO OPINION OF DOUGLAS, J., DISSENTING

Much of the legislative history of the Act is a discussion of air pollution, water pollution, and solid waste disposal. But when specifics are mentioned highway problems are present. And the mention of highway problems at every stage in the legislative history leaves no doubt that the Department of Transportation’s highway programs are subject to the Act.

At the Senate Hearing on the Act, the Department was represented by the Assistant Secretary for Urban Systems and Environment. He immediately recognized the reason he was present.

“I think that perhaps the reason that the Department of Transportation was asked to have a representative here before your committee was because within the purview of the Department of Transportation has lain in the past and will continue to lie in the future many of the activities that, at least, are most apparent to the people of the country in the field of environmental impact.”

He talked about the views of those people' who live in metropolitan areas of the country. They have, he stated:

“a growing concern, though in most' instances it is not a deep knowledge perhaps of scientific implications ... as to what might happen to life itself in some of the areas of which we are destroying our environment, it is concerned with the things that they see about them in their daily fives. And in this area, I think, transportation and the activities of transportation organizations have been one of those which they have observed and which has created perhaps as much controversy and concern as any other area of the State and Federal operations.” Hearing on S. 1075, S. 237, and S. 1752, before the Senate Committee on Interior and Insular . Affairs, 91st Cong., 1st Sess., 76

Included in the House Hearings is a letter from the Chairman of the House Subcommittee considering the 1969 Act to the Chairman of the President’s Council on Environmental Quality which notes that neither the Department of Transportation nor the Department of the Interior has promulgated the procedures it will use under the Act. “The fact that there has not been full compliance by these Departments disturbs me greatly.” Hearings before the Subcommittee on Fisheries and Wildlife Conservation of the House Committee on Merchant Marine and Fisheries, Ser. No. 91-32, p. 69. And before the House Hearings were printed the Department of Transportation had complied with the request and the Department’s procedures under the Act were printed with the House Hearings. Id., at 153-159.

The debates on the Act on the floors of both Houses were relatively short, attesting in some measure to the popularity of enacting an extensive environmental bill. Yet just as the Senate and House Hearings had demonstrated that the Department of Transportation w;as an integral part of the Federal Government’s, creation of environmental problems, so, too, did the debates alert one to the fact that highways caused environmental problems when not ápproached from an ecological perspective. In the House only a handful of speakers discussed the bill for any length of time and all spoke in broad generalities. Representative Pelly, a member of the subcommittee which' considered the Act, provided the focus on the problems of highways.

“We have experts in the field of transportation coping with the problem of moving people from one city to another in the least possible time with the greatest degree of safety. We have constructed a vast system of interstate highways to accomplish this. Yet at the same time, we have created serious. problems of soil erosion, stream pollution and urban displacement. . . .
“. . . The experts have, by and large, done their job well, but we must remember that their job is building highways, increasing our food production, preventing floods, and so on. Their primary concern is not the quality of our environment considered as a totality.” 115 Cong. Ree. 26573.

The Senate debates were also brief and again often dealt largely with the generalities of air and water pollution. Senator Allott, a member of the committee which considered the Act, recognized this and reminded his colleagues that more was involved.

“I think .there is a little too much of a tendency, probably not in the committees involved here, but on the part of the public, to regard environment as involving only air pollution and water pollution. . . .
“. . . [T]he environment does not involve only water and air; ... it involves noise — and we are all becoming acutely conscious of this factor. More and more as time goes on — environmental questions will also involve land distribution, land planning for. the future, what kind of future cities we will plan, 'and what we will do about the ghettos — for the ghettos are a part of the environmental picture ....” Id., at 2906!. .

Senator Jackson,, chairman of the committee which considered the Act, reviewed the legislative history of the Act for the benefit of the other Senators. He stated that concepts and ideas were drawn from the many other bills before Congress when the Senate Committee considered the Act. These bills

“were directly concerned with environmental issues, covering a broad area of interest — cleaning up the Nation’s rivers and better approaches to smog control, improving the use of open space and prevention of disorderly encroachment by super-highways, factories and other developments . . . and the control of urban sprawl, unsightly junkyards, billboards, and power facilities that lower the amenities of landscape.” Id., at 29068.

Thus there can be no doubt but that Congress intended the Act to apply to federálly funded highways and the Department of Transportation. <■

       See No. 1066; Citizens to Preserve Overton Park, Inc. v. Volpe.

       Ironically, the Secretary of Transportation now appears to recognize that written findings should be.made for highway grant-in-aid approvals and- such findings • are now provided for by his own regulation, Dept, of Transportation Order 5610.1, issued Oct. 7, 1970. But the Secretary has not been willing to apply his regulation to this case. In my view the regulation alone is sufficient reason to. reverse and remand for findings of fact. Cf. Thorpe v. Housing Authority, 393 U. S. 268 (1969).

       Speech, Stanford University, April 9, 1969.
      Senator Metcalf on January 24, 1963, spoke of the great need for consideration of ecological factors before highway construction was launched:
      “When Congress adjourned last fall, I decided to determine the extent to which highway construction was threatening our streams and rivers. I sent questionnaires to fish and game, management officials in each of our 50 States. To date, Mr. President, I have received responses from 46 States.
      “The questionnaire consisted of 10 questions, one of which was: ‘Are trout streams or other important fishing streams or lakes adversely affected by highway construction in your State?’ Thirty-two of the forty-six States which have responded to the questionnaire answered affirmatively, although damage varies in seriousness from State to State.
      “Perhaps more significant were the responses to the question: ‘Do you feel that additional legislation at the Federal or State levels is necessary to bring about a satisfactory degree of coordination of highway and wildlife conservation interests and objectives in your State?’ To this question, Mr. President, fish and game management men in 37 States replied, ‘Yes.’ Two .States were undecided about the necessity for legislation, and only seven see no need for action in this area.
      “Mr. President, my questionnaire revealed general agreement, among those most qualified to know, that there is a need for legislation. This is not a partisan, political issue; it is a conservation problem cutting across party lines, as shown by responses to my questionnaire. Fish and game officials working for Republican and Democratic State administrations agreed that there is a need for legislation to protect fish, wildlife, and recreation resources from damage due to highway construction.
      “Our bill, Mr. President, provides a method of meeting that need.
      I urge my colleagues to study this problem as it relates to their own States. I hope this matter will receive the attention of the Congress this year.” 109 Cong. Rec. 871.

       For the legislative history see the Appendix to this opinion.

       The Federal Government is providing the funds for 50% of the cost of this expressway.


source: Caselaw Access Project

author: Mr. Justice Douglas,

license: Public Domain

text:
    No. 1109,
    October Term, 1968.
    Weed v. Bilbrey et al.,
   394 U. S. 1018, 395 U. S. 971, and 397 U. S. 930. Motion for leave to file third petition for rehearing denied.

The Chief Justice and Mr. Justice Blackmun took no part in the consideration or decision of this motion.

Mr. Justice Douglas,

with whom Mr. Justice Black concurs,

dissenting.

This suit grows out of the death of Mrs. Weed's husband in Florida. He was killed while on navigable waters within the State. She recovered nothing in her action for wrongful death because the trial court found her husband had been negligent and applied the Florida doctrine of contributory negligence. She contended that the maritime rule of comparative negligence should apply. She lost. Meanwhile a similar suit was progressing through the federal courts in Florida. Mrs. Moragne had also lost her. husband on the navigable waters of that State. She contended that the maritime principle of unseaworthiness should apply. The Florida Supreme Court, asked whether the state law incorporated the principle, ruled that it did not, and that she was not entitled to recover under Florida law. 211 So. 2d 161 (1968).

The District Court of Appeal of Florida ruled, in the Weed case, that Florida law did.incorporate the federal maritime doctrine of comparative negligence. 201 So. 2d 771 (1967). The defendants appealed to the Florida Supreme Court. That court, considering the claim of Mrs. Weed indistinguishable from that of Mrs. Moragne, denied three weeks earlier, reversed the appellate court. 216 So. 2d 479 (1968).

Mrs. Weed preceded Mrs. Moragne to this Court. She claimed that she had a 'cause of action under federal maritime law even though it was not statutorily authorized. She asked this Court to overrule its decision in The Harrisburg, 119 U. S. 199, that maritime law did not afford a cause of action for wrongful death. Her petition for certiorari was denied in May 1969, over three dissents. 394 U. S. 1018. Three weeks later, Mrs. Moragne filed a petition for certiorari in this Court, raising the same claim. . Mrs. Weed filed a petition for rehearing, asking that her claim be heard with that of Mrs. Moragne. Mrs. Weed’s request was denied in June 1969 395 U. S. 971. In November 1969, cer-tiorari was granted in the Moragne case. 396 U. S. 900.

Mrs. Weed again asked that her case be considered with that of Mrs. Moragne. This request was also denied. , 397 U. S. 930.

In June 1970, this Court vindicated the claim of Mrs. Moragne. 398 U. S. 376. Mrs. Weed now presents a compelling argument. She is one of two widows from the State of Florida who lost their husbands on navigable waters. One has recovered and one has not, because a different law was ultimately applied. Though both parties challenged the same rule, at nearly the same time, this Court has favored one and ignored the other. o

Every plaintiff who loses his claim cannot reinstate his action when a rule of law favorable to him is declared, either by the legislature or the court. But that is not what is attempted here. This action had hardly come to rest when the Moragne petition was filed, and Mrs. Weed had continually asked this Court to be considered with that case. The facts of this case are even more compelling than those in Gondeck v. Pan American World Airways, Inc., 382 U. S. 25, in which this Court confirmed that, “ 'the interest in finality of litigation must yield where the interests of justice would make unfair the strict application of our rules.”’ Id., at 26-27. Moreover, had Mrs. Weed proceeded through the federal courts, or had she instituted her suit later, she might have arrived in this Court after Mrs. Moragne. She did reach the Court three weeks before Mrs. Moragne; but her petition was denied. Had she followed Mrs. Moragne ■to this Court, the result in her case would have' been different. All she asks is that the Court apply the law in her case that was applied in the one following hers.

      This Court overruled The Harrisburg, 119 U. S. 199, and held that an action does lie under general maritime law for death caused by violation of maritime duties. Had Mrs. Weed’s petition been granted,. or had she been allowed to join with Mrs. Moragne before this Court, this holding would have meant that she was entitled to recovery, diminished by the doctrine of comparative négligence, rather than barred by the doctrine of contributory negligence.


text:
    No. 300.
    No. 339.
    No. 520.
    No. 521.
    No. 553.
    No. 572.
    No. 5255.
    No. 5377.
    No. 5710.
    Odom v. United States, Slakman v. Florida, Cimini v. United States, O’Malley v. United States, Martin, dba Silko New Improved Products Co. v. Crown Zellerbach Corp., Cousins v. United States, Shole v. O’Ferrall, Assistant Attorney General of Maryland, et al., Kamsler v. Bellows, Bellows & Magidson, Shole v. Howard et al., Judges,
   ante, p. 23;

ante, p. 901;

ante, p. 911;

ante, p. 911;

ante, p. 911;

ante, p. 904;

ante, p. 839 ;

ante, p. 912; and

ante, p. 928. Petitions for rehearing denied.


text:
    No. 481.
    No. 5212.
    No. 5508.
    Bush v. Allstate Insurance Co., Nix v. Illinois, McKinnon v. United States,
   ante, p. 833;

ante, p. 836; and

ante, p. 868. Motions fob leave tó file petitions for rehearing denied.


text:
    No. 5671.
    Cantrell v. United States,
   ante, p. 920. Petition for rehearing denied.

Mr. Justice Blackmun took no part in the consideration or decision of this petition.


text:
    January 8, 1971
    No.-.
    In re Hogan.
   Sup. Ct. Minn. Motion for leave to file petition for writ of mandamus and stay presented to Mr. Justice Blackmun, and by him referred to the Court, denied.


text:
    No. 6295.
    St. Clair v. Selective Service Local Board No. 35, Brooklyn, New York, et al.
   C. A. 2d Cir. Application for stay presented to Mr. Justice Douglas, and by him referred to the Court, denied.


text:
    January 11, 1971
    No. 463.
    Sea Pak, a Division of W. R. Grace & Co. v. Industrial, Technical & Professional Employees, Division of National Maritime Union, AFL-CIO.
   Affirmed on appeal from C. A. 5th Cir.

Mr. Justice Harlan is of "the opinion that probable jurisdiction should be noted and case set for oral argument.


text:
    No. 836.
    Henkes et al. v. Fisher et al.
   Affirmed on appeal from D. C. Mass.


text:
    No. 809.
    Attic Club, Inc. v. Texas Liquor Control Board.
   Appeal from Sup. Ct. Tex. dismissed for want of substantial federal question.


text:
    No. 813.
    Timmons v. South Carolina Tricentennial Commission et al.
   Appeal from Sup. Ct. S. C. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 820.
    Coit et al. v. Green et al.
   Appeal from D. C. D. C. dismissed for want of jurisdiction.


text:
    No. 828.
    Washington Telephone Co. v. Washington.
   Appeal from Sup. Ct. Wash. dismissed for want of substantial federal question.

Mr. Justice Douglas took no part in the consideration or decision of this case.


text:
    No. 5978.
    Washington v. New York.
   Appeal from App. Term, Sup. Ct. N. Y., 1st Jud. Dept., dismissed for want of substantial federal question.


text:
    No. 6011.
    Fowler v. Adams, Secretary of State of Florida.
   Appeal from D. C. M. D. Fla. dismissed for want of jurisdiction.


text:
    No. 115.
    Jimenez et al. v. Naff, Yakima County Auditor, et al.
   Appeal from D. C. E. D. Wash. [Probable jurisdiction noted, 397 U. S. 1005.] Judgment vacated and case remanded to the United States District Court for the Eastern District of Washington for further consideration in light of Oregon v. Mitchell, ante, p. 112.


text:
    No. 137.
    No. 138.
    United States et al. v. Chicago & Eastern Illinois Railroad Co.; and Illinois Commerce Commission et al. v. Chicago & Eastern Illinois Railroad Co.
   Appeals from D. C. N. D. Ill. [Probable jurisdiction noted, 398 U. S. 957.] Judgment vacated and cases remanded to the United States District Court for the Northern District of Illinois with directions to remand to the Interstate Commerce Commission for a determination as to whether the trains involved constitute an “intercity” service within the meaning of § 102 (5) of the Rail Passenger Service Act of 1970, Pub. L. 91-518,. 84 Stat. 1328. Reported below: 308 F. Supp. 645.


text:
    No. 768.
    Messer et al. v. Richardson, Secretary of Health, Education, and Welfare.
   Appeal from D. C. E. D. Ky. Upon consideration of suggestion of mootness and examination of entire record, judgment vacated and case remanded to the United States District Court for the Eastern District of Kentucky with directions to dismiss case as moot.


text:
    No. 789.
    No. 793.
    No. 794.
    No. 797.
    City of Chicago et al. v. United States et al.; Western Pacific Railroad Co. v. City of Chicago et al.; Burlington Northern, Inc., et al. v. City of Chicago et al.; and United States et al. v. City of Chicago et al.
   Appeals from D. C. N. D. Ill. That portion of judgment appealed from in No. 789 affirmed. Those portions of judgment appealed from in Nos. 793, 794, and 797 reversed and. cases remanded to the United States District Court for the Northern District of Illinois for further proceedings. United States v. City of Chicago, ante, p. 8. Reported below: 314 F. Supp. 886.


text:
    No. 5561.
    Lilly v. Rundle, Correctional Superintendent.
   C. A. 3d Cir. Motion for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded to the United States Court of Appeals for the Third Circuit with directions to reinstate appeal in conformity with suggestions filed by respondent.


text:
    No. 5958.
    Irvin v. United States.
   C. A. 9th Cir. Petition for writ of certiorari dismissed. Case and record referred to the United States Court of Appeals for the Ninth Circuit for further consideration in accordance with suggestion contained in the memorandum filed by the Solicitor General.


text:
    No. 338.
    Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation et al.
   C. A. 7th Cir. [Certiorari granted, ante, p. 864.] Motion of Automatic Electric Co. for leave to file a brief as amicus curiae granted. Motions of Automatic Electric. Co. and American Patent Law Assn. for leave to participate in oral argument as amici curiae denied. Motion of petitioner for additional time for oral argument denied.


text:
    No. 5257.
    Labine, Tutrix v. Vincent, Administrator.
   Appeal from Sup. Ct. La. [Probable jurisdiction noted, ante, p. 817.] Motion, of Center on Social Welfare Policy & Law for leave to file a brief as amicus curiae granted. Joint motion to substitute Wilbur Vincent in place of Simon Vincent, deceased, as party appellee granted. .


text:
    No. 360.
    Grove Press, Inc., et al. v. Flask et al.
   Appeal from D. C. N. D. Ohio. Motion of Charles H. Keating, Jr., for leave to file a brief as amicus curiae granted.

Mr. Justice Douglas took no part in the consideration or decision of this motion.


text:
    No. 362.
    McGee v. United States.
   C. A. 2d Cir. [Certiorari granted, ante, p. 864.] Motion of the Solicitor General for leave to Wm. Bradford Reynolds to present oral argument pro hoc vice granted.


text:
    No. 464.
    No. 469.
    Gainesville Utilities Department et al. v. Florida Power Corp.; and Federal Power Commission v. Florida Power Corp.
   C. A. 5th Cir. [Certiorari granted, ante, p. 877.] Motion of American Public Power Assn. for leave to file a brief as amicus curiae granted.


text:
    No. 5175.
    Perez et ux. v. Campbell et al.
   C. A. 9th Cir. [Certiorari granted, ante, p. 818.] Motion of National Organization for Women for leave to file a brief as amicus curiae granted.


text:
    No. 5949.
    No. 5957.
    No. 6005.
    No. 6013.
    Brinlee v. Henderson, Warden; Jackson v. Craven, Warden; Johnson v. Kerr, U. S. District Judge, et al.; and Wallace v. Wingo, Warden.
   Motions for leave to file petitions for writs of habeas corpus denied.


text:
    No. 5959.
    No. 5970.
    No. 5991.
    Ginger v. Kelley, Attorney General of Michigan, et al.; Garvie v. United States Court of Appeals for the Ninth Circuit et al.; and Paide v. United States Court of Appeals for the Ninth Circuit et al.
   Motions for leave to file petitions for writs of mandamus and/or prohibition denied.


text:
    No. 5938.
    Welty v. United States et al.
   Motion for leave to file petition for writ of mandamus denied.


text:
    No. 557.
    United States v. International Minerals & Chemical Corp.
   Certified appeal from D. C. S. D. Ohio. Probable jurisdiction noted.


text:
    No. 821.
    United States v. Greater Buffalo Press, Inc., et al.
   Appeal from D. C. W. D. N. Y. Probable jurisdiction noted.


text:
    No. 577.
    United States v. Johnson.
   C. A. 9th Cir. Certiorari granted.


text:
    No. 740.
    Green v. Kentucky.
   Ct. App. Ky. Certiorari granted.


text:
    No. 785.
    National Labor Relations Board v. Natural Gas Utility District of Hawkins County, Tennessee.
   C. A. 6th Cir. Certiorari granted.


text:
    No. 783.
    Clay, aka Ali v. United States.
   C. A. 5th Cir. Certiorari granted limited to Question 4 presented by the petition which reads as follows:

“4. Whether petitioner’s conviction, should be vacated in light of this Court’s decision in Welsh v. United States, 398 U. S. 333 (1970), because the denial to petitioner of a conscientious objector exemption may have been based upon the Department of Justice’s erroneous characterization of his objections to participation in war as ‘political and racial’ rather than ‘religious’?”

Mr. Justice Brennan is of the opinion that certiorari should be granted limited to Questions 1, 2, and 4 presented by the petition. Mr. Justice Marshall took no part in the consideration or decision of this petition.


text:
    No. 5250.
    Bostic v. United States.
   C. A. 6th Cir. Motion for leave to proceed in forma pauperis and certiorari granted.


text:
    No. 5485.
    Johnson v. Mississippi.
   Sup. Ct. Miss. Motion for leave to proceed in forma pauperis and certiorari granted.


text:
    No. 93.
    Littman v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 383.
    Hayney v. New Jersey.
   Super. Ct. N. J. Certiorari denied.


text:
    No. 417.
    Santos v. United States.
   C. A. 7th Cir. Certiorari.denied.


text:
    No. 561.
    Sweeny Independent School District et al. v. Harkless et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 604.
    Leimbach Construction Co. v. Mayor of Baltimore et al.
   Ct. App. Md. . Certiorari denied.


text:
    No. 606.
    Missouri ex inf. Danforth, Attorney General v. Banks.
   Sup. .Ct. Mo. Certiorari denied.


text:
    No. 763.
    National Screen Service Corp. et al. v. Exhibitors Poster Exchange, Inc.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 764.
    Aberdeen Cable TV Service, Inc., et al. v. City of Aberdeen et al.
   Sup. Ct. S. D. Certiorari denied.


text:
    No. 770.
    Pulakos v. Redevelopment Authority of the City of Erie.
   Sup. Ct. Pa. Certiorari denied.


text:
    No. 771.
    Benedek et al. v. Commissioner of Internal Revenue.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 777.
    Holiday Inns of America, Inc. v. Zimmerman et al.
   Sup. Ct. Pa. Certiorari denied.


text:
    No. 779.
    Lewis et ux. v. Hickel, Secretary of the Interior, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 781.
    Sears, Roebuck & Co. et al. v. Solien, Regional Director, National Labor Relations Board, et al.
   Petition for certiorari before judgment to C. A. 8th Cir. Certiorari denied.


text:
    No. 782.
    National Airlines Inc. v. International Association of Machinists & Aerospace Workers, District Lodge 145, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 791.
    McDonough v. Bershad.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 792.
    Sullivan v. Raza.
   C, A. D. C. Cir. Certi-orari denied.


text:
    No. 802.
    Butcher et al. v. Florida Industrial Commission et al.
   Dist. Ct. App. Fla., 3d Dist. Certiorari denied.


text:
    No. 806.
    United Services Automobile Assn. v. United States et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 807.
    Donald v. Zack Meyer’s T. V. Sales & Service et al.
   C. A. 5th Cir. . Certiorari denied.


text:
    No. 816.
    Zervos v. Moneymaker, Trustee in Bankruptcy.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 818.
    D. H. Overmyer Co., Inc., et al. v. Woodward et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 827.
    Horton & Horton, Inc. v. Vaughan Marine, Inc.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 829.
    Adler Construction Co. v. United States.
   Ct. Cl. Certiorari denied..


text:
    No. 830.
    Clark v. Gulesian.
   C. A. 1st Cir. Certi-orari denied.


text:
    No. 5046.
    Mason et al. v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 5123.
    Baker v. California.
   Sup. Ct. Cal. Cer-tiorari denied.


text:
    No. 5260.
    Newkirk v. New Jersey.
   Sup. Ct. N. J. Certiorari denied.


text:
    No. 5418.
    No. 5427.
    No. 5428.
    Ethridge v. United States; Beard v. United States; and Cole v. United States.
   C. A. 6th Cir. Certiorari denied. Reported below: 424 F. 2d 951.


text:
    No. 5478.
    Wainman v. Clark, Sheriff, et al.
   Sup. Ct. Cal. Certiorari • denied:


text:
    No. 5532.
    Pincus v. New York.
   Ct. App. N. Y. Certiorari denied.


text:
    No. 5519.
    Bradley v. McMann, Warden.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 5533.
    Araujo v. California.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 5537.
    Furgison v. Iowa.
   Sup. Ct. Iowa. Cer-tiorari denied.


text:
    No. 5560.
    Satterly v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 5577.
    Cheeks v. Russell, Correctional Superintendent.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 5589.
    Nall v. Choctaw Construction Co. et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 5594.
    Jones v. New York.
   Ct. App. N. Y. Cer-tiorari denied.


text:
    No. 5616.
    Hamrick v. Florida.
   Dist. Ct. App. Fla., 3d Dist. Certiorari denied.


text:
    No. 5618.
    Grey v. Vermont.
   Sup. Ct. Vt. Certi-orari denied.


text:
    No. 5634.
    Lillie v. Brantley, Warden.
   C.. A. 7th • Cir. Certiorari denied.


text:
    No. 5666.
    Wingate v. Florida.
   ‘Dist. Ct. App. Fla., 3d Dist. Certiorari denied.


text:
    No. 5681.
    Smalley v. Circuit Court for Broward County.
   Sup. Ct. Fla. Certiorari denied.


text:
    No. 5725.
    Cash v. Tennessee.
   Ct. Crim. App. Tenn. Certiorari denied.


text:
    No. 5781.
    Arnold v. Georgia Board of Pardons and Paroles.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 5843.
    Chapman v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 5879.
    Arnold v. Smith, Warden.
   C. A.. 5th Cir. Certiorari denied.


text:
    No. 5892.
    Tsermengas v. Michigan.
   Sup. Ct. Mich. Certiorari denied.


text:
    No. 5895.
    Smith v. Cady.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 5899.
    Beverly v. Wisconsin.
   Sup. Ct. Wis. Certiorari denied.


text:
    No. 5902.
    Skinner v. Oklahoma et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 5906.
    Hussey v. LaVallee, Warden.
   C. A. 2d Cir. . Certiorari denied.


text:
    No. 5907.
    Lohman v. California.
   Ct. App.- Cal., 4th App. Dist. Certiorari denied.


text:
    No. 5914.
    Hall v. Rea et al.
   C. A. 2d Cir. Certi-orari denied.


text:
    No. 5915.
    Visconti v. New York.
   App. Div., Sup.

Ct. N. Y., 1st Jud. Dept. Certiorari denied.


text:
    No. 5919.
    Durso et al. v. Pate, Warden.
   C. A. 7th • Cir. Certiorari denied.


text:
    No. 5916.
    Crenshaw v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 5917.
    Meller v. Missouri.
   C.. A. 8th Cir. Cer-tiorari denied.


text:
    No. 5920.
    Olson v. California Adult Authority.
   C. A. 9th Cir. Certiorari .denied.


text:
    No. 5921.
    No. 5929.
    Castellano v. New York; and Gonzalez v. New York.
   Ct. App. N. Y. Certiorari denied. Reported below: 27 N. Y; 2d 53, 261 N. E. 2d 605.'


text:
    No. 5922.
    Ortega v. Bennett, Judge.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 5923.
    Henderson v. United States.
   C.'A. 9th Cir.. Certiorari denied.


text:
    No. 5930.
    Scheer v. Patterson, Warden.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 5931.
    Grant v. Swenson, Warden.
   C. A. 8th Cir: Certiorari denied.


text:
    No. 5932.
    Bolton v. Nelson, Warden.
   C. A. 9th Cir. Certiorari 'denied.


text:
    No. 5933.
    Wiggins v. Maryland.
   Ct. Sp. App. Md. Cértiorari denied.


text:
    No. 5935.
    Shaffner v. United States.
   C. A. 6th Oir. Certiorari denied.


text:
    No. 5937.
    Morgan v. Cox, Penitentiary Superintendent.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 5939.
    Brock v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 5945.
    Woodbury v. Beto, Corrections Director.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 5947.
    Fletcher v. Brierley, Correctional Superintendent.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 5948.
    Hayes v. Cannizzaro et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 5950.
    Hayes v. Nixon, President of the United States, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 5951.
    Davis v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 5955.
    Briggs v. Tennessee.
   Ct. Crina. App. Tenn. Certiorari denied.


text:
    No. 5956.
    Wroblewski v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 5963.
    Missler v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 5966.
    Green v. United States.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 5968.
    Jones v. Craven, Warden.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 5973.
    Johnson v. Tennessee.
   Sup. Ct. Tenn. Certiorari denied.


text:
    No. 5977.
    Lujan v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 5979.
    Slaton v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 5984.
    Wells v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 5989.
    Schlette v. California Adult Authority et al.
   C. A. 9th Cir. Certiorari denied:


text:
    No. 5990.
    Stevenson v. Waldron et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 5992.
    Arnold v. Brantley, Warden.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 5994.
    Martinez v. California.
   Ct. App. Cal., 4th App. Dist’ Certiorari denied.


text:
    No. 5995.
    Jelken v. California.
   Ct. App. Cal., 1st App. Dist. Certiorari denied.


text:
    No. 5996.
    Kelly v. Bockhold et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 5998.
    White v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 6009.
    Odom v. City of Pensacola.
   Cir. Ct. Fla., Escambia County.. Certiorari denied.


text:
    No. 6010.
    Acarino v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 6012.
    Garza v. Texas.
   Ct. Crim. App. Tex. Certiorari denied. Reported below:-S. W. 2d —.


text:
    No. 6014.
    Gayton v. California.
   Ct. App. Cal., 1st App. Dist. Certiorari denied.


text:
    No. 6016.
    Kilborn v. California.
   Ct. App. Cal., 4th App. Dist. Certiorari’denied.


text:
    No. 603.
    Tabasko v. Ohio.
   Sup. Ct: Ohio. Motion to dispense with printing petition granted. Certiorari denied.


text:
    No. 6020.
    Hawkins et al. v. Smith et al.
   Sup. Ct. S. C. Certiorari denied.


text:
    No. 6017.
    Warren v. Cox, Penitentiary Superintendent.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 6022.
    Walker v. Wainwright, Corrections Director.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 6023.
    Washington v. Superior Court for Los Angeles County.
   Ct. App. Cal., 2d App. Dist. Certi-orari denied.


text:
    No. 760.
    Mooring et al. v. Louisiana State Board of Medical Examiners.
   Sup: Ct. La. Motion to dispense with printing petition granted. Certiorari denied.


text:
    No. 633.
    Ray, trading as Candis O. Ray Agency v. Kansas City Stockyards Company of Maine, trading as Golden Ox Restaurant, et al.
   C. A. D. C. Cir. Certiorari denied:

The Chief Justice took ño part in the consideration or decision of this petition.


text:
    No. 695.
    County of Santa Barbara et al. v. Malley et al.
   C. A. 9th Cir. Motion to defer consideration denied. Certiorari denied.

Mr. Justice Douglas and Mr. Justice Harlan took no part in the consideration or decision of this motion and petition.


text:
    No. 756.
    News Syndicate Co., Inc. v. Shiles.
   Ct. App. N. Y. Certiorari denied.

Mr. Justice Douglas took no part in the consideration or decision of this petition.


text:
    No. 801.
    Simmons et al. v. Wolfson et al.
   C. A. 6th Cir. Certiorari denied.

Mr. Justice Douglas took no part in the consideration or decision of this petition.


text:
    No. 765.
    No. 788.
    Hoffa et al. v. United States; and Dranow v. United States.
   C. A. 7th Cir. Certiorari denied.

Mr. Justice White and Mr. Justice Marshall took no part in the consideration or decision of these petitions.

Reported below: 436 F. 2d 1243.


text:
    No. 772.
    Aldridge et al. v. Carr et al.
   C. A. 5th Cir. Motion of respondents to dispense with printing brief granted. Certiorari denied.


text:
    No. 773.
    Larsen v. Air California.
   C. A. 9th Cir. Motion of petitioner for leave to proceed as a veteran granted. Certiorari denied. .


text:
    No. 780.
    Harris et al. v. United States.
   C. Á. 9th Cir. Motion , for leave to supplement petition granted. Certiorari denied.

Mr. Justice Douglas is of the opinion that certiorari should be granted.


text:
    No. 800.
    Weingartner et al. v. Union Oil Co. of California.
   C. A. 9th Cir. Certiorari denied.

Mr.. Justice Harlan took no part in the consideration or decision of this petition.


text:
    No. 817.
    Export Liquor Sales, Inc. v. Ammex Warehouse Co., Inc., et al.
   C. A. 6th Cir. Certiorari denied.

Mr. Justice Stewart took no part in the consideration or decision of this petition.


text:
    No. 825.
    New York v. Cooper, U. S. District Judge.
   C. A. 2d Cir. Certiorari denied.

Mr. Justice White took no part in the consideration or decision of this petition.


text:
    No. 5437.
    Ethridge v. United States.
   C. A. 6th Cir. .Motion for leave to amend petition granted. ■ Cer-tiorari denied.


text:
    No. 831.
    Gray v. Gulf Mobile & Ohio Railroad Co. et al.
   C. A. 5th Cir. Certiorari denied.

The Chief Justice and Mr. Justice Douglas are of the opinion that certiorari should be granted.


text:
    No. 832.
    Salerno et al. v. Kuhn et al.
   C. A. 2d Cir. Certiorari denied.

Mr. Justice Douglas is of the opinion that certiorari should be granted.


text:
    No. 5997.
    Acosta v. Beto, Corrections Director.
   C. A. 5th Cir. Motion for leave to amend petition granted. Certiorari denied.


text:
    No. 5941.
    Jenkins v. Richardson, Secretary of Health, Education, and Welfare.
   C. A. 6th. Cir. Certiorari denied.

Mr. Justice Douglas and Mr. Justice Stewart are of the opinion that certiorari should be granted.


text:
    No. 5981.
    Snyder et al. v. Arizona.
   Ct. App. Ariz. Certiorari denied.

Mr. Justice Douglas, Mr. Justice ' Brennan, and Mr. Justice Marshall are of the opinion that certiorari should be granted.


text:
    No. 6019.
    Sullivan v. Scafati, Correctional Superintendent.
   C. A. 1st Cir. Certiorari denied.

Mr. Justice Blackmun is of. the opinion that certiorari should be granted.


text:
    No. 5630.
    Arzonica v. Cassidy et al.,
   ante, p. 918. Motion for leave to file petition for. rehearing denied.


text:
    No. 262.
    No. 425.
    No. 493.
    No. 589.
    No. 596.
    No. 605.
    No. 618.
    No. 625.
    No. 627.
    No. 628.
    No. 642.
    No. 660.
    No. 5261.
    No. 5385.
    No. 5458.
    No. 5633.
    No. 5663.
    No. 5680.
    No. 5730.
    No. 5792.
    No. 5812.
    Crichton v. McGehee et al., Schieffelin & Co. et al. v. United States, Collins v. United States, Port Construction Co. v. Virgin Islands Housing Authority, Feldstein v. United States, Green v. United States, International Union of Operating Engineers, Local 450, AFL-CIO v. Construction Employers' Association of Texas et al., Birmelin v. Boymer et ux., Thriftimart, Inc., dba Smart & Final Iris Co., et al. v. United States, Kazubowski v. Kazubowski, Mengarelli v. United States, Smith, Trustee in Bankruptcy v. Merritt, Referee in Bankruptcy, Higgins v. Wainwright, Corrections Director, Ward v. Page, Warden, Chipley v. Roberts et al., Dargan v. New York, Nazario v. New York, Gilhart v. United States, Thompson et al. v. United States, Smith v. Lash, Warden, O'Neal v. Crouse, Warden,
   ante, p. 919;

ante, p.-869;

ante, p. 9.19;

ante, p. 916;

ante, p. 920;

ante, p. 916;

ante, p. 926;

ante, p. 926;

ante, p. 926 ;

ante, p. 926;

ante, p. 926;

ante, p. 951;

ante, p. 905;

ante, p. 917;

ante, p. 905;

ante, p. 920;

ante, p. 920;.

ante, p. 918;

ante, p. 929;

ante, p. 948; and

ante, p. 948. Petitions for rehearing denied.


text:
    No. 106.
    Alabama Power Co. et al. v. United States et al.,
   ante, p. 73. Petition for rehearing denied.

Mr. Justice Douglas took no-part in the consideration or decision of this petition.


text:
    January 15, 1971
    No. —.
    Harris v. Texas.
   Ct. Crim. App. Tex. Motion of the State of Texas to terminate petitioner’s stay of execution denied. Motion of petitioner that the Court consider his motion for stay of execution as a petition for writ of certiorari granted and case placed on docket as No. 6458.


text:
    January 18, 1971
    No. 5912.
    Ramos et al. v. Montgomery, Director, Department of Social Welfare of California, et al.
   Affirmed on appeal from D. C. S. D. Cal.

Mr. Justice Douglas is of the opinion that probable jurisdiction should be noted.


text:
    No. 5993.
    Conner et al. v. Richardson, Secretary of Health, Education, and Welfare, et al.
   Affirmed on appeal from D. C. N. D. Ill.


text:
    No. 843.
    Luzaitis et al. v. Municipal Court of Los Angeles Judicial District, County of Los Angeles.
   Appeal from Ct. App. Cal., 2d App. Dist., dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, cer-tiorari denied.


text:
    No. 5745.
    Bates v. Catherwood, Industrial Commissioner of New York.
   Appeal from Ct. App. N. Y. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 851.
    Strazzula v. Building Inspector of Wellesley et al.
   Appeal from Sup. Jud. Ct. Mass, dismissed for want of jurisdiction. - Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 326.
    Crosslin et vir v. Mountain States Telephone & Telegraph Co.
   C. A. 9th Cir. Motion, of National Association for Advancement of Colored People for leave to file a brief as amicus curiae granted. Certiorari granted, judgment vacated, and case remanded to the United States District Court for the. District of Arizona for reconsideration in light of suggestions contained in brief of the Solicitor General as amicus curiae filed November 19, Í970. By this remand this Court intimates no view as to the merits of the Solicitor General’s position.

Mr. Justice Douglas,

dissenting.

Title VII of the Civil Rights Act of 1964, 78 Stat. 253, 42 U. S. C. § 2000e ét seq., establishes methods of securing relief for individuals complaining of discrimination in employment. An individual may bring court action to enforce his rights under Title VII only after he has filed a timely charge with the Equal Employment Opportunity Commission (EEOC). Section 706 (b), 42 U. S. C. § 2000e-5 (b), of the Act provides no charge may be filed with the EEOC until 60 days after the commencement of proceedings (unless they are terminated earlier) before a state ór local agency, if one exists, which has power “to grant or seek relief” or to “institute criminal proceedings” with respect to the complaint. The EEOC has interpreted § 706 (b) as requiring initial submission of the complaint to state agencies only where the agency can provide adequate relief. At present Arizona and six other States have agencies with remedial powers which the EEOC finds inadequate.

This case arose in Arizona. Petitioners brought a complaint of racial discrimination in employment to the EEOC without first going to the Arizona Civil Rights Commission. The EEOC found there was reasonable cause to believe the charge was true and sent a statutory Notice-of-Right-To-Sue-Within-Thirty-Days and the action was timely filed. The Court of-Appeals held that the District Court should have dismissed the complaint for lack of jurisdiction because the Arizona Civil Rights Commission should have been given the initial opportunity to consider the complaint. The court found that a st(ate agency empowered “to grant and seek relief” included an agency that could only attempt to settle the dispute by conciliation and persuasion.

The proper functioning of the various Civil Rights Acts is of critical importance. This Court has recently re-emphasized the importance of deference to an administrative interpretation by the agency charged with the initial interpretation of a new law. United States v. City of Chicago, ante, p. 8; Udall v. Tallman, 380 U. S. 1, 16. The court below rejected the administrative interpretation of § 706 (b). In so doing it requires pursuing a state remedy classified as inadequate by the EEOC.

The various Civil Rights Acts represent a national commitment to achieve an end to racial discrimination. Forcing an alleged victim of racial discrimination — usually an indigent — first to seek a state remedy prior to vindication of his federal rights when that - state remedy is palpably inadequate presents an issue of considerable importance. See Glover v. St. Louis-San Francisco R. Co., 393 U. S. 324. I would grant certiorari to decide the question presented in this case.

      Idaho, Maine, Montana, Oklahoma, Tennessee, and Vermont.


text:
    No. 5788.
    Smith v. United States.
   C. A. 6th Cir.; Motions for leave to amend petition for writ of cer-tiorari and for leave to proceed in forma pauperis granted. Certiorari granted, judgment vacated, and case remanded to United States District Court for the Northern District of Ohio for reconsideration in light of suggestion contained in the Solicitor General’s memorandum filed December 16, 1970.


text:
    No. 1112,
    October Term, 1968.
    Leighton v. One William Street Fund, Inc., et al.,
   394 U. S. 988, 395 U. S. 942. Motion for relief pendente'lite denied.

Mr. Justice Marshall took no part in the consideration or decision of this motion. Motion for leave to file second petition for rehearing denied. The Chief Justice, Mr. Justice Marshall, and Mr. Justice Blackmun took no part in the consideration or decision of the latter motion.


text:
    No. —.
    Anderson v. Rockefeller, Governor of New York, et al.
   Sup. Ct. N. Y. Application for stay presented to Mr. Justice Harlan, and by him referred to the Court, denied.


text:
    No. 144.
    Griffin et al. v. Breckenridge et al.
   C. A. 5th Cir. [Certiorari granted, 397 U. S. 1074.] Motion of respondents for appointment of counsel granted. It is ordered that W.. D. Moore, Esquire, of Philadelphia, Mississippi, a member of the Bar of this Court, be, and he is hereby, appointed to- serve as counsel for respondents in this case.


text:
    No. 338.
    Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation et al.
   C. A. 7th Cir. [Certiorari' granted, ante; p. 864.] Motion of Kawneer Co., Inc., for leave to file a brief as amicus curiae granted.


text:
    No. 507.
    California Department of Human Resources Development et al. v. Java et al.
   Appeal from D. C. N. D. Cal. [Probable jurisdiction noted, ante, p. 877.] Motion of Southern California Edison Co. et al. for leave to participate in oral argument as amid curiae denied. Motion of State of Tennessee for leave to join in the amicus curiae brief of State of New Hampshire granted. Motion of State of Illinois for leave to join in the amicus curiae brief of State of Maryland granted.


text:
    No. 853.
    In re Disbarment of Wolden.
   It having been reported to this Court that Russell L. Wolden, of San francisco, State of California, has been disbarred from the practice of law in all of the courts of the State of California, and this Court by order of October 12, 1970 [ante, p. 809], having suspended the said Russell L. Wolden from the practice of law in this Court and directed that a rule issue requiring him to show cause why he should not be disbarred;

And it appearing that the said rule was duly issued and served upon the respondent and that the time within which to file a return to the rule has expired; •

It Is Ordered that the said Russell L. Wolden be, and he is hereby, disbarred from the practice of law in this Court and that his name be stricken from the roll of attorneys admitted to practice before the Bar of this Court.


text:
    No. 6028.
    Shivers v. Wainwright, Corrections Director.
   Motion for leave to file petition for writ of habeas corpus denied.


text:
    No. 6008.
    Young v. United States.
   Motion for leave to file petition for writ of mandamus denied.

Mr. Justice Black and Mr. Justice White are of the opinion that the motion should be granted.


text:
    No. 5682.
    Pickens v. California Supreme Court.
   Motion for leave to file petition for writ of mandamus denied.


text:
    No. 758.
    United States v. Ryan.
   C. A. 9th Cir. Certiorari granted.


text:
    No. 798.
    United States et al. v. Mitchell et al.
   C. A. 5th Cir. Certiorari granted.


text:
    No. 840.
    Astrup v. Immigration and Naturalization Service.
   C. A. 9th Cir. Certiorari granted.


text:
    No. 835.
    Dewey v. Reynolds Metals Co.
   C. A. 6th Cir. Certiorari granted.

Mr. Justice Harlan took no part in the consideration or decision of this petition.


text:
    No. 833.
    United States Fidelity & Guaranty Co. v. Hill.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 837.
    Cresta Corp., S. A. v. Commissioner of Internal Revenue.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 841.
    Gentile et al. v. Ives, State Highway Commissioner.
   Sup. Ct. Conn. Certiorari denied.


text:
    No. 848.
    Ward et al. v. United States.
   Ct. CL Certiorari denied.


text:
    No. 842.
    Wing v. Missouri.
   Sup, Ct. Mo. Cer-tiorari denied.


text:
    No. 845.
    Stubbs et ux. v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 849.
    Fielding et al. v. Federal Savings & Loan Insurance Corp. et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 854.
    No. 855.
    Luckenbach Steamship Co. v. Zim Israel Navigation Co., Ltd., et al.; and Telfair v. Zim Israel Navigation Co., Ltd., et al.
   C. A. 5th Cir. Certiorari denied. Reported below: 428 F. 2d 127.


text:
    No. 856.
    Greenspun v. Nevada et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 857.
    Gwyther et al. v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 859.
    Hardin, Secretary of Agriculture v. Harry H. Price & Sons, Inc., et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 860.
    Arizona v. Shaw.
   Sup. Ct. Ariz. Certi-orari denied.


text:
    No. 863.
    Middlebrooks v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 864.
    Dade County Classroom Teachers’ Assn., Inc. v. Rubin et al.
   Sup. Ct. Fla. Certiorari denied.


text:
    No. 5245.
    Williams v. New York.
   App. Div., Sup. Ct. N. Y., 2d Jud. Dept. Certiorari denied.


text:
    No. 1182.
    Brunswick Corp. v. Clements, Trustee in Bankruptcy.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 5332.
    Keeby et al. v. Connecticut.
   Sup. Ct. Conn. Certiorari denied.


text:
    No. 5648.
    Whaley v. Grimm et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 5678.
    Daegele v. Crouse, Warden.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 5692.
    Williams et al. v. Illinois.
   Sup. Ct. Ill. Certiorari denied.


text:
    No. 5713.
    Thibadoux v. Mancusi, Warden.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 5732.
    Williams v. Florida.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 5741.
    McKirdie et al. v. Illinois.
   Sup. Ct. Ill. Certiorari denied.


text:
    No. 5758.
    Bruffet v. Kansas.
   Sup. Ct. Kan. Cer-tiorari denied.


text:
    No. 5763.
    Jones v. New York.
   C. A; 2d Cir. Cer-tiorari denied.


text:
    No. 5765.
    Smith v. Ohio et al.
   C. A. 6th Cir. Cer-tiorari denied.


text:
    No. 5778.
    Olney v. Perini, Correctional Superintendent.
   C. A. 6th Cir. Certiorari denied. '


text:
    No. 5972.
    Hahn v. Smith, Warden.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 5985.
    Estrella v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 6003.
    No. 6190.
    Hudson v. United States; and White v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 6026.
    Brown v. Beto, Corrections Director.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 6027.
    Burke v. Erickson.
   C. A. 8th Cir. Cer-tiorari denied.


text:
    No. 6029.
    Henry v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 6030.
    Collins, aka Cotton v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 6032.
    Williams v. Neil, Warden.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 6033.
    Vennard v. Connecticut.
   Sup. Ct. Conn. Certiorari denied.


text:
    No. 6034.
    Walker v. Stader et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 6035.
    Lytle v. Michigan.
   Sup. Ct. Mich. Cer-tiorari denied.


text:
    No. 6038.
    Reese v. Smith, Warden.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 6040.
    Wells v. Craven, Warden.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 6044.
    Polese v. United States et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 6385.
    Walls v. California.
   Ct. App. Cal. Cer-tiorari denied.


author: Mr. Justice Black,

text:
    No. 776.
    Rodicker v. Illinois Central Railroad Co.
   Sup. Ct. Miss. Certiorari denied.

Mr. Justice Black,

with whom Mr. Justice Douglas and Mr. Justice Brennan join,

dissenting.

This is a tragic case in which a 23-year-old railroad worker was permanently and totally disabled while performing his duties. He has been denied his right to ■recover damages by what I believe was the gross error of the Mississippi. Supreme Court in depriving him of his constitutipnal right to a jury trial.

Petitioner Robert Rodicker, a man with an eighth-grade education, has earned his living doing manual labor for respondent Illinois Central Railroad since the age of 18. On September 16, 1964, Rodicker was working a switch engine with two other Illinois Central Railroad employees coupling an Illinois Central car to a train at the Union Passenger Terminal in New Orleans. As the engine backed up, it spewed out a shower of sparks, covering Rodicker with fire and burning his back and neck. He leaned away from the engine’s steps to save himself from the sparks and smashed into a negligently placed steel garbage container that knocked him to the tracks unconscious. He brought suit against respondent under the Federal Employers’ Liability Act, 35 Stat. 65, as amended, 45 U. S. C. § 51 et seq., urging that his injury was negligently caused by the engine’s excessive sparks and. the dangerous placement of the steel garbage container.. The Mississippi Supreme Court affirmed a 'judgment directing a verdict for the railroad. That court held that as a matter of law petitioner was an employee of the Union Passenger Terminal and not the Illinois Central at th%;time of this terrible accident. I cannot understand the Court’s refusal to grant certiorari.

Respondent had made an agreement with the Union Passenger Terminal whereby the latter used. Illinois Central employees and those of other railroads as crews to switch the railroad’s cars when they entered the terminal. Petitioner was working on such a crew when he was injured. He had an Illinois' Central employee number and was being paid by check drawn on the Illinois Central. He regularly applied to the Illinois Central for vacation time-and received vacation pay from it. And, of course, he was actually coupling an Illinois Central car at the time of the injury.

On this record petitioner was entitled to have a jury determine whether he should recover from the Illinois Central. See, e. g., Sinkler v. Missouri Pacific R. Co., 356 U. S. 326 (1958); Wilkerson v. McCarthy, 336 U. S. 53 (1949); Terminal R. Assn. of St. Louis v. Fitzjohn, 165 F. 2d 473 (CA8 1948). Today the Court deprives petitioner of his right to a jury trial and frustrates the plan of Congress to provide a remedy for railroad employees injured by their employers’ negligence.

I think it is of paramount importance that the purpose of Congress to protect people like petitioner should not be frustrated by the will of judges. I would grant certiorari and reverse the judgment of the court below.


text:
    No. 815.
    Brunswick Corp. v. Clements, Trustee in Bankruptcy.
   C. A. 6th Cir. Motion to dispense with printing respondent’s brief granted. Certiorari denied.


text:
    No. 838.
    Montana Power Co. v. Federal Power Commission et al.
   C. A.' D. C. Cir. Certiorari denied. Mr. Justice Harlan is of the opinion that certiorari should be granted. The Chief Justice took no part in the consideration or decision of this petition. Reported below: — U. S. App. D. C. —, — F. 2d —:.


text:
    No. 5987.
    Kamsler v. Attorney General of the United States.
   C. A. 7th Cir. Motion to strike respondent’s brief denied. Certidrari denied.


text:
    No. 5961.
    Weintraub v. United States.
   C. A. 2d Cir. Certiorari denied.

Mr. Justice Douglas,

dissenting.

I dissent from a denial of certiorari in this case.

The Selective Service Regulations provide the sequence in which registrants shall be ordered to report for induction. Petitioner was in the • group .of non-volunteers who are to be inducted “in the order of their dates of birth with the oldest being selected first.”

It seems clear that the order-of-call provisions are mandatory and that the local board’s failure to observe them is a defense to an indictment. On the trial of petitioner for failure to submit to induction, his counsel proffered evidence that some 18 registrants older than this petitioner and classified as I-A were available for induction on the day he was ordered to report but were not sent notices of induction. The District Judge indicated he probably would grant a motion for a judgment of acquittal unless the Government rebutted the evidence of violation of the regulations. The Government thereupon called the clerk of the board who advised the court that the Selective Service records of other registrants were confidential and could not be released except with the .permission of the Director. The court suggested that permission of the Director be sought. It was so sought but refused. The court thereupon • examined the files in camera, reading into the record some of their contents but refusing to let counsel 'examine all of them. Petitioner was convicted and appealed.

The Court of Appeals disagreed with the District Court, saying:

“The principal contention of the appellant is that counsel for the defense should have been allowed to see the files and determine for himself whether any material therein could have based an attack on cross-examination on the board’s determination which might have demonstrated a lack of basis in fact for the determination. ' We think this contention well founded. A defendant is entitled to such.an inspection, subject to protective order by the court to mask the names or by other means prevent public disclosure of the content of. the files, so that without violating the confidentiality of the files he may properly determine for himself whether there is a proper foundation for the board’s apparent deviation from the order of call suggested by the Form 102, see Alderman v. United States, 394 U. S. 165 . . . (1969), and so that a proper record may be preserved for appeal.” 429 F. 2d 658, 661.

It held, however, that the. error was harmless.

One of the summaries concerned E. S. and the Court of Appeals made the following statement concerning him:

“E. S. was not available for induction on June 8, 1967. He was a registrant who had already signed up for the Reserves.. While his request for an appeal or personal appearance may have been untimely because it was made 12 days after the mailing of his notice of classification, rather than the required 10 days, he was still unavailable for induction because he had not had a pre-induction physical or, mental examination. He was finally classified I-D, which means he was a member of a Reserve Unit or the National Guard.” Id., at 662 n. 4.

If “signed up” means application for the Reserves, then the enlistment requirement of Rule 1622.13 (f) would not be satisfied and E. S. should have been called before petitioner. The error could not be “harmless” if petitioner was called up ahead of his time; and there is no way of determining whether E. S. had enlisted without probing the facts and cross-examining the Board’s witness. The test we used in Alderman v. United States, 394 U. S. 165, 181, for determining what wiretap records should be turned over by the judge who makes his in camera investigation of them is whether the record is “arguably relevant” to the question whether “tainted evidence” had been used to convict. Application of such a test would make at least the file' of E. S. available to counsel for petitioner.

I dissent from a denial of certiorari on the issue so posed.

       32 CFR § 1631.7 (a) (3) (1967) provided:
      “Such registrants, including those in. a medical, dental, or allied specialist category, shall be selected and ordered to report for induction in the following order: .•. . (3) Non volunteers who have attained the age of 19 years and have not attained the age of 26 years . . . in the order of their dates of birth with the oldest being selected first.”

        Ibid.

       One case holds that a local board’s failure to observe the order-of-call regulations does not. prevent a conviction for either refusal to report for civilian work, refusal to submit to induction, or refusal to report for induction. That case, Schutz v. United States, 422 F. 2d 991 (CA5), stands apart from the great weight of authority.
      Two district court decisions expressly held that the Government had the burden of proof on the regularity of the order of call. United States v. Rhodes, Cr. No. 41112 (ND Cal. 1967) (unreported); United States v. Lybrand, 279 F. Supp. 74 (EDNY 1967). No other court has subsequently adopted that position and all circuit courts which have faced the issue have rejected the Rhodes-Lybrand position.
      The Second Circuit rejected Lybrand in United States v. Sandbank, 403 F. 2d 38 (1968). In a footnote that court stated: “An analogy may be drawn to a defense of insanity; although it is an essential element of criminality that the perpetrator must have acted with a sane mind, the government need not Establish sanity as part of its case in chief in every prosecution.” Id., at 40 n. The Tenth Circuit has expressly adopted.Sandbank. Little v. United States, 409 F. 2d 1343 (1969).
      . The First Circuit accepts a presumption of regularity within the Selective Service System, but has announced: “There is no difficulty in the perhaps rare case where a defendant can produce evidence of a person who should have been called before him but was not. In such a case, the government cannot disprove a leak in a bucket simply by showing most of it was tight. But where the defendant lacks any such proof,' his only recourse is to examine the clerk of the local board. This may not conclusively establish the absence of any violation of the regulation but, since the clerk must testify in any case to the validity of the order to report, there is little extra burden on the government to have him prepared to testify on order of call.” Yates v. United States, 404 F. 2d 462, 466 (1968). In a case involving failure to report pursuant to ah order for induction the Ninth Circuit held that where the defendant adduces proof showing the order of call was not regular then the burden shifts to the Government “to justify by affirmative evidence the by-passing” of the older individuals. United States v. Baker, 416 F. 2d 202, 205 (1969).
      In two cases involving failure to report for civilian work the Fifth Circuit announced it followed a rule presuming regularity but did not state the consequences of overcoming the presumption. Greer v. United States, 378 F. 2d 931 (1967); Lowe v. United States, 389 F. 2d 51 (1968). Subsequently that circuit has refused to even allow evidence of irregularity in the order pf call where the defendant refused to report for induction. Schutz v. United States, supra. The decision is unclear although the court rests on the distinction between refusal to report and refusal to submit: “This appellant was convicted of failing to report for induction as ordered, not for refusing to be inducted after arrival at the induction center. Therefore, we do not discuss the cases which have dealt with the latter situation, other than to say that wilful refusal to report for induction is a separate offense.” Id., at 994. The court felt every “registrant is required to report for induction -as ordered even though he may have valid legal grounds for refusing to submit to induction.” Ibid. Besides being the only case rejecting the defense it would appear to conflict with the Ninth Circuit’s Baker decision which also involved failure to report for induction.
      The Eighth Circuit has only passed on regularity of call in a case involving an attempt to. get pre-induction review. Green v. Local Board No. 87, 419 F. 2d 813. It held that showing older I-A registrants were not called was not “facially unlawful” for purposes of pre-induction review.
      The Maryland district court has adopted the presumption of regularity that the Fifth Circuit announced in Greer and Lowe. United States v. Shacter, 293 F. Supp. 1057 (D. C. Md. 1968). A district court in Wisconsin, without indicating what test it would apply, cited Sandbank, Yates, and Lybrand and appears to indicate it would at least hold if the defendant could establish irregularities that there would be acquittal. United States v. Ball, 49 F. R. D. 153 (ED Wis. 1969). Another district court noted the defendant failed to prove irregularities without stating what it would do if he had. United States v. Noonan, 2 S. S. L. R. 3595 (WD Pa. 1969). In a footnote that court noted three registrants older than the defendant and in his category had not been called for physicals. It was this local board's policy to defer a physical when appearances or appeals were pending. The court noted this violated the regulations, but in each instance the other person was deferred. “Since the deferments precluded these registrants’ inductions; the failure to administer a physical examination in. no way hastened defendant’s induction.” Id., at 3596 n. 4.

       32 CFR § 1606.32.

       32 CFR § 1606.32 (c).

       This regulation puts in Class I-D a registrant who “enlists or accepts appointment,” before attaining the age of 26 years, in the Reserves.


text:
    No. 6043.
    Rogers v. California.
   C. A. 9th Cir. Motion for leave to amend petition granted. Certiorari denied.


text:
    No. 5754.
    No. 5768.
    Dawson et ux. v. Shenandoah Retreat Land Corp. et al., Calvert v. United States,
   ante, p. 946; and

ante, p. 952. Petitions for rehearing denied.


text:
    January 21, 1971
    No. 6069.
    Harris v. Connecticut.
   Sup. Ct. Conn. Petition for writ of certiorari dismissed pursuant to Rule 60 of the Rules of this Court.


text:
    January 25, 1971
    No. 6098.
    Ward et al. v. Winstead, Commissioner of Public Welfare, et al.
   Appeal from D. C. N. D. Miss, dismissed for the reason that the notice of appeal was not timely filed pursuant to 28 U. S. C. § 2101 (b).


text:
    No. 846.
    First National City Bank v. Banco Nacional de Cuba.
   -C. A. 2d Cir. Certiorari granted, judgment vacated, and case remanded for reconsideration in light of the views of the Department of State expressed in its letter dated November 17, .1970, and transmitted to this Court by the Solicitor General. In taking this action, the Court is expressing no views on the merits of the case.


text:
    No. 40,
    Orig.
    Pennsylvania v. New York et al.
   Motion of State of Arizona for leave to intervene as a party defendant, and motion of State of Indiana for leave to intervene as a party plaintiff referred to Special Master. [For earlier orders herein, see, e. g., ante, p. 924.]


text:
    No. 48,
    Orig.
    Mississippi v. Arkansas.
   Motion for' leave to file bill of complaint granted. Defendant allowed 60 days to answer or otherwise respond to complaint.


text:
    No. 5338.
    Apodaca et al. v. Oregon.
   Ct. App. Ore. [Certiorari granted, ante, p. 901.] Motion to dispense with printing amicus curiae brief of National Legal Aid & Defender Assn, granted.


text:
    No. 688.
    Lyons v. Murray, U. S. District Judge,
   Motion for leave to file petition for writ of mandamus denied.


text:
    No. 759.
    United States v. Armour & Co. et al.
   Appeal from D. C. N. D. Ill. Probable jurisdiction noted.

Mr. Justice Black and Mr. Justice Blackmun took no part in the consideration or decision of this matter.


text:
    No. 5750.
    Stanley v. Illinois.
   Sup. Ct. Ill. Motion for leave to proceed in forma pauperis and certiorari granted.


text:
    No. 861.
    Burtman et al. v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 865.
    Marine Carriers Corp. v. Fowler, Secretary of the Treasury, et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 870.
    McGee v. California.
   App. Dept., Super. Ct. Cal., County of Santa Cruz. Certiorari denied.


text:
    No. 871.
    No. 923.
    Day-Glo Color Corp. (formerly Switzer Brothers, Inc.) et al. v. Locklin et al., dba Radiant Color Co.; and Locklin et al., dba Radiant Color Co. v. Day-Glo Color Corp. et al.
   C. A. 7th Cir. Certiorari denied. Reported below: 429 F. 2d 873.


text:
    No. 872.
    Railway Labor Executives’ Assn. et al. v. Atchison, Topeka & Santa Fe Railway Co.
   C. A. 9th Cir.- Certiorari denied.


text:
    No. 873.
    Hawkins v. General Motors Corp. et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 875.
    Heyward-Robinson Co., Inc., et al. v. United States for the use and benefit of D’Agostino Excavators, Inc.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 884.
    Jaskiewicz v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 885.
    Snyder Tank Corp. v. National Labor Relations Board.
   C. A- 2d Cir. Certiorari denied.


text:
    No. 886.
    Evans v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 889.
    Bear Manufacturing Co. v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 893.
    Cooper v. Beto, Corrections Director.
   Ct. Crim. APP- Tex. Certiorari denied.


text:
    No. 894.
    Roth v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 896.
    Alamo Express, Inc., et al. v. National Labor Relations Board.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 899.
    Ricci v. California.
   Ct. App. Cal., 1st App. Dist. Certiorari denied.


text:
    No. 6053.
    Harrison v. Clark County School District et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 6057.
    Wilson v. United States.
   C. A. 8th. Cir. Certiorari denied.


text:
    No. 6059.
    Silverthorne v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 6063.
    Thomas, aka Toohey v. Nitze, Secretary of the Navy, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 6065.
    Bork v. Maryland.
   Ct. Sp. App. Md. Certiorari denied.


text:
    No. 6066.
    Massimo v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 6067.
    Tyczkowski v. Pennsylvania.
   Sup. Ct. Pa. Certiorari denied.


text:
    No. 6070.
    Mixen v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 6072.
    Logan v. Casscles, Warden.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 6078.
    Gilboy v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 6079.
    Engel v. City of Madison, Wisconsin, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 6086.
    Holmes v. Zelker, Warden.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 6092.
    Robinson v. McMann, Warden.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 6093.
    Warburton v. California.
   Ct. App. Cal., 2Td App. Dist. Certiorari denied.


text:
    No. 6094.
    Thomas v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 6095.
    Akers v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 6097.
    Parks v. Wainwright, Corrections Director, et al.
   C. A.. 5th Cir. Certiorari denied.


text:
    No. 6100.
    Jolly et al. v. Gorman et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 6101.
    Walker v. Illinois.
   C. A. 7th Cir. Cer-tiorari denied.


text:
    No. 6102.
    Mann et al. v. Superior Court of San Bernardino County et al.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 6103.
    Stevenson v. Mancusi, Correctional Superintendent.
   App, Div., Sup. Ct. N. Y., 4th Jiid. Dept. Certiorari denied.


text:
    No. 6104.
    Walker v. Follette, Warden.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 6112.
    Menechino v. Oswald et al., New York State Board of Parole.
   C. A. 2d Cir., Certiorari denied.


text:
    No. 6116.
    Vitoratos v. Emmons, Judge.
   Sup. Ct. Ohio. Certiorari denied.-


text:
    No. 6121.
    Mills v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 6124.
    Warford v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 6126.
    Ybarra v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No, 6132.
    Richards v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 6133.
    Wilmot v. United States.
   C. A. 2d Cir Certiorari denied.


text:
    No. 6136.
    Allen v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 6137.
    Adams v. Pate, Warden.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 6138.
    Watkins v. Nelson, Warden.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 6140.
    French v. Illinois.
   Sup. Ct. Ill. Cer-tiorari denied.


text:
    No. 868.
    Harper v. United States.
   C. A. 1st Cir. Motion to dispense with printing petition granted. Cer-tiorari denied.


text:
    No. 881.
    Barnes v. United States.
   C. A. 9th Cir. Motion to dispense with printing petition granted. Cer-tiorari denied.


text:
    No. 895.
    Fowler v. Board of Supervisors of Elections of Prince Georges County.
   Ct. App. Md. Motion to dispense with printing petition' granted. Certi-orari denied.


text:
    No. 869.
    Christopher et al. v. E. I. duPont de Nemours & Co., Inc.
   C. A. 5th Cir. Certiorari denied.

Mr. Justice Harlan and Mr. Justice White took no part in the consideration or decision of this petition.


text:
    No. 5867.
    Mitchell v. Georgia.
   Sup. Ct. Ga. Cer-tiorari denied.

Mr. Justice Douglas is of the opinion that certiorari should be granted.-


text:
    No. 288.
    No. 291.
    No. 414.
    No. 711.
    No. 5789.
    No. 5893.
    Joiner v. Deckard, McVean v. Florida, Dunn v. Newspapers, Inc., Beckman Instruments, Inc., et al. v. Chemtronics, Inc., et al., Veach v. Tennessee, Harris v. United States,
   ante, p. 941;

ante, p. 941;

ante, p. 830;

ante, p. 956;

ante, p. 948; and

ante, p. 966. Petitions for rehearing denied;.


text:
    No. 78.
    Atlantic City Electric Co. et al. v. United States et al.,
   ante, p. 73. Petition for rehearing denied.

Mr. Justice Douglas took no part in the consideration or decision of this petition.


text:
    No. 421.
    Trefina, A. G. v. United States,
   ante, p. 878. • Motion for leave to file petition for rehearing denied.


text:
    No. 673.
    Lee National Corp. v. Atlantic Richfield Co. et al.,
   ante, p. 940. Petition for rehearing and/or to amend order denied.


text:
    January 26, 1971
    No. 5602.
    Mitchell v. Bishop, Penitentiary Superintendent.
   Sup. Ct. Ark. • Petition for writ of certi-orari dismissed pursuant to Rule 6Ó of the Rules of this Court.


text:
    February 1, 1971
    No. 1219.
    Confederation Life Assn. v. Vega v. Arminan.
   Dist. Ct. App. Fla., 3d Dist. Petition for writ of certiorari dismissed pursuant to Rule 60 of the Rules of this Court.


text:
    February 3, 1971
    No. 89.
    Lemon et al. v. Kurtzman, Superintendent of Public Instruction of Pennsylvania, et al.
   Appeal from D. C. E. D. Pa. [Probable jurisdiction noted, 397 U. S. 1034] ;


text:
    No. 153.
    No. 569.
    No. 570.
    Tilton et al. v. Richardson, Secretary of Health, Education, and Welfare, et al. Earley v. DiCenso et al.; and Robinson, Commissioner of Education of Rhode Island, et al. v. DiCenso et al.
   Appeal from D. C. Conn. [Probable jurisdiction noted, sub nom: Tilton v. Finch, 399 U. S. 904] ;

Appeals from D. C. R. I. [Probable jurisdiction noted, ante, p. 901.] Motion to postpone oral argument denied.

Mr. Justice Marshall took no part in the consideration or decision of this motion.


author: Mr. Justice Harlan, Circuit Justice. Mr. Justice Harlan, Circuit Justice.

text:
    ROCKEFELLER, GOVERNOR OF NEW YORK, et al. v. SOCIALIST WORKERS PARTY et al.
    Decided July 11 and 22, 1970
    See: 314 F. Supp. 984.
   Memorandum of

Mr. Justice Harlan, Circuit Justice.

I consider the issues in this case are such as to entitle the State of New York to have them put to the Court itself before the judgment of the three-judge District Court is implemented.. To that end I shall issue an order preserving the status quo ante upon terms which will enable the Court to determine, at its first Conference in October, what disposition should be made of the State’s appeal, and whether the stay, which I am now granting, should be continued.

Supplemental Memorandum of

Mr. Justice Harlan, Circuit Justice.

The day following the announcement of the order of July II, 1970, the appellees moved by telegram for reconsideration and vacation of that order. Among other things, they suggested that the Court might not, under the course envisioned by my order, be able to take action relating to the State’s appeal and the limited stay granted by me in time to enable the appellee parties’ candidates to appear, on the ballot for the. November 1970 election in compliance with the judgment of the three-judge District Court, if this Court should determine that the operative effect of that judgment should be left undisturbed.

Considering that this suggestion, if it proved to be true, might require me to reconsider my order of July 11, I called on the parties to file memoranda and also set the matter for a hearing before me at the Federal Courthouse in Bridgeport, Connecticut, on July 20, 1970.

At the hearing it developed that these fears of the appellees were unfounded, so far as the State was concerned, and I have today received from the New York State Attorney General’s-Office the following telegram:

“Re Rockefeller v. Socialist Workers Party, confirming representations made at July 20 hearing, in event stay not continued by full Court, not later than October 27 appellees will be placed on ballot provided they have complied with election law as. modified by District Court decree. Appellees will appear on absentee ballots subject to their votes being voided if full Court continues stay. Respectfully, Louis J. Lefkowitz, Attorney General of New York, attorney for appellants.”

In light of the foregoing, the motion for reconsideration is denied, with leave to renew if the course of events contemplated by this memorandum turns out to be impossible of realization. In short, my purpose is tó afford both sides an opportunity to have the District Court’s decision considered by this Court before final preparation for the November .1970 election.

Motion to vacate stay denied.


author: Mr. Justice Black, Circuit Justice.

text:
    DAVIS v. ADAMS, SECRETARY OF STATE OF FLORIDA
    Decided August 5, 1970

    See: 238 So. 2d 415.

      Together with Ward v. Adams, Secretary of State of Florida, also on application for stay.

   Mr. Justice Black, Circuit Justice.

The State of Florida has enacted a law that requires the incumbent of a state elective office to resign before he can become a candidate for another office. Fla. Laws 1970, c. 70-80. The validity of this enactment is challenged because the Florida Secretary of State has applied it to bar the candidacies for the United States House of Representatives of William E. Davis, currently sheriff •of Escambia County, Florida, and James J. Ward, Jr., currently mayor of the city of Plantation, Florida. The Supreme Court of Florida has upheld the actions of the Secretary of State. On the other hand, a three-judge federal district court in the Northern District of Florida has invalidated Florida’s law as applied to another sheriff seeking to qualify as a candidate for Congress. Ultimately, the question presented by these disputes is whether Florida can constitutionally add to or subtract from the qualifications established by federal law for candidates for federal office. Because the primary election in these cases will be held on September 8, 1970, however, time will not permit a final resolution of these constitutional controversies before the voters go to the polls.

I' must decide, then, whether these two candidates must be permitted to run for the United States House of Representatives. The decision necessarily requires a forecast of this Court’s decision on the constitutionality of the Florida statute, should the Court decide to hear these cases. On balance, \ am inclined to think the Court would hold that Florida has exceeded its constitutional powers. Beyond that judgment, these applications require me to consider the possibility of injury to one of the parties should my forecast on the merits be wrong. If I were to deny these applications and the Court were later to invalidate the Florida statutes, these men would have been unconstitutionally deprived of their right to run for office. If, on the other hand, I grant relief and the Court should later sustain the. Florida statute, little damage would have been done. The applicants might lose at the polls, and even if they were to be elected, Florida could challenge them as having failed to qualify. The risk of injury to the applicants from striking their names from the ballot outweighs the risk of injury to Florida from permitting them to run.

The applications for stays are granted.

        Florida ex rel. Davis v. Adams, 238 So. 2d 415 (Fla. 1970), aff’d on rehearing, id., at 418.

         Stack v. Adams, 315 F. Supp. 1295 (ND Fla. 1970).