TRIANGLE IMPROVEMENT COUNCIL v. RITCHIE
Legal provision: Writ Improvidently Granted
Argument of Jack Greenberg
Chief Justice Warren E. Burger: We will hear arguments in the number 712, Triangle Improvement Council against Ritchie and others.
Mr. Greenberg, you may proceed whenever you're ready.
Mr. Jack Greenberg: Mr. Chief Justice and may it please the Court.
This case is here on writ of certiorari from the United States Court of Appeals for the Fourth Circuit which affirmed the judgment of the United States District Court for the Southern District of West Virginia without an opinion.
But I might add that there were dissenting opinion by the Judges Sobeloff and Winter which at some length set forth what in their view was the reasoning and position of the majority who did not write an opinion.
There have been a number of changes in the law and the circumstances of petitioners, since this case was filed and the federal respondent suggest in their brief while “the case is technically not moot”, it would be inappropriate for this Court to adjudicate the complex issues originally raised by this case, that is the position of the United States.
Justice William J. Brennan: How many have not yet been relocated?
Mr. Jack Greenberg: There are perhaps just the handful there at this moment.
Justice William J. Brennan: A handful of being what?
Mr. Jack Greenberg: Half a dozen.
Our position is --
Justice William J. Brennan: And what was in that time when the case got here?
Mr. Jack Greenberg: How many were there at the time when the case is filed, approximately 300.
Justice William J. Brennan: 300.
Mr. Jack Greenberg: Our position is that the changes in the facts and the changes in law determined only the form of the remedy and that the Court of Equity has the historic flexibility that equity had demonstrated to adapt relief to the circumstances.
But if the changes have no bearing whatsoever on whether rights were violated and whether petitioners were entitled to any remedy at all.
The decision may have a practical effect on the rights of the 300 former residents of the Triangle whom I just referred to and in answer to Mr. Justice Brennan’s question.
And as the brief of amicus, National Housing and Economic Development law project states, perhaps 100,000 others throughout the nation who are similarly situated.
Now, I would like to describe the principal changes that have taken place since the case was filed.
The case involves an interstate highway being built through an area known as the Triangle, a poor, mostly black section of Charleston, West Virginia.
In 1968 when the case was file, there existed, but since then has been recently been repealed of the 1968 relocation amendments of the Federal-Aid Highway Act and that’s statute set forth completely in our brief.
But Section 502 which is one of the key sections of the statutes says if the secretary shall not approve any project which will cause displacement unless he receives satisfactory assurances from the state highway department that relocation meeting certain standards with regard to safety sanitation and decency will be furnished to persons being displaced.
And elsewhere in the statute relocation is provided for.
Justice William J. Brennan: Would you say that under appeal?
Mr. Jack Greenberg: That has just been repealed by the Uniform Relocation Act which is set forth at length in our supplemental brief and it’s discussed in that brief Mr. Justice Brennan.
Also in effect, in 1968 was IM8168, IM standing for Instructional Memorandum which is set forth in the appendix to our brief which was a regulation of the Department of Transportation, which elaborated on requirements of the statute, particularly with regard to fact gathering and formulating a relocation plan.
And at the time of suit, when these statute and these regulations were in effect, they were approximately 10 persons in the path of the Triangle.
Now, the position of the federal respondents at that time and now is that the 1968 Relocation Amendments and the regulation 8168 did not apply because they stated that these do not apply to areas where right-of-way acquisition was approved prior to 1968, and right-of-way acquisition in this case had been approved prior to 1968.
And that is their position even though other approvals, that is approvals for clearance at construction had not yet been given.
Now, the fact is exactly how many people, they are not entirely precise but a discovery was denied before trial in the court below.B
ut perhaps no one had moved from the Triangle as of the time of the adoption of the 1968 statute and only a few had moved and we know this by the time of suit.
Now, there have been several other changes in the law which I would like to advert to only briefly in they are set forth at length in our brief and that is in 1970, before decision in the Court of Appeals, there was something called a Circular Memorandum adopted in April 10th which in Judge Sobeloff's view and as he elaborates in his decision essentially repealed the interpretation of the statute and the interpretation in IM68 which limited to authorization to acquire right-of-way which were approved after the passage of the statute and so that’s elaborated in the brief and perhaps I will come to this term late in the argument.
And nevertheless, people kept moving out. And in May 1970, when the case was in the Court of Appeals, the number in the Triangle was down to 262.
In July 1970 when the case was on rehearing, the number was down to a 150.
In December 1970, it was down at 65.
In January of this year, it was down to a half dozen but down to 35 but now it is down to approximately about a half a dozen.
And now as of January 2, 1971, there has been enacted the Uniform Relocation Act which is set forth in our supplemental brief, and which also repealed the 1968 relocation provisions.
The Uniform Relocation Act applies to relocation from all sorts of displacements or a variety of displacements, not merely displacements for Highway construction.
Justice William J. Brennan: Well anyway, that expressly saves all rights under the old statute?
Mr. Jack Greenberg: That’s right and that express the --
Justice William J. Brennan: So that for the new statute has no relevancy --
Mr. Jack Greenberg: Well, it has relevancy as to the persons who had not yet moved.
I mean, as of the time its adoption.
Justice William J. Brennan: You mean the half dozen?
Mr. Jack Greenberg: Yes.
Well, we have relevancy if they were be protected by the 68 statute.
Justice William J. Brennan: I know, but I mean the -- I suppose, there are some differences between the Uniform Act and the 68 Act, does it?
Mr. Jack Greenberg: Well, I think there is a matter of fact as we would argue it, they really not very material differences.
Certainly, if you view the 68 Act along the with the IM 8168, the regulation, the Uniform Relocation Act of --
Justice William J. Brennan: But why really getting at Mr. Greenberg, we don’t have to be concern on deciding this case with the provisions of the Uniform Act --
Mr. Jack Greenberg: No.
I would say you would not because I would say this case is determined by the 68 Act.
Now, I would like to argue to the Court what I believe that’s the case.
Now, if assurances were required by the 1968 statute and that is the interpretation of the Department of Transportation and the United States is wrong.
And they claim, it was to required by IM 8168 because their cut-off date which rests on their interpretation of the statute was invalid, 10 petitioner’s rights were violated.
The violation of those rights would give rise to a remedy and the question then would be, what is that remedy?
Now this time obviously, the remedy in the statute in the regulation would not make sense. Assurances at this point, now that almost everybody has been moved out and a plan that would everybody has been moved out would not be the appropriate thing to do.
But that doesn’t mean that the Court of Equity couldn’t device what would be the appropriate thing to do.
We have suggested in our brief that if the rights were violated, then the respondents would have an obligation to go and find the people who have been dislocated.
Find out whether they have been located in housing which met the standards required by statute, and if not relocate them.
And the state respondents in their brief seem to concede that this would be inappropriate form of relief if we can find that there was a substantive legal wrong done at the time.
And therefore, the question is, were the rights violated by the 1968 statute?
Since, perhaps everyone was on the site at the time the statute was passed but it would be decisive of this case if it were applicable.
And we submit there is no doubt of its applicability.
And if we are correct, the Department of Transportation and the courts below were in error.
It is -- first, I'd like to point out that there is no question that no assurances were given as required by the 1968 statute; that’s the Government’s position as set forth in their brief and it's their position, no assurances were given because no assurances were required.
And secondly, the recent decision of this Court, the Overton Park case comes into play because the assurances that should have been given, if indeed they should been given, I would like to argue that they should have been, would have constituted the administrative record upon which the court below, trial court and the Court of Appeals should have made its appraisal.
Not any De Novo hearing of calling in witnesses who've been involved in the transactions, but a hearing on the administrative record.
And that indeed is also, I gather the Government’s position because in their brief, I believe on page 42 or 46, they say that those assurances, page 46, would have constituted the administrative record but there were no such assurances because they were not required.
Chief Justice Warren E. Burger: One of the findings with respect to discrimination right at the outset here Mr. Greenberg, discrimination in the sale or rental housing, isn’t that a staggering point from which we got to build a case?
Mr. Jack Greenberg: Well, I would say, No, Mr. Chief Justice because the trial court should have had an administrative record before it and it should have appraised that administrative record.
It did not have an administrative record before because the assurances which would have constituted that record were not given, because it was the position of the Government under its interpretation of the statute that they were not required.
We submit that that interpretation, if the statute was incorrect, then we’d like to demonstrate to the Court quite clearly that interpretation was incorrect.
Chief Justice Warren E. Burger: Well, am I to understand then that you do not make a claim if this record shows pattern of discrimination in housing?
Mr. Jack Greenberg: Yes, we do make such a claim and we could sustain that if it were necessary to do that upon a de novo record, and indeed, there’s a considerable argument in our brief as to how the facts --
Chief Justice Warren E. Burger: The findings are the contrary, are they not?
Mr. Jack Greenberg: The findings of the trial judge are to the contrary, but those findings we think, are first of all, clearly erroneous and this were an ordinary kind of trial but clearly irrelevant and improper because they were not made upon administrative record such as this Court is indicated would be required in the Overton Park case.
Now, I would like to demonstrate the 1968 Amendments were applicable and we find this in just about all the sources one can find of statutory interpretation, the language of the statute, the legislative history of the statute, and the purpose of the 1968 relocation amendments.
Now, we must remember, it’s the Government’s argument that the statute is not applicable because it does not apply to rights-of-way which will authorized prior to the adoption of a statute.
And the first thing, we must notice, this is manufactured out of nothing.
One reads the statute in vain, defines such a limitation, such a limitation appears nowhere and is not even suggested anywhere in the statute.
If one looks at the language of the statute now, Section 501 which is the declaration of policy, it says, Congress hereby -- this is on page 4 of the appendix of our brief, Congress hereby declares a prompt and equitable relocation and reestablishment of persons, businesses and so forth is necessary.
It speaks about relocation, there's nowhere any cut-off date as to when rights will authorize because as the briefs of all parties indicate, the time between authorization of right-of-way and construction of relocation is sometimes a period of very many years.
If we look at Section 511 (1d) (3) of the statute which defines a displaced person, we find that displaced person defined as, any person who meet moves from real property on or after the effect of date of this chapter, as result of the acquisition or reasonable expectation of acquisition of such real property.
So again, that not only makes no reference to projects who were rights-of-way or approved or acquired after the enactment of the statute, it refers to persons being moved after the enactment of the statute.
Now, the statute also has relocation payment provisions.
It requires not only relocation assistance but relocation payment.
The time factors in the statute to the extent that there are any refer to relocation payment and relocation assistance without any discrimination or differentiation between the two and it has been the position of the respondents in this case that relocation payments maybe made to the petitioners here and indeed were made to the petitioners here.
Yet, there is no reason and nothing anyone can find in the statute to differentiate between them.
Now, we go back to the genesis of the statute.
This statute came out of a 1967 study which was ordered by a 1966 statute passed by Congress.
And on pages 2 and 3 of our brief, the relocation assistance study statute appears, 2 and 3 of the appendix of the brief, and that calls for a full and complete study, an investigation for the purpose of the determining what action can and should be taken to provide additional assistance for the relocation or reestablishment of persons and so forth to be displaced by construction of projects on a Federal-Aid Highway Systems.
Again, it looks forward to dealing with people who are going to be relocated.
And then, if we look back to the 1962 statute which is the 1968 statute replaced, we find and this is on Section 133 (e), which is on page 2 of the appendix of our brief, a limitation such as is not found in the 1968 statute and Section E says, this section shall apply only with respect to projects approved under Section 106 of this title after the date of enactment of the section.
No such provision is found on the 1968 statute.
Now, the new statute, the 1968 statute came out of crisis caused by the need to relocate large numbers of persons who were being displaced because highways were being built through their homes.
Now, the National Highway System which gave rise to this problem was to be 41,000 miles in length.
At the time, the 1961 statutes were adopted; 32,000 miles had been built.
9,000 miles remained to be built.
Of the 9,000 miles, remained to be built; 8,500 miles had already had their rights-of-way authorized.
Now, that would mean Congress went to all this trouble and passed this enormous apparatus and the statute made all this requirements with regard only to 500 miles, and it just doesn’t make any sense.
Now, it would mean that Congress engaged in a few -- we would think that the Government has fairly well described the reason for the position which was taken.
In page 424 of the record, they’re willing to pay relocation payments because after all the payment and monies are fairly simple and uncomplicated and unmessy act.
Mr. Carpenter, the division right-of-way officer testifies on page 424 about what it would mean to have to actually provide the relocation.
And he says, “Certainly, it would have been putting another here shirt on the state to ask them to give us a formal submission on the record of what they are already doing.
They would have had to stop work, put several people on this to formalize it, submit it to me, have my people review it, and give them approval back.
It would have served no practical purpose.”
But on the contrary, Congress ordered that that's just what had to be done.
Congress didn’t want anybody to wear a here shirt, but Congress wanted that the state and federal authorities concerned should actually attend to the difficult and perhaps unpleasant but necessary job of relocation.
Now, the courts below accepted the cut-off date, that is the cut-off date as to high right-of-way acquisition which had been approved prior to the enactment of the 1968 statute, and he accepted that as an authoritative administrative interpretation of the statute.
Well, everyone knows that administrative agencies make interpretations of statutes and those interpretations are entitled to considerable and often conclusive way.
But that is only so when those interpretations come out of the practicalities of the situation, some special experience, some involvement with the operation of a statute and a program, which would lend a special authority to that kind of interpretation.
So far as the interpretation of the plain language of a statute and its legislative history and its purpose, courts and lawyers do that as well as administrators and we submit that the language in the legislative history and the purpose of the statute point to the fact that Congress intended to protect people who are going to be relocated and not just the minuscule small amount of people who are going to be on the way of the National Highway System.
Now, if this 1968 statute is applicable and we submit that there is no need to go on to the 1970 regulations, though we argue that in our brief, Judge Sobeloff sets forth the reason why those protect the rights of at least those who are on the site as of the time, the adoption of those regulations under the doctrine of the fourth case or the 71 statute which would protect the rights of those -- that handful who remain on the site after the adoption of the 71 statute, or the constitutional question.
But indeed, the constitutional question provides an additional reason what the interpretation of the statute which we have argued is we believe correct.
And that is the statutory interpretation which we urge would avoid the decision of the constitutional question and it is a settled cannon of statutory construction, that is something which Courts strive to do.
And so for the reasons given, we would submit that the petitioners who are in the way of the highway 1968 are entitled to protection of the 1968 statute, are entitled to the protections of the instructional memorandum.
If the case is not moot, it involves these petitioners as well as many others situated throughout the country and the only issue in the case is what form of relief shall be granted, and that the Court of Equity can figure that out.
Chief Justice Warren E. Burger: Thank you, Mr. Greenberg.
Argument of William Bradford Reynolds
Mr. William Bradford Reynolds: Mr. Chief Justice, may it please the Court.
At the outset, let me say that respondents do not contend that the 1968 Amendments to the Federal-Aid Highway Act are wholly inapplicable to highway projects already underway on the date of enactment.
The relocation payment provisions are clearly applicable to such projects.
The provision requiring a state to provide a relocation program is clearly applicable to such projects, and the statutory requirement that all housing meet the decent, safe, and sanitary housing standard as defined by the secretary is clearly applicable to such projects.
What in our view and in the opinion of the courts below is not applicable to projects which by August 23, 1968 had advanced as far as the two hearing question is the single statutory provision of Section 502 requiring that State submit to the Secretary, certain formal assurances before they can obtain his approval to proceed with that space of the project “which will cause the displacement of any person”, family or business.
And insofar as a statute is here involved, it is the applicability of that provision and that provision alone, that is at issue in this case.
Now, let me turn briefly if I may to the facts --
Justice Potter Stewart: Would you agree that the very new statute is basically irrelevant to this case or inapplicable?
Mr. William Bradford Reynolds: Your Honor, I would --
Justice Potter Stewart: The 71 statute?
Mr. William Bradford Reynolds: Except with respect to our argument as to mootness, I would.
The substantive provisions themselves I would say, that is correct.
But I do think it is a factor which bears on the question of whether or not this Court should decline to decide these issues.
Justice William J. Brennan: Well, tell me Mr. Reynolds, are there other projects as to which the interpretation of the Section mentioned becomes important?
Mr. William Bradford Reynolds: Yes.
Justice William J. Brennan: In other words, other projects of people not yet relocated?
Mr. William Bradford Reynolds: Your Honor, I believe there are other projects of the 9,000 miles of interstate highway that were fully -- not fully constructed or were under construction on date of enactment.
The 8,500 miles which counsel for petitioners refer to, had not commenced right-of-way acquisition or relocation as of that date.
So as to that 8,500 miles, the provisions of Section 502 calling for formal assurances and of the regulation as to a former relocation would be applicable.
As to 8,500 of the 9,000 --
Justice William J. Brennan: Is there any idea how many people happened to beinvolved?
Mr. William Bradford Reynolds: I don’t have any information as to how much --
Justice William J. Brennan: So, how about a few --
Mr. William Bradford Reynolds: I assume that it would be quite a few on the --
Justice William J. Brennan: So that the one fact that we have only seven involved on this particular project.
Mr. William Bradford Reynolds: Oh, I'm sure.
I thought you meant how many people in the 8,500 miles.
Justice William J. Brennan: No.
How many people whose relocation maybe determined on our resolution of the interpretation of what you call it, 502 something?
Mr. William Bradford Reynolds: Section 502.
It would be the number of people, I assume in that 500 miles that are not that at time --
Justice William J. Brennan: There are more people --
Mr. William Bradford Reynolds: There on --
Justice William J. Brennan: Whose relocation and turns on the answer to this question, than just a seven we have involved here, so --
Mr. William Bradford Reynolds: Well, that might turn on -- I don’t know as to that again, as to that number how many -- what status is of the projects in that 500 miles.
Justice Byron R. White: Within the 500 miles, are there projects which have done so far as the two hearings?
Mr. William Bradford Reynolds: Which not gone so far as --
Justice William J. Brennan: As the two hearings or haven’t gone so far that the project would not be covered by the '68 Act?
Mr. William Bradford Reynolds: think that is correct.
It is very hard that to get a bearing on each project in the 500 -- but we know that there are 500 miles which at the time, the 1968 statute was passed, had not commenced, I mean had commenced the right-of-way acquisition and relocation programs but had not completed them.
And the argument I would believe, -- I believe the argument as to those projects would be the same as our argument here.
Justice William J. Brennan: It wouldn’t do us any good then, would it, to say, well, what's the use in our deciding this question here, only seven or five or six, seven people are involved because the issue only will be back again in some other case, isn’t it?
Mr. William Bradford Reynolds: It, it, wait Your Honor, it might be back in some other case and --
Justice William J. Brennan: Well, we might just well go ahead and decide it, can we?
Mr. William Bradford Reynolds: Well, I don’t believe that it is any longer an issue in this case.
And I also don’t know whether on the same basis as this case, where this is any need to decide that issue for the other -- the basis of our argument in this case.
I don’t --
Justice Byron R. White: I suppose you have any objection to our reaching an issue as long as they decided the way you want us to?
Mr. William Bradford Reynolds: No, Your Honor, none at all.
Justice Byron R. White: And what would that do for you, in terms of the projects still to be completed?
Would it mean now that there isn't going to be any requirement at any of these projects for a prior submission of a client?
Mr. William Bradford Reynolds: Your Honor, that’s correct.
In projects in a status similar to this one, there would be no requirement for a formal plan.
Justice Byron R. White: And I take it, there are any projects that are any less far along?
Mr. William Bradford Reynolds: Well, as of today, in enactment, there were projects within 8,500 of the 9,000 miles that were less far along.
It's only projects within the 500 miles which that were within the same --
Justice Byron R. White: Well, within that 8,500 miles then have there been projects or are their still projects for which plans will be submitted?
Mr. William Bradford Reynolds: That is correct.
All plans in that 8,500 miles will be submitted.
It’s the additional 500 miles,
Justice Byron R. White: I see.
Mr. William Bradford Reynolds: That are in a similar status --
Justice William J. Brennan: Now, they will be submitted what?
Under the regulations or under the new statute or under the old statute, where --
Justice Byron R. White: Under the 68 Act?
Mr. William Bradford Reynolds: Under the 68 Act, they would be required to be submitted for formal assurance --
Justice William J. Brennan: For the new regulations?
Mr. William Bradford Reynolds: And the regulations would by the same slogan require the former relocation plan.
Justice Byron R. White: But not the 1971 statute that would not be involved.
Mr. William Bradford Reynolds: I don’t believe that that statute would be involved --
Justice Byron R. White: Because the 71 statute says, that if there's anything not determined under the 68 statute, the 68 statute stays, isn’t it?
Mr. William Bradford Reynolds: That’s correct in that respect.
Oh, anybody have rights under this 68 statute --
Justice Byron R. White: That would say --
Mr. William Bradford Reynolds: I do think on that Uniform Relocation Act, the language in the provision Section 210 which would be the similar provision to the one we’re dealing with here is dissimilar and an interpretation of this statute would not be controlling on the new statute.
And that is another reason that we would submit that this Court could decline to reach the issue.
If I may just add a few facts.
We are concerned here with two state highway projects --
Justice William O. Douglas: Were these highway projects put down for any kind of a hearing, public hearing?
Mr. William Bradford Reynolds: They had the public hearing required by statute in connection with the route in this Your Honor and --
Justice William O. Douglas: Well, what kind of a hearing was that?
Mr. William Bradford Reynolds: That was the hearing required in Section 128 of the Act.
Justice William O. Douglas: I know, but what kind was it?
Was it a hearing for -- just for the bureaucracies?
Mr. William Bradford Reynolds: It was a hearing for the -- it was a hearing held for the people who lived in the community to come in and discuss the routing with the federal and state officials.
And that was discussed and there's no challenge in this case at this point to the routing decision.
There was a hearing held --
Justice William O. Douglas: This was a hearing prior to the formulation of the land by the Secretary?
Mr. William Bradford Reynolds: There was no plan here.
This was a hearing prior to approval by the Secretary of the route on this project.
Justice William O. Douglas: Yes, but other route?
Mr. William Bradford Reynolds: Yes, Your Honor.
And that was held that --
Justice Thurgood Marshall: In there any place, I can find a copy that hearing?
Mr. William Bradford Reynolds: Yes, Your Honor it’s in the record -- the hearing is in the record.
Now as I said, we’re concerned here with two highway projects.
Over two-thirds of each project is outside the so-called Triangle area.
But each penetrates that area, Project A from the north and Project B from the southeast and they meet within it.
Now, the portion within this so-called Triangle area covers several city blocks.
Of the 284 persons, living there at the time the suit was commenced, approximately two-thirds were Negro and the rest were white.
The average monthly income was a $170.00 and a substantial portion of the housing was substandard.
After Federal authorities authorized the state to require all the right-of-way within the two-project carters.
The State Road Commission set up a relocation office for the benefit of those to be relocated in the two-project carters.
It was located within this so-called triangle area.
It was staffed with 9 to 10 people full time.
It conducted a survey of those living within the two-project carters to determine their family needs, their family size, where they worked, where they went to church and what their preference was with respect to new relocation housing, what type of housing they desire.
They compiled a list of available housing within the Charleston area, posted it in the relocation office, and kept it updated on a daily basis.
And it provided special services to those who would be displaced.
For example, it would drive the elderly to available rentals that they wish to inspect.
It would help those who had located relocation housing to move and to obtain furniture.
It would help make arrangements for initial rent deposits, where necessary and it would help obtain priority certificates for public housing.
Now on enactment of the 1968 Amendments to the Federal-Aid Highway Act, the State Road Commission assigned three persons full time to doing nothing but inspect available rental in the Charleston area to ensure that they complied with the new decency and sanitary housing standard.
By August 23, 1968, the state had successfully relocated a substantial number of the original 2,184 persons who were originally to be displaced from the two-highway projects.
Over one-half or 1,314 had been relocated at the time of trial and the state had acquired over 60% of the land and in each of the two carters.
Now, it is true that the relocations of those persons within this so-called Triangle area had not progress that far.
42 of the 326 originally there had been relocated.
Similarly, relocations within other isolated areas on these two projects had not progressed that far.
But the entire statutory scheme we are dealing with here speaks in terms of projects.
It does not speak in terms of segments of projects or city blocks within projects or the six ward or any other said subdivisions that maybe created for the purposes of bringing a lawsuit.
And the Chief Justice suggested that petitioner’s argument turns in large part on their contention that Charleston was a racially closed housing market.
I’d like to address just a few comments to that argument.
The only evidence in this record to support the proposition is two studies.
One by petitioner’s principle witness and one, an early draft of a study prepared for the Charleston-Irvine Renewal Program which is just now getting under way.
Both studies draw primarily on 1960 census data and neither study talks about the housing situation in Charleston after 1966.
Now, we do not understand the issue before this Court to be whether at one time discrimination in housing did exist in the Charleston area which resulted in earlier geographical divisions in the city along racial lines.
The question is whether at the time this action was commenced in December 1968 and thereafter, Charleston had a racially closed housing market.
The court below, both courts found that it did not and there is no evidence on this record to contradict that finding.
In November of 1967, the City of Charleston passed an Open Housing Ordinance.
Congress passed a similar law in April of 1968.
There is nothing in this record, even suggesting that the people in Charleston are not complying with those statutory provisions, nor is there any indication that City and State Officials were having difficulty with there enforcement or that they were turning their backs and not enforcing the provisions.
In the public housing sector, it is undisputed that there are three public housing projects, all within the Charleston City limits.
And all of them rent one, two, three, and four bedroom units on a non-discriminatory basis.
This housing meets the decent, safe, and sanitary housing standard in a substantially better than a housing which existed within the so-called Triangle area.
It is available at 20% of a family’s average net income per month and it is available to all families earning less than $5,000.00 per year, which would include virtually all of those within this so-called Triangle area.
In the private housing sector, the evidence shows that approximately 80 dwelling units were available for rent in Charleston -- in the Charleston area on any given day.
In determining the availability of private housing, the State Road Commission eliminated from consideration, the two, three, and four family dwelling units in which the owner resided.
Therefore, all 80 were under the open housing ordinance and were rented on a non-discriminatory basis.
The average rental was $90.00 per month which with the statutory rental supplements could be afforded by all those within this Triangle area.
And while I am discussing private housing, I'd like to allude just briefly to petitioner’s telephone survey which they discuss in their briefs and which is plaintiff’s Exhibit 25, they contend that this survey shows that out of 50 private dwellings, telephone, only eight would rent to black families.
That survey does not show that 42 of the dwelling units would not rent the black families.
28 of the homes within that survey would not even asked the question because they didn’t have any vacancies when they were called.
In fact, only four owners gave any indication that they would not rent to Negroes.
One of those owners said that she would not rent to a Negro male but she would rent to a Negro female.
And another one said that she cannot answer the question until she telephone her until she talk it over with her husband and she would never called back.
With respect to the other two, there's no indication on this record whether they were within the exclusion of the Charleston Open Housing Ordinance.
In short, there is simply no evidence to support the assertion that the Charleston housing market was in December 1968 a racially closed to the market.
The courts below specifically so found, nor is there any evidence of state action which is deprive these petitioners of equal protection of the laws.
No one is being forced out into the streets.
In fact, the state has moved very deliberately and carefully in relocating the people within this so-called Triangle area and it is taken over three years to accomplish that task.
On the statutory interpretation question, let me just make three points.
First, there are two projects here under discussion and I think, it is agreed, all agreed, were well into their relocation programs by August 23, 1968.
Approximately 913 persons had been relocated from Project A and there remained in that carter 380 persons.
Approximately 409 persons had been relocated from Project B and there remained approximately 401 persons -- sorry, that’s reversed.
401 had been relocated and there remained 409.
The language of both the statutes and the regulations there under call for formal assurances and formal relocation planning prior to any such displacement.
The statute which is Section 502, speaks in term of the Secretary’s approval “Which will cause the displacement of any person.”
But we cannot agree with petitioner’s contention that this language contemplates a Secretary’s approval to proceed with construction.
The April 10, 1970, Circular Memorandum which they rely on so heavily makes it very clear, the construction approval, the approval to proceed with construction cannot be given until everybody has been displaced and relocated, who needs to be displaced and relocated, that there can be no approval of construction until that is completed.
Second, with respect to the statutory interpretation question, I want to make the point that notwithstanding the absence of a formal relocation plan in this case.
The State Road Commission was providing a Relocation Assistance Program which complied in all respects with the substantive provisions of the 1968 statutes.
And this was the primary concern of Congress.
Justice Thurgood Marshall: Well, who approved that out in the state?
Mr. William Bradford Reynolds: Who approved?
Justice Thurgood Marshall: The relocation plan?
Mr. William Bradford Reynolds: There was no relocation plan submitted.
Justice Thurgood Marshall: Well, who approved that all of these nine men in the office can spend six days and --
Mr. William Bradford Reynolds: That was this --
Justice Thurgood Marshall: Five times as much as you needed now?
Mr. William Bradford Reynolds: That was the State Road Commission that did provide the relocation program.
Justice Thurgood Marshall: And what did the Federal Government do as to that?
Mr. William Bradford Reynolds: I would -- if I may just now get to that in just one second that -- I just want to wind up my point here that there was compliance with substantive provisions and that there was a relocation program.
Justice Thurgood Marshall: Why didn’t you agree?
Mr. William Bradford Reynolds: Well, it will only take two seconds The only additional point is that the formal assurances and the formal relocation plan in a regulations were a procedure which Congress deemed appropriate to ensure that the states complied with the substantive requirement that a Relocation Assistance Program was afforded by the states.
That was the intent.
The purpose of Congress was to have the program provided.
Now, here the procedure was neither required by the statute nor essential to the implementation of an adequate Relocation Assistance Program.
Now Justice Marshall on your question, the Federal authorities here reviewed the state Relocation Assistance Program.
They reviewed it specifically with respect to the two projects here in question.
Over a 125 of the relocations had found that they were --
Justice Thurgood Marshall: How was this review done?
Mr. William Bradford Reynolds: Well, that is what I'm explaining.
They had a day-to-day audit of Federal authorities in West Virginia.
The Division Engineer had a day-to-day audit of the State Road Commission’s operations.
It reviewed over a 125 of these specific relocations that are involved in these two project areas and found them to be satisfactory in all respects.
And it continually reviewed the state operations throughout the state as well as on these two projects.
Justice Thurgood Marshall: Where is the project?
Mr. William Bradford Reynolds: Well, there was --
Justice Thurgood Marshall: There wasn’t?
Mr. William Bradford Reynolds: There was no plan as such, that’s correct.
There was a study of the relocation of the available housing and there was -- it’s termed in the record, a half of relocation plans submitted in 1966.
But there was no written plan as such.
Justice Thurgood Marshall: I was wondering, did the Federal Government “reviewed” (Inaudible) “approved?”
Mr. William Bradford Reynolds: They “reviewed” this.
Justice Thurgood Marshall: Where it is that in?
Mr. William Bradford Reynolds: That is in the record in a number of pages most of which are referred to in our brief as appendix references, where the Federal authorities went in and scrutinized, what was going on in these two projects?
What the state was doing to relocate the people and how they were providing assistance?
And there is testimony, an abundance of testimony that they were in there looking at this on a day-to-day basis.
And that Your Honor is why I think this case is not within the citizens to preserve the Overton Park decision.
This was not a review of a Secretary’s “approval” under Section 502 because he did not give that approval.
What it was a review of agency action under the statute based on the experience of the federal and state officials.
Justice Thurgood Marshall: And then all shall agree with you, do I have to assume that this was reported to the Secretary?
Mr. William Bradford Reynolds: No, Your Honor.
Justice Thurgood Marshall: Just day-by-day?
Mr. William Bradford Reynolds: No, Your Honor.
Justice Thurgood Marshall: Alright.
Mr. William Bradford Reynolds: We do not because as we argue the case, the Secretary was not required in this case to give the approval.
What was required in this case is that the state provide an adequate relocation program, and that is what was being reviewed by Federal authorities and they determined that this program was adequate and that we -- this was not a review of the administrative record and I believe in Overton Park, this case stated that where there is no such administrative record, it is entirely appropriate to call the officials involved in the action and have them testify and make a judicial determination on the basis of that testimony.
Justice William O. Douglas: Did he approve within the meaning of Section 504, the payment of Federal funds?
Mr. William Bradford Reynolds: Your Honor, the Federal funds were approved.
There was full payment of Federal funds and the reason that that was required in this case was 504 (b), Section 504 (b).
Justice William O. Douglas: I understand, but I mean he had to approve in part but not all you were saying.
Mr. William Bradford Reynolds: He did not give an approval under 502.
Justice William O. Douglas: Yes, that’s why our question is whether he should have?
Mr. William Bradford Reynolds: Correct but he did.
Justice William O. Douglas: Yes.
Mr. William Bradford Reynolds: He did approve the fact --
Justice William O. Douglas: He did approve under 504?
Mr. William Bradford Reynolds: 504.
Justice William O. Douglas: That’s where the money was?
Mr. William Bradford Reynolds: Yes, Your Honor and that is one of provisions that we concede is applicable to this case, the only one not as 502.
Chief Justice Warren E. Burger: Mr. Preiser.
Argument of Preiser
Mr. Preiser: Mr. Chief Justice and may it please the Court.
I wanted to point just a few things in addition to the Solicitor General and that is that during the trial of the case, I think in the appeal, the thrust of the petitioner’s argument was that there was no formal plan.
Now, the evidence conclusively establishes there was a relocation program that congressional intent was being carried out.
Everything that would have been replied by the plan was done.
Even before the 1968 Act was continued beyond the 68 Act.
The case was tried on that theory on the technicality was there a plan, a former plan.
We concede there was not.
Secondly, on the evidence of Mr. A. Bliss, their major witness, theory was that because the Charleston urban renewal would be displacing people at about the same time.
They would not be adequate housing.
The fact, the matter is that the Charleston-Irvine renewal did not in 68, 69, 70, and have not yet started, some almost three years later displacing anyone.
So, there was no competition for the adequate housing.
The facts further conclusively established that on any given day, there were 80 houses available.
From the Triangle District, some 30 persons lived in the Orlando Hotel which was substandard.
There were, at that time 250 available hotel rooms within one mile and so, it is our position at the trial and still is, there was no discrimination. There was adequate housing.
We complied with every requirement of the Act except the technicality of filing the formal plan.
We feel that that should be --
Justice Byron R. White: Well, do you comply on this?
Mr. Preiser: Sir?
Justice Byron R. White: If you comply with that in accordance with your view of the statute by not filing?
Mr. Preiser: Yes, we say the -- it’s not required --
Justice Byron R. White: There's no require plan?
Mr. Preiser: Yes, Your Honor.
There was no plan.
In our view, we say we complied with that.
Other requirement of the statute and of all the memorandums, and with that, we feel that the matter is disposed off, whatever they complained about below never happened.
So, we think that the matter has in fact become moot, if their position was correct at all to begin with.
And that’s all I had to say, I want to save this time.
Chief Justice Warren E. Burger: Thank you Mr. Preiser.
Mr. Greenberg, you have few minutes left to --
Rebuttal of Jack Greenberg
Mr. Jack Greenberg: Mr. Chief Justice and May it please the Court.
The fact is the statute was not complied with.
The assurances that are required by a statute were not given, a plan that was required according to the interpretation of the statute was not filed.
I might add, there was indeed a plan filed, prepared for this litigation, very much like the litigation affidavits in Overton Park and that was dismissed by the Federal authorities as half a plan and really not adequate.
The reason that the Congress enacted a statute and the department adopted regulations was because precisely the kind of practices that are going on here, that is informal relocation taking the word of the various departments acting in a non-structured, non-reviewable way, not on any record which a court can review was deemed adequate and that is why, the statute was adopted and the regulations implementing were adopted.
That is what happened here.
The court made a De Novo review on the basis of ad hoc, post hoc rationalizations, testimony put on by witnesses, came to the court after the event not on administrative record which is exactly what this statute was designed to provide.
And we submit there's been no --
Justice John M. Harlan: Mr. Greenberg, it is already proposed that you prevailed in this case, exactly what do you visualize through this relief?
Mr. Jack Greenberg: The relief as to the 326 persons who originally were on the side of the Triangle would be something in the general nature of what the state respondents and we agree would be appropriate.
I mean, they agree that if they lose the case, this would be appropriate and that is that the state authorities ought to find where these people had been relocated to.
And in fact, they say they are even somewhat in the process of doing that right now and find out whether or not the housing in which they now live meets the statutory standards.
If it does not meet the statutory standards then they ought to take such steps as unnecessary to relocate these people in statutory housing.
Now, that’s not the relief provided for in the statute but that is an adaptation of it which is appropriate to the circumstances of this case.
And of course, there would be a Rule of Law coming out of this case which would protect the other persons in the way of the highway.
I might say there’s some difference in opinion --
Justice John M. Harlan: Well, that inquiry was to how many or 400 that would --
Mr. Jack Greenberg: Well, it would apply to all 326 people who were in the trial.
Justice John M. Harlan: Depending on the action was brought?
Mr. Jack Greenberg: That there are some of them may --
Justice John M. Harlan: But there had been others relocated before that time had denied?
Mr. Jack Greenberg: Yes, but they are not members of this class and not in this case but --
Justice John M. Harlan: These are only those not relocated when this action was filed?
Mr. Jack Greenberg: That’s right.
That’s right and there are 326.
Now, there is some difference between us on the division of the 8,500 and 500 out of the 9,000 miles.
We have cited in our on page 29, the Senate Committee report, and I believe or at least, I hope you will find to that report that approximately 8,500 miles had already been authorized.
And therefore, if their interpretation of the statute prevails, only persons in the remaining 500 miles would be covered, but even those of 500 miles through cities involves a very considerable number of people.
Chief Justice Warren E. Burger: Thank you, Mr. Greenberg, Mr. Reynolds, Mr. Preiser.
Case is submitted.