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per_curiam | 1,976 | 200 | per_curiam | Davis v. Georgia | https://www.courtlistener.com/opinion/109564/davis-v-georgia/ | The petitioner in this case was convicted of murder and sentenced to death after trial by a jury selected in violation of the standards enunciated in and applied in and The Witherspoon case held that "a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction." The Supreme Court of Georgia found that one prospective juror had been excluded in violation of the Witherspoon standard. The court nevertheless affirmed the conviction and death sentence, reasoning that the erroneous exclusion of one death-scrupled juror did not deny the petitioner a jury representing a cross section of the community since other jurors sharing that attitude were not excused for cause: "The rationale of Witherspoon and its progeny is not violated where merely one of a qualified class or group is excluded where it is shown, as here, that others of such group were qualified to serve. This record is completely void of any *123 evidence of a systematic and intentional exclusion of a qualified group of jurors so as to deny the appellant a jury of veniremen representing a cross section of the community." That, however, is not the test established in Witherspoon, and it is not the test that this Court has applied in subsequent cases where a death penalty was imposed after the improper exclusion of one member of the venire. See rev'g ; rev'g ; rev'g Unless a venireman is "irrevocably committed, before the trial has begun, to vote against the penalty of death regardless of the facts and circumstances that might emerge in the course of the proceedings," n. 21, he cannot be excluded; if a venireman is improperly excluded even though not so committed, any subsequently imposed death penalty cannot stand. Accordingly, the motion for leave to proceed in forma pauperis and the petition for certiorari are granted, the judgment is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and MR. |
Justice Thomas | 1,993 | 1 | majority | FCC v. Beach Communications, Inc. | https://www.courtlistener.com/opinion/112870/fcc-v-beach-communications-inc/ | In providing for the regulation of cable television facilities, Congress has drawn a distinction between facilities that serve separately owned and managed buildings and those that serve one or more buildings under common ownership or management. Cable facilities in the latter category are exempt from regulation as long as they provide services without using public rights-of-way. The question before us is whether there is any conceivable rational basis justifying this distinction for purposes of the Due Process Clause of the Fifth Amendment. I The Cable Communications Policy Act of 1984 (Cable Act), amended the Communications Act of 1934, 47 U.S. C. 1 et seq., to establish a national framework for regulating cable television. One objective of the Cable Act was to set out "franchise procedures and standards which encourage the growth and development of cable systems and which assure that cable systems are responsive to the needs and interests of the local community." 601(2), 47 U.S. C. 521(2). To that end, Congress provided for the franchising of cable systems by local governmental authorities, 621(a), 47 U.S. C. 541(a), and prohibited any person from operating a cable system without a franchise, subject to certain exceptions, 621(b), 47 U.S. C. 541(b). Section 602(7) of the Communications Act, as amended, 47 U.S. C. A. 522(7) (Supp. 1993), determines the reach of the franchise requirement *310 by defining the operative term "cable system."[1] A cable system means any facility designed to provide video programming to multiple subscribers through "closed transmission paths," but does not include, inter alia, "a facility that serves only subscribers in 1 or more multiple unit dwellings under common ownership, control, or management, unless such facility or facilities us[e] any public right-of-way." 602(7)(B), 47 U.S. C. 522(7)(B) (1988 ed., Supp. V). In part, this provision tracks a regulatory "private cable" exemption previously promulgated by the Federal Communications Commission (FCC or Commission) pursuant to preexisting authority under the Communications Act. See 47 CFR 76.5(a) (1984) The earlier regulatory exemption derived in turn from the Commission's first set of cable rules, published in 1965. See Rules re Microwave-Served CATV, 38 F. C. C. 683, 741 (1965) (exempting from the definition of "community antenna television system" "any such facility which serves only the residents of one or more apartment dwellings under common ownership, control, or management, and commercial establishments located on the premises of such an apartment house"). The Cable Act narrowed the terms of the regulatory exemption by further excluding from the exemption any closed transmission facilities that use public rights-of-way. *311 This case arises out of an FCC proceeding clarifying the agency's |
Justice Thomas | 1,993 | 1 | majority | FCC v. Beach Communications, Inc. | https://www.courtlistener.com/opinion/112870/fcc-v-beach-communications-inc/ | case arises out of an FCC proceeding clarifying the agency's interpretation of the term "cable system" as it is used in the Cable Act. See In re Definition of a Cable Television System, 5 F. C. C. Rcd. 7638 In this proceeding, the Commission addressed the application of the exemption codified in 602(7)(B) to satellite master antenna television (SMATV) facilities. Unlike a traditional cable television system, which delivers video programming to a large community of subscribers through coaxial cables laid under city streets or along utility lines, an SMATV system typically receives a signal from a satellite through a small satellite dish located on a rooftop and then retransmits the signal by wire to units within a building or complex of buildings. See 5 F. C. C. Rcd., at 7639. The Commission ruled that an SMATV system that serves multiple buildings via a network of interconnected physical transmission lines is a cable system, unless it falls within the 602(7)(B) exemption. See Consistent with the plain terms of the statutory exemption, the Commission concluded that such an SMATV system is subject to the franchise requirement if its transmission lines interconnect separately owned and managed buildings or if its lines use or cross any public right-of-way. See[2] Respondents Beach Communications, Inc., Maxtel Limited Partnership, Pacific Cablevision, and Western Cable Communications, Inc.SMATV operators that would be subject to franchising under the Cable Act as construed by the Commissionpetitioned the Court of Appeals for review. The *312 Court of Appeals rejected respondents' statutory challenge to the Commission's interpretation, but a majority of the court found merit in the claim that 602(7) violates the implied equal protection guarantee of the Due Process Clause. 294 U. S. App. D. C. 377, In the absence of what it termed "the predominant rationale for local franchising" (use of public rights-of-way), the court saw no rational basis "[o]n the record," and was "unable to imagine" any conceivable basis, for distinguishing between those facilities exempted by the statute and those SMATV cable systems that link separately owned and managed buildings. The court remanded the record and directed the FCC to provide "additional `legislative facts' " to justify the distinction. [3] A report subsequently filed by the Commission failed to satisfy the Court of Appeals. The Commission stated that it was "unaware of any desirable policy or other considerations that would support the challenged distinctions," other than those offered by a concurring member of the court. App. to Pet. for Cert. 50a. The concurrence had believed it sufficient that Congress could have reasoned that SMATV systems serving separately owned buildings are |
Justice Thomas | 1,993 | 1 | majority | FCC v. Beach Communications, Inc. | https://www.courtlistener.com/opinion/112870/fcc-v-beach-communications-inc/ | have reasoned that SMATV systems serving separately owned buildings are more similar to traditional cable systems than are facilities serving commonly owned buildings, in terms of the problems presented for consumers and the potential for regulatory benefits. See 294 U. S. App. D. C., at In a second opinion, the majority found this rationale to be *313 "a naked intuition, unsupported by conceivable facts or policies," 296 U. S. App. D. C. 141, and held that "the Cable Act violates the equal protection component of the Fifth Amendment, insofar as it imposes a discriminatory franchising requirement,"[4] The court declared the franchise requirement void to the extent it covers respondents and similarly situated SMATV operators.[5] Because the Court of Appeals held an Act of Congress unconstitutional, we granted certiorari. We now reverse. II Whether embodied in the Fourteenth Amendment or inferred from the Fifth, equal protection is not a license for courts to judge the wisdom, fairness, or logic of legislative choices. In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification. See ; ; United States Railroad Retirement ; 484- Where there are "plausible reasons" for *314 Congress' action, "our inquiry is at an end." United States Railroad Retirement This standard of review is a paradigm of judicial restraint. "The Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted."[6] On rational-basis review, a classification in a statute such as the Cable Act comes to us bearing a strong presumption of validity, see U.S. 360, and those attacking the rationality of the legislative classification have the burden "to negative every conceivable basis which might support it," (13) See also Moreover, because we never require a legislature to articulate its reasons for enacting a statute, it is entirely irrelevant for constitutional purposes whether the conceived reason for the challenged distinction actually motivated the legislature. United States Railroad Retirement See Thus, the absence of "`legislative facts' " explaining the distinction "[o]n the record," 294 U. S. App. D. C., has no significance in rational-basis analysis. See In other words, a legislative choice is not subject to courtroom factfinding and may be based on rational speculation unsupported by evidence or empirical data. See See also "`Only by faithful |
Justice Thomas | 1,993 | 1 | majority | FCC v. Beach Communications, Inc. | https://www.courtlistener.com/opinion/112870/fcc-v-beach-communications-inc/ | evidence or empirical data. See See also "`Only by faithful adherence to this guiding principle of judicial review of legislation is it possible to preserve to the legislative branch its rightful independence and its ability to function.' " ). These restraints on judicial review have added force "where the legislature must necessarily engage in a process of line-drawing." United States Railroad Retirement 449 U. S., Defining the class of persons subject to a regulatory requirementmuch like classifying governmental beneficiaries"inevitably requires that some persons who have an almost equally strong claim to favored treatment *316 be placed on different sides of the line, and the fact [that] the line might have been drawn differently at some points is a matter for legislative, rather than judicial, consideration." The distinction at issue here represents such a line: By excluding from the definition of "cable system" those facilities that serve commonly owned or managed buildings without using public rights-of-way, 602(7)(B) delineates the bounds of the regulatory field. Such scope-of-coverage provisions are unavoidable components of most economic or social legislation. In establishing the franchise requirement, Congress had to draw the line somewhere; it had to choose which facilities to franchise. This necessity renders the precise coordinates of the resulting legislative judgment virtually unreviewable, since the legislature must be allowed leeway to approach a perceived problem incrementally. See, e. g., : "The problem of legislative classification is a perennial one, admitting of no doctrinaire definition. Evils in the same field may be of different dimensions and proportions, requiring different remedies. Or so the legislature may think. Or the reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind. The legislature may select one phase of one field and apply a remedy there, neglecting the others. The prohibition of the Equal Protection Clause goes no further than the invidious discrimination."[7] *317 Applying these principles, we conclude that the commonownership distinction is constitutional. There are at least two possible bases for the distinction; either one suffices. First, Congress borrowed 602(7)(B) from pre-Cable Act regulations, and although the existence of a prior administrative scheme is certainly not necessary to the rationality of the statute, it is plausible that Congress also adopted the FCC's earlier rationale. Under that rationale, common ownership was thought to be indicative of those systems for which the costs of regulation would outweigh the benefits to consumers. Because the number of subscribers was a similar indicator, the Commission also exempted cable facilities that served fewer than 50 subscribers. See 47 CFR 76.5(a) |
Justice Thomas | 1,993 | 1 | majority | FCC v. Beach Communications, Inc. | https://www.courtlistener.com/opinion/112870/fcc-v-beach-communications-inc/ | that served fewer than 50 subscribers. See 47 CFR 76.5(a) (1984). In explaining both exemptions, the Commission stated: "[N]ot all [systems] can be subject to effective regulation with the resources available nor is regulation necessarily needed in every instance. A sensible regulatory program requires that a division between the regulated and unregulated be made in a manner which best conserves regulatory energies and allows the most cost effective use of available resources. In attempting to make this division, we have focused on subscriber numbers as well as the multiple unit dwelling indicia on the theory that the very small are inefficient to regulate and can safely be ignored in terms of their potential for impact on broadcast service to the public and on multiple unit dwelling facilities on the theory that this effectively establishes certain maximum size limitations." In re Definition of a Cable Television System, 67 F. C. C. 2d 716, 726 (18). *318 This regulatory-efficiency model, originally suggested by Chief Judge Mikva in his concurring opinion, provides a conceivable basis for the common-ownership exemption. A legislator might rationally assume that systems serving only commonly owned or managed buildings without crossing public rights-of-way would typically be limited in size or would share some other attribute affecting their impact on the welfare of cable viewers such that regulators could "safely ignor[e]" these systems. Respondents argue that Congress did not intend common ownership to be a surrogate for small size, since Congress simultaneously rejected the FCC's 50-subscriber exemption by omitting it from the Cable Act. Brief for Respondents 22. Whether the posited reason for the challenged distinction actually motivated Congress is "constitutionally irrelevant," United States Railroad Retirement and, in any event, the FCC's explanation indicates that both common ownership and number of subscribers were considered indicia of "very small" cable systems. Respondents also contend that an SMATV operator could increase his subscription base and still qualify for the exemption simply by installing a separate satellite dish on each building served. Brief for Respondents 42. The additional cost of multiple dishes and associated transmission equipment, however, would impose an independent constraint on system size. Furthermore, small size is only one plausible ownershiprelated factor contributing to consumer welfare. Subscriber influence is another. Where an SMATV system serves a complex of buildings under common ownership or management, individual subscribers could conceivably have greater bargaining power vis-à-vis the cable operator (even if the number of dwelling units were large), since all the subscribers could negotiate with one voice through the common owner or manager. Such an owner might have substantial leverage, because he could withhold |
Justice Thomas | 1,993 | 1 | majority | FCC v. Beach Communications, Inc. | https://www.courtlistener.com/opinion/112870/fcc-v-beach-communications-inc/ | an owner might have substantial leverage, because he could withhold permission to operate *319 the SMATV system on his property. He would also have an incentive to guard the interests of his tenants. Thus, there could be less need to establish regulatory safeguards for subscribers in commonly owned complexes. Respondents acknowledge such possibilities, see and we certainly cannot say that these assumptions would be irrational.[8] There is a second conceivable basis for the statutory distinction. Suppose competing SMATV operators wish to sell video programming to subscribers in a group of contiguous buildings, such as a single city block, which can be interconnected by wire without crossing a public right-of-way. If all the buildings belong to one owner or are commonly managed, that owner or manager could freely negotiate a deal for all subscribers on a competitive basis. But if the buildings are separately owned and managed, the first SMATV operator who gains a foothold by signing a contract and installing a satellite dish and associated transmission equipment on one of the buildings would enjoy a powerful cost advantage in competing for the remaining subscribers: He could connect *320 additional buildings for the cost of a few feet of cable, whereas any competitor would have to recover the cost of his own satellite headend facility. Thus, the first operator could charge rates well above his cost and still undercut the competition. This potential for effective monopoly power might theoretically justify regulating the latter class of SMATV systems and not the former. III The Court of Appeals quite evidently believed that the crossing or use of a public right-of-way is the only conceivable basis upon which Congress could rationally require local franchising of SMATV systems. See 296 U. S. App. D. C., at 965 F.2d, at ; 294 U. S. App. D. C., As we have indicated, however, there are plausible rationales unrelated to the use of public rights-of-way for regulating cable facilities serving separately owned and managed buildings. The assumptions underlying these rationales may be erroneous, but the very fact that they are "arguable" is sufficient, on rational-basis review, to "immuniz[e]" the congressional choice from constitutional challenge. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. So ordered. Justice Stevens, concurring in the judgment. |
Justice Marshall | 1,973 | 15 | second_dissenting | Couch v. United States | https://www.courtlistener.com/opinion/108650/couch-v-united-states/ | I caot agree with the majority that the Costitutio permits the Govermet to eforce the summos issued i this case. The opiio of the Court fails to articulate the basis of its result i a way that addresses the rage of costitutioal cocers ivolved.[1] The majority seems to create a bright-lie rule that o costitutioal right of petitioer is violated by eforcig a summos of papers ot i her possessio. Like MR. JUSTICE BRENNAN, I could ot accept such a rule. However, the majority blurs the lie by suggestig that temporary reliquishmet of possessio presets a differet case, see ate, at 333. The Court expressly disclaims the propositio that possessio aloe is determiative of the availability of costitutioal protectio for petitioer's papers. Ate, at 336 ad 333 16. But either the opiio of the Court or the cocurrig opiio of MR. JUSTICE BRENNAN supplies a clearly articulated costitutioal basis for the rule adopted. If the cosideratios that uderlie the Court's expressed cocers are stated explicitly, I thik it is clear that the Court has failed to apply correctly the stadards which *345 it appears to fid relevat.[2] I agree, of course, that possessio does ot defie the limits of the protectio that the Costitutio affords to private papers, ad add these commets to idicate how I would treat claims like petitioer's. A. I begi with whose cotiuig vitality is idicated by the majority's effort to distiguish it. That was a suit for the forfeiture of 35 cases of plate glass alleged to have bee illegally imported. I the course of the forfeiture proceedig, the Govermet itroduced ito evidece a ivoice of a prior shipmet. The defedats objected o the groud that the use of the ivoice violated their rights uder the Fourth ad Fifth Amedmets, because the ivoice was a private paper secured by a subpoea. This Court foud a violatio of both amedmets. Oe might iterpret Boyd as holdig that the Fifth Amedmet prohibits the use of private papers i a crimial proceedig over the author's objectio. The words of the Fifth Amedmet surely ca be read i that way. The use of the papers over objectio "compel [s the author] i [a] crimial case to be a witess agaist himself." The compulsio occurs whe the paper is itroduced over objectio, ot whe the paper is writte or subpoeaed. *346 But that iterpretatio has ot bee adopted by this Court. See, e. g., ; Ad i some possible cases, cosistet applicatio of that iterpretatio of Boyd might lead to results at odds with commo sese.[3] Aother iterpretatio of Boyd |
Justice Marshall | 1,973 | 15 | second_dissenting | Couch v. United States | https://www.courtlistener.com/opinion/108650/couch-v-united-states/ | results at odds with commo sese.[3] Aother iterpretatio of Boyd has bee accepted by this Court ad by the leadig commetators. See, e. g., ; 8 J. Wigmore, Evidece 2264 (McNaughto rev. 1961); C. McCormick, Evidece 126-127 (2d ed. 1972). Whe a party produces potetially icrimiatig evidece i respose to a summos or subpoea, he implicitly testifies that the evidece he brigs forth is i fact the evidece demaded. "The custodia's act of producig books or records i respose to a subpoea duces tecum *347 is itself a represetatio that the documets produced are those demaded by the subpoea. Requirig the custodia to idetify or autheticate the documets for admissio i evidece merely makes explicit what is implicit i the productio itself." 354 U. S., at The potetial for icrimiatio iheret i the act of productio is illustrated by this case. The summos here called for the productio of "[a]ll books pertaiig to the tax liability of" petitioer. Had the summos bee directed to her, she would have implicitly testified, o producig some papers, that these were "all" the records sought. The Iteral Reveue agets believed that she may have uderstated her icome. Their belief might have bee cofirmed o examiig all of her records, but ot o examiig oly some of them. The records could the be used i a subsequet crimial prosecutio for uderreportig her icome. If she produced oly some of her books, though, she would be liable for cotempt of the order. The Fifth Amedmet was desiged to prevet the Govermet from placig potetial defedats i such a positio. Cf. These cosideratios operate oly agaist the perso i possessio of the papers, as the majority correctly poits out. I this case, the accoutat to whom the summos was directed made o claim that turig over the records he has might icrimiate him, for example, by exposig him to the charge that he had perjured himself i represetig that the retur prepared for petitioer was correct to the best of his kowledge ad belief, 26 U.S. C. 6065, or that he had kowigly aided i the preparatio of a false retur, 26 U.S. C. 7206 (2). Nor could he be held to have represeted more tha that he had produced all the records i his possessio. *348 However, the accepted iterpretatio of Boyd has a odd soud to it. Boyd emphasized that the ivoice there was a private paper writte by the defedats. Yet the accepted iterpretatio of the case makes the authorship ad cotets of the paper largely irrelevat. What is icrimiatig about the productio of |
Justice Marshall | 1,973 | 15 | second_dissenting | Couch v. United States | https://www.courtlistener.com/opinion/108650/couch-v-united-states/ | paper largely irrelevat. What is icrimiatig about the productio of a documet i respose to a order is ot its cotets, as oe might have thought, but the implicit autheticatio that the documet is the oe amed i the order.[4] If that is the oly way ratioally to iterpret Boyd, it might make sese to do so.[5] But it makes better sese to devise a ratioale that focuses o the obvious cocer of the case, the desire of the author of documets to keep them private. B. This Court also held i Boyd that the Fourth Amedmet was violated. Ideed, much of the opiio is devoted to a discussio of Etick v. Carrigto, 19 How. St. Tr. 1029, 95 Eg. Rep. 807 (1765), a ladmark i the developmet of the prohibitio agaist ureasoable searches ad seizures. Here, too, the doctrial basis of the holdig is uclear, i part because the Court *349 correctly perceived that "[i] this regard the Fourth ad Fifth Amedmets ru almost ito each other." Boyd suggested that the Fourth Amedmet prohibited the seizure of "mere evidece." -624. See Gouled v. Uited 2 U.S. 298 Searches for mere evidece were ureasoable eve if such searches were sure to produce evidece leadig to a covictio. The precise cotours of the "mere evidece" rule were shaped by cocepts of property law which we ow see as outmoded. See But those cocepts attempted to defie, however imprecisely, a sphere of persoal privacy that the Govermet could ot eter over objectio. See, e. g., Gouled v. Uited Ad whe this Court repudiated the "mere evidece" rule, it suggested that Fourth Amedmet limitatios might be devised precisely i terms of the iterest i privacy, prohibitig the seizure of "items of evidetial value whose very ature precludes them from beig the object of a reasoable search ad seizure." Cf. The Fourth ad Fifth Amedmets do ot speak to totally urelated cocers. Cf. 484- ; 378 U. S., at Both ivolve aspects of a perso's right to develop for himself a sphere of persoal privacy. Where the Amedmets "ru almost ito each other," I would prohibit the Govermet from eterig.[6] The problem, as I see it, is to develop criteria *350 for determiig whether evidece sought by the Govermet lies withi the sphere of activities that petitioer attempted to keep private. Cf. Katz v. Uited The first criterio, as suggests, is the ature of the evidece. Diaries ad persoal letters that record oly their author's persoal thoughts lie at the heart of our sese of privacy. I cotrast, I see o bar i the |
Justice Marshall | 1,973 | 15 | second_dissenting | Couch v. United States | https://www.courtlistener.com/opinion/108650/couch-v-united-states/ | of privacy. I cotrast, I see o bar i the Fourth or Fifth Amedmet to the seizure of a letter from oe cospirator to aother directig the recipiet to take steps that further the cospiracy. Busiess records like those sought i this case lie betwee those cases. We are ot so outraged by the itrusio o privacy that accompaies the seizure of these records as we are by the seizure of a diary, yet the records could ot easily be called "istrumetalities" of tax evasio, particularly if they are accurate. Secod, we must cosider the ordiary operatios of the perso to whom the records are give. A trasfer to a lawyer is protected, ot simply because there is a recogized attorey-cliet privilege, but also because the ordiary expectatio is that the lawyer will ot further publicize what he has bee give. Agai i cotrast, a trasfer to a trustee i bakruptcy or to a clerk of a court does ot usually carry with it such expectatios. That is how I would justify Johso ad Perlma. Here, too, the trasfer i this case lies betwee the extremes. It would be relevat to a decisio about the expectatio of privacy that a accoutat-cliet privilege *351 existed uder local law, but ot determiative. Petitioer disclaimed reliace o such a privilege. Tr. of Oral Arg. 7. But I would thik that, privileged or ot, a disclosure to a accoutat is rather close to disclosure to a attorey. Third, the purposes for which the records were trasferred is a elemet of a iformed judgmet about the author's iterest i the privacy of the papers. That a trasfer is compelled by practical cosideratios if the author is to claim beefits available uder the law, seems to me quite importat. If petitioer had sought to take advatage of some complicated provisio of the tax laws, ad eeded the help of a accoutat to do so, I would be quite reluctat to hold that the trasfer of her records was a surreder of the privacy of the papers. But cf. As I uderstad it, the majority's exceptio for temporary reliquishmet of possessio, ad several of MR. JUSTICE BRENNAN'S exceptios, recogize the importace of this criterio. Fially, we must take ito accout the steps that the author took to isure the privacy of the records. Cf. I re Harris, Placig them i a safe deposit box is differet from lettig them remai for may years with a accoutat. It is ot impossible that petitioer had ideed abadoed her claim to privacy i the papers sought by summos i this |
Justice Scalia | 1,987 | 9 | majority | Hewitt v. Helms | https://www.courtlistener.com/opinion/111929/hewitt-v-helms/ | This case presents the peculiar-sounding question whether a party who litigates to judgment and loses on all of his claims can nonetheless be a "prevailing party" for purposes of an award of attorney's fees. Following a prison riot at the Pennsylvania State Correctional Institution at Huntingdon, inmate Aaron Helms was placed in administrative segregation, a form of restrictive custody, pending an investigation into his possible involvement in the disturbance. More than seven weeks later, a prison hearing committee, relying solely on an officer's report of the testimony of an undisclosed informant, found Helms guilty of misconduct for striking a corrections officer during the riot. Helms was sentenced to six months of disciplinary restrictive confinement. While still incarcerated, Helms brought suit under 42 U.S. C. against a number of prison officials, alleging that the lack of a prompt hearing on his misconduct charges and his conviction for misconduct on the basis of uncorroborated hearsay testimony violated his rights to due process. The prison officials asserted qualified immunity from suit and contested the constitutional claims on the merits. Before any decision was rendered, Helms was released from prison on parole. Nearly six months after Helms' release, the District Court rendered summary judgment against him on his constitutional *758 claims without passing on the defendants' assertions of immunity. The Court of Appeals for the Third Circuit reversed, finding that "Helms was denied due process unless he was afforded a hearing, within a reasonable time of his initial [segregative] confinement, to determine whether he represented the type of `risk' warranting administrative detention," and that he "suffered a denial of due process by being convicted on a misconduct charge when the only evidence offered against him was a hearsay recital, by the charging officer, of an uncorroborated report of an unidentified informant." The District Court was instructed to enter summary judgment for Helms on the latter claim unless the defendants could establish an immunity defense. Before the proceedings on remand could take place, we granted certiorari to determine whether Helms' administrative segregation violated the Due Process Clause. We concluded that the prison's informal, nonadversarial procedures for determining the need for restrictive custody provided all the process that is due when prisoners are removed from the general prison population. Certiorari was not sought on, and we did not decide, the question whether Helms' misconduct conviction violated his constitutional rights. When the case was returned to the Court of Appeals, it therefore reaffirmed its instruction to the District Court to enter judgment for Helms on this claim unless the defendants established a defense of official immunity. In |
Justice Scalia | 1,987 | 9 | majority | Hewitt v. Helms | https://www.courtlistener.com/opinion/111929/hewitt-v-helms/ | unless the defendants established a defense of official immunity. In the District Court, Helms pursued only his claims for damages. The District Court granted summary judgment for all the defendants on the basis of qualified immunity, because the constitutional right at issue was not "clearly established," at the time of Helms' misconduct hearing. See App. 22a-47a. Helms appealed, seeking both damages and expungement of his misconduct conviction. The defendants argued to the *759 Court of Appeals that all claims for injunctive and declaratory relief had been waived by the failure to pursue them in the District Court, and in any event were moot because Helms was no longer in prison. While that appeal was pending, the Pennsylvania Bureau of Corrections revised its regulations to include for the first time procedures for the use of confidential-source information in inmate disciplinary proceedings. See BC-ADM 801 Administrative Directive: Inmate Disciplinary Procedures V(F) App. 101a-102a (Directive 801). The District Court's decision was affirmed without opinion. Helms then sought attorney's fees under 42 U.S. C. 1988, which provides in relevant part: "In any action or proceeding to enforce a provision of [ ], the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." The District Court denied the claim on the ground that Helms was not a "prevailing party": the defendants' official immunity precluded a damages award, Helms' release from prison made his claims for injunctive relief moot, and he could not claim that his suit was a "catalyst" for the amendment of Directive 801 because he neither sought nor benefited from that action. App. to Pet. for Cert. 27a-39a. The Court of Appeals reversed, concluding that its prior holding that Helms' constitutional rights were violated was "a form of judicial relief which serves to affirm the plaintiff's assertion that the defendants' actions were unconstitutional and which will serve as a standard of conduct to guide prison officials in the future." The court also directed the District Court to reconsider whether Helms' suit was a "catalyst" for the amendment of Directive 801. We granted certiorari. In order to be eligible for attorney's fees under 1988, a litigant must be a "prevailing party." Whatever the outer boundaries of that term may be, Helms does not fit within *760 them. Respect for ordinary language requires that a plaintiff receive at least some relief on the merits of his claim before he can be said to prevail. See Helms obtained no relief. Because of the defendants' official immunity he received no damages award. No |
Justice Scalia | 1,987 | 9 | majority | Hewitt v. Helms | https://www.courtlistener.com/opinion/111929/hewitt-v-helms/ | the defendants' official immunity he received no damages award. No injunction or declaratory judgment was entered in his favor. Nor did Helms obtain relief without benefit of a formal judgment for example, through a consent decree or settlement. See The most that he obtained was an interlocutory ruling that his complaint should not have been dismissed for failure to state a constitutional claim. That is not the stuff of which legal victories are made. Cf. The Court of Appeals treated its holding that Helms' misconduct conviction was unconstitutional as "a form of judicial relief" presumably (since nothing else is even conceivable) a form of declaratory judgment. It was not that. Helms I explicitly left it to the District Court "to determine the appropriateness and availability of the requested relief," ; the Court of Appeals granted no relief of its own, declaratory or otherwise. The petitioners contend that the court in fact could not have granted declaratory or injunctive relief at that point, since all of Helms' nonmonetary claims were moot as a result of his release from prison. Even if that is not correct, and Helms' interest in expungement of the misconduct conviction from his prison record was enough to keep those claims alive, the fact is that Helms' counsel never took the steps necessary to have a declaratory judgment or expungement order properly entered. Consequently, Helms received no judicial relief. It is settled law, of course, that relief need not be judicially decreed in order to justify a fee award under 1988. A lawsuit sometimes produces voluntary action by the defendant that affords the plaintiff all or some of the relief he sought through a judgment e. g., a monetary settlement or a *761 change in conduct that redresses the plaintiff's grievances. When that occurs, the plaintiff is deemed to have prevailed despite the absence of a formal judgment in his favor. See at The Court of Appeals held, and Helms argues here, that the statement of law in Helms I that Helms' disciplinary proceeding was unconstitutional is a "vindication of rights," Brief for Respondent 19, that is at least the equivalent of declaratory relief, just as a monetary settlement is the informal equivalent of relief by way of damages. To suggest such an equivalency is to lose sight of the nature of the judicial process. In all civil litigation, the judicial decree is not the end but the means. At the end of the rainbow lies not a judgment, but some action (or cessation of action) by the defendant that the judgment produces the |
Justice Scalia | 1,987 | 9 | majority | Hewitt v. Helms | https://www.courtlistener.com/opinion/111929/hewitt-v-helms/ | action) by the defendant that the judgment produces the payment of damages, or some specific performance, or the termination of some conduct. Redress is sought through the court, but from the defendant. This is no less true of a declaratory judgment suit than of any other action. The real value of the judicial pronouncement what makes it a proper judicial resolution of a "case or controversy" rather than an advisory opinion is in the settling of some dispute which affects the behavior of the defendant towards the plaintiff. The "equivalency" doctrine is simply an acknowledgment of the primacy of the redress over the means by which it is obtained. If the defendant, under the pressure of the lawsuit, pays over a money claim before the judicial judgment is pronounced, the plaintiff has "prevailed" in his suit, because he has obtained the substance of what he sought. Likewise in a declaratory judgment action: if the defendant, under pressure of the lawsuit, alters his conduct (or threatened conduct) towards the plaintiff that was the basis for the suit, the plaintiff will have prevailed. That is the proper equivalent of a judicial judgment which would produce the same effect; a judicial statement that does not affect the relationship between the plaintiff and the defendant is not an equivalent. As a consequence of the present lawsuit, Helms obtained nothing *762 from the defendants. The only "relief" he received was the moral satisfaction of knowing that a federal court concluded that his rights had been violated. The same moral satisfaction presumably results from any favorable statement of law in an otherwise unfavorable opinion. There would be no conceivable claim that the plaintiff had "prevailed," for instance, if the District Court in this case had first decided the question of immunity, and the Court of Appeals affirmed in a published opinion which said: "The defendants are immune from suit for damages, and the claim for expungement is either moot or has been waived, but if not for that we would reverse because Helms' constitutional rights were violated." That is in essence what happened here, except that the Court of Appeals expressed its view on the constitutional rights before, rather than after, it had become apparent that the issue was irrelevant to the case. There is no warrant for having status as a "prevailing party" depend upon the essentially arbitrary order in which district courts or courts of appeals choose to address issues. Besides the incompatibility in principle, there is a very practical objection to equating statements of law (even legal holdings en route |
Justice Scalia | 1,987 | 9 | majority | Hewitt v. Helms | https://www.courtlistener.com/opinion/111929/hewitt-v-helms/ | to equating statements of law (even legal holdings en route to a final judgment for the defendant) with declaratory judgments: The equation deprives the defendant of valid defenses to a declaratory judgment to which he is entitled. Imagine that following Helms I, Helms' counsel, armed with the holding that his client's constitutional rights had been violated, pressed the District Court for entry of a declaratory judgment. The defendants would then have had the opportunity to contest its entry not only on the ground that the case was moot but also on equitable grounds. The fact that a court can enter a declaratory judgment does not mean that it should. See 28 U.S. C. 2201 (a court "may declare the rights and other legal relations of any interested party seeking such declaration") (emphasis added); Public Affairs Associates, ; If, for example, Helms I had unambiguously involved only a claim for damages, the requested declaratory judgment would not definitively "settle the controversy between the parties," 10A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure 2759, p. 648 because immunity might still preclude liability. See generally E. Borchard, Declaratory Judgments 299 (2d ed. 1941). If the only effect of a declaratory judgment in those circumstances would be to provide a possible predicate for a fee award against defendants who may ultimately be found immune, and thus to undermine the doctrine of official immunity, it is conceivable that the court might take that into account in deciding whether to enter a judgment. The same considerations may not enter into the decision whether to include statements of law in opinions or if they do, the court's decision is not appealable in the same manner as its entry of a declaratory judgment. We conclude that a favorable judicial statement of law in the course of litigation that results in judgment against the plaintiff does not suffice to render him a "prevailing party." Any other result strains both the statutory language and common sense. The Court of Appeals held in the alternative, and Helms argues in the alternative here, that a hearing is needed to determine whether Helms' lawsuit prompted the Pennsylvania Bureau of Corrections to amend its regulations in to provide standards for the use of informant testimony at disciplinary hearings. We need not decide the circumstances, if any, under which this "catalyst" theory could justify a fee award under 1988, because even if Helms can demonstrate a clear causal link between his lawsuit and the State's amendment of its regulations, and can "prevail" by having the State take action that his |
Justice Blackmun | 1,979 | 11 | dissenting | Edmonds v. Compagnie Generale Transatlantique | https://www.courtlistener.com/opinion/110136/edmonds-v-compagnie-generale-transatlantique/ | The jury in this case found that the shipowner, the stevedore, and the longshoreman were each partially responsible *274 for the latter's (petitioner Stanley Edmonds) injury. A member of the ship's crew instructed Edmonds to remove a jack from the rear wheel of a large cargo container. As Edmonds went behind the container to remove the jack, another longshoreman backed a truck into the container, causing it to roll backwards and pin Edmonds against the bulkhead. The jury concluded that the shipowner, as the employer of the crewman, was % responsible for the accident; the stevedore, as the employer of the longshoreman driving the truck, was 70% responsible; and Edmonds himself was 10% responsible. The Court holds that the shipowner, who was % negligent, must pay 90% of Edmonds' damages. Edmonds, because of his comparative negligence, must absorb 10% of the damages himself. But the stevedore, who, the jury determined, was 70% at fault, will recoup its statutory compensation payments out of the damages payable to Edmonds, and thus will go scot-free.[1] The Court does not, and indeed could not, defend this result on grounds of reason or fairness. Today's ruling means that concurrently negligent stevedores will be insulated from the obligation to pay statutory workmen's compensation benefits, and thus will have inadequate incentives to provide a safe working environment for their employees. It also means that shipowners in effect will be held vicariously liable for the negligence of stevedores, and will have to pay damages far out of proportion to their degree of fault. Nor does the Court suggest that its holding is compelled by the language or legislative *275 history of 5 (b) of the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), 33 U.S. C. 905 (b). The Court appears to advance two justifications for its decision: first, that principles of comparative negligence did not apply under the traditional law of admiralty, and Congress intended to preclude judicial modification of that law when it passed the 1972 Amendments to the LHWCA; and second, that a rule of comparative negligence would be unfair to injured longshoremen. Since I find both purported justifications wholly inadequate to support the Court's decision, I respectfully dissent. I The Court begins with the proposition that, under the law maritime as it existed in 1972, the shipowner could not reduce its liability because of the comparative negligence of the stevedore: I am not entirely convinced. None of the decisions cited by the Court, ante, at 260 n. 7, stands for this proposition; the cases relied upon all concern the conceptually distinct problemto which the Court |
Justice Blackmun | 1,979 | 11 | dissenting | Edmonds v. Compagnie Generale Transatlantique | https://www.courtlistener.com/opinion/110136/edmonds-v-compagnie-generale-transatlantique/ | upon all concern the conceptually distinct problemto which the Court has given varying answersof whether there is a right of contribution among joint tortfeasors.[2] I am willing to assume, however, for purposes of argument, that the Court has correctly stated the "traditional" admiralty rule. The Court next states that Congress itself did not impose a rule of comparative negligence when it adopted 905 (b) in 1972. Again, I am not altogether sure. As Chief Judge Haynsworth demonstrated in his opinion for the en banc court *276 below, there is some tension between the first and second sentences of 905 (b).[3] These sentences are most easily reconciled if one assumes that Congress was thinking in terms of comparative negligence. The Court points out that there are other, less plausible, ways of reconciling the two sentences. Although I feel there is room for debate on this question, I am again willing to assume, for purposes of argument, that Congress did not impose a rule of comparative negligence in third-party suits under the LHWCA. I cannot agree, however, with the Court's third proposition: that Congress intended to prohibit this Court from fashioning a rule of comparative negligence in suits for damages by a longshoreman against the shipowner. It is well established that courts exercising jurisdiction in maritime affairs have broad powers of interstitial rulemaking. As the Court stated in United "the Judiciary has traditionally taken the lead in formulating flexible and fair remedies in the law maritime, and `Congress has largely left to this Court the responsibility for fashioning the controlling rules of admiralty law.' Fitzgerald" I find nothing in the language or legislative history of 905 (b) that indicates Congress intended to reverse this presumption with respect to third-party actions under the LHWCA. The Court suggests that Congress, in enacting 905 (b), "aligned the rights and liabilities of stevedores, shipowners, and longshoremen" on the specific assumption that the shipowner would not be allowed to reduce its liability because of the stevedore's comparative negligence. Ante, at 272. The legislative history belies this notion. Congress had two narrow objectives in mind in enacting 905 (b) in 1972: to overcome this Court's decision in Seas Shipping and its decision in Ryan Stevedoring See S. Rep. No. pp. 8-11 (1972). These decisions had created a form of circuitous liability whereby the longshoreman, under Seas Shipping, sued the shipowner under a theory of unseaworthiness; the shipowner, under Ryan Stevedoring, obtained full indemnity from the stevedore; and the stevedore ended up paying actual damages rather than statutory compensation. Congress overruled the strict-liability theory of Seas Shipping to ensure |
Justice Blackmun | 1,979 | 11 | dissenting | Edmonds v. Compagnie Generale Transatlantique | https://www.courtlistener.com/opinion/110136/edmonds-v-compagnie-generale-transatlantique/ | Congress overruled the strict-liability theory of Seas Shipping to ensure that "[t]he vessel will not be chargeable with the negligence of the stevedore or employees of the stevedore." S. Rep. No. It eliminated the Ryan Stevedoring action for indemnification because if "the vessel's liability is to be based on its own negligence, and the vessel will no longer be liable under the unseaworthiness doctrine for injuries which are really the fault of the stevedore, there is no longer any necessity for permitting the vessel to recover the damages for which it is liable to the injured worker from the stevedore" S. Rep. No. These statements of legislative purpose are as consistent, or more consistent, with a system of comparative negligence, than with a congressional assumption that the shipowner would be fully liable for the concurrent negligence of the stevedore. *278 The legislative history indicates that, if anything, Congress intended to preserve the role of the federal courts in filling in the contours of 905 (b). The House and Senate Reports state that the liability of a shipowner in an action brought by a longshoreman should be analogous to that which "would render a land-based third party in non-maritime pursuits liable under similar circumstances." S. Rep. No. The Report emphasizes, however, that this does not mean state tort law is to govern third-party negligence suits against the vessel. "[T]he Committee does not intend that the negligence remedy authorized in the bill shall be applied differently in different ports depending on the law of the State in which the port may be located. The Committee intends that legal questions which may arise in actions brought under these provisions of the law shall be determined as a matter of Federal law. In that connection, the Committee intends that the admiralty concept of comparative negligence, rather than the common law rule as to contributory negligence, shall apply in cases where the injured employee's own negligence may have contributed to causing the injury. Also, the Committee intends that the admiralty rule which precludes the defense of `assumption of risk' in an action by an injured employee shall also be applicable." In other words, Congress specifically reaffirmed the admiralty law tradition in the 1972 Amendments, and intended that this Court would continue to resolve "legal questions which may arise in actions brought under these provisions" in accordance with that tradition. In short, in this case, as in Reliable 421 U. S., at "[n]o statutory or judicial precept precludes a change in the rule [that the shipowner is fully liable for the concurrent negligence of the stevedore], |
Justice Blackmun | 1,979 | 11 | dissenting | Edmonds v. Compagnie Generale Transatlantique | https://www.courtlistener.com/opinion/110136/edmonds-v-compagnie-generale-transatlantique/ | is fully liable for the concurrent negligence of the stevedore], and indeed a proportional fault rule would simply bring recovery [as between the stevedore *279 and shipowner] into line with the rule of admiralty law long since established [as between the longshoreman and the shipowner]." II I am also convinced that no injustice to injured longshoremen would result from a rule of comparative negligence. A rule of comparative negligence in no case would reduce the longshoreman's total award below his statutory workmen's compensation benefits.[4] The rule of comparative negligence would affect only the relative proportion of statutory benefits and damages in the longshoreman's total compensation package. In the present case, for example, a rule of comparative negligence would mean the longshoreman would receive % damages and 80% statutory benefits, as opposed to 90% damages and 10% statutory benefits. At first blush, it might appear that there is something unfair about reducing the total potential award of the longshoreman in this manner. But when the different purposes of the statutory compensation scheme and the third-party action for negligence are considered, it can be seen that this result is fully consistent with the policies of the statute. The LHWCA statutory compensation scheme, like other workmen's compensation plans, is based on a compromise. The longshoreman accepts less than full damages for work-related injuries. In exchange, he is guaranteed that these statutory benefits will be paid for every work-related injury without regard to fault. The third-party tort action, in contrast, embodies an element of risk. The longshoreman faces the prospect of an increased award, but also the possibility of receiving nothing if the shipowner is found not to have been negligent. *280 The problem of perceiving the equities arises because of the interaction of the compensation scheme and the tort scheme. If a longshoreman is injured while working on a vessel, and the stevedore is 100% at fault, no one considers it unjust that the longshoreman receives only statutory benefits. The award of less than full damages is the quid pro quo for the guarantee of recovery without regard to the employer's fault. Similarly, if a longshoreman is injured and the shipowner is 100% to blame, everyone agrees that it is fitting and proper for the shipowner to pay full damages. The Court, however, perceives "some inequity" in not allowing the longshoreman to obtain full damages when the shipowner has been determined to be only % negligent. Presumably, this same "inequity" would result if the longshoreman did not obtain full damages when the shipowner was 10% or 5% or even 1% negligent. This is |
Justice Blackmun | 1,979 | 11 | dissenting | Edmonds v. Compagnie Generale Transatlantique | https://www.courtlistener.com/opinion/110136/edmonds-v-compagnie-generale-transatlantique/ | was 10% or 5% or even 1% negligent. This is not equity, however, but a windfall. Under the Court's rule, the longshoreman is guaranteed statutory compensation without regard to fault and is given a risk-free chance to obtain full damages if the shipowner is found negligent in even the slightest degree. A more evenhanded equity, in my view, would be for the longshoreman to recover damages for that portion of the injury for which the shipowner's negligence is responsible, and to recover the balance in statutory compensation, representing that portion of the injury for which the longshoreman is guaranteed an award regardless of fault.[5] III In sum, this case presents the relatively common situation where a statute is open to two interpretations, and the legislative history, although instructive as to the overriding purposes of Congress, provides no specific guidance as to which *281 interpretation Congress would have adopted if it had addressed the precise issue. Our duty, in such a case, is to adopt the interpretation most consonant with reason, equity, and the underlying purposes Congress sought to achieve. If we are wrong, Congress can, as it has in the past, step in and adopt some other solution. But the problem should not be resolved by complacently accepting an unfair and unjust result, on the assumption the choice between the two interpretations ideally should be made by Congress. Under that approach, the Court and the country at large may end up with nothing more than an unfair and unjust result. |
per_curiam | 1,983 | 200 | per_curiam | Arizona Governing Comm. for Tax Deferred Annuity and Deferred Compensation Plans v. Norris | https://www.courtlistener.com/opinion/111021/arizona-governing-comm-for-tax-deferred-annuity-and-deferred-compensation/ | Petitioners in this case administer a deferred compensation plan for employees of the State of Arizona. The respondent class consists of all female employees who are enrolled in the plan or will enroll in the plan in the future. Certiorari was granted to decide whether Title VII of the Civil Rights Act of 1964, as amended, 42 U.S. C. 2000e et seq. ( ed. and Supp. V), prohibits an employer from offering its employees the option of receiving retirement benefits from one of several companies selected by the employer, all of which pay lower monthly retirement benefits to a woman than to a man who has made the same contributions; and whether, if so, the relief awarded by the District Court was proper. The Court holds that this practice does constitute discrimination on the basis of sex in violation of Title VII, and that all retirement benefits derived from contributions made after the decision today must be calculated *1075 without regard to the sex of the beneficiary. This position is expressed in Parts I, II, and III of the opinion of JUSTICE MARSHALL, post, at this page and 1076-1091, which are joined by JUSTICE BRENNAN, JUSTICE WHITE, JUSTICE STEVENS, and JUSTICE O'CONNOR. The Court further holds that benefits derived from contributions made prior to this decision may be calculated as provided by the existing terms of the Arizona plan. This position is expressed in Part III of the opinion of JUSTICE POWELL, post, at 1105, which is joined by THE CHIEF JUSTICE, JUSTICE BLACKMUN, JUSTICE REHNQUIST, and JUSTICE O'CONNOR. Accordingly, the judgment of the Court of Appeals is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion. The Clerk is directed to issue the judgment August 1, 1983. It is so ordered. JUSTICE MARSHALL, with whom JUSTICE BRENNAN, JUSTICE WHITE, and JUSTICE STEVENS join, and with whom JUSTICE O'CONNOR joins as to Parts I, II, and III, concurring in the judgment in part. In Los Angeles Dept. of Water & this Court held that Title VII of the Civil Rights Act of 1964 prohibits an employer from requiring women to make larger contributions in order to obtain the same monthly pension benefits as men. The question presented by this case is whether Title VII also prohibits an employer from offering its employees the option of receiving retirement benefits from one of several companies selected by the employer, all of which pay a woman lower monthly benefits than a man who has made the same contributions. I A Since 1974 the |
per_curiam | 1,983 | 200 | per_curiam | Arizona Governing Comm. for Tax Deferred Annuity and Deferred Compensation Plans v. Norris | https://www.courtlistener.com/opinion/111021/arizona-governing-comm-for-tax-deferred-annuity-and-deferred-compensation/ | has made the same contributions. I A Since 1974 the State of Arizona has offered its employees the opportunity to enroll in a deferred compensation plan administered *1076 by the Arizona Governing Committee for Tax Deferred Annuity and Deferred Compensation Plans (Governing Committee). Ariz. Rev. Stat. Ann. 38-871 et seq. ; Ariz. Regs. 2-9-01 et seq. Employees who participate in the plan may thereby postpone the receipt of a portion of their wages until retirement. By doing so, they postpone paying federal income tax on the amounts deferred until after retirement, when they receive those amounts and any earnings thereon.[1] After inviting private companies to submit bids outlining the investment opportunities that they were willing to offer state employees, the State selected several companies to participate in its deferred compensation plan. Many of the companies selected offer three basic retirement options: (1) a single lump-sum payment upon retirement, (2) periodic payments of a fixed sum for a fixed period of time, and (3) monthly annuity payments for the remainder of the employee's life. When an employee decides to take part in the deferred compensation plan, he must designate the company in which he wishes to invest his deferred wages. Employees must choose one of the companies selected by the State to participate in the plan; they are not free to invest their deferred compensation in any other way. At the time an employee enrolls in the plan, he may also select one of the pay-out options offered by the company that he has chosen, but when he reaches retirement age he is free to switch to one of the company's other options. If at retirement the employee decides to receive a lump-sum payment, he may also purchase any of the options then being offered by the other companies participating in the plan. Many employees find an annuity contract to be the most attractive option, since receipt of a lump sum upon retirement requires payment of taxes on *1077 the entire sum in one year, and the choice of a fixed sum for a fixed period requires an employee to speculate as to how long he will live. Once an employee chooses the company in which he wishes to invest and decides the amount of compensation to be deferred each month, the State is responsible for withholding the appropriate sums from the employee's wages and channelling those sums to the company designated by the employee. The State bears the cost of making the necessary payroll deductions and of giving employees time off to attend group meetings to learn about the plan, |
per_curiam | 1,983 | 200 | per_curiam | Arizona Governing Comm. for Tax Deferred Annuity and Deferred Compensation Plans v. Norris | https://www.courtlistener.com/opinion/111021/arizona-governing-comm-for-tax-deferred-annuity-and-deferred-compensation/ | off to attend group meetings to learn about the plan, but it does not contribute any moneys to supplement the employees' deferred wages. For an employee who elects to receive a monthly annuity following retirement, the amount of the employee's monthly benefits depends upon the amount of compensation that the employee deferred (and any earnings thereon), the employee's age at retirement, and the employee's sex. All of the companies selected by the State to participate in the plan use sex-based mortality tables to calculate monthly retirement benefits. App. 12. Under these tables a man receives larger monthly payments than a woman who deferred the same amount of compensation and retired at the same age, because the tables classify annuitants on the basis of sex and women on average live longer than men.[2] Sex is the only factor that the tables use to classify individuals of the same age; the tables do not incorporate other factors correlating with longevity such as smoking habits, alcohol consumption, weight, medical history, or family history. *1078 As of August 18, 1978, 1,675 of the State's approximately 35,000 employees were participating in the deferred compensation plan. Of these 1,675 participating employees, 681 were women, and 572 women had elected some form of future annuity option. As of the same date, 10 women participating in the plan had retired, and 4 of those 10 had chosen a lifetime annuity. B On May 3, 1975, respondent Nathalie Norris, an employee in the Arizona Department of Economic Security, elected to participate in the plan. She requested that her deferred compensation be invested in the Lincoln National Life Insurance Co.'s fixed annuity contract. Shortly thereafter Arizona approved respondent's request and began withholding $1.50 from her salary each month. On April 25, 1978, after exhausting administrative remedies, respondent brought suit in the United States District Court for the District of Arizona against the State, the Governing Committee, and several individual members of the Committee. Respondent alleged that the defendants were violating 703(a) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S. C. 2000e-2(a), by administering an annuity plan that discriminates on the basis of sex. Respondent requested that the District Court certify a class under Federal Rule of Civil Procedure 23(b)(2) consisting of all female employees of the State of Arizona "who are enrolled or will in the future enroll in the State Deferred Compensation Plan." Complaint ¶ V. On March 12, 1980, the District Court certified a class action and granted summary judgment for the plaintiff class,[3] holding that the State's plan violates Title VII.[4] |
per_curiam | 1,983 | 200 | per_curiam | Arizona Governing Comm. for Tax Deferred Annuity and Deferred Compensation Plans v. Norris | https://www.courtlistener.com/opinion/111021/arizona-governing-comm-for-tax-deferred-annuity-and-deferred-compensation/ | plaintiff class,[3] holding that the State's plan violates Title VII.[4] 486 F. *1079 Supp. 645. The court directed petitioners to cease using sex-based actuarial tables and to pay retired female employees benefits equal to those paid to similarly situated men.[5] The United States Court of Appeals for the Ninth Circuit affirmed, with one judge dissenting. We granted certiorari to decide whether the Arizona plan violates Title VII and whether, if so, the relief ordered by the District Court was proper. II We consider first whether petitioners would have violated Title VII if they had run the entire deferred compensation plan themselves, without the participation of any insurance companies. Title VII makes it an unlawful employment practice "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex or origin." 42 U.S. C. 2000e-2(a)(1). There is no question that the opportunity to participate in a deferred compensation plan constitutes a "conditio[n] or privileg[e] of employment,"[6] and that retirement benefits constitute a form of "compensation."[7] The issue we must decide is whether it is discrimination "because of sex" to pay a retired woman lower monthly benefits than a man who deferred the same amount of compensation. *1080 In Los Angeles Dept. of Water & we held that an employer had violated Title VII by requiring its female employees to make larger contributions to a pension fund than male employees in order to obtain the same monthly benefits upon retirement. Noting that Title VII's "focus on the individual is unambiguous," we emphasized that the statute prohibits an employer from treating some employees less favorably than others because of their race, religion, sex, or origin. -709. While women as a class live longer than men, we rejected the argument that the exaction of greater contributions from women was based on a "factor other than sex" i. e., longevity and was therefore permissible under the Equal Pay Act:[8] *1081 "[A]ny individual's life expectancy is based on a number of factors, of which sex is only one. [O]ne cannot `say that an actuarial distinction based entirely on sex is "based on any other factor than sex." Sex is exactly what it is based on.' " quoting and the Equal Pay Act. We concluded that a plan requiring women to make greater contributions than men discriminates "because of sex" for the simple reason that it treats each woman " `in a manner which but for [her] sex would [have been] different.' " quoting Developments in the Law, Employment Discrimination and Title VII |
per_curiam | 1,983 | 200 | per_curiam | Arizona Governing Comm. for Tax Deferred Annuity and Deferred Compensation Plans v. Norris | https://www.courtlistener.com/opinion/111021/arizona-governing-comm-for-tax-deferred-annuity-and-deferred-compensation/ | quoting Developments in the Law, Employment Discrimination and Title VII of the Civil Rights Act of 1964, We have no hesitation in holding, as have all but one of the lower courts that have considered the question,[9] that the classification of employees on the basis of sex is no more permissible at the pay-out stage of a retirement plan than at the pay-in stage.[10] We reject petitioners' contention that the *1082 Arizona plan does not discriminate on the basis of sex because a woman and a man who defer the same amount of compensation will obtain upon retirement annuity policies having approximately the same present actuarial value.[11] Arizona has simply offered its employees a choice among different levels of annuity benefits, any one of which, if offered alone, would be equivalent to the plan at issue in where the employer determined both the monthly contributions employees were required to make and the level of benefits that they were paid. If a woman participating in the Arizona plan wishes to obtain monthly benefits equal to those obtained by a man, she must make greater monthly contributions than he, just as the female employees in had to make greater contributions to obtain equal benefits. For any particular level of benefits that a woman might wish to receive, she will have to make greater monthly contributions to obtain that level of benefits than a man would have to make. The fact that Arizona has offered a range of discriminatory benefit levels, rather than only one such level, obviously provides no basis whatsoever for distinguishing *1083 In asserting that the Arizona plan is nondiscriminatory because a man and a woman who have made equal contributions will obtain annuity policies of roughly equal present actuarial value, petitioners incorrectly assume that Title VII permits an employer to classify employees on the basis of sex in predicting their longevity. Otherwise there would be no basis for postulating that a woman's annuity policy has the same present actuarial value as the policy of a similarly situated man even though her policy provides lower monthly benefits.[12] This underlying assumption that sex may properly be used to predict longevity is flatly inconsistent with the basic teaching of : that Title VII requires employers to treat their employees as individuals, not "as simply components of a racial, religious, sexual, or class." 435 U.S., squarely rejected the notion that, because women as a class live longer than men, an employer may adopt a retirement plan that treats every individual woman less favorably than every individual man. As we observed in |
per_curiam | 1,983 | 200 | per_curiam | Arizona Governing Comm. for Tax Deferred Annuity and Deferred Compensation Plans v. Norris | https://www.courtlistener.com/opinion/111021/arizona-governing-comm-for-tax-deferred-annuity-and-deferred-compensation/ | less favorably than every individual man. As we observed in "[a]ctuarial studies could unquestionably identify differences in life expectancy based on race or origin, as well as sex." If petitioners' interpretation of the statute were correct, such studies could be used as a justification for paying employees of one race lower monthly benefits than employees of another race. We continue to believe that "a statute that was designed to make race irrelevant in the employment market," ib citing could not reasonably be construed to permit such a racial classification. And if it would be unlawful to use race-based actuarial tables, it must also be unlawful to use sex-based tables, for under Title VII a distinction *1084 based on sex stands on the same footing as a distinction based on race unless it falls within one of a few narrow exceptions that are plainly inapplicable here.[13] What we said in bears repeating: "Congress has decided that classifications based on sex, like those based on origin or race, are unlawful." 435 U.S., The use of sex-segregated actuarial tables to calculate retirement benefits violates Title VII whether or not the tables reflect an accurate prediction of the longevity of women as a class, for under the statute "[e]ven a true generalization about [a] class" cannot justify class-based treatment.[14] *1085 An individual woman may not be paid lower monthly benefits simply because women as a class live longer than men.[15] Cf. We conclude that it is just as much discrimination "because of sex" to pay a woman lower benefits when she has made the same contributions as a man as it is to make her pay larger contributions to obtain the same benefits. III Since petitioners plainly would have violated Title VII if they had run the entire deferred compensation plan themselves, the only remaining question as to liability is whether their conduct is beyond the reach of the statute because it is the companies chosen by petitioners to participate in the plan that calculate and pay the retirement benefits. Title VII "primarily govern[s] relations between employees and their employer, not between employees and third parties."[16], n. 33. Recognizing this limitation on the reach of the statute, we noted in that "[n]othing in our holding implies that it would be unlawful for an employer to set aside equal retirement contributions for each employee and let each retiree purchase the largest benefit which his or her accumulated contributions could command in the open market." *1087 Relying on this caveat, petitioners contend that they have not violated Title VII because the life annuities offered by the |
per_curiam | 1,983 | 200 | per_curiam | Arizona Governing Comm. for Tax Deferred Annuity and Deferred Compensation Plans v. Norris | https://www.courtlistener.com/opinion/111021/arizona-governing-comm-for-tax-deferred-annuity-and-deferred-compensation/ | violated Title VII because the life annuities offered by the companies participating in the Arizona plan reflect what is available in the open market. Petitioners cite a statement in the stipulation of facts entered into in the District Court that "[a]ll tables presently in use provide a larger sum to a male than to a female of equal age, account value and any guaranteed payment period." App. 10.[17] *1088 It is no defense that all annuities immediately available in the open market may have been based on sex-segregated actuarial tables. In context it is reasonably clear that the stipulation on which petitioners rely means only that all the tables used by the companies taking part in the Arizona plan are based on sex,[18] but our conclusion does not depend upon whether petitioners' construction of the stipulation is accepted or rejected. It is irrelevant whether any other insurers offered annuities on a sex-neutral basis, since the State did not simply set aside retirement contributions and let employees purchase annuities on the open market. On the contrary, the State provided the opportunity to obtain an annuity *1089 as part of its own deferred compensation plan. It invited insurance companies to submit bids outlining the terms on which they would supply retirement benefits[19] and selected the companies that were permitted to participate in the plan. Once the State selected these companies, it entered into contracts with them governing the terms on which benefits were to be provided to employees. Employees enrolling in the plan could obtain retirement benefits only from one of those companies, and no employee could be contacted by a company except as permitted by the State. Ariz. Regs. 2-9-06.A, 2-9-20.A Under these circumstances there can be no serious question that petitioners are legally responsible for the discriminatory terms on which annuities are offered by the companies chosen to participate in the plan. Having created a plan whereby employees can obtain the advantages of using deferred compensation to purchase an annuity only if they invest in one of the companies specifically selected by the State, the State cannot disclaim responsibility for the discriminatory features of the insurers' options.[20] Since employers are ultimately responsible for the "compensation, terms, conditions, [and] privileges of employment" provided to employees, an employer that adopts a fringe-benefit scheme that discriminates among its employees on the basis of race, religion, sex, or origin violates Title VII regardless of whether third parties are also involved in the discrimination.[21] In *1090 this case the State of Arizona was itself a party to contracts concerning the annuities to be offered by |
per_curiam | 1,983 | 200 | per_curiam | Arizona Governing Comm. for Tax Deferred Annuity and Deferred Compensation Plans v. Norris | https://www.courtlistener.com/opinion/111021/arizona-governing-comm-for-tax-deferred-annuity-and-deferred-compensation/ | party to contracts concerning the annuities to be offered by the insurance companies, and it is well established that both parties to a discriminatory contract are liable for any discriminatory provisions the contract contains, regardless of which party initially suggested inclusion of the discriminatory provisions.[22] It would be inconsistent with the broad remedial purposes of Title VII[23] to hold that an employer who adopts a discriminatory *1091 fringe-benefit plan can avoid liability on the ground that he could not find a third party willing to treat his employees on a nondiscriminatory basis.[24] An employer who confronts such a situation must either supply the fringe benefit himself, without the assistance of any third party, or not provide it at all. IV We turn finally to the relief awarded by the District Court. The court enjoined petitioners to assure that future annuity payments to retired female employees shall be equal to the payments received by similarly situated male employees.[25] In Albemarle Paper we emphasized that one of the main purposes of Title VII is "to make persons whole for injuries suffered on account of unlawful employment discrimination." We recognized that there is a strong presumption that " `[t]he injured party is to be placed, as near as may be, in the situation he would have occupied if the wrong had not been committed.' " -419, quoting Once a violation of the statute has been found, retroactive relief "should be denied only for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through *1092 past discrimination." Applying this standard, we held that the mere absence of bad faith on the part of the employer is not a sufficient reason for denying such Although this Court noted in that "[t]he Albemarle presumption in favor of retroactive liability can seldom be overcome," the Court concluded that under the circumstances the District Court had abused its discretion in requiring the employer to refund to female employees all contributions they were required to make in excess of the contributions demanded of men. The Court explained that "conscientious and intelligent administrators of pension funds, who did not have the benefit of the extensive briefs and arguments presented to us, may well have assumed that a program like the Department's was entirely lawful," since "[t]he courts had been silent on the question, and the administrative agencies had conflicting views." The Court also noted that retroactive relief based on "[d]rastic changes in the legal rules governing pension and insurance funds" can "jeopardiz[e] the insurer's |
per_curiam | 1,983 | 200 | per_curiam | Arizona Governing Comm. for Tax Deferred Annuity and Deferred Compensation Plans v. Norris | https://www.courtlistener.com/opinion/111021/arizona-governing-comm-for-tax-deferred-annuity-and-deferred-compensation/ | rules governing pension and insurance funds" can "jeopardiz[e] the insurer's solvency and, ultimately, the insureds' benefits," and that the burden of such relief can fall on innocent third parties. While the relief ordered here affects only benefit payments made after the date of the District Court's judgment, it does not follow that the relief is wholly prospective in nature, as an injunction concerning future conduct ordinarily is, and should therefore be routinely awarded once liability is established. When a court directs a change in benefits based on contributions made before the court's order, the court is awarding relief that is fundamentally retroactive in nature. This is true because retirement benefits under a plan such as that at issue here represent a return on contributions which were made during the employee's working years and which were intended to fund the benefits without any additional contributions from any source after retirement. *1093 A recognition that the relief awarded by the District Court is partly retroactive is only the beginning of the inquiry. Absent special circumstances a victim of a Title VII violation is entitled to whatever retroactive relief is necessary to undo any damage resulting from the violation. See Albemarle Paper -419, 421. As to any disparity in benefits that is attributable to contributions made after our decision in there are no special circumstances justifying the denial of retroactive Our ruling today was clearly foreshadowed by That decision should have put petitioners on notice that a man and a woman who make the same contributions to a retirement plan must be paid the same monthly benefits.[26] To the extent that any disparity in benefits coming due after the date of the District Court's judgment is attributable to contributions made after there is therefore no unfairness in requiring petitioners to pay retired female employees whatever sum is necessary each month to bring them up to the benefit level that they would have enjoyed had their post- contributions been treated in the same way as those of similarly situated male employees. To the extent, however, that the disparity in benefits that the District Court required petitioners to eliminate is attributable *1094 to contributions made before the court gave insufficient attention to this Court's recognition in that until that decision the use of sex-based tables might reasonably have been assumed to be lawful. Insofar as this portion of the disparity is concerned, the District Court should have inquired into the circumstances in which petitioners, after could have applied sex-neutral tables to the pre- contributions of a female employee and a similarly situated male employee without |
per_curiam | 1,983 | 200 | per_curiam | Arizona Governing Comm. for Tax Deferred Annuity and Deferred Compensation Plans v. Norris | https://www.courtlistener.com/opinion/111021/arizona-governing-comm-for-tax-deferred-annuity-and-deferred-compensation/ | a female employee and a similarly situated male employee without violating any contractual rights that the latter might have had on the basis of his pre- contributions. If, in the case of a particular female employee and a similarly situated male employee, petitioners could have applied sex-neutral tables to pre- contributions without violating any contractual right of the male employee, they should have done so in order to prevent further discrimination in the payment of retirement benefits in the wake of this Court's ruling in[27] Since a female employee in this situation should have had sex-neutral tables applied to her pre- contributions, it is only fair that petitioners be required to supplement any benefits coming due after the District Court's judgment by whatever sum is necessary to compensate her for their failure to adopt sex-neutral tables. If, on the other hand, sex-neutral tables could not have been applied to the pre- contributions of a particular female employee and any similarly situated male employee without violating the male employee's contractual rights, it would be inequitable to award such To do so would be *1095 to require petitioners to compensate the female employee for a disparity attributable to pre- conduct even though such conduct might reasonably have been assumed to be lawful and petitioners could not have done anything after to eliminate that disparity short of expending state funds. With respect to any female employee determined to fall in this category, petitioners need only ensure that her monthly benefits are no lower than they would have been had her post- contributions been treated in the same way as those of a similarly situated male employee. The record does not indicate whether some or all of the male participants in the plan who had not retired at the time was decided[28] had any contractual right to a particular level of benefits that would have been impaired by the application of sex-neutral tables to their pre- contributions. The District Court should address this question on remand. JUSTICE POWELL, with whom THE CHIEF JUSTICE, JUSTICE BLACKMUN, and JUSTICE REHNQUIST join, dissenting in part and concurring in part, and with whom JUSTICE O'CONNOR joins as to Part III. The Court today holds that an employer may not offer its employees life annuities from a private insurance company that uses actuarially sound, sex-based mortality tables. This holding will have a far-reaching effect on the operation of insurance and pension plans. Employers may be forced to discontinue offering life annuities, or potentially disruptive changes may be required in long-established methods of calculating insurance and pensions.[1] Either course will |
per_curiam | 1,983 | 200 | per_curiam | Arizona Governing Comm. for Tax Deferred Annuity and Deferred Compensation Plans v. Norris | https://www.courtlistener.com/opinion/111021/arizona-governing-comm-for-tax-deferred-annuity-and-deferred-compensation/ | long-established methods of calculating insurance and pensions.[1] Either course will work a *1096 major change in the way the cost of insurance is determined to the probable detriment of all employees. This is contrary to our explicit recognition in Los Angeles Dept. of Water & that Title VII "was [not] intended to revolutionize the insurance and pension industries." I The State of Arizona provides its employees with a voluntary pension plan that allows them to defer receipt of a portion of their compensation until retirement. If an employee chooses to participate, an amount designated by the employee is withheld from each paycheck and invested by the State on the employee's behalf. When an employee retires, he or she may receive the amount that has accrued in one of three ways. The employee may withdraw the total amount accrued, arrange for periodic payments of a fixed sum for a fixed time, or use the accrued amount to purchase a life annuity. There is no contention that the State's plan discriminates between men and women when an employee contributes to the fund. The plan is voluntary and each employee may contribute as much as he or she chooses. Nor does anyone contend that either of the first two methods of repaying the accrued amount at retirement is discriminatory. Thus, if Arizona had adopted the same contribution plan but provided only the first two repayment options, there would be no dispute that its plan complied with Title VII of the Civil Rights *1097 Act of 1964, as amended, 42 U.S. C. 2000e et seq. ( ed. and Supp. V). The first two options, however, have disadvantages. If an employee chooses to take a lump-sum payment, the tax liability will be substantial.[2] The second option ameliorates the tax problem by spreading the receipt of the accrued amount over a fixed period of time. This option, however, does not guard against the possibility that the finite number of payments selected by the employee will fail to provide income for the remainder of his or her life. The third option the purchase of a life annuity resolves both of these problems. It reduces an employee's tax liability by spreading the payments out over time, and it guarantees that the employee will receive a stream of payments for life. State law prevents Arizona from accepting the financial uncertainty of funding life annuities. Ariz. Rev. Stat. Ann. 38-871(C)(1) (Supp. -1983). But to achieve tax benefits under federal law, the life annuity must be purchased from a company designated by the retirement plan. Rev. Rul. 72-25, |
per_curiam | 1,983 | 200 | per_curiam | Arizona Governing Comm. for Tax Deferred Annuity and Deferred Compensation Plans v. Norris | https://www.courtlistener.com/opinion/111021/arizona-governing-comm-for-tax-deferred-annuity-and-deferred-compensation/ | a company designated by the retirement plan. Rev. Rul. 72-25, 1972-1 Cum. Bull. 127; Rev. Rul. 68-, 1968-1 Cum. Bull 193. Accordingly, Arizona contracts with private insurance companies to make life annuities available to its employees. The companies that underwrite the life annuities, as do the vast majority of private insurance companies in the United States, use sex-based mortality tables. Thus, the only effect of Arizona's third option is to allow its employees to purchase at a tax saving the same annuities they otherwise would purchase on the open market. The Court holds that Arizona's voluntary plan violates Title VII. In the majority's view, Title VII requires an employer to follow one of three courses. An employer must provide unisex annuities itself, contract with insurance companies to provide such annuities, or provide no annuities to its employees. Ante, at 1091 (MARSHALL, J., concurring in judgment in part). The first option is largely illusory. Most *1098 employers do not have either the financial resources or administrative ability to underwrite annuities. Or, as in this case, state law may prevent an employer from providing annuities. If unisex annuities are available, an employer may contract with private insurance companies to provide them. It is stipulated, however, that the insurance companies with which Arizona contracts do not provide unisex annuities, nor do insurance companies generally underwrite them. The insurance industry either is prevented by state law from doing so[3] or it views unisex mortality tables as actuarially unsound. An employer, of course, may choose the third option. It simply may decline to offer its employees the right to purchase annuities at a substantial tax saving. It is difficult to see the virtue in such a compelled choice. II As indicated above, the consequences of the Court's holding are unlikely to be beneficial. If the cost to employers of offering unisex annuities is prohibitive or if insurance carriers choose not to write such annuities, employees will be denied the opportunity to purchase life annuities concededly the most advantageous pension plan at lower cost.[4] If, alternatively, insurance carriers and employers choose to offer these annuities, the heavy cost burden of equalizing benefits probably will be passed on to current employees. There is *10 no evidence that Congress intended Title VII to work such a change. Nor does support such a sweeping reading of this statute. That case expressly recognized the limited reach of its holding a limitation grounded in the legislative history of Title VII and the inapplicability of Title VII's policies to the insurance industry. A We were careful in to make |
per_curiam | 1,983 | 200 | per_curiam | Arizona Governing Comm. for Tax Deferred Annuity and Deferred Compensation Plans v. Norris | https://www.courtlistener.com/opinion/111021/arizona-governing-comm-for-tax-deferred-annuity-and-deferred-compensation/ | the insurance industry. A We were careful in to make clear that the question before us was narrow. We stated: "All that is at issue today is a requirement that men and women make unequal contributions to an employer-operated pension fund." 435 U.S., at And our holding was limited expressly to the precise issue before us. We stated that "[a]lthough we conclude that the Department's practice violated Title VII, we do not suggest that the statute was intended to revolutionize the insurance and pension industries." The Court in had good reason for recognizing the narrow reach of Title VII in the particular area of the insurance industry. Congress has chosen to leave the primary responsibility for regulating the insurance industry to the respective States. See McCarran-Ferguson Act, as amended, 15 U.S. C. 1011 et seq.[5] This Act reflects the *1100 long-held view that the "continued regulation by the several States of the business of insurance is in the public interest." 15 U.S. C. 1011; see Given the consistent policy of entrusting insurance regulation to the States, the majority is not justified in assuming that Congress intended in 1964 to require the industry to change longstanding actuarial methods, approved over decades by state insurance commissions.[6] *1101 Nothing in the language of Title VII supports this pre-emption of state jurisdiction. Nor has the majority identified any evidence in the legislative history that Congress considered *1102 the widespread use of sex-based mortality tables to be discriminatory or that it intended to modify its previous grant by the McCarran-Ferguson Act of exclusive jurisdiction to the States to regulate the terms of protection offered by insurance companies. Rather, the legislative history indicates precisely the opposite. The only reference to this issue occurs in an explanation of the Act by Senator Humphrey during the debates on the Senate floor. He stated that it was "unmistakably clear" that Title VII did not prohibit different treatment of men and women under industrial benefit plans.[7] See 110 Cong. Rec. 13663-13664 (1964). As we recognized in "[alt]hough he did not address differences in employee contributions based on sex, Senator Humphrey apparently assumed that the 1964 Act would have little, if any, impact on existing pension plans." This statement *1103 was not sufficient, as held, to preclude the application of Title VII to an employer-operated plan. See But Senator Humphrey's explanation provides strong support for 's recognition that Congress intended Title VII to have only that indirect effect on the private insurance industry. B As neither the language of the statute nor the legislative history supports its holding, the majority is |
per_curiam | 1,983 | 200 | per_curiam | Arizona Governing Comm. for Tax Deferred Annuity and Deferred Compensation Plans v. Norris | https://www.courtlistener.com/opinion/111021/arizona-governing-comm-for-tax-deferred-annuity-and-deferred-compensation/ | nor the legislative history supports its holding, the majority is compelled to rely on its perception of the policy expressed in Title VII. The policy, of course, is broadly to proscribe discrimination in employment practices. But the statute itself focuses specifically on the individual and "precludes treatment of individuals as simply components of a racial, religious, sexual, or class." This specific focus has little relevance to the business of insurance. See Insurance and life annuities exist because it is impossible to measure accurately how long any one individual will live. Insurance companies cannot make individual determinations of life expectancy; they must consider instead the life expectancy of identifiable groups. Given a sufficiently large group of people, an insurance company can predict with considerable reliability the rate and frequency of deaths within the group based on the past mortality experience of similar groups. Title VII's concern for the effect of employment practices on the individual thus is simply inapplicable to the actuarial predictions that must be made in writing insurance and annuities. C The accuracy with which an insurance company predicts the rate of mortality depends on its ability to identify groups with similar mortality rates. The writing of annuities thus requires that an insurance company group individuals according to attributes that have a significant correlation with mortality. The most accurate classification system would be to *1104 identify all attributes that have some verifiable correlation with mortality and divide people into groups accordingly, but the administrative cost of such an undertaking would be prohibitive. Instead of identifying all relevant attributes, most insurance companies classify individuals according to criteria that provide both an accurate and efficient measure of longevity, including a person's age and sex. These particular criteria are readily identifiable, stable, and easily verifiable. See Benston, The Economics of Gender Discrimination in Employee Fringe Benefits: Revisited, 4-501 It is this practice the use of a sex-based group classification that the majority ultimately condemns. See ante, at 1083-1086 (MARSHALL, J., concurring in judgment in part). The policies underlying Title VII, rather than supporting the majority's decision, strongly suggest at least for me the opposite conclusion. This remedial statute was enacted to eradicate the types of discrimination in employment that then were pervasive in our society. The entire thrust of Title VII is directed against discrimination disparate treatment on the basis of race or sex that intentionally or arbitrarily affects an individual. But as JUSTICE BLACKMUN has stated, life expectancy is a "nonstigmatizing factor that demonstrably differentiates females from males and that is not measurable on an individual |
per_curiam | 1,983 | 200 | per_curiam | Arizona Governing Comm. for Tax Deferred Annuity and Deferred Compensation Plans v. Norris | https://www.courtlistener.com/opinion/111021/arizona-governing-comm-for-tax-deferred-annuity-and-deferred-compensation/ | from males and that is not measurable on an individual basis. [T]here is nothing arbitrary, irrational, or `discriminatory' about recognizing the objective and accepted disparity in female-male life expectancies in computing rates for retirement plans." 435 U. S., Explicit sexual classifications, to be sure, require close examination, but they are not automatically invalid.[8] Sex-based mortality tables reflect objective actuarial experience. Because their use does not entail discrimination in any *1105 normal understanding of that term,[9] a court should hesitate to invalidate this long-approved practice on the basis of its own policy judgment. Congress may choose to forbid the use of any sexual classifications in insurance, but nothing suggests that it intended to do so in Title VII. And certainly the policy underlying Title VII provides no warrant for extending the reach of the statute beyond Congress' intent. III The District Court held that Arizona's voluntary pension plan violates Title VII and ordered that future annuity payments to female retirees be made equal to payments received by similarly situated men.[10] The Court of Appeals for the Ninth Circuit affirmed. The Court today affirms the Court of Appeals' judgment insofar as it holds that Arizona's voluntary pension plan violates Title VII. But this finding of a statutory violation provides no basis for approving the retroactive relief awarded by the District Court. To approve this award would be both unprecedented and manifestly unjust. We recognized in that retroactive relief is normally appropriate in the typical Title VII case, but concluded that the District Court had abused its discretion in awarding such As we noted, the employer in may well have assumed that its pension program was lawful. More importantly, a retroactive *1106 remedy would have had a potentially disruptive impact on the operation of the employer's pension plan. The business of underwriting insurance and life annuities requires careful approximation of risk. Reserves normally are sufficient to cover only the cost of funding and administering the plan. Should an unforeseen contingency occur, such as a drastic change in the legal rules governing pension and insurance funds, both the insurer's solvency and the insured's benefits could be jeopardized. This case presents no different considerations. did put all employer-operated pension funds on notice that they could not "requir[e] that men and women make unequal contributions to [the] fund," at but it expressly confirmed that an employer could set aside equal contributions and let each retiree purchase whatever benefit his or her contributions could command on the "open market," Given this explicit limitation, an employer reasonably could have assumed that it would be lawful to make available |
per_curiam | 1,983 | 200 | per_curiam | Arizona Governing Comm. for Tax Deferred Annuity and Deferred Compensation Plans v. Norris | https://www.courtlistener.com/opinion/111021/arizona-governing-comm-for-tax-deferred-annuity-and-deferred-compensation/ | have assumed that it would be lawful to make available to its employees annuities offered by insurance companies on the open market. As in holding employers liable retroactively would have devastating results. The holding applies to all employer-sponsored pension plans, and the cost of complying with the District Court's award of retroactive relief would range from $817 to $1,260 million annually for the next 15 to 30 years.[11] Department of Labor Cost Study 32. In this case, the cost would fall on the State of Arizona. Presumably other state and local governments also would be affected directly by today's decision. Imposing such unanticipated *1107 financial burdens would come at a time when many States and local governments are struggling to meet substantial fiscal deficits. Income, excise, and property taxes are being increased. There is no justification for this Court, particularly in view of the question left open in to impose this magnitude of burden retroactively on the public. Accordingly, liability should be prospective only.[ |
Justice Brennan | 1,980 | 13 | majority | Sun Ship, Inc. v. Pennsylvania | https://www.courtlistener.com/opinion/110316/sun-ship-inc-v-pennsylvania/ | The single question presented by these consolidated cases is whether a State may apply its workers' compensation scheme to land-based injuries that fall within the coverage of the Longshoremen's and Harbor Workers' Compensation Act (LHWCA), as amended in 1972. 33 U.S. C. 901-950. We hold that it may. I The individual appellees are five employees of appellant Sun Ship, Inc., a shipbuilding and ship repair enterprise located on the Delaware River, a navigable water of the United States in Pennsylvania. Each employee was injured after the effective date of the 1972 amendments to the LHWCA while involved in shipbuilding or ship repair activities. Although the LHWCA applied to the injuries sustained, each appellee filed claims for benefits under the Pennsylvania Workmen's Compensation Act with state authorities. Appellant contended that the federal compensation statute was the employees' exclusive remedy. In upholding awards to *717 each appellee,[1] the Pennsylvania Workmen's Compensation Appeal Board ruled that the LHWCA did not pre-empt state compensation laws. The Commonwealth Court affirmed, and the Supreme Court of Pennsylvania denied petitions for allowance of appeal. We noted probable jurisdiction, and affirm. II The evolution of the law of compensation for workers injured in maritime precincts is familiar. In 1917, Southern Pacific declared that States were constitutionally barred from applying their compensation systems to maritime injuries, and thus interfering with the overriding federal policy of a uniform maritime law. Subsequent decisions invalidated congressional efforts to delegate compensatory authority to the States within this national maritime sphere. Knickerbocker Ice ; At the same time, the Court began to narrow the Jensen doctrine by identifying circumstances in which the subject of litigation might be maritime yet "local in character," and thus amenable to relief under state law. Western Fuel ; Grant Smith-Porter Ship And, in 1927, Congress was finally successful in extending a measure of protection to marine workers excluded by Jensen by enacting a federal compensation lawthe Longshoremen's and Harbor Workers' Compensation Act, 33 U.S. C. 901 et seq. That statute provided, in pertinent part, that "[c]ompensation shall be payable [for an injury] occurring upon the navigable waters of the United States if recovery *718 through workmen's compensation proceedings may not validly be provided by State law." Federal and state law were thus linked together to provide theoretically complete coverage for maritime laborers. But the boundary at which state remedies gave way to federal remedies was far from obvious in individual cases. As a result, the injured worker was compelled to make a jurisdictional guess before filing a claim; the price of error was unnecessary expense and possible foreclosure from |
Justice Brennan | 1,980 | 13 | majority | Sun Ship, Inc. v. Pennsylvania | https://www.courtlistener.com/opinion/110316/sun-ship-inc-v-pennsylvania/ | price of error was unnecessary expense and possible foreclosure from the proper forum by statute of limitations. After a decade and a half during which there had not been formulated "any guiding, definite rule to determine the extent of state power in advance of litigation," the Court determined that the border between federal and state compensation schemes was less a line than a "twilight zone," in which "employees must have their rights determined case by case" Within this zone, effectively established a regime of concurrent jurisdiction. further overlapped federal and state-law coverage for marine workers. held that the LHWCA comprehended "all injuries sustained by employees on navigable waters," without regard to whether the locus of an event was "maritime but local," and hence within the scope of state compensation provisions. We interpreted the statutory phrase "if recovery may not validly be provided by State law" to mean that the LHWCA would "reac[h] all those cases of injury to employees on navigable waters as to which Jensen, Knickerbocker and Dawson had rendered questionable the availability of a state compensation remedy [,] whether or not a particular one was also within the constitutional reach of a state workmen's compensation law." Yet having extended the LHWCA into the "maritime but local" zone, did not overturn by treating the *719 federal statute as exclusive. To the contrary, relied upon and discussed at length its proposition that an injury within the "maritime but local" sphere might be compensated under either state or federal law. -129. So, too, 's explanation of Avondale Marine Ways, indicated that although an injury might be compensable under the Longshoremen's Act, "there is little doubt that a state compensation act could validly have been applied to it." Even more significantly, 's ruling that one of the employees in a consolidated case should not be held to have elected to pursue state remedies was necessarily premised upon the view that state relief was concurrently available. ; see also Nacirema ; Before 1972, then, marine-related injuries fell within one of three jurisdictional spheres as they moved landward. At the furthest extreme, Jensen commanded that nonlocal maritime injuries fall under the LHWCA. "Maritime but local" injuries "upon the navigable waters of the United States," 33 U.S. C. 903 (a), could be compensated under the LHWCA or under state law. And injuries suffered beyond navigable watersalbeit within the range of federal admiralty jurisdiction were remediable only under state law. Nacirema III In 1972, Congress superseded Nacirema by extending the LHWCA landward beyond the shoreline of the navigable waters of the United States. Stat. 1251, amending |
Justice Brennan | 1,980 | 13 | majority | Sun Ship, Inc. v. Pennsylvania | https://www.courtlistener.com/opinion/110316/sun-ship-inc-v-pennsylvania/ | the navigable waters of the United States. Stat. 1251, amending 33 U.S. C. 903 (a). In so doing, the Longshoremen's Act became, for the first time, a source of relief for injuries which had always been viewed as the province of state compensation law. Absent any contradicting signal from Congress, the principles of and of *720 v. Travelers Insurance direct the conclusion that the 1972 extension of federal jurisdiction supplements, rather than supplants, state compensation law. Given that the pre-1972 Longshoremen's Act ran concurrently with state remedies in the "maritime but local" zone, it follows that the post-1972 expansion of the Act landward would be concurrent as well. For state regulation of worker injuries is even more clearly appropriate ashore than it is upon navigable waters. Compare State Industrial with Southern Pacific Furthermore, the "jurisdictional dilemma," that results when employees must claim relief under one of two exclusive compensation schemes is as acute when the jurisdictional boundary between schemes is fixed upon land, as it is when the line is drawn between two maritime spheres. To read the 1972 amendments as compelling laborers to seek relief under two mutually exclusive remedial systems would lead to the prejudicial consequences which we described in as "defeat[ing] the purpose of the federal act, which seeks to give `to these hardworking men, engaged in a somewhat hazardous employment, the justice involved in the modern principle of compensation,' and the state Acts which ai[m] at `sure and certain relief for workmen.'" 317 U.S., at See The language of the 1972 amendments cannot fairly be understood as pre-empting state workers' remedies from the field of the LHWCA, and thereby resurrecting the jurisdictional monstrosity that existed before the clarifying opinions in and Appellant focuses our attention upon the deletion from amended 903 (a) of the phrase: "[i]f recovery through workmen's compensation proceedings may not validly be provided by State law." But, if anything, that change reinforces our previous interpretation of that section *721 as contemplating concurrent jurisdiction. 370 U. S., For it was that reference to state law which provided the strongest (although ultimately unsuccessful) argument for reading the pre-1972 903 (a) as an exclusive jurisdictional provision. Whether Congress accepted 's view that the state-law clause was consonant with concurrent jurisdiction, or the dissenters' construction of the clause as inconsistent with concurrent jurisdiction, the deletion of that language in 1972if it indicates anythingmay logically only imply acquiescence in 's conclusion that the LHWCA operates within the same ambit as state workers' remedies.[2] It would be a tour de force of statutory misinterpretation to treat the removal of |
Justice Brennan | 1,980 | 13 | majority | Sun Ship, Inc. v. Pennsylvania | https://www.courtlistener.com/opinion/110316/sun-ship-inc-v-pennsylvania/ | de force of statutory misinterpretation to treat the removal of phrasing that arguably establishes exclusive jurisdiction as manifesting the intent to command such exclusivity. Nor does the legislative history suggest a congressional decision to exclude state laws from the terrain newly occupied by the post-1972 Longshoremen's Act. Appellant can draw little support from general expressions of intent to alleviate unjust disparities in recovery conditioned upon the location of marine laborers at the time of an accident; as Part IV, infra, demonstrates, concurrency of jurisdiction in no way undercuts that commendable policy. And appellant is not much assisted by fixing upon the sentence in the bill Reports that declares: "It is apparent that if the Federal benefit structure embodied in Committee bill is enacted, there would be a *722 substantial disparity in benefits payable to a permanently disabled longshoreman, depending on which side of the water's edge the accident occurred, if State laws are permitted to continue to apply to injuries occurring on land." S. Rep. No. p. 13 (1972); H. R. Rep. No. p. 10 (1972) (emphasis added). That statement likely means only that state laws should not be permitted to apply exclusively to injuries occurring upon land; the "substantial disparity in benefits" that troubled Congress is eliminated once federal law provides a concurrent or supplementary route to compensation. And, in any event, as Professors Gilmore and Black have noted, "the statement does not appear to be entitled to much weight," since the "part of the Committee Report which is devoted to the shoreward extension of LH[W]CA coverage does not so much as mention the pre-1972 case law on `maritime but local' and the `twilight zone.'" G. Gilmore & C. Black, The Law of Admiralty 425 (2d ed. 1975) (hereafter Gilmore & Black).[3] In particular, there is no intimation of intent to overrule and a significant omission in light of the care which the Reports elsewhere take in identifying the Supreme Court cases to be overturned by the abolition of longshoremen's actions for unseaworthiness. See S. Rep. No. ; H. R. Rep. No. ; Gilmore & Black 425. We therefore find no sign in the 1972 amendments to the LHWCA that Congress wished to alter the accepted understanding that federal jurisdiction would coexist with state compensation laws in that field in which the latter may constitutionally operate under the Jensen doctrine.[4] *723 IV Appellant vigorously contends, nevertheless, that jurisdictional exclusivity isin "fact" or in "law"implied in the LHWCA. Pointing to declarations of congressional policy to eliminate disparities in compensation to marine workers depending on whether they were injured on land |
Justice Brennan | 1,980 | 13 | majority | Sun Ship, Inc. v. Pennsylvania | https://www.courtlistener.com/opinion/110316/sun-ship-inc-v-pennsylvania/ | marine workers depending on whether they were injured on land or over water, S. Rep. No. ; H. R. Rep. No. appellant urges that concurrent remedial jurisdiction on land would defeat the uniformity principle underlying the statute. As the Reports make clear, the disparities which Congress had in view in amending the LHWCA lay primarily in the paucity of relief under state compensation laws.[5] The thrust of the amendments was to "upgrade the benefits." S. Rep. No. ; see Northeast Marine Terminal v. Concurrent jurisdiction for state and federal compensation laws is in no way inconsistent with this policy of raising awards to a federal *724 minimum. When laborers file claims under the LHWCA, they are compensated under federal standards. And workers who commence their actions under state law will generally be able to make up the difference between state and federal benefit levels by seeking relief under the Longshoremen's Act, if the latter applies.[6] To be sure, if state remedial schemes are more generous than federal law, concurrent jurisdiction could result in more favorable awards for workers' injuries than under an exclusively federal compensation system.[7] But we find no evidence that Congress was concerned about a disparity between adequate federal benefits and superior state benefits. Rather, it seems that the quid pro quo to the employers for the landward extension of the LHWCA by the 1972 amendments was simply abolition of the longshoremen's unseaworthiness remedy. See S. Rep. No. ; H. R. Rep. No. ; Northeast Marine Terminal v. at Indeed, it is noteworthy that in their discussion of advantages to employers under the 1972 amendments, the bill Reports dwell upon the rejection of the *725 unseaworthiness action, and do not mention pre-emption of state remedies. See S. Rep. No. ; H. R. Rep. No. Finally, we are not persuaded that the bare fact that the federal and state compensation systems are different gives rise to a conflict that, from the employer's standpoint, necessitates exclusivity for each compensation system within a separate sphere. Mandating exclusive jurisdiction will not relieve employers of their distinct obligations under state and federal compensation law. The line that circumscribes the jurisdictional compass of the LHWCAa compound of "status" and "situs"is no less vague than its counterpart in the pre-"twilight zone" Jensen era. See generally P. C. Pfeiffer v. Ford, ; Northeast Marine Terminal v. Gilmore & Black 424, 428-430; 4 A. Larson, Law of Workmen's Compensation 89.70, p. 16-283 (1979). Thus, even were the LHWCA exclusive within its field, many employers would be compelled to abide by state-imposed responsibilities lest a claim fall beyond |
per_curiam | 1,987 | 200 | per_curiam | Ray v. United States | https://www.courtlistener.com/opinion/111889/ray-v-united-states/ | Petitioner was found guilty of one count of conspiracy to possess cocaine with intent to distribute, and two counts of possession of cocaine with intent to distribute. He was sentenced to concurrent 7-year prison terms on all three counts, and to concurrent special parole terms of five years on the two possession counts. The Court of Appeals affirmed petitioner's *737 conspiracy conviction and one of his possession convictions. United Applying the so-called "concurrent sentence doctrine," the court declined to review the second possession conviction because the sentences on the two possession counts were concurrent. We granted certiorari to review the role of the concurrent sentence doctrine in the federal courts. It now appears, however, that petitioner is not in fact serving concurrent sentences. Title 18 U.S. C. 3013 (1982 ed., Supp. III) provides that district courts shall assess a monetary charge "on any person convicted of an offense against the United States." Pursuant to this section, the District Court imposed a $50 assessment on each count, in addition to the concurrent prison and parole terms, for a total of $150. Since petitioner's liability to pay this total depends on the validity of each of his three convictions, the sentences are not concurrent. The judgment of the Court of Appeals is therefore vacated, and the cause is remanded to that court so that it may consider petitioner's challenge to his second possession conviction. It is so ordered |
Justice Blackmun | 1,982 | 11 | dissenting | Kremer v. Chemical Constr. Corp. | https://www.courtlistener.com/opinion/110706/kremer-v-chemical-constr-corp/ | Today the Court follows an isolated Second Circuit approach and holds that a discrimination complainant cannot bring a Title VII suit in federal court after unsuccessfully seeking state court "review" of a state antidiscrimination agency's unfavorable decision. The Court embraces a rule that has been subject to challenge within the Second Circuit[1] and that has been "vigorously attacked and soundly rejected by other courts."[] The Court reaches this result because it purports to find nothing in Title VII inconsistent with the application of the general preclusion rule of 8 U.S. C. 1738 to the state court's affirmance of the state agency's decision. For a compelling array of reasons, the Court is wrong. *487 I The Court, as it must, concedes that a state agency determination does not preclude a trial de novo in federal district court. Ante, at 468-470, and n. 7. Congress made it clear beyond doubt that state agency findings would not prevent the Title VII complainant from filing suit in federal court. Title VII provides that no charge may be filed until 60 days "after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated." 706(c), 4 U.S. C. 000e-5(c). After a charge is filed, the Equal Employment Opportunity Commission (EEOC) may take action and, eventually, the complainant may file suit, 706(b) and (f)(1). By permitting a charge to be filed after termination of state proceedings, the statute expressly contemplates that a plaintiff may bring suit despite a state finding of no discrimination.[3] *488 This fact is also made clear by 706(b). In 197, by Pub. L. 9-61, 4, Congress amended that section by directing that the EEOC "accord substantial weight to final findings and orders made by State or local authorities in proceedings commenced under State or local law."[4] If the original version of Title VII had given the outcomes of state "proceedings" preclusive effect, Congress would not have found it necessary to amend the statute in 197 to direct that they be given "substantial weight." And if in 197 Congress had intended final decisions in state "proceedings" to have preclusive effect, it certainly would not have instructed that they be given "substantial weight."[5] Thus, Congress expressly recognized in both 706(b) and 706(c) that a complainant could bring a Title VII suit in federal court despite the conclusion of state "proceedings." And, as the Court must acknowledge, see ante, at 470-471, n. 8, when Congress referred to state "proceedings," it referred to both state agency proceedings and state judicial *489 review of those agency proceedings. "[T]hroughout Title VII the |
Justice Blackmun | 1,982 | 11 | dissenting | Kremer v. Chemical Constr. Corp. | https://www.courtlistener.com/opinion/110706/kremer-v-chemical-constr-corp/ | *489 review of those agency proceedings. "[T]hroughout Title VII the word `proceeding,' or its plural form, is used to refer to all the different types of proceedings in which the statute is enforced, state and federal, administrative and judicial." New York Gaslight Club, Yet the Court nevertheless finds that petitioner's Title VII suit is precluded by the termination of state "proceedings." In this case, the New York State Division of Human Rights (NYHRD) found no probable cause to believe that petitioner had been a victim of discrimination. Under the Court's own rule, that determination in itself does not bar petitioner from filing a Title VII suit in federal district court. According to the Court, however, petitioner lost his opportunity to bring a federal suit when he unsuccessfully sought review of the state agency's decision in the New York courts. As the Court applies preclusion principles to Title VII, the state court affirmance of the state agency decision not the state agency decision itself blocks any subsequent Title VII suit. The Court reaches this result through a schizophrenic reading of 706(b). See ante, at 469-470, and n. 8. According to the Court, when Congress amended 706(b) so that state "proceedings" would be accorded "substantial weight," it meant two different things at the same time: it intended state agency "proceedings" to be accorded only "substantial weight," while, simultaneously, state judicial "proceedings" in review of those agency "proceedings" would be accorded "substantial weight and more" that is, "preclusive effect." But the statutory language gives no hint of this hidden double meaning. Instead of reading an unexpressed intent into 706(b), the Court should accept the plain language of the statute. All state "proceedings," whether agency proceedings or state judicial review proceedings, are entitled to "substantial weight," not "preclusive effect." As the Court implicitly concedes when it permits suit despite the conclusion *490 of agency proceedings, "substantial weight" is a very different concept from "preclusive effect," and Congress thus did not intend for the termination of any state "proceeding" to foreclose a subsequent Title VII suit. In addition, the Court must disregard the clear import of 706(c). That section explicitly contemplates that a complainant can bring a Title VII suit despite the termination of state "proceedings." Once again, the statute contains no suggestion that any state "proceeding" has preclusive effect on a subsequent Title VII suit. Nonetheless, contrary to 706(c), the Court bars petitioner's Title VII suit because of the termination of state "proceedings."[6] The Court's attempt to give 706(b) a double meaning and to avoid the language of 706(c) is made |
Justice Blackmun | 1,982 | 11 | dissenting | Kremer v. Chemical Constr. Corp. | https://www.courtlistener.com/opinion/110706/kremer-v-chemical-constr-corp/ | meaning and to avoid the language of 706(c) is made all the more awkward because the Court's decision artificially separates the proceedings before the reviewing state court from the state administrative process. Indeed, if Congress meant to permit a Title VII suit despite the termination of state agency proceedings, it is only natural to conclude that Congress also intended to permit a Title VII suit after the agency decision has been simply affirmed by a state court. State court review is merely the last step in the administrative process, the final means of review of the state agency's decision. For instance, in New York, the NYHRD "is primarily responsible for administering the law and to that end has been granted broad powers to eliminate discriminatory practices." Imperial Diner, When, as in this case, the NYHRD finds no probable cause, a reviewing court must affirm the Division's decision unless it is "arbitrary, capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion," see *491 N. Y. Exec. Law 97-a(7)(e) (McKinney 197),[7] that is, unless the decision is "devoid of a rational basis." State Office of Drug Abuse If the agency decides to hold a hearing, its decision must be affirmed if it is "supported by substantial evidence on the whole record." N. Y. Exec. Law 97-a(7)(d) (McKinney 197). See State Division of Human See generally N. Y. Exec. Law 98 (McKinney Supp. 1981-198). This review, therefore, is not de novo in the state courts. When it affirms the agency's decision, the reviewing court does not determine that the Division was correct. In fact, the court may not "substitute its judgment for that of the [NYHRD]," State Division of Human ; the court is "not empowered to find new facts or take a different view of the weight of the evidence if the [NYHRD's] determination is supported by substantial evidence," State Division of Human cert. denied sub nom. (19). In affirming, the reviewing court finds only that the agency's conclusion "was a reasonable *49 one and thus may not be set aside by the courts although a contrary decision may `have been reasonable and also sustainable.' " Imperial Diner, quoting[8] The Court purports to give preclusive effect to the New York court's decision. But the Appellate Division made no finding one way or the other concerning the merits of petitioner's discrimination claim. The NYHRD, not the New York court, dismissed petitioner's complaint for lack of probable cause. In affirming, the court merely found that the agency's decision was not arbitrary or capricious. Thus, although it claims to grant a |
Justice Blackmun | 1,982 | 11 | dissenting | Kremer v. Chemical Constr. Corp. | https://www.courtlistener.com/opinion/110706/kremer-v-chemical-constr-corp/ | arbitrary or capricious. Thus, although it claims to grant a state court decision preclusive effect, *493 in fact the Court bars petitioner's suit based on the state agency's decision of no probable cause. The Court thereby disregards the express provisions of Title VII, for, as the Court acknowledges, Congress has decided that an adverse state agency decision will not prevent a complainant's subsequent Title VII suit.[9] Finally, if the Court is in fact giving preclusive effect only to the state court decision, the Court misapplies 8 U.S. C. 1738 by barring petitioner's suit. The state reviewing court never considered the merits of petitioner's discrimination claim, the subject matter of a Title VII suit in federal court. It is a basic principle of preclusion doctrine, see ante, at 481-48, n. that a decision in one judicial proceeding cannot bar a subsequent suit raising issues that were not relevant to the first decision. "If the legal matters determined in the earlier case differ from those raised in the second case, collateral estoppel has no bearing on the situation." See also Here, the state court decided only whether the state agency decision was arbitrary or capricious. Since the discrimination claim, not the validity of the state agency's decision, is the issue before the federal court, under 1738 the state court's decision by itself cannot preclude a federal Title VII suit. *4 Thus, the Court is doing one of two things: either it is granting preclusive effect to the state agency's decision, a course that it concedes would violate Title VII, or it is misapplying 1738 by giving preclusive effect to a state court decision that did not address the issue before the federal court. Instead of making one of these two mistakes, the Court should accept the fact that the New York state court judicial review is simply the end of the state administrative process, the state "proceedings." The Court searches in vain for a partial repeal of 1738 in Title VII because it is blind to the fact that judicial review is a part indeed, a distinctly secondary part of the administration of discrimination claims filed before the NYHRD.[] II A The Court's decision also flies in the face of Title VII's legislative history. Under the Court's ruling, a complainant is foreclosed from pursuing his federal Title VII remedy if he unsuccessfully seeks judicial correction of the state agency's adverse disposition of his discrimination charge. Thus, state proceedings are the complainant's sole remedy when he unsuccessfully pursues judicial review on the state side. But Title VII's legislative history makes clear |
Justice Blackmun | 1,982 | 11 | dissenting | Kremer v. Chemical Constr. Corp. | https://www.courtlistener.com/opinion/110706/kremer-v-chemical-constr-corp/ | the state side. But Title VII's legislative history makes clear that Congress never intended the outcome of state agency proceedings to be the discrimination complainant's exclusive remedy. One of the principal issues during congressional consideration of Title VII in 1964 was the proper role of state fair employment practices commissions. See, e. g., 1 Cong. Rec. 716 (1964). At various times, Congress considered proposals to give the state commissions exclusive jurisdiction over *495 discrimination charges. But, repeatedly, Congress rejected those proposals. When Title VII was before the House for the first time, the House twice rejected attempts to prevent the application of Title VII in States that were enforcing adequate fair employment laws. See 1 Cong. Rec. 77 (1964); In the end, the House provided for exclusive jurisdiction in the States, but only under certain conditions. Under the House version, the EEOC would have been given authority to determine the adequacy of state agency procedures. If it found the procedures to be adequate, the EEOC was directed to enter into a written agreement with the state agency. In States covered by those agreements, the EEOC would not bring civil actions in cases referred to in the agreements and the complainants would likewise be barred from bringing a civil suit in federal court. H. R. 715, 88th Cong., d Sess., 708(b) (1964). See 1 Cong. Rec. 714 (1964). But when the bill went to the Senate, the House approach was discarded for the present provisions of the statute. *496 Senator Dirksen presented the explanation of the changes. Among these was the statement that the exclusive-jurisdiction provision of the House bill "which provides for the ceding of Federal jurisdiction is deleted." Instead, "it has been replaced by the new provisions of section 706 which provide that where there is a State or local law prohibiting the alleged unlawful employment practice, the State or local authorities are given exclusive jurisdiction for a limited period of time" (emphasis added). Thus, after state proceedings had terminated, the complainant was free to seek federal remedies. See ; (accepting final version because complainant can "eventually" pursue federal remedies after applying for state relief). Congress left open only a narrow exception for possible exclusive state agency jurisdiction. The EEOC was empowered to enter into worksharing agreements with state agencies. A worksharing agreement did not automatically foreclose a complainant from filing a federal civil suit, but the EEOC was free to include such a provision in a worksharing agreement if it considered that course wise. See 709(b). Thus, in the end, Congress expressly decided that no discrimination complainant should |
Justice Blackmun | 1,982 | 11 | dissenting | Kremer v. Chemical Constr. Corp. | https://www.courtlistener.com/opinion/110706/kremer-v-chemical-constr-corp/ | the end, Congress expressly decided that no discrimination complainant should be left solely to his remedies before state fair employment commissions, unless the EEOC agreed otherwise. Yet, contrary to this congressional choice, the Court would deny some discrimination victims any federal remedy and would make the decisions of state commissions their exclusive redress, even in the absence of an EEOC agreement. When a state court refuses to overturn a state commission's rejection of a complainant's discrimination *497 claim, the Court declares the state remedy to be exclusive. B But the Court qualifies its holding. The Court permits the state agency's decision to be the complainant's exclusive remedy only if the agency's procedures satisfy the minimal requirements of due process. Ante, at 481-485. The Court surveys the procedures of the NYHRD and concludes that they are in accord with due process. Ante, at 483-485.[11] This discussion by itself demonstrates the fallacy of the Court's attempt to differentiate between the state agency's decision and the state court's affirmance of that decision. By relying more heavily on the adequacy of the state agency's procedures than on the adequacy of the state court's procedures, the Court underscores that it is, in fact, granting preclusive effect to a state administrative decision. It is important, also, to note that in two different ways the Court's inquiry violates the congressional intent. First, the Court undertakes to determine whether the state procedures are adequate when Congress has expressly left that decision to the EEOC. Congress explicitly permitted a state complainant to file suit in federal court despite a final state agency decision, unless the EEOC has signed a worksharing agreement with the state agency foreclosing subsequent federal suits. If the EEOC agreed with the Court that minimal due process in agency procedures justified barring subsequent Title VII suits when the state agency's decision had been affirmed by a state court, the EEOC could sign worksharing agreements with state agencies on those terms. By assuming the authority to make that decision, the Court usurps a role that Congress reserved to the EEOC. *498 Second, throughout its consideration of Title VII, Congress was concerned that state agency procedures were not the equivalent of those that it intended federal authorities to employ. Senator Clark told the Senate that "State and local FEPC laws vary widely in effectiveness." 1 Cong. Rec. 705 (1964). He continued: "In many areas effective enforcement is hampered by inadequate legislation, inadequate procedures, or an inadequate budget." Unlike the Court, Congress realized that no legal doctrine could accurately gauge the effectiveness of state agencies and laws in eliminating |
Justice Blackmun | 1,982 | 11 | dissenting | Kremer v. Chemical Constr. Corp. | https://www.courtlistener.com/opinion/110706/kremer-v-chemical-constr-corp/ | gauge the effectiveness of state agencies and laws in eliminating discrimination. In their interpretative memorandum, Senators Clark and Case[1] explained: "It has been suggested that there should be some provision automatically providing for exclusive State jurisdiction where adequate State remedies for discrimination in employment exist. Such a proposal is unworkable. Congress cannot determine nor can we devise a formula for determining which State laws and procedures are adequate. An antidiscrimination law cannot be evaluated simply by an examination of its provisions, `for the letter killeth, but the spirit giveth life.' " Yet the Court concludes that minimal due process standards provide safeguards sufficient to warrant denying a discrimination victim federal remedies if a state court rejects his request to overturn an adverse state agency decision. In Title VII, Congress wanted to assure discrimination victims more than bare due process; it wanted them to have the benefit of a vigorous effort to eliminate discrimination. See Alexander By affording some discrimination complainants less, the Court contravenes the congressional intent behind Title VII. C The Court's search of the legislative history uncovers only a single bit of concrete support for its interpretation of Title VII.[13] But, ironically, the legislative history cited by the Court actually undercuts its position. During the 197 debates over changes in Title VII, Senator Hruska proposed an amendment that would have made Title VII the exclusive remedy for a discrimination victim, with certain exceptions. One of the exceptions permitted concurrent state proceedings. The Senator explained: "[T]here would be a further exception and that would be proceedings in a State agency. Those proceedings could continue notwithstanding the pendency of an employee's action under section 706 of title VII. *500 It seems to me and others that this is only fair." 118 Cong. Rec. 3369 (197). Thus, even Senator Hruska would not have prevented duplicative state and federal proceedings. Here is strong evidence of a congressional consensus that state and federal remedies should exist independently of each other. The Court quotes part of Senator Javits' response to Senator Hruska's proposal. See ante, at 475. What the Court fails to point out is that the bulk of Senator Javits' response rejected the suggestion that the number of discrimination remedies should be reduced. Senator Javits quoted with approval from the testimony of an official of the Department of Justice: "In the field of civil rights, the Congress has regularly insured that there be a variety of enforcement devices to insure that all available resources are brought to bear on problems of discrimination. "At this juncture, when we are all agreed that some improvement |
Justice Blackmun | 1,982 | 11 | dissenting | Kremer v. Chemical Constr. Corp. | https://www.courtlistener.com/opinion/110706/kremer-v-chemical-constr-corp/ | this juncture, when we are all agreed that some improvement in the enforcement of Title VII is needed, it would be unwise to diminish in any way the variety of enforcement means available to deal with discrimination in employment." 118 Cong. Rec. 3369-3370 (197). Thus, since Senator Javits was responding to a proposed amendment that expressly provided for separate federal and state proceedings, he certainly did not suggest that state proceedings should bar Title VII suits when he spoke of res judicata. See ante, at 475.[14] At the most, he may have been *501 referring to suits brought under overlapping federal statutes. And, given his reluctance to reduce the number of available antidiscrimination remedies, it is not clear that his remarks were intended to reach even that far.[15] In no sense can the defeat of Senator Hruska's amendment be interpreted as a congressional endorsement of the Court's decision to bar a complainant's Title VII suit based on a state court affirmance of an adverse state agency decision.[16] In Senator Javits' own words, "[w]e should not cut off the range of remedies which is available." 118 Cong. Rec. 3370 (197).[17] III The Court's opinion today is also contrary to the rationales underlying its past Title VII decisions. Time and again, the Court has held that Congress did not intend to foreclose a *50 Title VII suit because of the conclusion of proceedings in another forum. The case list begins with McDonnell Douglas when the Court refused to prevent a plaintiff from bringing suit in federal court because of an EEOC determination of no reasonable cause. The Court cited "the large volume of complaints before the Commission and the nonadversary character of many of its proceedings," ; noted that Title VII "does not restrict a complainant's right to sue to those charges as to which the Commission has made findings of reasonable cause," ; and refused to "engraft on the statute a requirement which may inhibit the review of claims of employment discrimination in the federal courts," -799. The Court today could just as easily have written about "the nonadversary character" of state agency proceedings and the fact that Title VII does not "restrict a complainant's right to sue" to those charges as to which a state court has not affirmed the state agency's findings. In the Court repeated the same theme by permitting a Title VII suit despite a prior adverse arbitration under a collective-bargaining agreement. The Court emphasized that Congress intended a scheme of overlapping, independent, supplementary discrimination remedies: "[L]egislative enactments in this area have long evinced a general intent |
Justice Blackmun | 1,982 | 11 | dissenting | Kremer v. Chemical Constr. Corp. | https://www.courtlistener.com/opinion/110706/kremer-v-chemical-constr-corp/ | enactments in this area have long evinced a general intent to accord parallel or overlapping remedies against discrimination. Title VII provides for consideration of employment-discrimination claims in several forums. And, in general, submission of a claim to one forum does not preclude a later submission to another. Moreover, the legislative history *503 of Title VII manifests a congressional intent to allow an individual to pursue independently his rights under both Title VII and other applicable state and federal statutes." (emphasis added). The Court today disregards the congressional intent described in Alexander when it makes state agency proceedings the exclusive remedy for those complainants who unsuccessfully pursue state judicial review. Finally, in two subsequent decisions, the Court adhered to Alexander. In it held that Title VII and 4 U.S. C. 1981, although "related" and "directed to most of the same ends," provide "separate, distinct, and independent" discrimination remedies. And in the Court permitted a federal employee to bring a Title VII suit even though the Civil Service Commission had affirmed a federal agency's rejection of the employee's discrimination claim. In each of these four cases, the Court refused to close the doors of the federal courthouse to the Title VII plaintiff. The Court has allowed Title VII plaintiffs to sue in federal court, though they had failed before the EEOC, an arbitrator, and a federal agency. And even today's majority must add another forum to this list, namely, a state antidiscrimination agency. Until now, it has been "clear from [the] scheme of interrelated and complementary state and federal enforcement that Congress viewed proceedings before the EEOC and in federal court as supplements to available state remedies for employment discrimination." New York Gaslight Club, The Court departs from the reasoning of an unbroken line of its prior decisions when it bars a discrimination complainant from suing under Title VII simply because he unsuccessfully sought state judicial "review" of an adverse state agency decision. *504 IV Perhaps the most disturbing aspect of the Court's decision is its tendency to cut back upon two critical policies underlying Title VII. First, Congress intended that state antidiscrimination procedures be an integral part of the Nation's battle against discrimination. For that reason, Congress did not pre-empt state antidiscrimination agencies, see 1 Cong. Rec. 716 (1964), and instead gave state and local authorities an initial opportunity to resolve discrimination complaints. See e. g., The Court's decision is directly contrary to this congressional intent. The lesson of the Court's ruling is: An unsuccessful state discrimination complainant should not seek state judicial review.[18] If a discrimination complainant pursues state judicial |
Justice Blackmun | 1,982 | 11 | dissenting | Kremer v. Chemical Constr. Corp. | https://www.courtlistener.com/opinion/110706/kremer-v-chemical-constr-corp/ | state judicial review.[18] If a discrimination complainant pursues state judicial review and loses a likely result given the deferential standard of review in state court he forfeits his right to seek redress in a federal court. If, however, he simply bypasses the state courts, he can proceed to the EEOC and ultimately to federal court. Instead of a deferential review of an agency record, he will receive in federal court a de novo hearing accompanied by procedural aids such as broad discovery rules and the ability to subpoena witnesses. Thus, paradoxically, the Court effectively has eliminated state reviewing courts from the fight against discrimination in an entire class of cases. Consequently, the state courts will not have a chance to correct state agency errors when the agencies rule against discrimination victims, and the quality of *505 state agency decisionmaking can only deteriorate.[19] It is a perverse sort of comity that eliminates the reviewing function of state courts in the name of giving their decisions due respect. This argument against preclusion is not novel. In prior decisions, the Court has refused to set up incentives for discrimination complainants to abandon alternative remedies. In it concluded: "Fearing that the arbitral forum cannot adequately protect their rights under Title VII, some employees may elect to bypass arbitration and institute a lawsuit. The possibility of voluntary compliance or settlement of Title VII *506 claims would thus be reduced, and the result could well be more litigation, not less." In New York Gaslight Club, the Court addressed state proceedings directly, explaining: "Complainants unable to recover fees in state proceedings may be expected to wait out the 60-day deferral period, while focusing efforts on obtaining federal relief. Only authorization of fee awards ensures incorporation of state procedures as a meaningful part of the Title VII enforcement scheme." In this case, the Court has chosen preclusion over common sense, with the result that the state courts will decline, not grow, in importance.[0] Second, the Court, for a small class of discrimination complainants, has undermined the remedial purpose of Title VII. Invariably, there will be some complainants who will not be aware of today's decision. The Court has thus constructed a rule that will serve as a trap for the unwary pro se or poorly represented complainant. For these complainants, their sole remedy lies in the state administrative processes. Yet, inevitably those agencies do not give all discrimination complaints careful attention. Often hampered by "inadequate *507 procedures" or "an inadequate budget," see 1 Cong. Rec. 705 (1964), the state antidiscrimination agency may give a discrimination charge |
Justice Blackmun | 1,982 | 11 | dissenting | Kremer v. Chemical Constr. Corp. | https://www.courtlistener.com/opinion/110706/kremer-v-chemical-constr-corp/ | (1964), the state antidiscrimination agency may give a discrimination charge less than the close examination it would receive in federal court.[1] When, as in this case, the state agency dismisses for lack of probable cause, the discrimination complainant is particularly at risk, because inadequate staffing of state agencies can lead to "a tendency to dismiss too many complaints for alleged lack of probable cause."[] Though state courts may be diligent in reviewing agency dismissals for no probable cause, the nature of the agency's deliberations combined with deferential judicial review can lead only to discrimination charges receiving less careful consideration than Congress intended when it passed Title VII. The Court's decision thus cannot be squared with the congressional intent that the fight against discrimination be a policy "of the highest priority."[3] *508 V For all these reasons, the Court's decision is neither "strongly suggested" nor "compelled" by See ante, at 476. In McCurry, the Court found only "the most equivocal support," for an argument that Congress intended to override the general preclusion rule of 1738 when it enacted 4 U.S. C. 1983. But here, the language, the legislative history, and the fundamental policies of Title VII all demonstrate that Congress contemplated relitigation of a discrimination claim in federal court, even though a state court had refused to disturb a state agency decision adverse to the complainant. And no drastic consequences would flow from a decision finding 1738 inapplicable in this case. The Court would not be forced to permit a subsequent Title VII suit in federal court if the complainant already had lost a trial on the merits in state court. See n. Furthermore, the state court affirmance of the state agency's decision would not be discarded. The state decision could be "admitted as evidence and accorded such weight as the court deems appropriate," that is, "substantial weight," see 706(b). But despite the reasonableness of the rule followed by other Courts of Appeals, see n. the Court improperly applies 1738 to bar petitioner from bringing a Title VII suit in federal court. I dissent. |
Justice Kennedy | 1,999 | 4 | concurring | Lopez v. Monterey County | https://www.courtlistener.com/opinion/118257/lopez-v-monterey-county/ | I would not decide in this case whether 5's preclearance requirement applies to a covered county's nondiscretionary efforts to implement a voting change required by state law, notwithstanding the fact that the State is not itself a covered jurisdiction." Ante, at 282. I think it quite possible, particularly in light of the constitutional concerns identified by Justice Thomas, that the phrase "seek to administer" in the statute requires that the covered jurisdiction exercise discretion or pursue its own policy aims before the obligation to preclear a voting change arises. See 14 Oxford English Dictionary 877 (2d ed. 1989) (defining "seek," inter alia, as "[t]o make it one's aim, to try or attempt to (do something)"). That interpretation draws some support from our decisions in and which suggest that covered jurisdictions need not seek preclearance when a noncovered entity requires them to implement specific voting changes. See ; (noting that a State's adoption of the National Voter Registration Act's registration system "is not, by itself, a change for the purposes of 5, for the State has no choice but to do so"). I concur in the majority's disposition of this case, however, because it is clear that the state enactments requiring the voting changes at issue in fact embodied the policy preferences and determinations of the county itself. See ; For example, the 1979 state law which codified the county's merger of its municipal court districts stated on its face that it was enacted at the county's behest. 1979 Cal. Stats., ch. 694, 4 ("[T]his act is in accordance with the request of a local governmental entity or entities which desired legislative authority to carry out the program specified in this act"). In these circumstances, the county was required to seek preclearance of the voting changes codified by the state enactments. |
Justice Scalia | 2,001 | 9 | concurring | United States v. Cleveland Indians Baseball Co. | https://www.courtlistener.com/opinion/118419/united-states-v-cleveland-indians-baseball-co/ | If I believed that the text of the tax statutes addressed the issue before us, I might well find for the respondent, giving that text the same meaning the Court found it to have in the benefits provisions of the Social Security Act. See Social Security The Court's principal reason for assigning the identical language a different meaning in the present case *221 leaving aside statements in testimony and Committee Reports that I have no reason to believe Congress was aware ofis that tax assessments do not present the equitable considerations implicated by the potential arbitrary decrease of benefits in See ante, at 212-213. But the Court acknowledges that departing from will produce arbitrary variations in tax liability. See ante, at 216-218. As between an immediate arbitrary increase in tax liability and a deferred arbitrary decrease in benefits, I cannot say the latter is the greater inequity. The difference is at least not so stark as to cause me to regard the two regulatory schemes as different in kind, which I would insist upon before giving different meanings to identical statutory texts. In fact, however, I do not think that the text of the FICA and FUTA provisions, 26 U.S. C. 3111(a), 3111(b), 3301, addresses the issue we face today. Those provisions, which direct that taxes shall be assessed against "wages paid" during the calendar year, would be controlling if the income we had before us were "wages" within the normal meaning of that term; but it is not. The question we face is whether damages awards compensating an employee for lost wages should be regarded for tax purposes as wages paid when the award is received, or rather as wages paid when they would have been paid but for the employer's unlawful actions. (The parties have stipulated that the damages awards should be regarded as taxable "wages paid" of some sort, see also Social Security at 364) The proper treatment of such damages awards is an issue the statute does not address, and hence it is an issue left to the reasonable resolution of the administering agency, here the Internal Revenue Service. In which we decided at a time when it was common for courts to fill statutory gaps that would now be left to the agency, we provided one rule for purposes of the benefits provisions. The Internal Revenue Service has since provided another *222 rule for purposes of the tax provisions. Both rules are reasonable; neither is compelled; and neither involves a direct application of the statutory term "wages paid" which would require (or at least strongly |
Justice Ginsburg | 2,012 | 5 | majority | Golan v. Holder | https://www.courtlistener.com/opinion/2959739/golan-v-holder/ | The Berne Convention for the Protection of Literary and Artistic Works (Berne Convention or Berne), which took effect in 188, is the principal accord governing interna- tional copyright relations. Latecomer to the international copyright regime launched by Berne, the United States joined the Convention in 1989. To perfect U. S. implemen- tation of Berne, and as part of our response to the Uru- guay Round of multilateral trade negotiations, Congress, in 1994, gave works enjoying copyright protection abroad the same full term of protection available to U. S. works. Congress did so in of the Uruguay Round Agree- ments Act (URAA), which grants copyright protection to preexisting works of Berne member countries, protected in their country of origin, but lacking protection in the United States for any of three reasons: The United States did not protect works from the country of origin at the time of publication; the United States did not protect sound record- ings fixed before 1972; or the author had failed to comply with U. S. statutory formalities (formalities Congress no longer requires as prerequisites to copyright protection). The URAA accords no protection to a foreign work after 2 GOLAN v. HOLDER Opinion of the Court its full copyright term has expired, causing it to fall into the public domain, whether under the laws of the country of origin or of this country. Works encompassed by are granted the protection they would have enjoyed had the United States maintained copyright relations with the author’s country or removed formalities incompatible with Berne. Foreign authors, however, gain no credit for the protection they lacked in years prior to ’s enactment. They therefore enjoy fewer total years of exclusivity than do their U. S. counterparts. As a consequence of the barri- ers to U. S. copyright protection prior to the enactment of foreign works “restored” to protection by the meas- ure had entered the public domain in this country. To cushion the impact of their placement in protected status, Congress included in ameliorating accommodations for parties who had exploited affected works before the URAA was enacted. Petitioners include orchestra conductors, musicians, pub- lishers, and others who formerly enjoyed free access to works removed from the public domain. They main- tain that the Constitution’s Copyright and Patent Clause, Art. I, cl. 8, and First Amendment both decree the invalidity of Under those prescriptions of our high- est law, petitioners assert, a work that has entered the public domain, for whatever reason, must forever remain there. In accord with the judgment of the Tenth Circuit, we conclude that does not transgress constitutional |
Justice Ginsburg | 2,012 | 5 | majority | Golan v. Holder | https://www.courtlistener.com/opinion/2959739/golan-v-holder/ | the Tenth Circuit, we conclude that does not transgress constitutional limitations on Congress’ authority. Neither the Copyright and Patent Clause nor the First Amendment, we hold, makes the public domain, in any and all cases, a territory that works may never exit. I A Members of the Berne Union agree to treat authors from other member countries as well as they treat their own. Cite as: 55 U. S. (2012) 3 Opinion of the Court Berne Convention, Sept. 9, 188, as revised at Stockholm on July 14, 197, Art. 1, 5(1), 828 U. N. T. S. 221, 225, 231–233. Nationals of a member country, as well as any author who publishes in one of Berne’s 14 member states, thus enjoy copyright protection in nations across the globe. Art. 2(), 3. Each country, moreover, must afford at least the minimum level of protection specified by Berne. The copyright term must span the author’s lifetime, plus at least 50 additional years, whether or not the author has complied with a member state’s legal formalities. Art. 5(2), 7(1). And, as relevant here, a work must be protected abroad unless its copyright term has expired in either the country where protection is claimed or the country of origin. Art. 18(1)–(2).1 A different system of transnational copyright protection long prevailed in this country. Until 1891, foreign works were categorically excluded from Copyright Act protection. Throughout most of the 20th century, the only eligible foreign authors were those whose countries granted recip- rocal rights to U. S. authors and whose works were print —————— 1 Article 18 of the Berne Convention provides: “(1) This Convention shall apply to all works which, at the moment of its coming into force, have not yet fallen into the public domain in the country of origin through the expiry of the term of protection. “(2) If, however, through the expiry of the term of protection which was previously granted, a work has fallen into the public domain of the country where protection is claimed, that work shall not be protected anew. “(3) The application of this principle shall be subject to any provisions contained in special conventions to that effect existing or to be conclud- ed between countries of the Union. In the absence of such provisions, the respective countries shall determine, each in so far as it is con- cerned, the conditions of application of this principle. “(4) The preceding provisions shall also apply in the case of new accessions to the Union and to cases in which protection is extended by the application of Article 7 or by |
Justice Ginsburg | 2,012 | 5 | majority | Golan v. Holder | https://www.courtlistener.com/opinion/2959739/golan-v-holder/ | is extended by the application of Article 7 or by the abandonment of reservations.” 828 U. N. T. S. 251. 4 GOLAN v. HOLDER Opinion of the Court ed in the United States. See Act of Mar. 3, 1891, 13, 2 Stat. 1107, 1110; Patry, The United States and Inter- national Copyright Law, 40 Houston L. Rev. 749, 7502 For domestic and foreign authors alike, protection hinged on compliance with notice, registration, and re- newal formalities. The United States became party to Berne’s multilateral, formality-free copyright regime in 1989. Initially, Con- gress adopted a “minimalist approach” to compliance with the Convention. H. R. Rep. No. 100–09, p. 7 (1988) (here- inafter BCIA House Report). The Berne Convention Im- plementation Act of 1988 (BCIA), made “only those changes to American copyright law that [were] clearly required under the treaty’s provisions,” BCIA House Report, at 7. Despite Berne’s instruction that member countries—including “new accessions to the Union”— protect foreign works under copyright in the country of origin, Art. 18(1) and (4), 828 U. N. T. S., at 251, the BCIA accorded no protection for “any work that is in the public domain in the United States,” Protection of future foreign works, the BCIA indicated, satisfied Article 18. See (“The amendments made by this Act, together with the law as it exists on the date of the enactment of this Act, satisfy the obligations of the United States in adhering to the Berne Convention”). Congress indicated, however, that it —————— 2 As noted by the Government’s amici, the United States excluded foreign works from copyright not to swell the number of unprotected works available to the consuming public, but to favor domestic publish- ing interests that escaped paying royalties to foreign authors. See Brief for International Publishers Association et al. as Amici Curiae 8–15. This free-riding, according to Senator Jonathan Chace, champion of the 1891 Act, made the United States “the Barbary coast of literature” and its people “the buccaneers of books.” S. Rep. No. 22, 50th Cong., 1st Sess., p. 2 (1888). Cite as: 55 U. S. (2012) 5 Opinion of the Court had not definitively rejected “retroactive” protection for preexisting foreign works; instead it had punted on this issue of Berne’s implementation, deferring consideration until “a more thorough examination of Constitutional, commercial, and consumer considerations is possible.” BCIA House Report, at 51, 52.3 The minimalist approach essayed by the United States did not sit well with other Berne members.4 While negoti- —————— 3 See also S. Rep. No. 103–412, p. 225 (1994) (“While the United States declared its compliance with the |
Justice Ginsburg | 2,012 | 5 | majority | Golan v. Holder | https://www.courtlistener.com/opinion/2959739/golan-v-holder/ | (1994) (“While the United States declared its compliance with the Berne Convention in 1989, it never addressed or enacted legislation to implement Article 18 of the Convention.”); Memorandum from Chris Schroeder, Counselor to the Assistant Attorney General, of Legal Counsel, Dept. of Justice (DOJ), to Ira S. Shapiro, General Counsel, of the U. S. Trade Representative (July 29, 1994), in W. Patry, Copyright and the GATT, p. C–15 (1995) (“At the time Congress was debating the BCIA, it reserved the issue of removing works from the public domain.”); Gen- eral Agreement on Tariffs and Trade (GATT): Intellectual Property Provisions, Joint Hearing before the Subcommittee on Intellectual Property and Judicial Administration of the House Committee on the Judiciary and the Subcommittee on Patents, Copyrights and Trade- marks of the Senate Committee on the Judiciary, 103d Cong., 2d Sess., p. 120 (1994) (URAA Joint Hearing) (app. to statement of Bruce A. Lehman, Assistant Secretary of Commerce and Commissioner of Patents and Trademarks (Commerce Dept.)) (“When the United States adhered to the Berne Convention, Congress acknowledged that the possibility of restoring copyright protection for foreign works that had fallen into the public domain in the United States for failure to comply with formalities was an issue that merited further discussion.”). 4 The dissent implicitly agrees that, whatever tentative conclusion Congress reached in 1988, Article 18 requires the United States to “protect the foreign works at issue,” at least absent a special conven- tion the United States did not here negotiate. Post, at 22. See also post, at 23 ); (“[T]he Convention clearly requires that some level of protection be given to foreign authors whose works have entered the public domain (other than by expiration of previous copyright).”). Accord S. Ricketson, The Berne Convention for the Protection of Literary and Artistic Works 188–198, p. 75 (1987) GOLAN v. HOLDER Opinion of the Court ations were ongoing over the North American Free Trade Agreement (NAFTA), Mexican authorities complained about the United States’ refusal to grant protection, in accord with Article 18, to Mexican works that remained under copyright domestically. See Intellectual Property and International Issues, Hearings before the Subcommit- tee on Intellectual Property and Judicial Administration, House Committee on the Judiciary, 102d Cong., 1st Sess., 18 (1991) (statement of Ralph Oman, U. S. Register of Copyrights).5 The Register of Copyrights also reported “questions” from Turkey, Egypt, and Austria. Thai- land and Russia balked at protecting U. S. works, copy- righted here but in those countries’ public domains, until the United States reciprocated with respect to their au- thors’ works. URAA Joint Hearing 137 (statement of |
Justice Ginsburg | 2,012 | 5 | majority | Golan v. Holder | https://www.courtlistener.com/opinion/2959739/golan-v-holder/ | their au- thors’ works. URAA Joint Hearing 137 (statement of Ira S. Shapiro, General Counsel, of the U. S. Trade Representative (USTR)); (statement of Profes- sor Shira ); (statement of Jason S. Berman, Recording Industry Association of America (RIAA)). —————— (“There is no basis on which [protection of existing works under Article 18] can be completely denied. The conditions and reservations,” au- thorized by Article 18(3) [and stressed by the dissent, post, at 23–24] are of “limited” and “transitional” duration and “would not be permitted to deny [protection] altogether in relation to a particular class of works.”). 5 NAFTA ultimately included a limited retroactivity provision—a precursor to of the URAA—granting U. S. copyright protection to certain Mexican and Canadian films. These films had fallen into the public domain, between 1978 and 1988, for failure to meet U. S. notice requirements. See North American Free Trade Agreement Implemen- tation Act, ; Brief for Franklin Pierce Center for Intellectual Property as Amicus Curiae 14–1. One year later, Con- gress replaced this provision with the version of 17 U.S. C. at issue here. See 3 M. Nimmer & D. Nimmer, Copyright 9A.04, pp. 9A–17, 9A–22 (hereinafter Nimmer). This tension between the United States and its new Berne counter Cite as: 55 U. S. (2012) 7 Opinion of the Court Berne, however, did not provide a potent enforcement mechanism. The Convention contemplates dispute resolu- tion before the International Court of Justice. Art. 33(1). But it specifies no sanctions for noncompliance and allows parties, at any time, to declare themselves “not bound” by the Convention’s dispute resolution provision. Art. 33(2)–(3) 828 U. N. T. S., at 277. Unsurprisingly, no en- forcement actions were launched before 1994. D. The TRIPS Agreement 213, and n. 134 (3d ed. 2008). Although “several Berne Union Members disagreed with [our] interpretation of Article 18,” the USTR told Con- gress, the Berne Convention did “not provide a meaningful dispute resolution process.” URAA Joint Hearing 137 (statement of Shapiro). This shortcoming left Congress “free to adopt a minimalist approach and evade Article 18.” Karp, Final Report, Berne Article 18 Study on Retro- active United States Copyright Protection for Berne and other Works, 20 Colum.-VLA J. L. & Arts 1, 172 (199). The landscape changed in 1994. The Uruguay round of multilateral trade negotiations produced the World Trade Organization (WTO) and the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS).7 The United States joined both. TRIPS mandates, on pain of WTO enforcement, implementation of Berne’s first 21 articles. TRIPS, Art. 9.1, 33 I. L. M. 1197, 1201 (requiring adherence to all but |
Justice Ginsburg | 2,012 | 5 | majority | Golan v. Holder | https://www.courtlistener.com/opinion/2959739/golan-v-holder/ | I. L. M. 1197, 1201 (requiring adherence to all but the “moral rights” provisions of Arti- cle bis). The WTO gave teeth to the Convention’s re- quirements: Noncompliance with a WTO ruling could —————— parties calls into question the dissent’s assertion that, despite the 1988 Act’s minimalist approach, “[t]he United States obtained the benefits of Berne for many years.” Post, at 22–23. During this six-year period, Congress had reason to doubt that U. S. authors enjoyed the full benefits of Berne membership. 7 Marrakesh Agreement Establishing the World Trade Organization, Apr. 15, 1994, 187 U. N. T. S. 154. 8 GOLAN v. HOLDER Opinion of the Court subject member countries to tariffs or cross-sector retalia- tion. See ; 7 W. Patry, Copyright pp. 24–8 to 24–9 The specter of WTO en- forcement proceedings bolstered the credibility of our trading partners’ threats to challenge the United States for inadequate compliance with Article 18. See URAA Joint Hearing 137 (statement of Shapiro, USTR) (“It is likely that other WTO members would challenge the current U. S. implementation of Berne Article 18 under [WTO] procedures.”).8 Congress’ response to the Uruguay agreements put to rest any questions concerning U. S. compliance with Arti- cle 18. Section 514 of the URAA, (codified at 17 U.S. C. 109(a)),9 extended copyright to works that garnered protection in their countries of origin,10 but —————— 8 Proponents of prompt congressional action urged that avoiding a trade enforcement proceeding—potentially the WTO’s first—would be instrumental in preserving the United States’ “reputation as a world leader in the copyright field.” URAA Joint Hearing 241 (statement of Eric Smith, International Intellectual Property Alliance (IIPA)). In this regard, U. S. negotiators reported that widespread perception of U. S. noncompliance was undermining our leverage in copyright negotia- tions. Unimpeachable adherence to Berne, Congress was told, would help ensure enhanced foreign protection, and hence profitable dissemi- nation, for existing and future U. S. works. See (app. to statement of Lehman, Commerce Dept.) (“Clearly, providing for [retro- active] protection for existing works in our own law will improve our position in future negotiations.”); (statement of Berman, RIAA). 9 Title 17 U.S. C. is reproduced in full in an appendix to this opinion. 10 Works from most, but not all, foreign countries are eligible for pro- tection under The provision covers only works that have “at least one author or rightholder who was, at the time the work was created, a national or domiciliary of an eligible country.” 17 U.S. C. (h)()(D). An “eligible country” includes any “nation, other than the United States, that—(A) becomes a WTO member |
Justice Ginsburg | 2,012 | 5 | majority | Golan v. Holder | https://www.courtlistener.com/opinion/2959739/golan-v-holder/ | other than the United States, that—(A) becomes a WTO member country after the date of the enactment of the [URAA]; [or] (B) on such date of enactment Cite as: 55 U. S. (2012) 9 Opinion of the Court had no right to exclusivity in the United States for any of three reasons: lack of copyright relations between the country of origin and the United States at the time of publication; lack of subject-matter protection for sound recordings fixed before 1972; and failure to comply with U. S. statutory formalities (e.g., failure to provide notice of copyright status, or to register and renew a copyright). See (h)()(B)–(C).11 Works that have fallen into the public domain after the —————— is, or after such date of enactment becomes, a nation adhering to the Berne Convention.” (h)(3). As noted above, see at 3, 14 countries adhere to the Berne Convention. World Intellec- tual Property Organization, Contracting Parties: Berne Convention, www.wipo.int/treaties (as visited Jan. 13, 2012, and in Clerk of Court’s case file). 11 From the first Copyright Act until late in the 20th century, Con- gress conditioned copyright protection on compliance with certain statutory formalities. The most notable required an author to register her work, renew that registration, and affix to published copies notice of copyrighted status. The formalities drew criticism as a trap for the unwary. See, e.g., 2 Nimmer p. 7–8; Doyle, Cary, McCannon, & Ringer, Notice of Copyright, Study No. 7, p. 4 (19), reprinted in 1 Studies on Copyright 229, 272 (193). In 197, Congress eliminated the registration renewal requirement for future works. Copyright Act of 197, 408, 2580. In 1988, it repealed the mandatory notice prerequisite. BCIA 102 Stat. 28. And in 1992, Congress made renewal automatic for works still in their first term of protection. Copyright Amendments Act of 1992, –2. The Copyright Act retains, however, incen- tives for authors to register their works and provide notice of the works’ copyrighted status. See, e.g., 17 U.S. C. (precluding actual and statutory damages against “innocent infringers” of a work that lacked notice of copyrighted status); (requiring registration of U. S. “work[s],” but not foreign works, before an owner may sue for infringe- ment). The revisions successively made accord with Berne Convention Article 5(2), which proscribes application of copyright formalities to foreign authors. Berne, however, affords domestic authors no escape from domestic formalities. See Art. 5(3) (protection within country of origin is a matter of domestic law). 10 GOLAN v. HOLDER Opinion of the Court expiration of a full copyright term—either in the United States or the country of origin—receive |
Justice Ginsburg | 2,012 | 5 | majority | Golan v. Holder | https://www.courtlistener.com/opinion/2959739/golan-v-holder/ | term—either in the United States or the country of origin—receive no further protec- tion under 12 Copyrights “restored”13 under URAA “subsist for the remainder of the term of copyright that the work would have otherwise been grant- ed if the work never entered the public domain.” (a)(1)(B). Prospectively, restoration places foreign works on an equal footing with their U. S. counterparts; assuming a foreign and domestic author died the same day, their works will enter the public domain simultane- ously. See (copyrights generally expire 70 years after the author’s death). Restored works, however, re- ceive no compensatory time for the period of exclusivity they would have enjoyed before ’s enactment, had they been protected at the outset in the United States. Their total term, therefore, falls short of that available to similarly situated U. S. works. The URAA’s disturbance of the public domain hardly escaped Congress’ attention. Section 514 imposed no liability for any use of foreign works occurring before restoration. In addition, anyone remained free to copy and use restored works for one year following ’s enact- ment. See 17 U.S. C. (h)(2)(A). Concerns about ’s compatibility with the Fifth Amendment’s Takings —————— 12 Title 17 U.S. C. (h)()(B) defines a “restored work” to exclude “an original work of authorship” that is “in the public domain in its source country through expiration of [its] term of protection.” This provision tracks Berne’s denial of protection for any work that has “fallen into the public domain in the country of origin through the expiry of the term of protection.” Art. 18(1), 828 U. N. T. S., at 251. 13 Restoration is a misnomer insofar as it implies that all works protected under previously enjoyed protection. Each work in the public domain because of lack of national eligibility or subject- matter protection, and many that failed to comply with formalities, never enjoyed U. S. copyright protection. See, e.g., 3 Nimmer A–2, and n. 29.4. Cite as: 55 U. S. (2012) 11 Opinion of the Court Clause led Congress to include additional protections for “reliance parties”—those who had, before the URAA’s enactment, used or acquired a foreign work then in the public domain. See (h)(3)–(4).14 Reliance parties may continue to exploit a restored work until the owner of the restored copyright gives notice of intent to enforce— either by filing with the U. S. Copyright within two years of restoration, or by actually notifying the reliance party. (c), (d)(2)(A)(i), and (B)(i). After that, reli- ance parties may continue to exploit existing copies for a grace period of one year. (d)(2)(A)(ii), and (B)(ii). Finally, |
Justice Ginsburg | 2,012 | 5 | majority | Golan v. Holder | https://www.courtlistener.com/opinion/2959739/golan-v-holder/ | a grace period of one year. (d)(2)(A)(ii), and (B)(ii). Finally, anyone who, before the URAA’s enactment, creat- ed a “derivative work” based on a restored work may indefinitely exploit the derivation upon payment to the copyright holder of “reasonable compensation,” to be set by a district judge if the parties cannot agree. (d)(3). B In 2001, petitioners filed this lawsuit challenging They maintain that Congress, when it passed the URAA, exceeded its authority under the Copyright Clause and transgressed First Amendment limitations.15 The District —————— 14 A reliance party must have used the work in a manner that would constitute infringement had a valid copyright been in effect. See (h)(4)(A). After restoration, the reliance party is limited to her previous uses. A performer of a restored work, for example, cannot, post-restoration, venture to sell copies of the script. See 3 Nimmer A–45 to 9A–4. 15 Petitioners’ complaint also challenged the constitutionality of the Copyright Term Extension Act, which added 20 years to the duration of existing and future copy After this Court rejected a similar challenge in the District Court dismissed this portion of petitioners’ suit on the plead- ings, The Tenth Circuit affirmed, and petitioners do not attempt to revive that claim in this Court, Pet. for Cert. 7, n. 2. Neither have petitioners challenged the District Court’s 12 GOLAN v. HOLDER Opinion of the Court Court granted the Attorney General’s motion for summary judgment. No. Civ. 01–B–1854, 2005 WL 914754 (D. Colo., Apr. 20, 2005). In rejecting petition- ers’ Copyright Clause argument, the court stated that Congress “has historically demonstrated little compunc- tion about removing copyrightable materials from the public domain.” The court next declined to part from “the settled rule that private censorship via copyright enforcement does not implicate First Amend- ment concerns.” The Court of Appeals for the Tenth Circuit affirmed in part. The public domain, it agreed, was not a “threshold that Con- gress” was powerless to “traverse in both directions.” at 1187 (internal quotations marks omitted). But as the Court of Appeals read our decision in required further First Amend- ment The measure “ ‘al- tered the traditional contours of copyright protection,’ ” the court said—specifically, the “bedrock principle” that once works enter the public domain, they do not leave. (quoting ). The case was remand- ed with an instruction to the District Court to address the First Amendment claim in light of the Tenth Circuit’s opinion. On remand, the District Court’s starting premise was uncontested: Section 514 does not regulate speech on the basis of its content; therefore the law would be upheld |
Justice Ginsburg | 2,012 | 5 | majority | Golan v. Holder | https://www.courtlistener.com/opinion/2959739/golan-v-holder/ | basis of its content; therefore the law would be upheld if “narrowly tailored to serve a significant government inter- est.” (quot- ing (1989)). Summary judgment was due petitioners, the —————— entry of summary judgment for the Government on the claim that violates the substantive component of the Due Process Clause. Cite as: 55 U. S. (2012) 13 Opinion of the Court court concluded, because ’s constriction of the public domain was not justified by any of the asserted federal interests: compliance with Berne, securing greater protec- tion for U. S. authors abroad, or remediation of the inequi- table treatment suffered by foreign authors whose works lacked protection in the United States. 11 F. Supp. 2d, at 1172–1177. The Tenth Circuit reversed. Deferring to Congress’ predictive judgments in matters relating to foreign affairs, the appellate court held that survived First Amend- ment scrutiny. Specifically, the court determined that the law was narrowly tailored to fit the important government aim of protecting U. S. copyright holders’ interests abroad. We granted certiorari to consider petitioners’ challenge to under both the Copyright Clause and the First Amendment, 52 U. S. and now affirm. II We first address petitioners’ argument that Congress lacked authority, under the Copyright Clause, to enact The Constitution states that “Congress shall have Power [t]o promote the Progress of Science by securing for limited Times to Authors the exclusive Right to their Writings.” Art. I, cl. 8. Petitioners find in this grant of authority an impenetrable barrier to the extension of copyright protection to authors whose writings, for whatever reason, are in the public domain. We see no such barrier in the text of the Copyright Clause, historical practice, or our precedents. A The text of the Copyright Clause does not exclude appli- cation of copyright protection to works in the public do- main. Symposium, Congressional Power and Limitations Inherent in the Copyright Clause, 30 Colum. J. L. & Arts 14 GOLAN v. HOLDER Opinion of the Court 259, 2 Petitioners’ ry argument relies primarily on the Constitution’s confinement of a copy- right’s lifespan to a “limited Tim[e].” “Removing works from the public domain,” they contend, “violates the ‘lim- ited [t]imes’ restriction by turning a fixed and predictable period into one that can be reset or resurrected at any time, even after it expires.” Brief for Petitioners 22. Our decision in is largely dispositive of petition- ers’ limited-time argument. There we addressed the question whether Congress violated the Copyright Clause when it extended, by 20 years, the terms of existing copy- –193 (upholding Copyright Term Extension Act (CTEA)). Ruling that Congress |
Justice Ginsburg | 2,012 | 5 | majority | Golan v. Holder | https://www.courtlistener.com/opinion/2959739/golan-v-holder/ | –193 (upholding Copyright Term Extension Act (CTEA)). Ruling that Congress acted with- in constitutional bounds, we declined to infer from the text of the Copyright Clause “the command that a time pre- scription, once set, becomes forever ‘fixed’ or ‘inalterable.’ ” “The word ‘limited,’ ” we observed, “does not convey a meaning so constricted.” Rather, the term is best understood to mean “confine[d] within certain bounds,” “restrain[ed],” or “circumscribed.” (internal quotation marks omitted). The construction petitioners tender closely resembles the definition rejected in and is similarly infirm. The terms afforded works restored by are no less “limited” than those the CTEA lengthened. In light of petitioners do not here contend that the term Congress has granted U. S. authors—their lifetimes, plus 70 years—is unlimited. See 17 U.S. C. Nor do petitioners explain why terms of the same duration, as applied to foreign works, are not equally “circumscribed” and “confined.” See 537 U.S., Indeed, as earlier noted, see the copyrights of restored foreign works typically last for fewer years than those of their domestic counterparts. The difference, petitioners say, is that the limited time had already passed for works in the public domain. What Cite as: 55 U. S. (2012) 15 Opinion of the Court was that limited term for foreign works once excluded from U. S. copyright protection? Exactly “zero,” petition- ers respond. Brief for Petitioners 22 (works in question “received a specific term of protection sometimes ex- pressly set to zero”; “at the end of that period,” they “en- tered the public domain”); Tr. of Oral Arg. 52 (by “refusing to provide any protection for a work,” Congress “set[s] the term at zero,” and thereby “tell[s] us when the end has come”). We find scant sense in this argument, for surely a “limited time” of exclusivity must begin before it may end.1 Carried to its logical conclusion, petitioners persist, the Government’s position would allow Congress to institute a second “limited” term after the first expires, a third after that, and so on. Thus, as long as Congress legislated in installments, perpetual copyright terms would be achieva- ble. As in the hypothetical legislative misbehavior petitioners posit is far afield from the case before us. See –200, 209–210. In aligning the United States with other nations bound by the Berne Convention, and thereby according equitable treatment to once dis- favored foreign authors, Congress can hardly be charged with a design to move stealthily toward a regime of per- petual copy B Historical practice corroborates our reading of the Copy- right Clause to permit full U. S. compliance with Berne. Undoubtedly, federal |
Justice Ginsburg | 2,012 | 5 | majority | Golan v. Holder | https://www.courtlistener.com/opinion/2959739/golan-v-holder/ | to permit full U. S. compliance with Berne. Undoubtedly, federal copyright legislation generally has not affected works in the public domain. Section 514’s disturbance of that domain, petitioners argue, distin- —————— 1 Cf.3 Nimmer A–11, n. 28 (“[I]t stretches the language of the Berne Convention past the breaking point to posit that following ‘expiry of the zero term’ the work need not be resurrected.”). 1 GOLAN v. HOLDER Opinion of the Court guishes their suit from ’s. In adopting the CTEA, petitioners note, Congress acted in accord with “an unbro- ken congressional practice” of granting pre-expiration term No comparable prac- tice, they maintain, supports On occasion, however, Congress has seen fit to protect works once freely available. Notably, the Copyright Act of 1790 granted protection to many works previously in the public domain. Act of May 31, 1790 (1790 Act), 1 Stat. 124 (covering “any map, chart, book, or books already printed within these United States”). Before the Act launched a uniform national system, three States provided no statutory copyright protection at all.17 Of those that did afford some protection, seven failed to protect maps;18 eight did not cover previously published books;19 and all ten denied protection to works that failed to comply with formalities.20 The First Congress, it thus appears, did not view the public domain as inviolate. As we have recog- nized, the “construction placed upon the Constitution by [the drafters of] the first [copyright] act of 1790 and the act of 1802 men who were contemporary with [the Constitution’s] formation, many of whom were members of the convention which framed it, is of itself entitled to very great weight.” Burrow-Giles Lithographic Co. v. Sarony, —————— 17 See B. Bugbee, Genesis of American Patent and Copyright Law 123–124 (197) (hereinafter Bugbee) (Delaware, Maryland, and Pennsylvania). 18 See 1783 Mass. Acts p. 23; 1783 N. J. Laws p. 47; 1783 N. H. Laws p. 521; 1783 Rawle I. Laws pp. –7; 1784 S. C. Acts p. 49; 1785 Va. Acts ch. VI; 178 N. Y. Laws p. 298. 19 1783 Conn. Pub. Acts no. 17; 1783 N. J. Laws p. 47; 1785 N. C. Laws p. 53; 178 Ga. Laws p. 323. In four States, copyright enforce- ment was restricted to works “not yet printed” or “hereinafter pub- lished.” 1783 Mass. Acts p. 23; 1783 N. H. Laws p. 521; 1783 Rawle I. Laws pp. –7; 1784 S. C. Acts p. 49. 20 See Bugbee 109–123. Cite as: 55 U. S. (2012) 17 Opinion of the Court21 Subsequent actions confirm that Congress has not un- derstood the Copyright Clause |
Justice Ginsburg | 2,012 | 5 | majority | Golan v. Holder | https://www.courtlistener.com/opinion/2959739/golan-v-holder/ | confirm that Congress has not un- derstood the Copyright Clause to preclude protection for existing works. Several private bills restored the copy- rights of works that previously had been in the public domain. See Act of Feb. 19, 1849 (Corson Act), ch. 9 Stat. 73; Act of June 23, 1874 (Helmuth Act), ch. 534, 18 Stat. 18; Act of Feb. 17, 1898 (Jones Act), ch. 29, 30 Stat. 139. These bills were unchallenged in court. Analogous patent statutes, however, were upheld in litigation.22 In 1808, Congress passed a private bill restor- ing patent protection to Oliver ’ flour mill. When sued for infringement, first Chief Justice Marshall in the Circuit Court, (No. 4,54) (Va. 1813), and then Justice Bushrod Washington for this Court, upheld the restored patent’s validity. After the patent’s expiration, the Court said, “a general right to use [’] discovery was not so vested in the public” as to allow the defendant to continue using the machinery, which he had —————— 21 The parties debate the extent to which the First Congress removed works from the public domain. We have held, however, that at least some works protected by the 1790 Act previously lacked protection. In the Court ruled that before enact- ment of the 1790 Act, common-law copyright protection expired upon first publication. 3. Thus published works covered by the 1790 Act previously would have been in the public domain unless protected by state statute. Had the founding generation perceived the constitutional boundary petitioners advance today, the First Congress could have designed a prospective scheme that left the public domain undisturbed. Accord Luck’s Music Inc. v. Gonzales, 407 F.3d 122, 125 (CADC 2005) (Section 514 does not offend the Copyright Clause because, inter alia, “evidence from the First Congress,” as confirmed by Wheaton, “points toward constitutionality.”). 22 Here, as in “[b]ecause the Clause empowering Congress to confer copyrights also authorizes patents, congressional practice with respect to patents informs our inquiry.” 18 GOLAN v. HOLDER Opinion of the Court constructed between the patent’s expiration and the bill’s passage. See also Blanchard v. Sprague, 3 F. Cas. 48, 50 (No. 1,518) (CC Mass. 1839) (Story, J.) (“I never have entertained any doubt of the constitutional authority of congress” to “give a patent for an invention, which was in public use and enjoyed by the community at the time of the passage of the act.”). This Court again upheld Congress’ restoration of an invention to protected status in McClurg v. Kingsland, 1 How. 202 (1843). There we enforced an 1839 amendment that recognized a patent on an invention despite its |
Justice Ginsburg | 2,012 | 5 | majority | Golan v. Holder | https://www.courtlistener.com/opinion/2959739/golan-v-holder/ | amendment that recognized a patent on an invention despite its prior use by the inventor’s employer. Absent such dispensation, the employer’s use would have rendered the invention unpatentable, and therefore open to exploitation without the inventor’s leave. at 20–209. Congress has also passed generally applicable legisla- tion granting patents and copyrights to inventions and works that had lost protection. An 1832 statute author- ized a new patent for any inventor whose failure, “by inadvertence, accident, or mistake,” to comply with statu- tory formalities rendered the original patent “invalid or inoperative.” Act of July 3, An 1893 measure similarly allowed authors who had not timely deposited their work to receive “all the rights and privileg- es” the Copyright Act affords, if they made the required deposit by March 1, 1893. Act of Mar. 3, ch. 215, 27 Stat. 743.23 And in 1919 and 1941, Congress authorized the President to issue proclamations granting protection to foreign works that had fallen into the public domain dur- ing World Wars I and II. See Act of Dec. 18, 1919, ch. 11, —————— 23 Section 514 is in line with these measures; like them, it accords protection to works that had lapsed into the public domain because of failure to comply with U. S. statutory formalities. See and n. 11. Cite as: 55 U. S. (2012) 19 Opinion of the Court ; Act of Sept. 25, 1941, ch. 421,24 Pointing to dictum in petitioners would have us look past this history. In Graham, we stated that “Con- gress may not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available.” ; post, at 15. But as we explained in this passage did not speak to the constitutional limits on Congress’ copyright and patent authority. Ra- ther, it “addressed an invention’s very eligibility for patent protection.” 537 U.S., n. 7. Installing a federal copyright system and ameliorating the interruptions of global war, it is true, presented Con- gress with extraordinary situations. Yet the TRIPS ac- cord, leading the United States to comply in full measure with Berne, was also a signal event. See at 7–8; cf. 24–25 (BREYER, J., dissenting) (acknowledging importance of international uniformity advanced by U. S. efforts to conform to the Berne Conven- tion). Given the authority we hold Congress has, we will not second-guess the political choice Congress made be- tween leaving the public domain untouched and embrac- ing Berne unstintingly. Cf. at 212–213. —————— 24 Legislation of this order, petitioners argue, is best understood as an |
Justice Ginsburg | 2,012 | 5 | majority | Golan v. Holder | https://www.courtlistener.com/opinion/2959739/golan-v-holder/ | of this order, petitioners argue, is best understood as an exercise of Congress’ power to remedy excusable neglect. Even so, the remedy sheltered creations that, absent congressional action, would have been open to free exploitation. Such action, according to petition- ers’ dominant argument, see at 13–14, is ever and always impermissible. Accord Luck’s Music –12 (“Plaintiffs urge that [the 1790 Act and the wartime legislation] simply extended the time limits for filing and [did] not purport to modify the prohibition on removing works from the public domain. But to the extent that potential copyright holders failed to satisfy procedural requirements, such works”—like those protected by —“would necessarily have already entered the public domain”). 20 GOLAN v. HOLDER Opinion of the Court C Petitioners’ ultimate argument as to the Copyright and Patent Clause concerns its initial words. Congress is empowered to “promote the Progress of Science and useful Arts” by enacting systems of copyright and patent protec- tion. U. S. Const., Art. I, cl. 8. Perhaps counterintui- tively for the contemporary reader, Congress’ copyright authority is tied to the progress of science; its patent authority, to the progress of the useful arts. See Graham, and n. 1; (Marshall, J.). The “Progress of Science,” petitioners acknowledge, refers broadly to “the creation and spread of knowledge and learning.” Brief for Petitioners 21; accord post, at 1. They nevertheless argue that federal legislation cannot serve the Clause’s aim unless the legislation “spur[s] the creation of new works.” Brief for Petitioners 24; accord post, at 1–2, 8, 17. Because deals solely with works already created, petitioners urge, it “provides no plausible incentive to create new works” and is therefore invalid. Reply Brief 4.25 The creation of at least one new work, however, is not the sole way Congress may promote knowledge and learn- ing. In we rejected an argument nearly identical to the one petitioners rehearse. The petitioners urged that the “CTEA’s extension of existing copyrights categorically fails to ‘promote the Progress of Science,’ because it does not stimulate the creation of new works.” –212. In response to this argument, we —————— 25 But see Brief for Motion Picture Association of America as Amicus Curiae 27 (observing that income from existing works can finance the creation and publication of new works); 537 U.S., n. 15 (noting that Noah Webster “supported his entire family from the earnings on his speller and grammar during the twenty years he took to complete his dictionary” (internal quotation marks omitted)). Cite as: 55 U. S. (2012) 21 Opinion of the Court held that the Copyright Clause does not demand that |
Justice Ginsburg | 2,012 | 5 | majority | Golan v. Holder | https://www.courtlistener.com/opinion/2959739/golan-v-holder/ | Court held that the Copyright Clause does not demand that each copyright provision, examined discretely, operate to induce new works. Rather, we explained, the Clause “empowers Congress to determine the intellectual property regimes that, overall, in that body’s judgment, will serve the ends of the Clause.” And those permissible ends, we held, extended beyond the creation of new works. See at 205–20 (rejecting the notion that “ ‘the only way to promote the progress of science [is] to provide incentives to create new works’ ” (quoting Participation in the International Copyright System as a Means to Pro- mote the Progress of Science and Useful Arts, 3 Loyola (LA) L. Rev. 323, 332 )).2 Even were we writing on a clean slate, petitioners’ argument would be unavailing. Nothing in the text of the Copyright Clause confines the “Progress of Science” exclu- sively to “incentives for creation.” (inter- nal quotation marks omitted). Evidence from the found- ing, moreover, suggests that inducing dissemination—as opposed to creation—was viewed as an appropriate means to promote science. See Nachbar, Constructing Copy- right’s Mythology, (“The scope of copyright protection existing at the time of the framing,” trained as it was on “publication, not creation,” “is inconsistent with claims that copyright must promote creative activity in order to be valid.” (internal quotation marks omitted)). Until 197, in fact, Congress made “federal copyright contingent on publication[,] [thereby] —————— 2 The dissent also suggests, more tentatively, that at least where copyright legislation extends protection to works previously in the public domain, Congress must counterbalance that restriction with new incentives to create. Post, at 8. Even assuming the public domain were a category of constitutional significance, at 13–19, we would not understand “the Progress of Science” to have this contingent meaning. 22 GOLAN v. HOLDER Opinion of the Court providing incentives not primarily for creation,” but for dissemination. Our deci- sions correspondingly recognize that “copyright supplies the economic incentive to create and disseminate ideas.” Harper & Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 558 (1985) (emphasis added). See also27 Considered against this backdrop, falls comfortably within Congress’ authority under the Copyright Clause. Congress rationally could have concluded that adherence to Berne “promotes the diffusion of knowledge,” Brief for Petitioners 4. A well-functioning international copyright system would likely encourage the dissemination of exist- ing and future works. See URAA Joint Hearing 189 (statement of Professor ). Full compliance with Berne, Congress had reason to believe, would expand the foreign markets available to U. S. authors and invigorate protection against piracy of U. S. works abroad, S. Rep. No. 103–412, pp. 224, |
Justice Ginsburg | 2,012 | 5 | majority | Golan v. Holder | https://www.courtlistener.com/opinion/2959739/golan-v-holder/ | U. S. works abroad, S. Rep. No. 103–412, pp. 224, 225 (1994); URAA Joint Hearing 291 (statement of Berman, RIAA); at 2, 247 (state- ment of Smith, IIPA), thereby benefitting copyright- intensive industries stateside and inducing greater investment in the creative process. The provision of incentives for the creation of new works is surely an essential means to advance the spread of knowledge and learning. We hold, however, that it is not the sole means Congress may use “[t]o promote the Pro- gress of Science.” See (United States would “lose all flexibility” were the provision of incentives to create the exclusive way to promote the —————— 27 That the same economic incentives might also induce the dissemi- nation of futons, fruit, or Bibles, see post, at 20, is no answer to this evidence that legislation furthering the dissemination of literary property has long been thought a legitimate way to “promote the Progress of Science.” Cite as: 55 U. S. (2012) 23 Opinion of the Court progress of science).28 Congress determined that exem- plary adherence to Berne would serve the objectives of the Copyright Clause. We have no warrant to reject the ra- tional judgment Congress made. III A We next explain why the First Amendment does not inhibit the restoration authorized by To do so, we first recapitulate the relevant part of our pathmarking decision in The petitioners in like those here, argued that Congress had violated not only the “limited Times” prescription of the Copyright Clause. In addition, and independently, the petitioners charged, Congress had offended the First Amendment’s freedom of expression guarantee. The CTEA’s 20-year enlargement of a copyright’s duration, we held in offended neither provision. Concerning the First Amendment, we recognized that some restriction on expression is the inherent and in- tended effect of every grant of copyright. Noting that the “Copyright Clause and the First Amendment were adopted close in time,” we observed that the Framers regarded copyright protection not simply as a limit on the manner in which expressive works may be used. They also saw copyright as an “engine of free ex- pression[:] By establishing a marketable right to the use of —————— 28 The dissent suggests that the “utilitarian view of copyrigh[t]” em- braced by Jefferson, Madison, and our case law sets us apart from continental Europe and inhibits us from harmonizing our copyright laws with those of countries in the civil-law tradition. See post, at 5–, 22. For persuasive refutation of that suggestion, see Austin, Does the Copyright Clause Mandate Isolationism? 2 Colum. J. L. & Arts 17, 59 (cautioning against “an |
Justice Ginsburg | 2,012 | 5 | majority | Golan v. Holder | https://www.courtlistener.com/opinion/2959739/golan-v-holder/ | Colum. J. L. & Arts 17, 59 (cautioning against “an isolationist reading of the Copyright Clause that is in tension with America’s international copyright relations over the last hundred or so years”). 24 GOLAN v. HOLDER Opinion of the Court one’s expression, copyright supplies the economic incentive to create and disseminate ideas.” (quoting Harper & (internal quotation marks omit- ted)); see (“rights conferred by copyright are designed to assure contributors to the store of knowledge a fair return for their labors”). We then described the “traditional contours” of copy- right protection, i.e., the “idea/expression dichotomy” and the “fair use” defense.29 Both are recognized in our juris- prudence as “built-in First Amendment accommodations.” ; see Harper & 471 U.S., at 50 (First Amendment protections are “embodied in the Copyright Act’s distinction between copyrightable expres- sion and uncopyrightable facts and ideas,” and in the “latitude for scholarship and comment” safeguarded by the fair use defense). The idea/expression dichotomy is codified at 17 U.S. C. “In no case does copyright protec[t] any idea, procedure, process, system, method of operation, concept, principle, or discovery described, explained, illustrat- ed, or embodied in [the copyrighted] work.” “Due to this [idea/expression] distinction, every idea, theory, and fact in a copyrighted work becomes instantly available for public exploitation at the moment of publication”; the author’s expression alone gains copyright protection. ; see Harper & 471 U.S., at 55 (“idea/expression dichotomy strike[s] a definitional balance between the First Amendment and the Copyright Act by permitting free communication of facts while still protecting an author’s expression” (internal quotation —————— 29 On the initial appeal in this case, the Tenth Circuit gave an uncon- fined reading to our reference in to “traditional contours of copyright.” –119. That reading was incorrect, as we here clarify. Cite as: 55 U. S. (2012) 25 Opinion of the Court marks omitted)). The second “traditional contour,” the fair use defense, is codified at 17 U.S. C. “[T]he fair use of a copyright- ed work, including such use by reproduction in copies for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copy- right.” This limitation on exclusivity “allows the public to use not only facts and ideas contained in a copyrighted work, but also [the author’s] expression itself in certain circumstances.” ; see (“fair use defense affords considerable latitude for scholar- ship and comment, even for parody” (internal quota- tion marks omitted)). Given the “speech-protective purposes and safeguards” embraced by copyright law, see we concluded in that there was no call for the |
Justice Ginsburg | 2,012 | 5 | majority | Golan v. Holder | https://www.courtlistener.com/opinion/2959739/golan-v-holder/ | we concluded in that there was no call for the heightened review petitioners sought in that case.30 We reach the same conclusion here.31 Section 514 leaves undisturbed the “idea/expression” distinction and the “fair use” defense. Moreover, Congress adopted measures to ease the transi- tion from a national scheme to an international copyright regime: It deferred the date from which enforcement runs, and it cushioned the impact of restoration on “reliance parties” who exploited foreign works denied protection before took effect. See at 10–11 (describing 17 U.S. C. (c), (d), and (h)). See also 537 U.S., (describing supplemental allowances and exemp- —————— 30 See (“Protection of [an author’s original expression from unrestricted exploitation] does not raise the free speech concerns present when the government compels or burdens the com- munication of particular facts or ideas.”). 31Focusing narrowly on the specific problem of orphan works, the dissent overlooks these principal protections against “the dissemination-restricting harms of copyright.” Post, at 14. 2 GOLAN v. HOLDER Opinion of the Court tions available to certain users to mitigate the CTEA’s impact). B Petitioners attempt to distinguish their challenge from the one turned away in First Amendment inter- ests of a higher order are at stake here, petitioners say, because they—unlike their counterparts in — enjoyed “vested rights” in works that had already entered the public domain. The limited rights they retain under copyright law’s “built-in safeguards” are, in their view, no substitute for the unlimited use they enjoyed before ’s enactment. Nor, petitioners urge, does ’s “unprece- dented” foray into the public domain possess the historical pedigree that supported the term extension at issue in Brief for Petitioners 42–43. However spun, these contentions depend on an argu- ment we considered and rejected above, namely, that the Constitution renders the public domain largely untouch- able by Congress. Petitioners here attempt to achieve under the banner of the First Amendment what they could not win under the Copyright Clause: On their view of the Copyright Clause, the public domain is inviolable; as they read the First Amendment, the public domain is policed through heightened judicial scrutiny of Congress’ means and ends. As we have already shown, see at 13–19, the text of the Copyright Clause and the historical record scarcely establish that “once a work enters the public domain,” Congress cannot permit anyone—“not even the creator—[to] copyright it,” And noth- ing in the historical record, congressional practice, or our own jurisprudence warrants exceptional First Amendment solicitude for copyrighted works that were once in the Cite as: 55 U. S. (2012) 27 Opinion of the Court public domain.32 |
Justice Ginsburg | 2,012 | 5 | majority | Golan v. Holder | https://www.courtlistener.com/opinion/2959739/golan-v-holder/ | U. S. (2012) 27 Opinion of the Court public domain.32 Neither this challenge nor that raised in we stress, allege Congress transgressed a gener- ally applicable First Amendment prohibition; we are not faced, for example, with copyright protection that hinges on the author’s viewpoint. The Tenth Circuit’s initial opinion determined that petitioners marshaled a stronger First Amendment chal- lenge than did their predecessors in who never “possessed unfettered access to any of the works at issue.” See also (“[O]nce the works at issue became free for anyone to copy, [petitioners] had vested First Amendment interests in the expressions, [thus] ’s interference with [petitioners’] rights is subject to First Amendment scrutiny.”). As petitioners put it in this Court, Congress impermissibly revoked their right to exploit foreign works that “belonged to them” once the works were in the public domain. Brief for Petitioners –45. To copyright lawyers, the “vested rights” formulation —————— 32 “[R]equir[ing]works that have already fallen into the public do- main to stay there” might, as the dissent asserts, supply an “easily administrable standard.” Post, at 14. However attractive this bright- line rule might be, it is not a rule rooted in the constitutional text or history. Nor can it fairly be gleaned from our case law. The dissent cites three decisions to document its assertion that “this Court has assumed the particular importance of public domain material in rough- ly analogous circumstances.” Post, at 15. The dictum in Graham v. John Deere Co. of Kansas City, noted earlier, did not treat the public domain as a constitutional limit—certainly not under the rubric of the First Amendment. See The other two decisions the dissent cites considered whether the federal Patent Act preempted a state trade-secret law, Kewanee Oil 41 U.S. 470, and whether the freedom of the press shielded reporters from liability for publishing material drawn from public court documents, Cox Broadcasting Corp. v. Cohn, 420 U.S. 49, 495–497 (1975). Neither decision remotely ascribed constitutional significance to a work’s public domain status. 28 GOLAN v. HOLDER Opinion of the Court might sound exactly backwards: Rights typically vest at the outset of copyright protection, in an author or rightholder. See, e.g., 17 U.S. C. (“Copyright in a work protected vests initially in the author”). Once the term of protection ends, the works do not revest in any rightholder. Instead, the works simply lapse into the public domain. See, e.g., Berne, Art. 18(1), 828 U. N. T. S., at 251 (“This Convention shall apply to all works which have not yet fallen into the public do- main”). Anyone has free access to |
Justice Ginsburg | 2,012 | 5 | majority | Golan v. Holder | https://www.courtlistener.com/opinion/2959739/golan-v-holder/ | into the public do- main”). Anyone has free access to the public domain, but no one, after the copyright term has expired, acquires ownership rights in the once-protected works. Congress recurrently adjusts copyright law to protect categories of works once outside the law’s compass. For example, Congress broke new ground when it extended copyright protection to foreign works in 1891, Act of Mar. 3, 2 Stat. 1110; to dramatic works in 185, Act of Aug. 18, ; to photographs and photographic negatives in 185, Act of Mar. 3, ; to mo- tion pictures in 1912, Act of Aug. 24, ; to fixed sound recordings in 1972, Act of Oct. 15, 1971, 85 Stat. 391; and to architectural works in 1990, Architectural Works Copyright Protection Act, And on several occasions, as recounted above, Congress protected works previously in the public domain, hence freely usable by the public. See at 15–19. If Congress could grant protection to these works without hazarding height- ened First Amendment scrutiny, then what free speech principle disarms it from protecting works prematurely cast into the public domain for reasons antithetical to the Berne Convention? 33 —————— 33 It was the Fifth Amendment’s Takings Clause—not the First Amendment—that Congress apparently perceived to be a potential check on its authority to protect works then freely available to the Cite as: 55 U. S. (2012) 29 Opinion of the Court Section 514, we add, does not impose a blanket prohibi- tion on public access. Petitioners protest that fair use and the idea/expression dichotomy “are plainly inadequate to protect the speech and expression rights that Section 514 took from petitioners, or the public”—that is, “the unrestricted right to perform, copy, teach and distribute the entire work, for any reason.” Brief for Petitioners 4– 47. “Playing a few bars of a Shostakovich symphony,” petitioners observe, “is no substitute for performing the entire work.”34 But Congress has not put petitioners in this bind. The question here, as in is whether would-be users must pay for their desired use of the author’s expression, or else limit their exploitation to “fair use” of that work. Prokofiev’s Peter and the Wolf could once be performed free of charge; after the right to perform it must be obtained in the marketplace. This is the same market- place, of course, that exists for the music of Prokofiev’s U. S. contemporaries: works of Copland and Bernstein, for example, that enjoy copyright protection, but nevertheless appear regularly in the programs of U. S. concertgoers. Before we joined Berne, domestic works and some for- eign works were protected under U. S. |
Justice Ginsburg | 2,012 | 5 | majority | Golan v. Holder | https://www.courtlistener.com/opinion/2959739/golan-v-holder/ | and some for- eign works were protected under U. S. statutes and bilat- eral international agreements, while other foreign works were available at an artificially low (because royalty-free) —————— public. See URAA Joint Hearing 3 (statement of Rep. Hughes); at 121 (app. to statement of Lehman, Commerce Dept.); (state- ment of Shapiro, USTR); (statement of Christopher Schroe- der, DOJ). The reliance-party protections supplied by see at 10–11, were meant to address such concerns. See URAA Joint Hearing 148–149 (prepared statement of Schroeder). 34 Because Shostakovich was a pre-1973 Russian composer, his works were not protected in the United States. See U. S. Copyright Circular No. 38A: The International Copyright Relations of the United States 9, 11, n. 2 (copyright relations between the Soviet Union and the United States date to 1973). 30 GOLAN v. HOLDER Opinion of the Court cost. By fully implementing Berne, Congress ensured that most works, whether foreign or domestic, would be gov- erned by the same legal regime. The phenomenon to which Congress responded is not new: Distortions of the same order occurred with greater frequency—and to the detriment of both foreign and domestic authors—when, before 1891, foreign works were excluded entirely from U. S. copyright protection. See Kampelman, The United States and International Copyright, 41 Am. J. Int’l L. 40, 413 (1947) (“American readers were less inclined to read the novels of Cooper or Hawthorne for a dollar when they could buy a novel of Scott or Dickens for a quarter.”). Section 514 continued the trend toward a harmonized copyright regime by placing foreign works in the position they would have occupied if the current regime had been in effect when those works were created and first pub- lished. Authors once deprived of protection are spared the continuing effects of that initial deprivation; gives them nothing more than the benefit of their labors during whatever time remains before the normal copyright term expires.35 Unlike petitioners, the dissent makes much of the so- called “orphan works” problem. See post, at 11–14, 23–24. We readily acknowledge the difficulties would-be users of copyrightable materials may face in identifying or locating copyright owners. See generally U. S. Copyright Report on Orphan Works 21–40 (200). But as the dissent concedes, see post, at 13, this difficulty is hardly peculiar to works restored under It similarly afflicts, for —————— 35 Persistently deploring “ ‘restored copyright’ protection [because it] removes material from the public domain,” post, at 14, the dissent does not pause to consider when and why the material came to be lodged in that domain. Most of the works affected |
Justice Ginsburg | 2,012 | 5 | majority | Golan v. Holder | https://www.courtlistener.com/opinion/2959739/golan-v-holder/ | be lodged in that domain. Most of the works affected by got there after a term of zero or a term cut short by failure to observe U. S. formalities. See Cite as: 55 U. S. (2012) 31 Opinion of the Court instance, U. S. libraries that attempt to catalogue U. S. books. See post, at 12. See also Brief for American Li- brary Association et al. as Amici Curiae 22 (Section 514 “exacerbated,” but did not create, the problem of orphan works); U. S. Copyright at 41– (tracing orphan-works problem to Congress’ elimination of formali- ties, commencing with the 197 Copyright Act).3 Nor is this a matter appropriate for judicial, as opposed to legislative, resolution. Cf. Authors 770 F. Supp. 2d 77–78 (rejecting proposed “Google Books” class settlement because, inter alia, “the establishment of a mechanism for exploiting unclaimed books is a matter more suited for Congress than this Court” (citing )). In- deed, the host of policy and logistical questions identified by the dissent speak for themselves. Post, at 12. Despite “longstanding efforts,” see Authors Guild, 770 F. Supp. 2d, 78 (quoting statement of Marybeth Peters), Congress has not yet passed ameliorative orphan-works legislation of the sort enacted by other Berne members, see, e.g., Canada Copyright Act, R. S. C., 1985, c. C–42, (au- thorizing Copyright Board to license use of orphan works by persons unable, after making reasonable efforts, to locate the copyright owner). Heretofore, no one has sug- gested that the orphan-works issue should be addressed through our implementation of Berne, rather than through overarching legislation of the sort proposed in Congress and cited by the dissent. See post, at 23–24; U. S. Copyright Legal Issues in Mass Digitization 25–29 (discussing recent legislative efforts). Our unstinting adherence to Berne may add impetus to calls —————— 3 The pervasive problem of copyright piracy, noted post, at 13, like- wise is scarcely limited to protected foreign works formerly in the public domain. 32 GOLAN v. HOLDER Opinion of the Court for the enactment of such legislation. But resistance to Berne’s prescriptions surely is not a necessary or proper response to the pervasive question, what should Congress do about orphan works. IV Congress determined that U. S. interests were best served by our full participation in the dominant system of international copyright protection. Those interests in- clude ensuring exemplary compliance with our interna- tional obligations, securing greater protection for U. S. authors abroad, and remedying unequal treatment of foreign authors. The judgment expresses lies well within the ken of the political branches. It is our obliga- tion, of course, |
Justice Ginsburg | 2,012 | 5 | majority | Golan v. Holder | https://www.courtlistener.com/opinion/2959739/golan-v-holder/ | the political branches. It is our obliga- tion, of course, to determine whether the action Congress took, wise or not, encounters any constitutional shoal. For the reasons stated, we are satisfied it does not. The judg- ment of the Court of Appeals for the Tenth Circuit is therefore Affirmed. JUSTICE KAGAN took no part in the consideration or decision of this case. Cite as: 55 U. S. (2012) 33 Opinion Appendix of the of to opinion Court the Court APPENDIX Title 17 U.S. C. provides: “(a) AUTOMATIC PROTECTION AND TERM.— “(1) TERM.— “(A) Copyright subsists, in accordance with this sec- tion, in restored works, and vests automatically on the date of restoration. “(B) Any work in which copyright is restored under this section shall subsist for the remainder of the term of copyright that the work would have otherwise been grant- ed in the United States if the work never entered the public domain in the United States. “(2) EXCEPTION.—Any work in which the copyright was ever owned or administered by the Alien Property Custo- dian and in which the restored copyright would be owned by a government or instrumentality thereof, is not a re- stored work. “(b) OWNERSHIP OF RESTORED COPYRIGHT.—A restored work vests initially in the author or initial rightholder of the work as determined by the law of the source country of the work. “(c) FILING OF NOTICE OF INTENT TO ENFORCE RESTORED COPYRIGHT AGAINST RELIANCE PARTIES.—On or after the date of restoration, any person who owns a copyright in a restored work or an exclusive right therein may file with the Copyright a notice of intent to enforce that person’s copyright or exclusive right or may serve such a notice directly on a reliance party. Acceptance of a notice by the Copyright is effective as to any reliance parties but shall not create a presumption of the validity of any of the facts stated therein. Service on a reliance party is effective as to that reliance party and any other reliance parties with actual knowledge of such service and of the contents of that notice. “(d) REMEDIES FOR INFRINGEMENT OF RESTORED COPYRIGHTS.— 34 GOLAN v. HOLDER Opinion Appendix of the of to opinion Court the Court “(1) ENFORCEMENT OF COPYRIGHT IN RESTORED WORKS IN THE ABSENCE OF A RELIANCE PARTY.—As against any party who is not a reliance party, the remedies provided in chapter 5 of this title shall be available on or after the date of restoration of a restored copyright with respect to an act of infringement of the restored copyright that is commenced |
Justice Ginsburg | 2,012 | 5 | majority | Golan v. Holder | https://www.courtlistener.com/opinion/2959739/golan-v-holder/ | act of infringement of the restored copyright that is commenced on or after the date of restoration. “(2) ENFORCEMENT OF COPYRIGHT IN RESTORED WORKS AS AGAINST RELIANCE PARTIES.—As against a reliance party, except to the extent provided in paragraphs (3) and (4), the remedies provided in chapter 5 of this title shall be available, with respect to an act of infringement of a re- stored copyright, on or after the date of restoration of the restored copyright if the requirements of either of the following subparagraphs are met: “(A)(i) The owner of the restored copyright (or such owner’s agent) or the owner of an exclusive right therein (or such owner’s agent) files with the Copyright during the 24-month period beginning on the date of res- toration, a notice of intent to enforce the restored copy- right; and “(ii)(I) the act of infringement commenced after the end of the 12-month period beginning on the date of publi- cation of the notice in the Federal Register; “(II) the act of infringement commenced before the end of the 12-month period described in subclause (I) and continued after the end of that 12-month period, in which case remedies shall be available only for infringement occurring after the end of that 12-month period; or “(III) copies or phonorecords of a work in which copyright has been restored under this section are made after publication of the notice of intent in the Federal Register. “(B)(i) The owner of the restored copyright (or such owner’s agent) or the owner of an exclusive right therein (or such owner’s agent) serves upon a reliance party a Cite as: 55 U. S. (2012) 35 Opinion Appendix of the of to opinion Court the Court notice of intent to enforce a restored copyright; and “(ii)(I) the act of infringement commenced after the end of the 12-month period beginning on the date the notice of intent is received; “(II) the act of infringement commenced before the end of the 12-month period described in subclause (I) and continued after the end of that 12-month period, in which case remedies shall be available only for the infringement occurring after the end of that 12-month period; or “(III) copies or phonorecords of a work in which copyright has been restored under this section are made after receipt of the notice of intent. “In the event that notice is provided under both subpara- graphs (A) and (B), the 12-month period referred to in such subparagraphs shall run from the earlier of publica- tion or service of notice. “(3) EXISTING DERIVATIVE WORKS.—(A) In the case of a |
Justice Ginsburg | 2,012 | 5 | majority | Golan v. Holder | https://www.courtlistener.com/opinion/2959739/golan-v-holder/ | notice. “(3) EXISTING DERIVATIVE WORKS.—(A) In the case of a derivative work that is based upon a restored work and is created— “(i) before the date of the enactment of the Uruguay Round Agreements Act, if the source country of the re- stored work is an eligible country on such date, or “(ii) before the date on which the source country of the restored work becomes an eligible country, if that country is not an eligible country on such date of enactment, “a reliance party may continue to exploit that derivative work for the duration of the restored copyright if the reliance party pays to the owner of the restored copyright reasonable compensation for conduct which would be subject to a remedy for infringement but for the provisions of this paragraph. “(B) In the absence of an agreement between the parties, the amount of such compensation shall be determined by an action in United States district court, and shall reflect any harm to the actual or potential market for or value of 3 GOLAN v. HOLDER Opinion Appendix of the of to opinion Court the Court the restored work from the reliance party’s continued exploitation of the work, as well as compensation for the relative contributions of expression of the author of the restored work and the reliance party to the derivative work. “(4) COMMENCEMENT OF INFRINGEMENT FOR RELIANCE PARTIES.—For purposes of section 412, in the case of reli- ance parties, infringement shall be deemed to have com- menced before registration when acts which would have constituted infringement had the restored work been subject to copyright were commenced before the date of restoration. “(e) NOTICES OF INTENT TO ENFORCE A RESTORED COPYRIGHT.— “(1) NOTICES OF INTENT FILED WITH THE COPYRIGHT OFFICE.—(A)(i) A notice of intent filed with the Copyright to enforce a restored copyright shall be signed by the owner of the restored copyright or the owner of an exclusive right therein, who files the notice under subsec- tion (d)(2)(A)(i) (hereafter in this paragraph referred to as the “owner”), or by the owner’s agent, shall identify the title of the restored work, and shall include an English translation of the title and any other alternative titles known to the owner by which the restored work may be identified, and an address and telephone number at which the owner may be contacted. If the notice is signed by an agent, the agency relationship must have been constituted in a writing signed by the owner before the filing of the notice. The Copyright may specifically require in regulations other information to be |
Justice Ginsburg | 2,012 | 5 | majority | Golan v. Holder | https://www.courtlistener.com/opinion/2959739/golan-v-holder/ | Copyright may specifically require in regulations other information to be included in the notice, but failure to provide such other information shall not invalidate the notice or be a basis for refusal to list the restored work in the Federal Register. “(ii) If a work in which copyright is restored has no formal title, it shall be described in the notice of intent in detail sufficient to identify it. Cite as: 55 U. S. (2012) 37 Opinion Appendix of the of to opinion Court the Court “(iii) Minor errors or omissions may be corrected by further notice at any time after the notice of intent is filed. Notices of corrections for such minor errors or omissions shall be accepted after the period established in subsection (d)(2)(A)(i). Notices shall be published in the Federal Register pursuant to subparagraph (B). “(B)(i) The Register of Copyrights shall publish in the Federal Register, commencing not later than 4 months after the date of restoration for a particular nation and every 4 months thereafter for a period of 2 years, lists identifying restored works and the ownership thereof if a notice of intent to enforce a restored copyright has been filed. “(ii) Not less than 1 list containing all notices of intent to enforce shall be maintained in the Public Information of the Copyright and shall be available for public and copying during regular business hours pursuant to sections 705 and 708. “(C) The Register of Copyrights is authorized to fix reasonable fees based on the costs of receipt, processing, recording, and publication of notices of intent to enforce a restored copyright and corrections thereto. “(D)(i) Not later than 90 days before the date the Agreement on Trade-Related Aspects of Intellectual Prop- erty referred to in section 101(d)(15) of the Uruguay Round Agreements Act enters into force with respect to the United States, the Copyright shall issue and publish in the Federal Register regulations governing the filing under this subsection of notices of intent to enforce a restored copyright. “(ii) Such regulations shall permit owners of restored copyrights to file simultaneously for registration of the restored copyright. “(2) NOTICES OF INTENT SERVED ON A RELIANCE PARTY.— (A) Notices of intent to enforce a restored copyright may be served on a reliance party at any time after the date of 38 GOLAN v. HOLDER Opinion Appendix of the of to opinion Court the Court restoration of the restored copyright. “(B) Notices of intent to enforce a restored copyright served on a reliance party shall be signed by the owner or the owner’s agent, shall identify the |
Justice Ginsburg | 2,012 | 5 | majority | Golan v. Holder | https://www.courtlistener.com/opinion/2959739/golan-v-holder/ | by the owner or the owner’s agent, shall identify the restored work and the work in which the restored work is used, if any, in detail sufficient to identify them, and shall include an English translation of the title, any other alternative titles known to the owner by which the work may be identified, the use or uses to which the owner objects, and an address and telephone number at which the reliance party may contact the owner. If the notice is signed by an agent, the agency relationship must have been constituted in writing and signed by the owner before service of the notice. “(3) EFFECT OF MATERIAL FALSE STATEMENTS.—Any material false statement knowingly made with respect to any restored copyright identified in any notice of intent shall make void all claims and assertions made with respect to such restored copyright. “(f) IMMUNITY FROM WARRANTY AND RELATED LIABILITY.— “(1) IN GENERAL.—Any person who warrants, promises, or guarantees that a work does not violate an exclusive right granted in section 10 shall not be liable for legal, equitable, arbitral, or administrative relief if the war- ranty, promise, or guarantee is breached by virtue of the restoration of copyright under this section, if such warran- ty, promise, or guarantee is made before January 1, 1995. “(2) PERFORMANCES.—No person shall be required to perform any act if such performance is made infringing by virtue of the restoration of copyright under the provisions of this section, if the obligation to perform was undertaken before January 1, 1995. “(g) PROCLAMATION OF COPYRIGHT RESTORATION.— Whenever the President finds that a particular foreign nation extends, to works by authors who are nationals or domiciliaries of the United States, restored copyright Cite as: 55 U. S. (2012) 39 Opinion Appendix of the of to opinion Court the Court protection on substantially the same basis as provided under this section, the President may by proclamation extend restored protection provided under this section to any work— “(1) of which one or more of the authors is, on the date of first publication, a national, domiciliary, or sovereign authority of that nation; or “(2) which was first published in that nation. “The President may revise, suspend, or revoke any such proclamation or impose any conditions or limitations on protection under such a proclamation. “(h) DEFINITIONS.—For purposes of this section and sec- tion 109(a): “(1) The term “date of adherence or proclamation” means the earlier of the date on which a foreign nation which, as of the date the WTO Agreement enters into force with respect to the United States, is |
Justice Ginsburg | 2,012 | 5 | majority | Golan v. Holder | https://www.courtlistener.com/opinion/2959739/golan-v-holder/ | enters into force with respect to the United States, is not a nation adhering to the Berne Convention or a WTO member country, becomes— “(A) a nation adhering to the Berne Convention; “(B) a WTO member country; “(C) a nation adhering to the WIPO Copyright Treaty; “(D) a nation adhering to the WIPO Performances and Phonograms Treaty; or “(E) subject to a Presidential proclamation under subsection (g). “(2) The “date of restoration” of a restored copyright is— “(A) January 1, 199, if the source country of the restored work is a nation adhering to the Berne Conven- tion or a WTO member country on such date, or “(B) the date of adherence or proclamation, in the case of any other source country of the restored work. “(3) The term “eligible country” means a nation, other than the United States, that— “(A) becomes a WTO member country after the date of the enactment of the Uruguay Round Agreements Act; 40 GOLAN v. HOLDER Opinion Appendix of the of to opinion Court the Court “(B) on such date of enactment is, or after such date of enactment becomes, a nation adhering to the Berne Convention; “(C) adheres to the WIPO Copyright Treaty; “(D) adheres to the WIPO Performances and Phono- grams Treaty; or “(E) after such date of enactment becomes subject to a proclamation under subsection (g). “(4) The term “reliance party” means any person who— “(A) with respect to a particular work, engages in acts, before the source country of that work becomes an eligible country, which would have violated section 10 if the restored work had been subject to copyright protection, and who, after the source country becomes an eligible country, continues to engage in such acts; “(B) before the source country of a particular work becomes an eligible country, makes or acquires 1 or more copies or phonorecords of that work; or “(C) as the result of the sale or other disposition of a derivative work covered under subsection (d)(3), or signifi- cant assets of a person described in subparagraph (A) or (B), is a successor, assignee, or licensee of that person. “(5) The term “restored copyright” means copyright in a restored work under this section. “() The term “restored work” means an original work of authorship that— “(A) is protected under subsection (a); “(B) is not in the public domain in its source country through expiration of term of protection; “(C) is in the public domain in the United States due to— “(i) noncompliance with formalities imposed at any time by United States copyright law, including failure of |
Justice Ginsburg | 2,012 | 5 | majority | Golan v. Holder | https://www.courtlistener.com/opinion/2959739/golan-v-holder/ | any time by United States copyright law, including failure of renewal, lack of proper notice, or failure to comply with any manufacturing requirements; “(ii) lack of subject matter protection in the case of Cite as: 55 U. S. (2012) 41 Opinion Appendix of the of to opinion Court the Court sound recordings fixed before February 15, 1972; or “(iii) lack of national eligibility; “(D) has at least one author or rightholder who was, at the time the work was created, a national or domiciliary of an eligible country, and if published, was first published in an eligible country and not published in the United States during the 30-day period following publication in such eligible country; and “(E) if the source country for the work is an eligible country solely by virtue of its adherence to the WIPO Performances and Phonograms Treaty, is a sound recording. “(7) The term “rightholder” means the person— “(A) who, with respect to a sound recording, first fixes a sound recording with authorization, or “(B) who has acquired rights from the person de- scribed in subparagraph (A) by means of any conveyance or by operation of law. “(8) The “source country” of a restored work is— “(A) a nation other than the United States “(B) in the case of an unpublished work— “(i) the eligible country in which the author or rightholder is a national or domiciliary, or, if a restored work has more than 1 author or rightholder, of which the majority of foreign authors or rightholders are nationals or domiciliaries; or “(ii) if the majority of authors or rightholders are not foreign, the nation other than the United States which has the most significant contacts with the work; and “(C) in the case of a published work— “(i) the eligible country in which the work is first published, or “(ii) if the restored work is published on the same day in 2 or more eligible countries, the eligible country which has the most significant contacts with the work.” Cite as: 55 U. S. (2012) 1 BREYER, J., dissenting SUPREME COURT OF THE UNITED STATES No. 10–545 LAWRENCE GOLAN, ET AL., PETITIONERS v. ERIC H. HOLDER, JR., ATTORNEY GENERAL, ET AL. |
Justice White | 1,976 | 6 | majority | Alfred Dunhill of London, Inc. v. Republic of Cuba | https://www.courtlistener.com/opinion/109448/alfred-dunhill-of-london-inc-v-republic-of-cuba/ | [] The issue in this case is whether the failure of respondents to return to petitioner Alfred Dunhill of London, (Dunhill), funds mistakenly paid by Dunhill for cigars that had been sold to Dunhill by certain expropriated Cuban cigar businesses was an "act of state" by Cuba precluding an affirmative judgment against respondents. I The rather involved factual and legal context in which this litigation arises is fully set out in the District Court's *685 opinion in this case, and in closely related litigation, F. Palicio y Compania, S. aff'd, (CA2), cert. denied, For present purposes, the following recitation will suffice. In the Cuban Government confiscated the business and assets of the five leading manufacturers of Havana cigars. These companies, three corporations and two partnerships, were organized under Cuban Virtually all of their owners were Cuban nationals. None were American. These companies sold large quantities of cigars to customers in other countries, including the United States, where the three principal importers were Dunhill, Saks & Co. (Saks), and Faber, Coe & Gregg, (Faber). The Cuban Government named "interventors" to take possession of and operate the business of the seized Cuban concerns. Interventors continued to ship cigars to foreign purchasers, including the United States importers. This litigation began when the former owners of the Cuban companies, most of whom had fled to the United States, brought various actions against the three American importers for trademark infringement and for the purchase price of any cigars that had been shipped to importers from the seized Cuban plants and that bore United States trademarks claimed by the former owners to be their property. Following the conclusion of the related litigation in F. Palicio y Compania, S. [1] the Cuban interventors[2] and the Republic *686 of Cuba were allowed to intervene in these actions, which were consolidated for trial. Both the former owners and the interventors had asserted their right to some $700,000 due from the three importers for postintervention shipments: Faber, $582,.86; Dunhill, $92,949.70; and Saks, $24,250. It also developed that as of the date of intervention, the three importers owed sums totaling $477,200 for cigars shipped prior to intervention: Faber, $322,000; Dunhill, $148,600; and Saks, $6,600. These latter sums the importers had paid to interventors subsequent to intervention on the assumption that interventors were entitled to collect the accounts receivable of the intervened businesses. The former owners claimed title to and demanded payment of these accounts. Based on the "act of state" doctrine which had been reaffirmed in Banco Nacional de the District Court held in F. Palicio y Compania, S. and here, |
Justice White | 1,976 | 6 | majority | Alfred Dunhill of London, Inc. v. Republic of Cuba | https://www.courtlistener.com/opinion/109448/alfred-dunhill-of-london-inc-v-republic-of-cuba/ | Court held in F. Palicio y Compania, S. and here, that it was required to give full legal effect to the confiscation of the five cigar companies insofar as it purported to take the property of Cuban nationals located within Cuba. Interventors were accordingly entitled to collect from the importers all amounts due and unpaid with respect to shipments made after the date of intervention. The contrary conclusion was reached as to the accounts owing at the time of intervention: Because the United States *687 courts will not give effect to foreign government confiscations without compensation of property located in the United States and because under Republic of cert. denied, the situs of the accounts receivable was with the importer-debtors, the seizures did not reach the preintervention accounts, and the former owners, rather than the interventors, were entitled to collect them from the importerseven though the latter had already paid them to interventors in the mistaken belief that they were fully discharging trade debts in the ordinary course of their business. This conclusion brought to the fore the importers' claim that their payment of the preintervention accounts had been made in error and that they were entitled to recover these payments from interventors by way of setoff and counterclaim. Although their position that the confiscation entitled them to the sums due for preintervention sales had been rejected and the District Court had ruled that they "had no right to receive or retain such payment,"[3] interventors claimed those payments on the additional ground that the obligation, if any, to repay was a quasi-contractual debt having a situs in Cuba and that their refusal to honor the obligation was an act of state not subject to question in our courts. The District Court rejected this position for two reasons. First, the repayment obligated was more properly deemed situated in the United States and hence remained unaffected by any purported confiscatory act of the Cuban Government. Second, in the District Court's *688 view, nothing had occurred which qualified for recognition as an act of state: "[T]here was no formal repudiation of these obligations by Cuban Government decree of general application or otherwise. Here, all that occurred was a statement by counsel for the interventors, during trial, that the Cuban Government and the interventors denied liability and had refused to make repayment. This statement was made after the interventors had invoked the jurisdiction of this Court in order to pursue their claims against the importers for post-intervention shipments. It is hard to conceive how, if such a statement can be elevated to the status |
Justice White | 1,976 | 6 | majority | Alfred Dunhill of London, Inc. v. Republic of Cuba | https://www.courtlistener.com/opinion/109448/alfred-dunhill-of-london-inc-v-republic-of-cuba/ | if such a statement can be elevated to the status of an act of state, any refusal by any state to honor any obligation at any time could be considered anything else." The importers were accordingly held entitled to set off their mistaken payments to interventors for preintervention shipments against the amounts due from them for their post-intervention purchases. Faber and Saks, because they owed more than interventors were obligated to return to them, were satisfied completely by the right to setoff. But Dunhilland at last we arrive at the issue in this casewas entitled to more from interventors $148,000than it owed for postintervention shipments$93,000and to be made whole, asked for and was granted judgment against interventors for the full amount of its claim, from which would be deducted the smaller judgment entered against it. The Court of Appeals, agreed that the former owners were entitled to recover from the importers the full amount of preintervention accounts receivable. It also held that the mistaken payments by importers to interventors *689 gave rise to a quasi-contractual obligation to repay these sums. But, contrary to the District Court, the Court of Appeals was of the view that the obligation to repay had a situs in Cuba and had been repudiated in the course of litigation by conduct that was sufficiently official to be deemed an act of state: "[I]n the absence of evidence that the interventors were not acting within the scope of their authority as agents of the Cuban government, their repudiation was an act of state even though not embodied in a formal decree."[4]Id., at 1371. Although the repudiation of the interventors' obligation was considered an act of state, the Court of Appeals went on to hold that First Nat. City entitled importers to recover the sums due them from interventors by way of setoff against the amounts due from them for postintervention shipments. The act of state doctrine was said to bar the affirmative judgment awarded Dunhill to the extent that its claim exceeded its debt. The judgment of the District Court was reversed in this respect, and it is this action which was the subject of the petition for certiorari filed by Dunhill. In granting the petition, we requested the parties to address certain questions,[5] the first being whether the statement by *690 counsel for the Republic of Cuba that Dunhill's unjust-enrichment claim would not be honored constituted an act of state. The case was argued twice in this Court. We have now concluded that nothing in the record reveals an act of state with respect to interventors' |
Justice White | 1,976 | 6 | majority | Alfred Dunhill of London, Inc. v. Republic of Cuba | https://www.courtlistener.com/opinion/109448/alfred-dunhill-of-london-inc-v-republic-of-cuba/ | record reveals an act of state with respect to interventors' obligation to return monies mistakenly paid to them. Accordingly we reverse the judgment of the Court of Appeals. II The District Court and the Court of Appeals held that for purposes of this litigation interventors were not entitled to the preintervention accounts receivable by virtue of the confiscation and that, despite other arguments to the contrary, nothing based on their claim to those accounts entitled interventors to retain monies mistakenly paid on those accounts by importers. We do not disturb these conclusions.[6] The Court of Appeals nevertheless observed that interventors had "ignored" demands for the return of the monies and had "fail[ed] *691 to honor the importers' demand (which was confirmed by the Cuban government's counsel at trial)." This conduct was considered to be "the Cuban government's repudiation of its obligation to return the funds" and to constitute an act of state not subject to question in our courts.[7], 485 F. 2d, at 1, 1371. We cannot agree. If interventors, having had their liability adjudicated and various defenses rejected, including the claimed act of state, with respect to preintervention accounts, represented by the Cuban confiscation in were nevertheless to escape repayment by claiming a second and later act of state involving the funds mistakenly paid them, it was their burden to prove that act. Concededly, they declined to pay over the funds; but refusal to repay does not necessarily assert anything more than what interventors had claimed from the outset and what they have continued to claim in this Courtthat the preintervention accounts receivable were theirs and that they had no obligation to return payments on those accounts.[8] Neither does it demonstrate that in addition *692 to authority to operate commercial businesses, to pay their bills and to collect their accounts receivable, interventors had been invested with sovereign authority to *693 repudiate all or any part of the debts incurred by those businesses. Indeed, it is difficult to believe that they had the power selectively to refuse payment of legitimate debts arising from the operation of those commercial enterprises. In The "Gul Djemal," a supplier libeled and caused the arrest of the Gul Djemal, a steamship owned and operated for commercial purposes by the Turkish Government, in an effort to recover for supplies and services sold to and performed for the ship. The ship's master, "a duly commissioned officer of the Turkish Navy," appeared in court and asserted sovereign immunity, claiming that such an assertion defeated the court's jurisdiction. A direct appeal was taken to this Court, where it was |
Justice White | 1,976 | 6 | majority | Alfred Dunhill of London, Inc. v. Republic of Cuba | https://www.courtlistener.com/opinion/109448/alfred-dunhill-of-london-inc-v-republic-of-cuba/ | direct appeal was taken to this Court, where it was held that the master's assertion of sovereign immunity was insufficient because his mere representation of his government as master of a commercial ship furnished no basis for assuming he was entitled to represent the sovereign in other capacities.[9] Here there is no more reason to suppose that the interventors possess governmental, as opposed to commercial, authority than there was to suppose that the master of the Gul Djemal possessed such authority. The master of the Gul Djemal claimed the authority to assert sovereign immunity while the interventors claim that they *694 had the authority to commit an act of state, but the difference is unimportant. In both cases, a party claimed to have had the authority to exercise sovereign power. In both, the only authority shown is commercial authority. We thus disagree with the Court of Appeals that the mere refusal of the interventors to repay funds followed by a failure to prove that interventors "were not acting within the scope of their authority as agents of the Cuban government" satisfied respondents' burden of establishing their act of state defense. 485 F. 2d, at 1371. Nor do we consider heavily relied upon by the Court of Appeals, to require a contrary conclusion.[10] In that case and in and it was apparently concluded that the facts were sufficient to demonstrate that the conduct in question was the public act of those with authority to exercise sovereign powers and was entitled to respect in our courts. We draw no such conclusion from the facts of the case before us now. As the District Court found, the only evidence of an act of state other than the act of nonpayment by interventors was "a statement by counsel for the interventors, during trial, that the Cuban Government and the interventors denied liability and had refused to make repayment." But this merely restated respondents' *695 original legal position and adds little, if anything, to the proof of an act of state. No statute, decree, order, or resolution of the Cuban Government itself was offered in evidence indicating that Cuba had repudiated its obligations in general or any class thereof or that it had as a sovereign matter determined to confiscate the amounts due three foreign importers. III If we assume with the Court of Appeals that the Cuban Government itself had purported to exercise sovereign power to confiscate the mistaken payments belonging to three foreign creditors and to repudiate interventors' adjudicated obligation to return those funds, we are nevertheless persuaded by the arguments of petitioner |
Justice White | 1,976 | 6 | majority | Alfred Dunhill of London, Inc. v. Republic of Cuba | https://www.courtlistener.com/opinion/109448/alfred-dunhill-of-london-inc-v-republic-of-cuba/ | funds, we are nevertheless persuaded by the arguments of petitioner and by those of the United States that the concept of an act of state should not be extended to included the repudiation of a purely commercial obligation owed by a foreign sovereign or by one of its commercial instrumentalities. Our cases have not yet gone so far, and we decline to expand their reach to the extent necessary to affirm the Court of Appeals. Distinguishing between the public and governmental acts of sovereign states on the one hand and their private and commercial acts on the other is not a novel approach. As the Court stated through Mr. Chief Justice Marshall long ago in Bank of the United : "It is, we think, a sound principle, that when a government becomes a partner in any trading company, it divests itself, so far as concerns the transactions of that company, of its sovereign character, and takes that of a private citizen. Instead of communicating to the company its privileges and its prerogatives, it descends to a level with those with *696 whom it associates itself, and takes the character which belongs to its associates, and to the business which is to be transacted." Cf. Sloan In this same tradition, South drew a line for purposes of tax immunity between the historically recognized governmental functions of a State and businesses engaged in by a State of the kind which theretofore had been pursued by private enterprise. Similarly, in the Court said: "If a state chooses to go into the business of buying and selling commodities, its right to do so may be conceded so far as the Federal Constitution is concerned; but the exercise of the right is not the performance of a governmental function When a state enters the market place seeking customers it divests itself of its quasi sovereignty pro tanto, and takes on the character of a trader" It is thus a familiar concept that "there is a constitutional line between the State as government and the State as trader" New See also ; ; United It is the position of the United States, stated in an amicus brief filed by the Solicitor General, that such a line should be drawn in defining the outer limits of the act of state concept and that repudiations by a foreign sovereign of its commercial debts should not be considered to be acts of state beyond legal question in our courts. Attached to the brief of the United States and to this opinion as Appendix 1 is the letter of November |
Justice White | 1,976 | 6 | majority | Alfred Dunhill of London, Inc. v. Republic of Cuba | https://www.courtlistener.com/opinion/109448/alfred-dunhill-of-london-inc-v-republic-of-cuba/ | this opinion as Appendix 1 is the letter of November 26, 1975, in which the Department of State, speaking through its Legal Adviser agrees with the brief filed by the Solicitor General and, more specifically, declares that *697 "we do not believe that the Dunhill case raises an act of state question because the case involves an act which is commercial,[11] and not public, in nature."[12] The major underpinning of the act of state doctrine is the policy of foreclosing court adjudications involving the legality of acts of foreign states on their own soil that might embarrass the Executive Branch of our Government in the conduct of our foreign relations. Banco Nacional de -428, 431-433. But based on the presently expressed views of those who conduct our relations with foreign countries, we are in no sense compelled to recognize as *698 an act of state the purely commercial conduct of foreign governments in order to avoid embarrassing conflicts with the Executive Branch. On the contrary, for the reasons to which we now turn, we fear that embarrassment and conflict would more likely ensue if we were to require that the repudiation of a foreign government's debts arising from its operation of a purely commercial business be recognized as an act of state and immunized from question in our courts. Although it had other views in years gone by, in 1952, as evidenced by Appendix 2 (the Tate letter) attached to this opinion, the United States abandoned the absolute theory of sovereign immunity and embraced the restrictive view under which immunity in our courts should be granted only with respect to causes of action arising out of a foreign state's public or governmental actions and not with respect to those arising out of its commercial or proprietary actions. This has been the official policy of our Government since that time as the attached letter of November 26, 1975, confirms: "Moreover, since 1952, the Department of State has adhered to the position that the commercial and private activities of foreign states do not give rise to sovereign immunity. Implicit in this position is a determination that adjudications of commercial liability against foreign states do not impede the conduct of foreign relations, and that such adjudications are consistent with international law on sovereign immunity." Repudiation of a commercial debt cannot, consistent with this restrictive approach to sovereign immunity, be treated as an act of state; for if it were, foreign governments, *699 by merely repudiating the debt before or after its adjudication, would enjoy an immunity which our Government would not extend them |
Justice White | 1,976 | 6 | majority | Alfred Dunhill of London, Inc. v. Republic of Cuba | https://www.courtlistener.com/opinion/109448/alfred-dunhill-of-london-inc-v-republic-of-cuba/ | enjoy an immunity which our Government would not extend them under prevailing sovereign immunity principles in this country. This would undermine the policy supporting the restrictive view of immunity, which is to assure those engaging in commercial transactions with foreign sovereignties that their rights will be determined in the courts whenever possible. Although at one time this Court ordered sovereign immunity extended to a commercial vessel of a foreign country absent a suggestion of immunity from the Executive Branch and although the policy of the United States with respect to its own merchant ships was then otherwise, Berizzi Bros. the authority of that case has been severely diminished by later cases such as Ex parte and In the latter case the Court unanimously denied immunity to a commercial ship owned but not possessed by the Mexican Government. The decision rested on the fact that the Mexican Government was not in possession, but the Court declared, at 35-36: "Every judicial action exercising or relinquishing jurisdiction over the vessel of a foreign government has its effect upon our relations with that government. Hence it is a guiding principle in determining whether a court should exercise or surrender its jurisdiction in such cases, that the courts should not so act as to embarrass the executive arm in its conduct of foreign affairs. `In such cases the judicial department of this government follows the action of the political branch, and will not embarrass the latter by assuming an antagonistic jurisdiction.' United States v. ; Ex parte "It is therefore not for the courts to deny an *700 immunity which our government has seen fit to allow, or to allow an immunity on new grounds which the government has not seen fit to recognize. The judicial seizure of the property of a friendly state may be regarded as such an affront to its dignity and may so affect our relations with it, that it is an accepted rule of substantive law governing the exercise of the jurisdiction of the courts that they accept and follow the executive determination that the vessel shall be treated as immune. Ex parte But recognition by the courts of an immunity upon principles which the political department of government has not sanctioned may be equally embarrassing to it in securing the protection of our national interests and their recognition by other nations." (Footnote omitted.) In a footnote the Court expressly questioned the Berizzi Bros. holding,[13] and two concurring Justices asserted that the Court had effectively overruled that case.[14] *701 Since that time, as we have said, the United States has |
Justice White | 1,976 | 6 | majority | Alfred Dunhill of London, Inc. v. Republic of Cuba | https://www.courtlistener.com/opinion/109448/alfred-dunhill-of-london-inc-v-republic-of-cuba/ | that time, as we have said, the United States has adopted and adhered to the policy declining to extend sovereign immunity to the commercial dealings of *702 foreign governments. It has based that policy in part on the fact that this approach has been accepted by a large and increasing number of foreign states in the international community;[15] in part on the fact that the United States had already adopted a policy of consenting to be sued in foreign courts in connection with suits against its merchant vessels; and in part because the enormous increase in the extent to which foreign sovereigns had become involved in international trade made essential "a practice which will enable persons doing business with them to have their rights determined in the courts." Appendix 2 to this opinion, infra, at 714. In the last 20 years, lower courts have concluded, in *703 light of this Court's decisions in Ex parte and and from the Tate letter and the changed international environment, that Berizzi Bros. no longer correctly states the law; and they have declined to extend sovereign immunity to foreign sovereigns in cases arising out of purely commercial transactions. Victory Transport, v. Comisaria General, cert. denied, ; Petrol Shipping (CA2), cert. denied, ; Premier S. S. ; Ocean Transport ; ADM Milling Co. v. Republic of Bolivia, Civ. Action No. 75-946 (DC Aug. 8, 1975); Et Ve Balik ; Harris & Co. Advtg., v. Republic of Cuba, Indeed, it is fair to say that the "restrictive theory" of sovereign immunity appears to be generally accepted as the prevailing law in this country. ALI, Restatement (Second), Foreign Relations Law of the United States, 69 Participation by foreign sovereigns in the international commercial market has increased substantially in recent years. Cf. International Economic Report of the President 56 (1975). The potential injury to private businessmen and ultimately to international trade itself from a system in which some of the participants in the international market are not subject to the rule of law has therefore increased correspondingly. As noted above, courts of other countries have also recently adopted the restrictive theory of sovereign immunity. Of equal importance is the fact that subjecting foreign governments to the rule of law in their commercial dealings presents a much smaller risk of affronting their sovereignty than *704 would an attempt to pass on the legality of their governmental acts.[16] In their commercial capacities, foreign governments do not exercise powers peculiar to sovereigns. Instead, they exercise only those powers that can also be exercised by private citizens. Subjecting them in connection with |
Justice White | 1,976 | 6 | majority | Alfred Dunhill of London, Inc. v. Republic of Cuba | https://www.courtlistener.com/opinion/109448/alfred-dunhill-of-london-inc-v-republic-of-cuba/ | be exercised by private citizens. Subjecting them in connection with such acts to the same rules of law that apply to private citizens is unlikely to touch very sharply on "national nerves." Moreover, as this Court has noted: "[T]he greater the degree of codification or consensus concerning a particular area of international law, the more appropriate it is for the judiciary to render decisions regarding it, since the courts can then focus on the application of an agreed principle to circumstances of fact rather than on the sensitive task of establishing a principle not inconsistent with the national interest or with international justice." Banco Nacional de See also at 430 n. 34. There may be little codification or consensus as to the rules of international law concerning exercises of governmental powers, including military powers and expropriations, within a sovereign state's borders affecting the property or persons of aliens. However, more discernible rules of international law have emerged with regard to the commercial dealings of private parties in the international market.[17] The restrictive *705 approach to sovereign immunity suggests that these established rules should be applied to the commercial transactions of sovereign states. Of course, sovereign immunity has not been pleaded in this case; but it is beyond cavil that part of the foreign relations law recognized by the United States is that the commercial obligations of a foreign government may be adjudicated in those courts otherwise having jurisdiction to enter such judgments. Nothing in our national policy calls on us to recognize as an act of state a repudiation by Cuba of an obligation adjudicated in our courts and arising out of the operation of a commercial business by one of its instrumentalities. For all the reasons which led the Executive Branch to adopt the restrictive theory of sovereign immunity, we hold that the mere assertion of sovereignty as a defense to a claim arising out of purely commercial acts by a foreign sovereign is no more effective if given the label "Act of State" than if it is given the label "sovereign immunity."[18]*706 In describing the act of state doctrine in the past we have said that it "precludes the courts of this country from inquiring into the validity of the public acts a recognized foreign sovereign power committed within its own territory." Banco Nacional de and that it applies to "acts done within their own States, in the exercise of governmental authority." We decline to extend the act of state doctrine to acts committed by foreign sovereigns in the course of their purely commercial operations. Because the act |
Justice White | 1,976 | 6 | majority | Alfred Dunhill of London, Inc. v. Republic of Cuba | https://www.courtlistener.com/opinion/109448/alfred-dunhill-of-london-inc-v-republic-of-cuba/ | the course of their purely commercial operations. Because the act relied on by respondents in this case was an act arising out of the conduct by Cuba's agents in the operation of cigar businesses for profit, the act was not an act of state. Reversed. APPENDIX 1 TO OPINION OF THE COURT THE LEGAL ADVISER, DEPARTMENT OF STATE, Washington, November 26, 1975. DEAR MR. SOLICITOR GENERAL: In the case of Alfred Dunhill of London, v. The *707 Republic of Cuba, which is before the Supreme Court on petition for a writ of certiorari, No. 73-1288, the Court has requested the parties to discuss whether its holding in Banco Nacional de should be reconsidered. The Department of State believes that the question of whether the case should be reconsidered involves matters of importance to the foreign policy interests of the United States and requests that its views be conveyed to the Supreme Court. The views expressed herein are in addition to the arguments presented in the brief amicus curiae which the United States is filing in the Dunhill case. As urged in that brief, we do not believe that the Dunhill case raises an act of state question because the case involves an act which is commercial, and not public, in nature. Moreover, since 1952, the Department of State has adhered to the position that the commercial and private activities of foreign states do not give rise to sovereign immunity. Implicit in this position is a determination that adjudications of commercial liability against foreign states do not impede the conduct of foreign relations, and that such adjudications are consistent with international law on sovereign immunity. In the event, however, that the Court reaches the question whether the holding should be reconsidered, we believe that the following considerations should be called to the Court's attention: Since was decided in the Department of State has on two occasions expressed to courts in the United States its views concerning act of state adjudications. First, in the case itself, on remand, the Executive Branch declined to make a determination under the Hickenlooper Amendment, 22 U.S. C. 2370 (e) (2), "that application of the act of state doctrine is required in this case by the foreign policy *708 interests of the United States." Banco Nacional de (S. D. N. Y.), aff'd, (C. A. 2), certiorari denied, Having taken note of the Executive Branch's position, the district court in Farr applied the Hicken-looper Amendment and held that a Cuban decree of confiscation violated customary international Second, in First National City the Department of State informed the Supreme |
Justice White | 1,976 | 6 | majority | Alfred Dunhill of London, Inc. v. Republic of Cuba | https://www.courtlistener.com/opinion/109448/alfred-dunhill-of-london-inc-v-republic-of-cuba/ | First National City the Department of State informed the Supreme Court that general foreign relations considerations did not require application of the act of state doctrine to bar adjudication of a counterclaim when the foreign state's claim arises from a relationship between the parties existing when the act of state occurred, and when the amount of relief to be granted is limited to the amount of the foreign state's claim.[1] Relying on the precedent of Bernstein v. N. V. Nederlandsche Amerikaanshe, Etc., (C. A. 2), where the Department had advised that the act of state doctrine need not apply to a class of cases involving Nazi confiscations, the Department in First National City Bank concluded that the act of state doctrine need not be applied "in this or like cases." *709 Significantly, the Farr, Bernstein and First National City Bank cases each involved an Executive Branch determination which opened the way for U. S. courts to review an act of state on the merits under international In each of these cases, the claim or counterclaim in question alleged that an act of state violated customary international Thus, at least on a case-by-case basis, the trend in Executive Branch pronouncements has been that foreign relations considerations do not require application of the act of state doctrine to bar adjudications under international This trend is mirrored in other countries. Apart from the cases cited by Mr. Justice White in n. 1, there have been several recent decisions where foreign courts have reviewed state acts under international [2] English law, from *710 which our act of state doctrine derives, does not require British courts to abstain from reviewing state acts under international [3] As far as can be determined, this exercise of the judicial function in foreign jurisdictions has not caused serious foreign relations consequences for the countries concerned. The present case is similar to Bernstein, Farr and First National City Bank. This Department is of the opinion that there would be no embarrassment to the conduct of foreign policy if the Court should decide in this case to adjudicate the legality of any act of state found to have taken place and to make such adjudication in accordance with any principle of international law found to be relevant. In general this Department's experience provides little support for a presumption that adjudication of acts of foreign states in accordance with relevant principles of international law would embarrass the conduct of foreign policy. Thus, it is our view that if the Court should decide to overrule the holding in so that acts of state |
Justice White | 1,976 | 6 | majority | Alfred Dunhill of London, Inc. v. Republic of Cuba | https://www.courtlistener.com/opinion/109448/alfred-dunhill-of-london-inc-v-republic-of-cuba/ | to overrule the holding in so that acts of state would thereafter be subject to adjudication in American courts under international law, we would not anticipate embarrassment *711 to the conduct of the foreign policy of the United States. Sincerely, MONROE LEIGH. APPENDIX 2 TO OPINION OF THE COURT[*] May 19, 1952. MY DEAR MR. ATTORNEY GENERAL: The Department of State has for some time had under consideration the question whether the practice of the Government in granting immunity from suit to foreign governments made parties defendant in the courts of the United States without their consent should not be changed. The Department has now reached the conclusion that such immunity should no longer be granted in certain types of cases. In view of the obvious interest of your Department in this matter I should like to point out briefly some of the facts which influenced the Department's decision. A study of the law of sovereign immunity reveals the existence of two conflicting concepts of sovereign immunity, each widely held and firmly established. According to the classical or absolute theory of sovereign immunity, a sovereign cannot, without his consent, be made a respondent in the courts of another sovereign. According to the newer or restrictive theory of sovereign immunity, the immunity of the sovereign is recognized with regard to sovereign or public acts (jure imperii) of a state, but not with respect to private acts (jure gestionis). There is agreement by proponents of both theories, supported by practice, that sovereign immunity should not be claimed or granted in actions with respect to real property (diplomatic and perhaps consular property excepted) or with respect to the disposition of the *712 property of a deceased person even though a foreign sovereign is the beneficiary. The classical or virtually absolute theory of sovereign immunity has generally been followed by the courts of the United States, the British Commonwealth, Czechoslovakia, Estonia, and probably Poland. The decisions of the courts of Brazil, Chile, China, Hungary, Japan, Luxembourg, Norway, and Portugal may be deemed to support the classical theory of immunity if one or at most two old decisions anterior to the development of the restrictive theory may be considered sufficient on which to base a conclusion. The position of the Netherlands, Sweden, and Argentina is less clear since although immunity has been granted in recent cases coming before the courts of those countries, the facts were such that immunity would have been granted under either the absolute or restrictive theory. However, constant references by the courts of these three countries to the distinction between public |
Justice White | 1,976 | 6 | majority | Alfred Dunhill of London, Inc. v. Republic of Cuba | https://www.courtlistener.com/opinion/109448/alfred-dunhill-of-london-inc-v-republic-of-cuba/ | courts of these three countries to the distinction between public and private acts of the state, even though the distinction was not involved in the result of the case, may indicate an intention to leave the way open for a possible application of the restrictive theory of immunity if and when the occasion presents itself. A trend to the restrictive theory is already evident in the Netherlands where the lower courts have started to apply that theory following a Supreme Court decision to the effect that immunity would have been applicable in the case under consideration under either theory. The German courts, after a period of hesitation at the end of the nineteenth century have held to the classical theory, but it should be noted that the refusal of the Supreme Court in 1921 to yield to pressure by the lower courts for the newer theory was based on the view that that theory had not yet developed sufficiently to justify a change. In view of the growth of the restrictive *713 theory since that time the German courts might take a different view today. The newer or restrictive theory of sovereign immunity has always been supported by the courts of Belgium and Italy. It was adopted in turn by the courts of Egypt and of Switzerland. In addition, the courts of France, Austria, and Greece, which were traditionally supporters of the classical theory, reversed their position in the 20's to embrace the restrictive theory. Rumania, and possibly Denmark also appear to follow this theory. Furthermore, it should be observed that in most of the countries still following the classical theory there is a school of influential writers favoring the restrictive theory and the views of writers, at least in civil law countries, are a major factor in the development of the Moreover, the leanings of the lower courts in civil law countries are more significant in shaping the law than they are in common law countries where the rule of precedent prevails and the trend in these lower courts is to the restrictive theory. Of related interest to this question is the fact that ten of the thirteen countries which have been classified above as supporters of the classical theory have ratified the Brussels Convention of 1926 under which immunity for government owned merchant vessels is waived. In addition the United States, which is not a party to the Convention, some years ago announced and has since followed, a policy of not claiming immunity for its public owned or operated merchant vessels. Keeping in mind the importance played by |
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