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Justice Marshall | 1,981 | 15 | majority | Hodel v. Virginia Surface Mining & Reclamation Assn., Inc. | https://www.courtlistener.com/opinion/110516/hodel-v-virginia-surface-mining-reclamation-assn-inc/ | Court's ruling that the Act contravenes other constitutional limits on congressional action. IV The District Court held that two of the Act's provisions violate the Just Compensation Clause of the Fifth Amendment. First, the court found that the steep-slope provisions discussed above effect an uncompensated taking of private property by requiring operators to perform the "economically and physically impossible" task of restoring steep-slope surface mines to their approximate original contour. 483 F. Supp., at 4.[35] The court further held that, even if steep-slope surface mines could be restored to their approximate original contour, the value of the mined land after such restoration would have "been diminished to practically nothing." *294 Second, the court found that 522 of the Act effects an unconstitutional taking because it expressly prohibits mining in certain locations and "clearly prevent[s] a person from mining his own land or having it mined."[36] Relying on this Court's decision in Pennsylvania Coal v. Mahon, (22), the District Court held that both of these provisions are unconstitutional because they "depriv[e] [coal mine operators] of any use of [their] land, not only the most profitable" 483 F. Supp., We conclude that the District Court's ruling on the "taking" issue suffers from a fatal deficiency: neither appellees nor the court identified any property in which appellees have an interest that has allegedly been taken by operation of the Act. By proceeding in this fashion, the court below ignored this Court's oft-repeated admonition that the constitutionality of statutes ought not be decided except in an actual *295 factual setting that makes such a decision necessary. See Socialist Labor (72); Rescue (47); Alabama State Federation of (45). Adherence to this rule is particularly important in cases raising allegations of an unconstitutional taking of private property. Just last Term, we reaffirmed that "this Court has generally `been unable to develop any "set formula" for determining when "justice and fairness" require that economic injuries caused by public action be compensated by the government, rather than remain disproportionately concentrated on a few persons.' Rather, it has examined the `taking' question by engaging in essentially ad hoc, factual inquiries that have identified several factorssuch as the economic impact of the regulation, its interference with reasonable investment backed expectations, and the character of the government actionthat have particular significance." Kaiser Aetna v. United (79) These "ad hoc, factual inquires" must be conducted with respect to specific property, and the particular estimates of economic impact and ultimate valuation relevant in the unique circumstances. Because appellees' taking claim arose in the context of a facial challenge, it presented no concrete controversy |
Justice Marshall | 1,981 | 15 | majority | Hodel v. Virginia Surface Mining & Reclamation Assn., Inc. | https://www.courtlistener.com/opinion/110516/hodel-v-virginia-surface-mining-reclamation-assn-inc/ | context of a facial challenge, it presented no concrete controversy concerning either application of the Act to particular surface mining operations or its effect on specific parcels of land. Thus, the only issue properly before the District Court and, in turn, this Court, is whether the "mere enactment" of the Surface Mining Act constitutes a taking. See The test to be applied in considering this facial challenge is fairly straightforward. A *296 statue regulating the uses that can be made of property effects a taking if it "denies an owner economically viable use of his land" at See Penn Central Transp. v. New York City, (78). The Surface Mining Act easily survives scrutiny under this test. First, the Act does not, on its face, prevent beneficial use of coal-bearing lands. Except for the proscription of mining near certain locations by 522 (e), the Act does not categorically prohibit surface coal mining; it merely regulates the conditions under which such operations may be conducted.[] The Act does not purport to regulate alternative uses to which coal-bearing lands may be put.[38] Thus, in the posture in *297 which these cases come before us, there is no reason to suppose that "mere enactment" of the Surface Mining Act has deprived appellees of economically viable use of their property. Moreover, appellees cannot at this juncture legitimately raise complaints in this Court about the manner in which the challenged provisions of the Act have been or will be applied in specific circumstances, or about their effect on particular coal mining operations. There is no indication in the record that appellees have availed themselves of the opportunities provided by the Act to obtain administrative relief by requesting either a variance from the approximate-original-contour requirement of 515 (d) or a waiver from the surface mining restrictions in 522 (e). If appellees were to seek administrative relief under these procedures, a mutually acceptable solution might well be reached with regard to individual properties, thereby obviating any need to address the constitutional questions.[39] The potential for such administrative solutions confirms the conclusion that the taking issue decided by the District Court simply is not ripe for judicial resolution.[40] *298 V A The District Court next ruled that the Act contravenes the Fifth Amendment because a number of its enforcement provisions offend the Amendment's Due Process Clause. One such provision is 521 (a) (2), 30 U.S. C. 1271 (a) (2) (76 ed., Supp. III), which instructs the Secretary immediately to order total or partial cessation of a surface mining operation whenever he determines, on the basis of a federal inspection, |
Justice Marshall | 1,981 | 15 | majority | Hodel v. Virginia Surface Mining & Reclamation Assn., Inc. | https://www.courtlistener.com/opinion/110516/hodel-v-virginia-surface-mining-reclamation-assn-inc/ | whenever he determines, on the basis of a federal inspection, that the operation is in violation of the Act or a permit condition required by the Act and that the operation "creates an immediate danger to the health or safety of the public, or is causing, or can reasonably be expected to cause significant, imminent environmental harm to land, air, or water resources"[41] A mine operator aggrieved by an immediate cessation order issued under 521 (a) (2) or by a cessation order issued after a notice of violation and expiration of an abatement period under 521 (a) (3) may immediately request temporary relief from the Secretary, and the Secretary must respond to the request within five days of its receipt. 525 (c), 30 U.S. C. 1275 (76 ed., Supp. III). Section 526 (c) of the Act, 30 U.S. C. 1276 (c) (76 ed., Supp. III), authorizes judicial review of a decision by the Secretary denying temporary relief. In addition, cessation orders are subject to informal administrative review under 521 (a) (5), and formal administrative review, including an adjudicatory hearing, under 525 (b), 30 U.S. C. 1275 (b) (76 ed., Supp. *299 III).[42] The Secretary's decision in the formal review proceeding is subject to judicial review pursuant to 526 (a) (2), 30 U.S. C. 1276 (a) (2) (76 ed., Supp. III). The District Court held that 521 (a) (2)'s authorization of immediate cessation orders violates the Fifth Amendment because the statute does not provide sufficiently objective criteria for summary administrative action. In this regard, the court relied on its finding that OSM inspectors had issued against a particular company three immediate cessation orders which were later overturned on appeal, and that the company involved had suffered significant losses. The court enjoined the Secretary from issuing any immediate cessation orders "until such time as Congress makes provisions to correct the use of subjective criteria by OSM inspectors."[43] In addition, the court ruled that even if the Act is amended to correct this problem, the 5-day response period prescribed by the Act does not meet the requirements of due process. Instead, the court held that the Secretary must respond within 24 hours to a mine operator's request for temporary relief from an immediate cessation order. We find both aspects of the District Court's reasoning unpersuasive. Our cases have indicated that due process ordinarily requires an opportunity for "some kind of hearing" prior to the deprivation of a significant property interest. See (81); 401 U.S. 1, 9 (71). The Court has often acknowledged *300 however, that summary administrative action may be justified in emergency |
Justice Marshall | 1,981 | 15 | majority | Hodel v. Virginia Surface Mining & Reclamation Assn., Inc. | https://www.courtlistener.com/opinion/110516/hodel-v-virginia-surface-mining-reclamation-assn-inc/ | however, that summary administrative action may be justified in emergency situations. See, e. g., Calero-Toledo v. Pearson Yacht Leasing (74); at 8-9; (50); (47); Yakus v. United (44); 5-520 (44); (31); North American Cold Storage v. (08). The question then, is whether the issuance of immediate cessation orders under 521 (a) falls under this emergency situation exception to the normal rule that due process requires a hearing prior to deprivation of a property right. We believe that it does. The immediate cessation order provisions reflect Congress' concern about the devastating damage that may result from mining disasters.[44] They represent an attempt to reach an accommodation between the legitimate desire of mining companies to be heard before submitting to administrative regulation and the governmental interest in protecting the public health and safety and the environment from imminent danger. Protection of the health and safety of the public is a paramount governmental interest which justifies summary administrative action. Indeed, deprivation of property to protect the public health and safety is "[o]ne of the oldest examples" of permissible summary action. See (79); ; North American Cold Storage v. Moreover, the administrative action provided through immediate cessation orders responds to situations in which swift action is necessary to protect the public health and safety. This is precisely the type of emergency situation in which this Court has found summary administrative action justified. See North American Cold Storage v. Rather than taking issue with any of these principles, the District Court held that the Act does not establish sufficiently objective criteria governing the issuance of summary cessation orders. We disagree. In our judgment, the criteria established by the Act and the Secretary's implementing regulations are specific enough to control governmental action and reduce the risk of erroneous deprivation. Section 701 (8) of the Act, 30 U.S. C. 1291 (8) (76 ed., Supp. III), defines the threat of "imminent danger to the health and safety of the public" as the existence of a condition or practice which could "[r]easonably be expected to cause substantial physical harm to persons outside the permit area before such condition, practice, or violation can be abated. A reasonable expectation of death or serious injury before abatement exists if a rational person, subjected to the same conditions or practices giving rise to the peril, would not expose himself or herself to the danger during the time necessary for abatement."[45] *302 If anything, these standards are more specific than the criteria in other statutes authorizing summary administrative action that have been upheld against due process challenges. See, e. g., ; ; Air East, |
Justice Marshall | 1,981 | 15 | majority | Hodel v. Virginia Surface Mining & Reclamation Assn., Inc. | https://www.courtlistener.com/opinion/110516/hodel-v-virginia-surface-mining-reclamation-assn-inc/ | due process challenges. See, e. g., ; ; Air East, v. National Transportation Safety Board, (CA3) ("`emergency requiring immediate action in respect to air safety in commerce' "), cert. denied, (75). The fact that OSM inspectors have issued immediate cessation orders that were later overturned on administrative appeal does not undermine the adequacy of the Act's criteria but instead demonstrates the efficacy of the review procedures. The relevant inquiry is not whether a cessation order should have been issued in a particular case, but whether the statutory procedure itself is incapable of affording due process. Yakus v. United -435. The possibility of administrative error inheres in any regulatory program; statutory programs authorizing emergency administrative action prior to a hearing are no exception.[46] As we *303 explained in 339 U. S., : "Discretion of any official action may be abused. Yet it is not a requirement of due process that there be judicial inquiry before discretion can be exercised. It is sufficient, where only property rights are concerned, that there is at some stage an opportunity for a hearing and a judicial determination." Here, mine operators are afforded prompt and adequate postdeprivation administrative hearings and an opportunity for judicial review. We are satisfied that the Act's immediate cessation order provisions comport with the requirements of due process. We also conclude that the District Court erred in reducing the statutorily prescribed time period for the Secretary's response to requests for temporary relief. In the first place, the 5-day period is a statutory maximum and there is no indication in the record that the Secretary has not responded or will not respond in less than five days. Second, appellees have not demonstrated that they have been adversely affected by the 5-day response period in a particular case or that it is generally unreasonable. In addition, no evidence was introduced to show that a shorter reply period is administratively feasible. In these circumstances, there simply is no basis for the District Court's decision to substitute a judicial policy preference for the scheme adopted by Congress. Cf. Vermont Yankee Nuclear v. Natural Resources Defense Council, 435 U.S. 5 (78). Accordingly, we turn to the District Court's holding that other sections of the Act violate the Fifth Amendment's Due Process Clause. B The District Court ruled that the Act's civil penalty provisions do not comport with the requirements of due process. Under these provisions, the Secretary is to notify the recipient of a notice of violation or a cessation order of the proposed *304 amount of any civil penalty that is to be assessed against it. |
Justice Marshall | 1,981 | 15 | majority | Hodel v. Virginia Surface Mining & Reclamation Assn., Inc. | https://www.courtlistener.com/opinion/110516/hodel-v-virginia-surface-mining-reclamation-assn-inc/ | any civil penalty that is to be assessed against it. 518 (c), 30 U.S. C. 1268 (c) (76 ed., Supp. III). Section 518 (c) further states that, if the operator "wishes to contest either the amount of the penalty or the fact of the violation," it must "forward the proposed amount to the Secretary for placement in an escrow account."[47] Once the escrow requirement is met, the operator receives a full adjudicatory hearing before an administrative law judge, with a right of appeal to an administrative board and judicial review of the final decision. See 30 U.S. C. 1276 (a) (2) (76 ed., Supp. III). If, after administrative or judicial review, it is determined that no violation occurred or that the view, it is determined that no violation occurred or that the amount of the proposed penalty should be reduced, the appropriate amount must promptly be refunded to the operator with interest. 30 U.S. C. 1268 (c) (76 ed., Supp. III). In challenging the Act's civil penalty provisions appellees did not allege that they, or any one of them, have had civil penalties assessed against them. Moreover, the District Court did not find, as it did in ruling on the immediate cessation order provisions, that any of appellee coal mine operators have been affected or harmed by any of the statutory procedures for the assessment and collection of fines. Thus, the record in these cases belies any suggestion that there is a concrete case or controversy concerning the operation of these provisions. In these circumstances, we must conclude that appellees' challenge is premature, and that it was improper for the court below to render a decision on this claim. VI Our examination of appellees' constitutional challenges to the Surface Mining Act persuades us that the Act is not *305 vulnerable to their pre-enforcement challenge. Accordingly, we affirm the judgment of the District Court upholding the Act against appellees' Commerce Clause attack (No. 79-1596), and we reverse the judgment below insofar as it held various provisions of the Act unconstitutional (No. 79-1538). The cases are remanded to the District Court with instructions to dissolve the injunction issued against the Secretary, and for further proceedings consistent with this opinion. So ordered. THE CHIEF JUSTICE, concurring.[*] I agree largely with what JUSTICE REHNQUIST has said about the "fictions" concerning delegation, and the gradual case-by-case expansion of the reach of the Commerce Clause. I agree fully with his view that we often seem to forget the doctrine that laws enacted by Congress under the Commerce Clause must be based on a substantial effect on |
Justice Kennedy | 2,003 | 4 | majority | Dole Food Co. v. Patrickson | https://www.courtlistener.com/opinion/127913/dole-food-co-v-patrickson/ | Foreign states may invoke certain rights and immunities in litigation under the Foreign Sovereign Immunities Act of *471 1976 (FSIA or Act), Stat. 2891. Some of the Act's provisions also may be invoked by a corporate entity that is an "instrumentality" of a foreign state as defined by the Act. Republic of ; B. V. v. Central of Nigeria, The corporate entities in this action claim instrumentality status to invoke the Act's provisions allowing removal of state-court actions to federal court. As the action comes to us, it presents two questions. The first is whether a corporate subsidiary can claim instrumentality status where the foreign state does not own a majority of its shares but does own a majority of the shares of a corporate parent one or more tiers above the subsidiary. The second question is whether a corporation's instrumentality status is defined as of the time an alleged tort or other actionable wrong occurred or, on the other hand, at the time suit is filed. We granted certiorari, I The underlying action was filed in a state court in Hawaii in 1997 against Dole Food Company and other companies (Dole petitioners). Plaintiffs in the action were a group of farm workers from Costa Rica, Ecuador, Guatemala, and Panama who alleged injury from exposure to dibromochloropropane, a chemical used as an agricultural pesticide in their home countries. The Dole petitioners impleaded petitioners Dead Sea Bromine Co., Ltd., and Bromine Compounds, Ltd. (collectively, the Dead Sea Companies). The merits of the suit are not before us. The Dole petitioners removed the action to the United States District Court for the District of Hawaii under 28 U.S. C. 1441(a), arguing that the federal common law of foreign relations provided federal-question jurisdiction under 1331. The District Court agreed there was federal subject-matter jurisdiction under the federal common law of *472 foreign relations but, nevertheless, dismissed the case on grounds of forum non conveniens. The Dead Sea Companies removed under a separate theory. They claimed to be instrumentalities of a foreign state as defined by the FSIA, entitling them to removal under 1441(d). The District Court held that the Dead Sea Companies are not instrumentalities of a foreign state for purposes of the FSIA and are not entitled to removal on that basis. Civ. No. 97-01516HG App. to Pet. for Cert. in No. 01-594, p. 79a. The Court of Appeals reversed. Addressing the ground relied on by the Dole petitioners, it held removal could not rest on the federal common law of foreign relations. In this Court the Dole petitioners did not seek |
Justice Kennedy | 2,003 | 4 | majority | Dole Food Co. v. Patrickson | https://www.courtlistener.com/opinion/127913/dole-food-co-v-patrickson/ | relations. In this Court the Dole petitioners did not seek review of that portion of the Court of Appeals' ruling, and we do not address it. Accordingly, the writ of certiorari in No. 01-593 is dismissed. The Court of Appeals also reversed the order allowing removal at the instance of the Dead Sea Companies, who alleged they were instrumentalities of the State of Israel. The Court of Appeals noted, but declined to answer, the question whether status as an instrumentality of a foreign state is assessed at the time of the alleged wrongdoing or at the time suit is filed. It went on to hold that the Dead Sea Companies, even at the earlier date, were not instrumentalities of Israel because they did not meet the Act's definition of instrumentality. In order to prevail here, the Dead Sea Companies must show both that instrumentality status is determined as of the time the alleged tort occurred and that they can claim instrumentality status even though they were but subsidiaries of a parent owned by the State of Israel. We address each question in turn. In No. 01-594, the case in which the Dead Sea Companies are petitioners, we now affirm. *473 II A Title 28 U.S. C. 1441(d) governs removal of actions against foreign states. It provides that "[a]ny civil action brought in a State court against a foreign state as defined in [28 U.S. C. 1603(a)] may be removed by the foreign state to the district court of the United States for the district and division embracing the place where such action is pending." See also 1330 (governing original jurisdiction). Section 1603(a), part of the FSIA, defines "foreign state" to include an "agency or instrumentality of a foreign state." "[A]gency or instrumentality of a foreign state" is defined, in turn, as: "[A]ny entity "(1) which is a separate legal person, corporate or otherwise, and "(2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and "(3) which is neither a citizen of a State of the United States nor created under the laws of any third country." 1603(b). B The Court of Appeals resolved the question of the FSIA's applicability by holding that a subsidiary of an instrumentality is not itself entitled to instrumentality status. Its holding was correct. The State of Israel did not have direct ownership of shares in either of the Dead Sea Companies at any time pertinent to this suit. Rather, these |
Justice Kennedy | 2,003 | 4 | majority | Dole Food Co. v. Patrickson | https://www.courtlistener.com/opinion/127913/dole-food-co-v-patrickson/ | Companies at any time pertinent to this suit. Rather, these companies were, at various times, separated from the State of Israel by one or more intermediate corporate tiers. For example, from 1984-1985, Israel wholly owned a company called Israeli Chemicals, Ltd.; which owned a majority of shares in another company called *474 Dead Sea Works, Ltd.; which owned a majority of shares in Dead Sea Bromine Co., Ltd.; which owned a majority of shares in Bromine Compounds, Ltd. The Dead Sea Companies, as indirect subsidiaries of the State of Israel, were not instrumentalities of Israel under the FSIA at any time. Those companies cannot come within the statutory language which grants status as an instrumentality of a foreign state to an entity a "majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof." 1603(b)(2). We hold that only direct ownership of a majority of shares by the foreign state satisfies the statutory requirement. Section 1603(b)(2) speaks of ownership. The Dead Sea Companies urge us to ignore corporate formalities and use the colloquial sense of that term. They ask whether, in common parlance, Israel would be said to own the Dead Sea Companies. We reject this analysis. In issues of corporate law structure often matters. It is evident from the Act's text that Congress was aware of settled principles of corporate law and legislated within that context. The language of 1603(b)(2) refers to ownership of "shares," showing that Congress intended statutory coverage to turn on formal corporate ownership. Likewise, 1603(b)(1), another component of the definition of instrumentality, refers to a "separate legal person, corporate or otherwise." In light of these indicia that Congress had corporate formalities in mind, we assess whether Israel owned shares in the Dead Sea Companies as a matter of corporate law, irrespective of whether Israel could be said to have owned the Dead Sea Companies in everyday parlance. A basic tenet of American corporate law is that the corporation and its shareholders are distinct entities. See, e. g., First Nat. City 462 U.S. ; An individual shareholder, by virtue of his ownership of shares, does not own the corporation's assets and, as a result, does not own subsidiary corporations in which the corporation holds an interest. See 1 W. Cyclopedia of the Law of Private Corporations 31 (rev. ed. 1999). A corporate parent which owns the shares of a subsidiary does not, for that reason alone, own or have legal title to the assets of the subsidiary; and, it follows with even greater force, the parent does not own |
Justice Kennedy | 2,003 | 4 | majority | Dole Food Co. v. Patrickson | https://www.courtlistener.com/opinion/127913/dole-food-co-v-patrickson/ | follows with even greater force, the parent does not own or have legal title to the subsidiaries of the subsidiary. See 31, at 514 ("The properties of two corporations are distinct, though the same shareholders own or control both. A holding corporation does not own the subsidiary's property"). The fact that the shareholder is a foreign state does not change the analysis. See First Nat. City Applying these principles, it follows that Israel did not own a majority of shares in the Dead Sea Companies. The State of Israel owned a majority of shares, at various times, in companies one or more corporate tiers above the Dead Sea Companies, but at no time did Israel own a majority of shares in the Dead Sea Companies. Those companies were subsidiaries of other corporations. The veil separating corporations and their shareholders may be pierced in some circumstances, and the Dead Sea Companies essentially urge us to interpret the FSIA as piercing the veil in all cases. The doctrine of piercing the corporate veil, however, is the rare exception, applied in the case of fraud or certain other exceptional circumstances, see, e. g., ; 41 to 41.20, and usually determined on a case-by-case basis. The Dead Sea Companies have referred us to no authority for extending the doctrine so far that, as a categorical matter, all subsidiaries *476 are deemed to be the same as the parent The text of the FSIA gives no indication that Congress intended us to depart from the general rules regarding corporate formalities. Where Congress intends to refer to ownership in other than the formal sense, it knows how to do so. Various federal statutes refer to "direct and indirect ownership." See, e.g., 5 U.S. C. 8477(a)(4)(G)(iii) (referring to an interest "owned directly or indirectly"); 12 U.S. C. 84(c)(5) (referring to "any corporation wholly owned directly or indirectly by the United States"); 15 U.S. C. 79b(a)(8)(A) (referring to securities "which are directly or indirectly owned, controlled, or held with power to vote"); 1802(3) ("The term `newspaper owner' means any person who owns or controls directly, or indirectly through separate or subsidiary corporations, one or more newspaper publications"). The absence of this language in 28 U.S. C. 1603(b) instructs us that Congress did not intend to disregard structural ownership rules. The FSIA's definition of instrumentality refers to a foreign state's majority ownership of "shares or other ownership interest." 1603(b)(2). The Dead Sea Companies would have us read "other ownership interest" to include a state's "interest" in its instrumentality's subsidiary. The better reading of the text, in our view, does |
Justice Kennedy | 2,003 | 4 | majority | Dole Food Co. v. Patrickson | https://www.courtlistener.com/opinion/127913/dole-food-co-v-patrickson/ | The better reading of the text, in our view, does not support this argument. The words "other ownership interest," when following the word "shares," should be interpreted to refer to a type of interest other than ownership of stock. The statute had to be written for the contingency of ownership forms in other countries, or even in this country, that depart from conventional corporate structures. The statutory phrase "other ownership interest" is best understood to accomplish this objective. Reading the term to refer to a state's interest in entities lower on the corporate ladder would make the specific reference to "shares" redundant. Absent a statutory text or structure that requires us to depart from normal rules of construction, we should not construe the statute in *477 a manner that is strained and, at the same time, would render a statutory term superfluous. See ; United The Dead Sea Companies say that the State of Israel exercised considerable control over their operations, notwithstanding Israel's indirect relationship to those companies. They appear to think that, in determining instrumentality status under the Act, control may be substituted for an ownership interest. Control and ownership, however, are distinct concepts. See, e. g., United The terms of 1603(b)(2) are explicit and straightforward. Majority ownership by a foreign state, not control, is the benchmark of instrumentality status. We need not delve into Israeli law or examine the extent of Israel's involvement in the Dead Sea Companies' operations. Even if Israel exerted the control the Dead Sea Companies describe, that would not give Israel a "majority of [the companies'] shares or other ownership interest." The statutory language will not support a control test that mandates inquiry in every case into the past details of a foreign nation's relation to a corporate entity in which it does not own a majority of the shares. The better rule is the one supported by the statutory text and elementary principles of corporate law. A corporation is an instrumentality of a foreign state under the FSIA only if the foreign state itself owns a majority of the corporation's shares. *478 We now turn to the second question before us, which provides an alternative reason for affirming the Court of Appeals. See C To be entitled to removal under 1441(d), the Dead Sea Companies must show that they are entities "a majority of whose shares or other ownership interest is owned by a foreign state." 1603(b)(2). We think the plain text of this provision, because it is expressed in the present tense, requires that instrumentality status be determined at the time suit |
Justice Kennedy | 2,003 | 4 | majority | Dole Food Co. v. Patrickson | https://www.courtlistener.com/opinion/127913/dole-food-co-v-patrickson/ | requires that instrumentality status be determined at the time suit is filed. Construing 1603(b) so that the present tense has real significance is consistent with the "longstanding principle that `the jurisdiction of the Court depends upon the state of things at the time of the action brought.'" Keene ). It is well settled, for example, that federal-diversity jurisdiction depends on the citizenship of the parties at the time suit is filed. See, e. g., ; see also Minneapolis & St. Louis R. The Dead Sea Companies do not dispute that the time suit is filed is determinative under 1332(a)(4), which provides for suits between "a foreign state, defined in section 1603(a), as plaintiff and citizens of a State or of different States." It would be anomalous to read 1441(d)'s words, "foreign state as defined in section 1603(a)," differently. The Dead Sea Companies urge us to administer the FSIA like other status-based immunities, such as the qualified immunity accorded a state actor, that are based on the status *479 of an officer at the time of the conduct giving rise to the suit. We think its comparison is inapt. Our cases applying those immunities do not involve the interpretation of a statute. See, e. g., ; The reason for the official immunities in those cases does not apply here. The immunities for government officers prevent the threat of suit from "crippl[ing] the proper and effective administration of public affairs." ; see also Foreign sovereign immunity, by contrast, is not meant to avoid chilling foreign states or their instrumentalities in the conduct of their business but to give foreign states and their instrumentalities some protection from the inconvenience of suit as a gesture of comity between the United States and other sovereigns. For the same reason, the Dead Sea Companies' reliance on is unavailing. There, we recognized that the President was immune from liability for official actions taken during his time in office, even against a suit filed when he was no longer serving in that capacity. The immunity served the same function that the other official immunities serve. See As noted above, immunity under the FSIA does not serve the same purpose. The immunity recognized in Nixon was also based on a further rationale, one not applicable here: the constitutional *480 separation of powers. See That rationale is not implicated by the statutory immunity Congress created for actions such as the one before us. Any relationship recognized under the FSIA between the Dead Sea Companies and Israel had been severed before suit was commenced. As a result, the Dead Sea Companies |
Justice Kennedy | 2,003 | 4 | majority | Dole Food Co. v. Patrickson | https://www.courtlistener.com/opinion/127913/dole-food-co-v-patrickson/ | suit was commenced. As a result, the Dead Sea Companies would not be entitled to instrumentality status even if their theory that instrumentality status could be conferred on a subsidiary were accepted. * * * For these reasons, we hold first that a foreign state must itself own a majority of the shares of a corporation if the corporation is to be deemed an instrumentality of the state under the provisions of the FSIA; and we hold second that instrumentality status is determined at the time of the filing of the complaint. The judgment of the Court of Appeals in No. 01-594 is affirmed, and the writ of certiorari in No. 01-593 is dismissed. It is so ordered. JUSTICE BREYER, with whom JUSTICE O'CONNOR joins, concurring in part and dissenting in part. I join Parts I, II-A, and II-C, and dissent only from Part II-B, of the Court's opinion. Unlike the majority, I believe that the statutory phrase "other ownership interest owned by a foreign state," 28 U.S. C. 1603(b)(2), covers a Foreign Nation's legal interest in a Corporate Subsidiary, where that interest consists of the Foreign Nation's ownership of a Corporate Parent that owns the shares of the Subsidiary. *481 The Foreign Sovereign Immunities Act of 1976 (FSIA) sets forth legal criteria for determining when a "foreign state," 28 U.S. C. 1603(a), can assert a defense of sovereign immunity. The FSIA also specifies that a "foreign state" defendant may ask a federal court to make the relevant sovereign immunity determination. 1441(d). And the FSIA allows certain foreign-state commercial entities not entitled to sovereign immunity to have the merits of a case heard in federal court. 1330(a), 1441(d), 1605(a)(2). These last-mentioned entities, entitled to invoke federal-court jurisdiction, include corporations that fall within the FSIA's definition of an "agency or instrumentality of a foreign state," 1603(a), (b). The corporate defendants here, subsidiaries of a foreign parent corporation, fall within that definition if "a majority of [their] shares or other ownership interest is owned by" a foreign nation. 1603(b)(2) The relevant foreign nation does not directly own a majority of the corporate subsidiaries' shares. But (simplifying the facts) it does own a corporate parent, which, in turn, owns the corporate subsidiaries' shares. See ante, at 473-474. Does this type of majority-ownership interest count as an example of what the statute calls an "other ownership interest"? The Court says no, holding that the text of the FSIA requires that "only direct ownership of a majority of shares by the foreign state satisfies the statutory requirement." Ante, at 474 I disagree. The statute's language, |
Justice Kennedy | 2,003 | 4 | majority | Dole Food Co. v. Patrickson | https://www.courtlistener.com/opinion/127913/dole-food-co-v-patrickson/ | statutory requirement." Ante, at 474 I disagree. The statute's language, standing alone, cannot answer the question. That is because the words "own" and "ownership" neither of which is defined in the FSIA are not technical terms or terms of art but common terms, the precise legal meaning of which depends upon the statutory context in which they appear. See J. Cribbet & C. Johnson, Principles of the Law of Property 16 (3d ed. 1989) ("Anglo-American law has not made much use of the term ownership in a technical sense"); Black's Law Dictionary 1049, 1105 (6th *482 ed. 1990) ("The term [`owner'] is a nomen generalissimum" a "term of the most general meaning" or "of the most general kind" "and its meaning is to be gathered from the connection in which it is used, and from the subject-matter to which it is applied"). See also Thus, this Court has held that "shipowne[r]" can include a corporate shareholder even though, technically speaking, the corporation, not the shareholder, owns the ship. Moreover, this Court has held that a trademark can be "owned by" a parent corporation even though, technically speaking, a subsidiary corporation, not the parent, registered and thus owned the mark. K (noting "the inability to discern" which "entit[y] can be said to `own' the trademark if the domestic subsidiary is wholly owned by its foreign parent"); ("It may be reasonable for some purposes to say that a trademark nominally owned by a domestic subsidiary is `owned by' its foreign parent corporation"); Similarly, here the words "other ownership interest" might, or might not, refer to the kind of majority-ownership interest that arises when one owns the shares of a parent that, in turn, owns a subsidiary. If a shareholder in Company A is an "owner" of Company A's ship, as in then why should the shareholder not be an "owner" of Company A's subsidiary? If Company A's trademark can be said to be "owned by" its shareholder, as in K then why should Company A's subsidiary not be said *483 to be "owned by" its shareholder? And, at the very least, can we not say that the shareholder has an "ownership interest" in the subsidiary? Neither do the various linguistic indicia to which the majority points help resolve the question. As the majority points out, the statute's use of the word "shares" leans in favor of reading "ownership" as incorporating formal, technical American legal requirements. Ante, at 474-475. But any resulting suggestion of formal technical limitation is neatly counterbalanced by the fact that the "statute had to be |
Justice Kennedy | 2,003 | 4 | majority | Dole Food Co. v. Patrickson | https://www.courtlistener.com/opinion/127913/dole-food-co-v-patrickson/ | counterbalanced by the fact that the "statute had to be written for the contingency of ownership forms in other countries, or even in this country, that depart from conventional corporate structures." Ante, at 476. And given this latter necessity, there is no reason to read the phrase "shares or other" as if those words meant to exclude from the scope of "other" any kind of mixed, say, debt/equity, ownership arrangement that might involve shares only in part. The majority's further claim that Congress' use of the word "ownership" means "only direct ownership," ante, at 474 or formal ownership, founders upon and K as well as upon several statutes that demonstrate that Congress felt it necessary explicitly to use the word "direct" (a word missing in the FSIA) in order to achieve that result. See, e. g., 20 U.S. C. 1087-3(a) ("common shares directly owned by a Holding Company" ); 26 U.S. C. 165(g)(3)(A) (requiring that "the taxpayer owns directly stock" in a corporation ); 851(c)(3)(A) (stock "owned directly by one or more of the other corporations" ). Were the Court's logic correct, see ante, at 476-477, the word "direct" in these statutes would be redundant. The majority's "veil piercing" argument, ante, at 475-476, is beside the point. So is the majority's reiteration of the separateness of a corporation and its shareholders, ante, at 474-475, a formal separateness that this statute explicitly sets aside. See 28 U.S. C. 1603(a), (b) (acknowledging the *484 separateness of a corporate entity but nevertheless deliberately conferring the "foreign state" status of the shareholder upon the corporation itself); H. R. Rep. No. 94-1487, p. 15 (1976) (same). See also Working Group of the American Bar Association, Reforming the Foreign Sovereign Immunities Act, (FSIA rejects the "separate-entity" rule that courts had often applied to deny immunity to state-owned corporations). Statutory interpretation is not a game of blind man's bluff. Judges are free to consider statutory language in light of a statute's basic purposes. And here, as in and K an examination of those purposes sheds considerable light. The statute itself makes clear that it seeks: (1) to provide a foreign-state defendant in a legal action the right to have its claim of a sovereign immunity bar decided by the "courts of the United States," i. e., the federal courts, 28 U.S. C. 1604; see 1441(d); and (2) to make certain that the merits of unbarred claims against foreign states, say, states engaging in commercial activities, see 1605(a)(2), will be decided "in the same manner" as similar claims against "a private individual," 1606; but (3) to guarantee a |
Justice Kennedy | 2,003 | 4 | majority | Dole Food Co. v. Patrickson | https://www.courtlistener.com/opinion/127913/dole-food-co-v-patrickson/ | against "a private individual," 1606; but (3) to guarantee a foreign state defending an unbarred claim certain protections, including a prohibition of punitive damages, the right to removal to federal court, a trial before a judge, and other procedural rights (related to service of process, venue, attachment, and execution of judgments). 1330, 1391(f), 1441(d), 1606, 1608-1. See B. V. v. Central of Nigeria, ; H. R. Rep. No. 94-1487, at 32 ("giv[ing] foreign states clear authority to remove to a Federal forum actions brought against them in the State courts" in light of "the potential sensitivity of actions against foreign states and the importance of developing a uniform body of law in this area"); Most important for present purposes, the statute seeks to guarantee these protections to the foreign nation not only when it acts directly in its own name but also when it acts through separate legal entities, including corporations and other "organ[s]." 28 U.S. C. 1603(b). Given these purposes, what might lead Congress to grant protection to a Foreign Nation acting through a Corporate Parent but deny the same protection to the Foreign Nation acting through, for example, a wholly owned Corporate Subsidiary? The answer to this question is: In terms of the statute's purposes, nothing at all would lead Congress to make such a distinction. As far as this statute is concerned, decisions about how to incorporate, how to structure corporate entities, or whether to act through a single corporate layer or through several corporate layers are matters purely of form, not of substance. Cf. H. R. Rep. No. 94-1487, at 15 (agencies or instrumentalities "could assume a variety of forms"); First Nat. City 462 U.S. The need for federal-court determination of a sovereign immunity claim is no less important where subsidiaries are involved. The need for procedural protections is no less compelling. The risk of adverse foreign policy consequences is no less great. See ABA Working Group 523 ("The strength of a foreign state's sovereign interests does not necessarily dissipate when it employs more complicated legal structures resembling those used by modern private businesses"); Dellapenna, Refining the Foreign Sovereign Immunities Act, 9 Willamette J. Int'l L. & Disp. Resol. 57, 92-93 See also A. Kumar, The State *486 Holding Company: Issues and Options 3 ("The existence of state holding companies, in many variants, is widespread"). That is why I doubt the majority's claim that its reading of the text of the FSIA is "[t]he better reading," ante, at 476, leading to "[t]he better rule," ante, at 477. The majority's rule is not better for a foreign |
Justice Kennedy | 2,003 | 4 | majority | Dole Food Co. v. Patrickson | https://www.courtlistener.com/opinion/127913/dole-food-co-v-patrickson/ | 477. The majority's rule is not better for a foreign nation, say, Mexico or Honduras, which may use "a tiered corporate structure to manage and control important areas of national interest, such as natural resources," ABA Working Group 523, and, as a result, will find its ability to use the federal courts to adjudicate matters of national importance and "potential sensitivity" restricted, H. R. Rep. No. 94-1487, at 32. Congress is most unlikely to characterize as "better" a rule tied to legal formalities that undercuts its basic jurisdictional objectives. And working lawyers will now have to factor into complex corporate restructuring equations (determining, say, whether to use an intermediate holding company when merging or disaggregating even wholly owned government corporations) a risk that the government might lose its previously available access to federal court. Given these consequences, from what perspective can the Court's unnecessarily technical reading of this part of the statute produce a "better rule"? To hold, as the Court does today, that for purposes of the FSIA "other ownership interest" does not include the interest that a Foreign Nation has in a tiered Corporate Subsidiary "would be not merely to depart from the primary rule that words are to be taken in their ordinary sense, but to narrow the operation of the statute to an extent that would seriously imperil the accomplishment of its purpose." I believe that the Court should decide this issue just as it decided There, the Court unanimously determined that, in light of "[t]he policy of the statutes" in question, a corporate shareholder was an "owner" of a ship, which, technically *487 speaking, belonged to the 279 U.S., at Justice Holmes wrote, in his opinion for the Court: "For th[e] purpose [of these statutes] no rational distinction can be taken between several persons owning shares in a vessel [here, a subsidiary] directly and making the same division by putting the title in a corporation and distributing the corporate stock. The policy of the statutes must extend equally to both. We are of [the] opinion that the words of the acts must be taken in a broad and popular sense in order not to defeat the manifest intent. This is not to ignore the distinction between a corporation and its members, a distinction that cannot be overlooked even in extreme cases, but to interpret an untechnical word [`owner'] in the liberal way in which we believe it to have been used" No more need be said. |
Justice Black | 1,970 | 21 | dissenting | Zuber v. Allen | https://www.courtlistener.com/opinion/108014/zuber-v-allen/ | The central question in this cause is whether a provision in the Secretary of Agriculture's Boston milk market regulation which provides that farmers close to Boston *198 will receive a higher price for their milk than farmers farther away is valid under the Agricultural Marketing Agreement Act of 1937, as amended, 7 U.S. C. 601 et seq. (1964 ed. and Supp. IV). The majority concludes that this higher payment can be sustained only if it represents "compensation for rendering an economic service," ante, at 188, and then holds that since the Secretary has not provided such an economic justification for this payment, it is invalid. The effect of affirming the judgment below is that challenged payments which have been placed in a special fund since June 1967 and now amount to over $8,000,000 will be distributed to all farmers selling milk in the Boston market instead of only those located near Boston. This represents a drastic change in the distribution of the income from the sale of milk since only the nearby farmers have received these additional payments for at least 30 years. My study of the legislative history convinces me beyond any doubt that this result is wrong and in direct conflict with the intent of Congress as expressed in the Agricultural Marketing Agreement Act and its predecessors. In my opinion Congress intended to permit the Secretary to regulate the milk industry in accordance with the practices that had developed in that industry prior to the first federal regulation in 1933 and did not intend to eliminate the economic advantages that specific groups had enjoyed in the past. Since it is clear beyond a doubt that farmers near Boston received more for their milk than did other farmers prior to federal regulation, I would reverse the judgment below and hold this provision of the Boston milk order valid. In order to understand the purpose of the 1937 Act, it is necessary to go back to the 1920's at a time prior to any federal regulation. As the majority correctly points out, the economics of the milk industry at that *199 time often led to destructive competition and chaos. Milk producers therefore formed cooperatives for their own protection and sold milk on a collective basis. All the parties in this case agree, and the record conclusively shows, that under the cooperatives at that time farmers close to marketing centers received more for their milk than did farmers farther away. This higher price resulted from many factors, including the greater proportion of milk from nearby farms that was used for fluid |
Justice Black | 1,970 | 21 | dissenting | Zuber v. Allen | https://www.courtlistener.com/opinion/108014/zuber-v-allen/ | of milk from nearby farms that was used for fluid purposes, the possibility that those farmers would compete with handlers by selling directly to customers, smaller seasonal variation in the volume of milk produced, and higher costssuch as taxes and land values incurred in farming close to the cities.[1] As long as economic conditions remained generally stable, the cooperatives succeeded in protecting all farmers from the dangers of overproduction and excessive competition. Then the depression set in and milk farmers, like so many other Americans, were unable to maintain stable prices by self-regulation. Congress reacted to this situation by passing the Agricultural Adjustment Act of 1933 (A. A. A.), under which the Secretary of Agriculture was given broad powers to regulate the farm economy through licensing. 8 (3), Very few details or standards describing the Secretary's powers were provided in the 1933 Act, and there was no attention given to specific problems of *200 nearby farmers in the milk industry. Under the provisions of that Act the Secretary issued a license for the Boston market in 1933 and this first license included provisions that effectively maintained the historical price advantage of producers close to Boston.[2] In 1935 bills were introduced in Congress to amend the A. A. A.[3] and hearings were held on those bills in February and March of that year.[4] In May 1935 this Court held in Schechter Poultry that provisions of the National Industrial Recovery Act, were unconstitutional, in part because that Act delegated powers to an administrative agency without providing adequate standards and guidelines. The congressional committees considering the amendments immediately recognized that the Schechter decision cast considerable doubt on the validity of the A. A. A. and they therefore reported out a completely amended bill which set forth detailed descriptions of the powers and standards that the Secretary was to employ.[5] As reported and passed by Congress, that bill contained specific provisions concerning the milk industry, and it is those provisions that are involved in the present case.[6] The committee reports accompanying that bill make it abundantly clear that a primary purpose *201 of the bill was to "eliminate questions of improper delegation of legislative authority raised by the decision in Schechter"[7] There is no indication that when Congress passed those amendments it intended to cut back on or limit the authority the Secretary had actually exercised in regulating milk under the 1933 Act, but rather the purpose was to avoid judicial invalidation resulting from the absence of constitutionally sufficient standards. History and the legislative record make it quite clear that Congress in 1935 was |
Justice Black | 1,970 | 21 | dissenting | Zuber v. Allen | https://www.courtlistener.com/opinion/108014/zuber-v-allen/ | record make it quite clear that Congress in 1935 was concerned, not about limiting an excessively aggressive Secretary, but about overcoming the limitations imposed by a Court that was frustrating the congressional purpose by holding laws unconstitutional. Pursuant to the 1935 Act, the Secretary issued a new order in 1936 for the Boston market which, like the 1933 order, contained provisions for additional payments to nearby farmers. In issuing this order he explicitly relied on the historical, economic factors which justified these additional payments. (J. A. 224.) The effectiveness of the 1935 amendments was also jeopardized by court decisions,[8] and Congress again acted by passing a new law, the Agricultural Marketing Agreement Act of 1937, This statute re-enacted the milk marketing provisions of the 1935 Act in substantially the same form and further provided that all market orders issued under that Act were "expressly ratified, legalized, and confirmed." Proceeding under the new Act the Secretary reinstated the 1936 Boston order including the additional *202 payments to farmers located nearer the city, and that order and the 1937 Act have remained in substantially the same form until this time. With this general historical picture in mind, it is easier to answer the central legal question in this case which is whether the 1937 Act authorizes the Secretary of Agriculture to provide that nearby farmers will receive more for their milk than farmers farther away. The Act provides that the Secretary shall establish by order certain basic prices for milk delivered by producers and allows him to adjust that basic price to reflect "volume, market, and production differentials customarily applied by the handlers subject to such order" 7 U.S. C. 608c (5) (B), cl. (a) (1964 ed., Supp. IV).[9] The Secretary here argues that the payment of additional sums to farmers close to Boston is an authorized "market differential." The argument cannot be settled simply on the basis of the statutory language since there is no definition of the term "market." However the legislative history makes it clear beyond any doubt that this provision was designed to allow the Secretary broad leeway in regulating the milk industry in accordance with prior practices and differentials in the unregulated market. The committee reports in both Houses said that the milk order provisions in the Act were designed to "follow the methods employed by cooperative associations of producers prior to the enactment of the Agricultural Adjustment Act and the provisions of *203 licenses issued pursuant to the present section 8 (3) of the Agricultural Adjustment Act."[10] The only discussion of these provisions during the congressional |
Justice Black | 1,970 | 21 | dissenting | Zuber v. Allen | https://www.courtlistener.com/opinion/108014/zuber-v-allen/ | Act."[10] The only discussion of these provisions during the congressional floor debates fully supports this statement. Senator Copeland, a former commissioner of health in New York City and a man well acquainted with the milk industry in New England, asked Senator Murphy, the floor manager for the bill, about the possibility that farmers near the cities would receive the same price for milk as farmers farther away. Senator Murphy's initial answer indicated this would be so, but when Senator Copeland pressed the inquiry further, stating that not all factors had been considered, Senator Murphy indicated that the provisions for specific differentials "adopt the present practice of business."[11] To me that reply indicates that nearby differentials would be permissible, if they were part of the business practiceas they were. The majority diminishes the importance of this discussion by saying that it represents the views of only two men, not those of the committee, but anyone acquainted with the realities of the United States Senate knows that the remarks of the floor manager are taken by other Senators as reflecting the views of the committee itself. This history makes it clear that Congress did not intend to limit the authorized differentials to any specific payments, but rather intended to permit the Secretary to employ whatever practices, consistent with the history of the unregulated *204 market, he found necessary to achieve stability in the milk industry. Applying these considerations it becomes plain that the additional payments to nearby farmers are authorized as a "differential customarily applied." Nearby farmers had always obtained a higher price for their milk than farmers farther away and the Secretary's regulations in 1933 and 1936 reflected this historical fact. Reinstatement of the nearby differentials after passage of the 1937 Act merely continued this prior administrative practice, based on the earlier economic realities, of paying more for milk produced on farms close to Boston. Had Congress intended to eliminate this feature of the prior practice, it would have been easy to say so, but there is absolutely nothing in the statute or in the legislative history that demonstrates a desire to alter the advantage nearby farmers had always enjoyed. My conclusion that this differential is authorized is buttressed by the actions of Congress and the Secretary since 1937. There has always been a healthy controversy among farmers about this differential, and extensive hearings in 1963 brought forth strong arguments against continuing it. (J. A. 360-599.) Yet Congress, even though it amended the statute in 1965, still has not in any way indicated that the nearby differential was unauthorized by the |
Justice Black | 1,970 | 21 | dissenting | Zuber v. Allen | https://www.courtlistener.com/opinion/108014/zuber-v-allen/ | way indicated that the nearby differential was unauthorized by the 1937 Act or that it should be eliminated at this time. Similarly the Secretary has continually reviewed this provision and refused to eliminate it, the most recent time being 1964. (J. A. 346, 349.) Since Congress, in my view, intended in 1933, 1935, and 1937 to authorize payments like the nearby differential and since it has not altered this authorization in the past 32 years, I cannot agree that this Court should or properly can eliminate the payment, ostensibly through a process of statutory interpretation. *205 This interpretation is not based on a theory of legislative silence as the majority seems to imply. To me the legislative history speaks clearly in saying that Congress intended the Secretary to regulate the industry in accordance with prior practices, and the statutory language, statements in committee reports, and floor debates do not "illumine two different roads," ante, at 185. I see only one path that is marked by the legislative record, and the only silence I perceive is the striking absence of any statements in the statute or the legislative history that support the majority's interpretation. My conclusion that the location differential is authorized by the Act finds support in other judicial decisions. In United certain milk handlers made a broadside attack on the New York order issued under the 1937 Act. This Court rejected that challenge. One part of the argument was that the nearby differential provision of that order was invalid. This Court noted that "[t]he Act authorizes such an arrangement," citing the provision for market differentials customarily applied. Although that provision was promulgated under 8c (5) (A) of the Act, the identical language supporting that conclusion is found in 8c (5) (B), and it is that latter section which is involved in the present case. The majority attempts to distinguish that case by noting that it was a suit brought by the Government against handlers, but it is difficult to see what difference that makes. It does not matter who sues, if the Court decides an issue of statutory interpretation that decision should remain the same even if the litigants change.[12] *206 The nearby differential of the Boston order involved here was also approved by the First Circuit in Green Valley The majority's dismissal of that case on the conclusion the handlers did not have standing to raise this issue is irrelevant. The First Circuit there found the differential valid and then stated that "[f]urthermore" the handlers lacked standing. It does not matter to me whether the decision on the |
Justice Black | 1,970 | 21 | dissenting | Zuber v. Allen | https://www.courtlistener.com/opinion/108014/zuber-v-allen/ | does not matter to me whether the decision on the validity of the location differential is classified as dictum or a holding. The point remains that the First Circuit considered these payments and found them expressly provided for by the language of 8c (5) (B). The majority disagrees with the interpretation of the statute set forth above and instead finds that the foundation of the portion of 1937 Act involved here was to provide uniform prices to all producers, with adjustments to that uniform price only as "compensation for rendering an economic service." Ante, at 188. This interpretation, as I understand it, would require the Secretary to disregard the historical price advantage nearby producers had in the sale of their milk, and to consider only whether there is a present economic justification for particular payments. I respectfully submit that this interpretation cannot be supported by the language of the Act considered as a whole or by the relevant expressions of congressional intent found in the legislative history. The theory of this Act adopted by the majority is clearly not that of Congress, but one created by the Court itself. The conclusion that each of the differentials specified in the Act represents only "compensation for rendering an economic service" finds no support whatsoever in the language of the Act or the legislative history. None of the adjustments described in the Act is defined in terms of any "economic service." The majority does not refer *207 to any legislative history that indicates such a definition was intended. It may well be possible for an analyst to fit the language of the Act, the committee reports, and the floor debates into a coherent pattern of economic services, but had Congress desired to require this as a touchstone for the authorized differentials, it would have been easy for it to have said so. Congress did not choose to do so in 1933, 1935, or 1937, and it has not done so in the intervening 32 years. Moreover, if there is any pattern into which all the differentials clearly fit that is fully supported by express legislative history, it is the clear pattern of allowing the Secretary to incorporate provisions reflecting the customary practices of the milk industry itself.[13] Even if the majority's statutory interpretation were correct, I do not understand why it would lead to the conclusion that the judgment below should be affirmed and the challenged payments distributed at this time to all farmers. Until this Court's decision the Secretary had *208 no reason to know that he had to justify the provisions |
Justice Black | 1,970 | 21 | dissenting | Zuber v. Allen | https://www.courtlistener.com/opinion/108014/zuber-v-allen/ | reason to know that he had to justify the provisions of this order as "compensation for rendering an economic service," and his failure to have provided such a defense does not necessarily mean it is unavailable. Indeed the Court apparently would approve this same provision were the Secretary to issue it again, but only if it were then accompanied by an economic study that this Courtcomposed of lawyers, not economic or agricultural expertsfinds acceptable. If such a justification is present, the differential is in fact lawful at this time, and it would not seem to matter that the Secretary has not yet incanted the proper magic words. I do not see what harm would follow if this Court were simply to vacate the judgment below, remand the cases to the Secretary for appropriate study, and continue to place the payments in the special fund pending ultimate resolution of the controversy. If the Secretary cannot make the proper economic justification, the only result would be to postpone the day when the accumulating funds, which now amount to over $8,000,000, would be distributed. If, on the other hand, he is able to show that these payments compensate for an economic service, then the Court would not have unnecessarily given the accumulated millions to farmers who are not legally entitled to receive them. My conviction that the Act was designed to permit the Secretary to include adjustments that reflected the prior practice of the milk industry does not mean that he can act with unlimited abandon and approve a payment simply because historically it was provided for prior to federal regulation. The statute requires that the Secretary issue orders which "will tend to effectuate the declared policy of [the Act]" 7 U.S. C. 608c (4). Those policies are specifically set forth, 7 U.S. C. 602, and in general provide that orders should establish and maintain orderly marketing conditions *209 and parity prices for milk producers. In his latest promulgation of the Boston order the Secretary specifically refused to eliminate the nearby differentials (J. A. 349-357) and found that the order "will tend to effectuate the declared policy of the Act." That finding cannot be disturbed, nor the nearby differential invalidated, unless it is shown that the order is not supported by substantial evidence in the administrative record considered in its entirety. Cf. Universal Camera In this action the Court of Appeals did not make a specific finding on the substantiality of the evidence, and the respondents argue that it is insubstantial, but a review of the entire record in light of the appropriate |
Justice Black | 1,970 | 21 | dissenting | Zuber v. Allen | https://www.courtlistener.com/opinion/108014/zuber-v-allen/ | review of the entire record in light of the appropriate legal standards indicates that the nearby differential in the Boston order is fully supported by substantial evidence. In reaching this conclusion, it must be remembered that the Secretary is required to find only two things. First, that the proposed provision represents a payment customarily applied in the milk market, and second, that inclusion of the proposed provision will further the policies of the Act. The first of these questions is essentially a factual one, and there is no real argument in this action that the Secretary was wrong in finding as a matter of historical fact that nearby farmers received additional payments which are reflected in the location differential. The respondents do not really deny the historical existence of this higher price, but rather attack its legality under the Act. The Court of Appeals, moreover, specifically recognized the historical fact that such differentials existed, but accepted the respondents' argument that they were illegal. 131 U. S. App. D. C., at 112-114, -665, 669. An independent review of the record confirms the conclusion that such differentials had been customary in the market. It is thus easy to conclude that the factual finding *210 required by the Act has been supported by substantial evidence in the administrative record. The second required finding, that the provision will further the policies of the Act, is a mixed question of fact and administrative policy. The Secretary has held extensive hearings in the past on the provisions of the Boston milk order (J. A. 233-247, 257-302, 305-330, 360-651), and he has repeatedly found that the nearby location differential furthers the policies of the Act. Since this is essentially a question of administrative discretion and will be set aside only on a strong showing by the parties that the finding is without support in the basic facts on which the Secretary has relied, it is proper to say on this record that this second finding is adequately supported. Nothing in the respondents' arguments indicates that the nearby differential does not further the policies of the Act, but rather they argue only that elimination of the differential would better serve those policies. But this question is one for the Secretary, not for the parties or for this Court, to decide. What is involved here is simply a question of interpreting and following the will of Congress. Over 30 years ago Congress decided that milk producers needed governmental assistance in stabilizing their income, but it also decided that this stabilization should be accomplished with a minimal amount of change |
Justice Black | 1,970 | 21 | dissenting | Zuber v. Allen | https://www.courtlistener.com/opinion/108014/zuber-v-allen/ | stabilization should be accomplished with a minimal amount of change in the industry's prior practices. Congress therefore authorized the Secretary of Agriculture to regulate the industry and left most of the details to him. For over 30 years he has used his authority to regulate the Boston milk market, and has consistently found it desirable to provide higher prices for milk produced on farms close to Boston. It may well be that this decision is not the best or the most economically sound one that he could make in light of changed economic conditions in 1969, but that decision is one Congress has committed to the Secretary alone. In my view *211 this Court and the Court of Appeals in this litigation effectively substitute their will for the will of Congress and their views of economics and wise administration for those of the Secretary whom Congress selected to carry out its will. The Court indicates that its decision will avoid a "windfall." Ante, at 197. In fact the Court itself creates a windfall of over $8,000,000 which is siphoned out of the pockets of farmers close to Boston and bestowed like a Christmas present on those farther away. This the Court does contrary to the informed judgment of the Secretary who, faithful to the Act, has declared for years that distant farmers are not eligible for such a bonus. I am unable to agree that this is a proper function for the Court to perform and I therefore dissent. |
Justice Burger | 1,979 | 12 | majority | Hutchinson v. Proxmire | https://www.courtlistener.com/opinion/110131/hutchinson-v-proxmire/ | We granted certiorari, to resolve three issues: (1) Whether a Member of Congress is protected by the Speech or Debate Clause of the Constitution, Art. I, 6, against suits for allegedly defamatory statements made by the Member in press releases and newsletters; (2) whether petitioner Hutchinson is either a "public figure" or a "public official," thereby making applicable the "actual malice" standard of New York Times ; and (3) whether respondents were entitled to summary judgment. *114 Ronald Hutchinson, a research behavioral scientist, sued respondents, William Proxmire, a United Senator, and his legislative assistant, Morton Schwartz, for defamation arising out of Proxmire's giving what he called his "Golden Fleece" award. The "award" went to federal agencies that had sponsored Hutchinson's research. Hutchinson alleged that in making the award and publicizing it nationwide, respondents had libeled him, damaging him in his professional and academic standing, and had interfered with his contractual relations. The District Court granted summary judgment for respondents and the Court of Appeals affirmed. We reverse and remand to the Court of Appeals for further proceedings consistent with this opinion. I Respondent Proxmire is a United Senator from Wisconsin. In March 175, he initiated the "Golden Fleece of the Month Award" to publicize what he perceived to be the most egregious examples of wasteful governmental spending. The second such award, in April 175, went to the National Science Foundation, the National Aeronautics and Space Administration, and the Office of Naval Research, for spending almost half a million dollars during the preceding seven years to fund Hutchinson's research.[1] At the time of the award, Hutchinson was director of research at the Kalamazoo State Mental Hospital. Before that he had held a similar position at the Ft. Custer State Home. Both the hospital and the home are operated by the Michigan State Department of Mental Health; he was therefore a state employee in both positions. During most of the period in question he was also an adjunct professor at Western Michigan University. When the research department at Kalamazoo *115 State Mental Hospital was closed in June 175, Hutchinson became research director of the Foundation for Behavioral Research, a nonprofit organization. The research funding was transferred from the hospital to the foundation. The bulk of Hutchinson's research was devoted to the study of emotional behavior. In particular, he sought an objective measure of aggression, concentrating upon the behavior patterns of certain animals, such as the clenching of jaws when they were exposed to various aggravating stressful stimuli.[2] The National Aeronautics and Space Agency and the Navy were interested in the potential of |
Justice Burger | 1,979 | 12 | majority | Hutchinson v. Proxmire | https://www.courtlistener.com/opinion/110131/hutchinson-v-proxmire/ | Agency and the Navy were interested in the potential of this research for resolving problems associated with confining humans in close quarters for extended periods of time in space and undersea exploration. The Golden Fleece Award to the agencies that had sponsored Hutchinson's research was based upon research done for Proxmire by Schwartz. While seeking evidence of wasteful governmental spending, Schwartz read copies of reports that Hutchinson had prepared under grants from NASA. Those reports revealed that Hutchinson had received grants from the Office of Naval Research, the National Science Foundation, and the Michigan State Department of Mental Health. Schwartz also learned that other federal agencies had funded Hutchinson's research. After contacting a number of federal and state agencies, Schwartz helped to prepare a speech for Proxmire to present in the Senate on April 18, 175; the text was then incorporated into an advance press release, with only *116 the addition of introductory and concluding sentences. Copies were sent to a mailing list of 275 members of the news media throughout the United and abroad. Schwartz telephoned Hutchinson before releasing the speech to tell him of the award; Hutchinson protested that the release contained an inaccurate and incomplete summary of his research. Schwartz replied that he thought the summary was fair. In the speech, Proxmire described the federal grants for Hutchinson's research, concluding with the following comment:[3] "The funding of this nonsense makes me almost angry enough to scream and kick or even clench my jaw. It seems to me it is outrageous. "Dr. Hutchinson's studies should make the taxpayers as well as his monkeys grind their teeth. In fact, the good doctor has made a fortune from his monkeys and in the process made a monkey out of the American taxpayer. "It is time for the Federal Government to get out of this `monkey business.' In view of the transparent worthlessness of Hutchinson's study of jaw-grinding and biting by angry or hard-drinking monkeys, it is time we put a stop to the bite Hutchinson and the bureaucrats who fund him have been taking of the taxpayer." 121 Cong. Rec. 10803 (175). *117 In May 175, Proxmire referred to his Golden Fleece Awards in a newsletter sent to about 100,000 people whose names were on a mailing list that included constituents in Wisconsin as well as persons in other states. The newsletter repeated the essence of the speech and the press release. Later in 175, Proxmire appeared on a television interview program where he referred to Hutchinson's research, though he did not mention Hutchinson by name.[4] The final reference to |
Justice Burger | 1,979 | 12 | majority | Hutchinson v. Proxmire | https://www.courtlistener.com/opinion/110131/hutchinson-v-proxmire/ | did not mention Hutchinson by name.[4] The final reference to the research came in a newsletter in February 176. In that letter, Proxmire summarized his Golden Fleece Awards of 175. The letter did not mention Hutchinson's name, but it did report: " The NSF, the Space Agency, and the Office of Naval Research won the `Golden Fleece' for spending jointly $500,000 to determine why monkeys clench their jaws. "All the studies on why monkeys clench their jaws were dropped. No more monkey business." App. 168-171. After the award was announced, Schwartz, acting on behalf of Proxmire, contacted a number of the federal agencies that had sponsored the research. In his deposition he stated that he did not attempt to dissuade them from continuing to fund the research but merely discussed the subject.[5] Hutchinson, by contrast, contends that these calls were intended to persuade the agencies to terminate his grants and contracts. *118 II On April 16, 176, Hutchinson filed this suit in United District Court in Wisconsin.[6] In Count I he alleges that as a result of the actions of Proxmire and Schwartz he has "suffered a loss of respect in his profession, has suffered injury to his feelings, has been humiliated, held up to public scorn, suffered extreme mental anguish and physical illness and pain to his person. Further, he has suffered a loss of income and ability to earn income in the future." Count II alleges that the respondents' conduct has interfered with Hutchinson's contractual relationships with supporters of his research. He later amended the complaint to add an allegation that his rights of privacy and peace and tranquility have been infringed. Respondents moved for a change of venue and for summary judgment. In their motion for summary judgment they asserted that all of their acts and utterances were protected by the Speech or Debate Clause. In addition, they asserted that their criticism of the spending of public funds was privileged under the Free Speech Clause of the First Amendment. They argued that Hutchinson was both a public figure and a public official, and therefore would be obliged to prove the existence of "actual malice." Respondents contended that the facts of this case would not support a finding of actual malice. Without ruling on venue, the District Court granted respondents' motion for summary judgment. In so ruling, the District Court relied on both grounds urged by respondents. It reasoned that the Speech or Debate Clause afforded absolute immunity for respondents' activities in investigating the funding of Hutchinson's research, for Proxmire's speech in the Senate, and for the press |
Justice Burger | 1,979 | 12 | majority | Hutchinson v. Proxmire | https://www.courtlistener.com/opinion/110131/hutchinson-v-proxmire/ | for Proxmire's speech in the Senate, and for the press release covering the speech. The court concluded that the investigations and the speech were clearly within the *11 ambit of the Clause. The press release was said to be protected because it fell within the "informing function" of Congress. To support its conclusion, the District Court relied upon cases interpreting the franking privilege granted to Members by statute. See 3 U.S. C. 3210. Although the District Court referred to the "informing function" of Congress and to the franking privilege, it did not base its conclusion concerning the press release on those analogies. Instead, the District Court held that the "press release, in a constitutional sense, was no different than would have been a television or radio broadcast of his speech from the Senate floor."[7] That the District Court did not rely upon the "informing function" is clear from its implicit holding that the newsletters were not protected. The District Court then turned to the First Amendment to explain the grant of summary judgment on the claims arising from the newsletters and interviews. It concluded that Hutchinson was a public figure for purposes of determining respondents' liability: "Given Dr. Hutchinson's long involvement with publicly-funded research, his active solicitation of federal and state grants, the local press coverage of his research, and the public interest in the expenditure of public funds on the precise activities in which he voluntarily participated, the court concludes that he is a public figure for the purpose of this suit. As he acknowledged in his deposition, `Certainly, any expenditure of public funds is a matter of public interest.'"[8] *120 Having reached that conclusion, the District Court relied upon the depositions, affidavits, and pleadings before it to evaluate Hutchinson's claim that respondents had acted with "actual malice." The District Court found that there was no genuine issue of material fact on that issue. It held that neither a failure to investigate nor unfair editing and summarizing could establish "actual malice." It also held that there was nothing in the affidavits or depositions of either Proxmire or Schwartz to indicate that they ever entertained any doubt about the truth of their statements. Relying upon cases from other courts, the District Court said that in determining whether a plaintiff had made an adequate showing of "actual malice," summary judgment might well be the rule rather than the exception.[] Finally, the District Court concluded: "But even if for the purpose of this suit it is found that Dr. Hutchinson is a private person so that First Amendment protections do not extend |
Justice Burger | 1,979 | 12 | majority | Hutchinson v. Proxmire | https://www.courtlistener.com/opinion/110131/hutchinson-v-proxmire/ | private person so that First Amendment protections do not extend to [respondents], relevant state law dictates the grant of summary judgment." The District Court held that the controlling state law was either that of Michigan or that of the District of Columbia. Without deciding which law would govern under Wisconsin's choice-of-law principles, the District Court concluded that Hutchinson would not be able to recover in either jurisdiction. The Court of Appeals affirmed, holding that the Speech or Debate Clause protected the statements made in the press release *121 and in the newsletters. It interpreted as recognizing a limited protection for the "informing function" of Congress and concluded that distribution of both the press release and the newsletters did not exceed what was required for legislative The followup telephone calls and the statements made by Proxmire on television and radio were not protected by the Speech or Debate Clause; they were, however, held by the Court of Appeals to be protected by the First Amendment.[10] It reached that conclusion after first finding that, based on the affidavits and pleadings of record, Hutchinson was a "public figure." The court then examined the record to determine whether there had been a showing by Hutchinson of "actual malice." It agreed with the District Court "that, upon this record, there is no question that [respondents] did not have knowledge of the actual or probable `falsity' of their statements." The Court of Appeals also rejected Hutchinson's argument that the District Court had erred in granting summary judgment on the claimed wrongs other than defamationinterference with *122 contractual relations, intentional infliction of emotional anguish, and invasion of privacy: "We view these additional allegations of harm as merely the results of the statements made by the defendants. If the alleged defamatory falsehoods themselves are privileged, it would defeat the privilege to allow recovery for the specified damages which they cause."[11] The Court of Appeals did not review the District Court's holding that state law also justified summary judgment for respondents. III The petition for certiorari raises three questions. One involves the scope of the Speech or Debate Clause; another involves First Amendment claims; a third concerns the appropriateness of summary judgment, embracing both a constitutional issue and a state-law issue. The constitutional issue arose from the District Court's view that solicitude for the First Amendment required a more hospitable judicial attitude toward granting summary judgment in a libel case. See n. The state-law issue arose because the District Court concluded that, as a matter of local law, Hutchinson could not recover. Our practice is to avoid reaching constitutional |
Justice Burger | 1,979 | 12 | majority | Hutchinson v. Proxmire | https://www.courtlistener.com/opinion/110131/hutchinson-v-proxmire/ | could not recover. Our practice is to avoid reaching constitutional questions if a dispositive nonconstitutional ground is available. See, e.g., 13 (10). Were we to follow that course here we would remand to the Court of Appeals to review the state-law question which it did not consider. If the District Court correctly decided the state-law question, resolution of the First Amendment issue would be unnecessary. We conclude, however, that special considerations in this case mandate that we first resolve the constitutional questions. *123 The purpose of the Speech or Debate Clause is to protect Members of Congress "not only from the consequences of litigation's results but also from the burden of defending themselves." (167). See also 421 U.S. 41, (175). If the respondents have immunity under the Clause, no other questions need be considered for they may "not be questioned in any other Place." Ordinarily, consideration of the constitutional issue would end with resolution of the Speech or Debate Clause question. We would then remand for the Court of Appeals to consider the issue of state law. Here, however, there is an indication that the Court of Appeals would not affirm the state-law holding. We surmise this because, in explaining its conclusion that the press release and the newsletters were protected by the Speech or Debate Clause, the Court of Appeals stated: "[T]he statements in the press release intimating that Dr. Hutchinson had made a personal fortune and that the research was `perhaps duplicative' may be defamatory false-hoods." 57 F.2d, n. 15. In light of that surmise, what we said in Wolston v. Reader's Digest Assn., Inc., post, at 161 n. 2, is also appropriate here: "We assume that the Court of Appeals is as familiar as we are with the general principle that dispositive issues of statutory and local law are to be treated before reaching constitutional issues. We interpret the footnote to the Court of Appeals opinion in this case, where jurisdiction is based upon diversity of citizenship, to indicate its view that the appeal could not be decided without reaching the constitutional question." In light of the necessity to do so, we therefore reach the First Amendment issue as well as the Speech or Debate Clause question. IV In support of the Court of Appeals holding that newsletters and press releases are protected by the Speech or Debate Clause, respondents rely upon both historical precedent and *124 present-day congressional practices. They contend that impetus for the Speech or Debate Clause privilege in our Constitution came from the history of parliamentary efforts to protect the right of members |
Justice Burger | 1,979 | 12 | majority | Hutchinson v. Proxmire | https://www.courtlistener.com/opinion/110131/hutchinson-v-proxmire/ | history of parliamentary efforts to protect the right of members to criticize the spending of the Crown and from the prosecution of a Speaker of the House of Commons for publication of a report outside of Parliament. Respondents also contend that in the modern day very little speech or debate occurs on the floor of either House; from this they argue that press releases and newsletters are necessary for Members of Congress to communicate with other Members. For example, in his deposition Proxmire testified: "I have found in 1 years in the Senate that very often a statement on the floor of the Senate or something that appears in the Congressional Record misses the attention of most members of the Senate, and virtually all members of the House, because they don't read the Congressional Record. If they are handed a news release, or something, that is going to call it to their attention" App. 220. Respondents also argue that an essential part of the duties of a Member of Congress is to inform constituents, as well as other Members, of the issues being considered. The Speech or Debate Clause has been directly passed on by this Court relatively few times in 10 years. ; (172); United (172); United 383 U.S. 16 (166); Literal reading of the Clause would, of course, confine its protection narrowly to a "Speech or Debate in either House." But the Court has given the Clause a practical rather than a strictly literal reading which would limit the protection to utterances made within the four walls of either Chamber. Thus, we have held that committee hearings are protected, even if held outside the Chambers; committee reports are also protected. *125 Cf. v. 4 Mass. *1, *27-*28 (1808). The gloss going beyond a strictly literal reading of the Clause has not, however, departed from the objective of protecting only legislative activities. In Thomas Jefferson's view: "[The privilege] is restrained to things done in the House in a Parliamentary course For [the Member] is not to have privilege contra morem parliamentarium, to exceed the bounds and limits of his place and duty." T. Jefferson, A Manual of Parliamentary Practice 20 (14), reprinted in The Complete Jefferson 704 (S. Padover ed. 143). One of the draftsmen of the Constitution, James Wilson, expressed a similar thought in lectures delivered between 170 and 172 while he was a Justice of this Court. He rejected Blackstone's statement, 1 W. Blackstone, Commentaries *164, that Parliament's privileges were preserved by keeping them indefinite: "Very different is the case with regard to the legislature of the |
Justice Burger | 1,979 | 12 | majority | Hutchinson v. Proxmire | https://www.courtlistener.com/opinion/110131/hutchinson-v-proxmire/ | is the case with regard to the legislature of the United The great maxims, upon which our law of parliament is founded, are defined and ascertained in our constitutions. The arcana of privilege, and the arcana of prerogative, are equally unknown to our system of jurisprudence." 2 J. Wilson, Works 35 (J. Andrews ed. 186).[12] In this respect, Wilson was underscoring the very purpose of our Constitutioninter alia, to provide written definitions of the powers, privileges, and immunities granted rather than rely on evolving constitutional concepts identified from diverse sources as in English law. Like thoughts were expressed *126 by Joseph Story, writing in the first edition of his Commentaries on the Constitution in 1833: "But this privilege is strictly confined to things done in the course of parliamentary proceedings, and does not cover things done beyond the place and limits of duty." 863, at 32. Cf. v. In United we acknowledged the historical roots of the Clause going back to the long struggle between the English House of Commons and the Tudor and Stuart monarchs when both criminal and civil processes were employed by Crown authority to intimidate legislators. Yet we cautioned that the Clause. "must be interpreted in light of the American experience, and in the context of the American constitutional scheme of government rather than the English parliamentary system. [T]heir Parliament is the supreme authority, not a coordinate branch. Our speech or debate privilege was designed to preserve legislative independence, not supremacy." Nearly a century ago, in this Court held that the Clause extended "to things generally done in a session of the House by one of its members in relation to the business before it." (Emphasis added.) More recently we expressed a similar definition of the scope of the Clause: "Legislative acts are not all-encompassing. The hear of the Clause is speech or debate in either House. Inso far as the Clause is construed to reach other matters, the must be an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House. As the *127 Court of Appeals put it, the courts have extended the privilege to matters beyond pure speech or debate in either House, but `only when necessary to prevent indirect impairment of such deliberations.'" (quoting United v. Doe, (CA1 172)) Cf. -314, 317; United 515-516, 517-518; 23 U.S. 76, (134). Whatever imprecision there may be in the term |
Justice Burger | 1,979 | 12 | majority | Hutchinson v. Proxmire | https://www.courtlistener.com/opinion/110131/hutchinson-v-proxmire/ | 76, (134). Whatever imprecision there may be in the term "legislative activities," it is clear that nothing in history or in the explicit language of the Clause suggests any intention to create an absolute privilege from liability or suit for defamatory statements made outside the Chamber. In we observed: "The immunities of the Speech or Debate Clause were not written into the Constitution simply for the personal or private benefit of Members of Congress, but to protect the integrity of the legislative process by insuring the independence of individual legislators." Claims under the Clause going beyond what is needed to protect legislative independence are to be closely scrutinized. In we took note of this: "The authors of our Constitution were well aware of the history of both the need for the privilege and the abuses that could flow from too sweeping safeguards. In order to preserve other values, they wrote the privilege so that it tolerates and protects behavior on the part of Members not tolerated and protected when done by other citizens, but the shield does not extend beyond what is necessary to preserve the integrity of the legislative process." Indeed, the precedents abundantly support the conclusion that a Member may be held liable for republishing defamatory *128 statements originally made in either House. We perceive no basis for departing from that long-established rule. Mr. Justice Story in his Commentaries, for example, explained that there was no immunity for republication of a speech first delivered in Congress: "Therefore, although a speech delivered in the house of commons is privileged, and the member cannot be questioned respecting it elsewhere; yet, if he publishes his speech, and it contains libellous matter, he is liable to an action and prosecution therefor, as in common cases of libel. And the same principles seem applicable to the privilege of debate and speech in congress. No man ought to have a right to defame others under colour of a performance of the duties of his office. And if he does so in the actual discharge of his duties in congress, that furnishes no reason, why he should be enabled through the medium of the press to destroy the reputation, and invade the repose of other citizens. It is neither within the scope of his duty, nor in furtherance of public rights, or public policy. Every citizen has as good a right to be protected by the laws from malignant scandal, and false charges, and defamatory imputations, as a member of congress has to utter them in his seat."[13] 2 J. Story, Commentaries *12 on the |
Justice Burger | 1,979 | 12 | majority | Hutchinson v. Proxmire | https://www.courtlistener.com/opinion/110131/hutchinson-v-proxmire/ | in his seat."[13] 2 J. Story, Commentaries *12 on the Constitution 863, p. 32 (1833) See also L. Cushing, Elements of the Law and Practice of Legislative Assemblies in the United of America ¶ 604, p. 244 (1st ed. reprint 171). Story summarized the state of the common law at the time the Constitution was drafted, recalling that Parliament had by then succeeded in its struggle to secure freedom of debate. But the privilege did not extend to republication of libelous remarks even though first made in Parliament. Thus, in King v. Lord Abingdon, 1 Esp. 225, 170 Eng. Rep. 337 (N.P. 174), Lord Chief Justice Kenyon rejected Lord Abingdon's argument that parliamentary privilege protected him from suit for republication of a speech first made in the House of Lords: "[A]s to the words in question, had they been spoken in the House of Lords, and confined to its walls, [the] Court would have had no jurisdiction to call his Lordship before them, to answer for them as an offence; but in the present case, the offence was the publication under his authority and sanction, and at his expense: a member of Parliament had certainly a right to publish his speech, but that speech should not be made the vehicle of slander against any individual; if it was, it was a libel" 170 Eng. Rep., at 338. A similar result was reached in King v. Creevey, 1 M. & S. 273, 105 Eng. Rep. 102 (K. B. 1813). *130 In -626, we recognized that the doctrine denying immunity for republication had been accepted in the United : "[P]rivate publication by Senator Gravel was in no way essential to the deliberations of the Senate; nor does questioning as to private publication threaten the integrity or independence of the Senate by impermissibly exposing its deliberations to executive influence." We reaffirmed that principle in -315: "A Member of Congress may not with impunity publish a libel from the speaker's stand in his home district, and clearly the Speech or Debate Clause would not protect such an act even though the libel was read from an official committee report. The reason is that republishing a libel under such circumstances is not an essential part of the legislative process and is not part of that deliberative process `by which Members participate in committee and House proceedings.'" (Footnote omitted; quoting from)[14] We reach a similar conclusion here. A speech by Proxmire in the Senate would be wholly immune and would be available to other Members of Congress and the public in the Congressional Record. But neither |
Justice Burger | 1,979 | 12 | majority | Hutchinson v. Proxmire | https://www.courtlistener.com/opinion/110131/hutchinson-v-proxmire/ | Congress and the public in the Congressional Record. But neither the newsletters nor the press release was "essential to the deliberations of the Senate" and neither was part of the deliberative process. Respondents, however, argue that newsletters and press releases are essential to the functioning of the Senate; without *131 them, they assert, a Senator cannot have a significant impact on the other Senators. We may assume that a Member's published statements exert some influence on other votes in the Congress and therefore have a relationship to the legislative and deliberative process. But in we rejected respondents' expansive reading of the Clause: "It is well known, of course, that Members of the Congress engage in many activities other than the purely legislative activities protected by the Speech or Debate Clause. These include preparing so-called `news letters' to constituents, news releases, and speeches delivered outside the Congress." There we went on to note that United 383 U.S. 16 (166), had carefully distinguished between what is only "related to the due functioning of the legislative process," and what constitutes the legislative process entitled to immunity under the Clause: "In stating that those things [Johnson's attempts to influence the Department of Justice] `in no wise related to the due functioning of the legislative process' were not covered by the privilege, the Court did not in any sense imply as a corollary that everything that `related' to the office of a Member was shielded by the Clause. Quite the contrary, in Johnson we held, citing that only acts generally done in the course of the process of enacting legislation were protected. "In no case has this Court ever treated the Clause as protecting all conduct relating to the legislative process. ". In its narrowest scope, the Clause is a very large, albeit essential, grant of privilege. It has enabled reckless men to slander [by speech or debate] and even destroy *132 others with impunity, but that was the conscious choice of the Framers." -516. (Emphasis in original.) We are unable to discern any "conscious choice" to grant immunity for defamatory statements scattered far and wide by mail, press, and the electronic media. Respondents also argue that newsletters and press releases are privileged as part of the "informing function" of Congress. Advocates of a broad reading of the "informing function" sometimes tend to confuse two uses of the term "informing." In one sense, Congress informs itself collectively by way of hearings of its committees. It was in that sense that Woodrow Wilson used "informing" in a statement quoted by respondents. In reality, Wilson's statement related |
Justice Burger | 1,979 | 12 | majority | Hutchinson v. Proxmire | https://www.courtlistener.com/opinion/110131/hutchinson-v-proxmire/ | a statement quoted by respondents. In reality, Wilson's statement related to congressional efforts to learn of the activities of the Executive Branch and administrative agencies; he did not include wideranging inquiries by individual Members on subjects of their choice. Moreover, Wilson's statement itself clearly implies a distinction between the informing function and the legislative function: "Unless Congress have and use every means of acquainting itself with the acts and the disposition of the administrative agents of the government, the country must be helpless to learn how it is being served; and unless Congress both scrutinize these things and sift them by every form of discussion, the country must remain in embarrassing, crippling ignorance of the very affairs which it is most important that it should understand and direct. The informing function of Congress should be preferred even to its legislative function. [T]he only really self-governing people is that people which discusses and interrogates its administration." W. Wilson, Congressional Government 303 (18). It is in this narrower Wilsonian sense that this Court has employed "informing" in previous cases holding that congressional *133 efforts to inform itself through committee hearings are part of the legislative function. The other sense of the term, and the one relied upon by respondents, perceives it to be the duty of Members to tell the public about their activities. Valuable and desirable as it may be in broad terms, the transmittal of such information by individual Members in order to inform the public and other Members is not a part of the legislative function or the deliberations that make up the legislative process.[15] As a result, transmittal of such information by press releases and newsletters is not protected by the Speech or Debate Clause. is not to the contrary. It dealt only with reports from congressional committees, and held that Members of Congress could not be held liable for voting to publish a report. Voting and preparing committee reports are the individual and collective expressions of opinion within the legislative process. As such, they are protected by the Speech or Debate Clause. Newsletters and press releases, by contrast, are primarily means of informing those outside the legislative forum; they represent the views and will of a single Member. It does not disparage either their value or their importance to hold that they are not entitled to the protection of the Speech or Debate Clause. V Since New York Times[16] this Court has sought to define the accommodation *134 required to assure the vigorous debate on the public issues that the First Amendment was designed to protect while |
Justice Burger | 1,979 | 12 | majority | Hutchinson v. Proxmire | https://www.courtlistener.com/opinion/110131/hutchinson-v-proxmire/ | issues that the First Amendment was designed to protect while at the same time affording protection to the reputations of individuals. E. g., Time, (176); (174); 403 U.S. 2 (171); St. 30 (168); Curtis Publishing (167); (166). In the Court offered a general definition of "public figures": "For the most part those who attain this status [of public figure] have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment." It is not contended that Hutchinson attained such prominence that he is a public figure for all Instead, respondents have argued that the District Court and the Court of Appeals were correct in holding that Hutchinson is a public figure for the limited purpose of comment on his receipt of federal funds for research projects. That conclusion was based upon two factors: first, Hutchinson's successful application for federal funds and the reports in local newspapers of the federal grants; second, Hutchinson's access to the media, as demonstrated by the fact that some newspapers and wire services reported his response to the announcement of the Golden Fleece Award. Neither of those factors demonstrates *135 that Hutchinson was a public figure prior to the controversy engendered by the Golden Fleece Award; his access, such as it was, came after the alleged libel. On this record, Hutchinson's activities and public profile are much like those of countless members of his profession. His published writings reach a relatively small category of professionals concerned with research in human behavior. To the extent the subject of his published writings became a matter of controversy, it was a consequence of the Golden Fleece Award. Clearly, those charged with defamation cannot, by their own conduct, create their own defense by making the claimant a public figure. See Wolston v. Reader's Digest Assn., Inc., post, at 167-168. Hutchinson did not thrust himself or his views into public controversy to influence others. Respondents have not identified such a particular controversy; at most, they point to concern about general public expenditures. But that concern is shared by most and relates to most public expenditures; it is not sufficient to make Hutchinson a public figure. If it were, everyone who received or benefited from the myriad public grants for research could be classified as a public figurea conclusion that our |
Justice Burger | 1,979 | 12 | majority | Hutchinson v. Proxmire | https://www.courtlistener.com/opinion/110131/hutchinson-v-proxmire/ | could be classified as a public figurea conclusion that our previous opinions have rejected. The "use of such subject-matter classifications to determine the extent of constitutional protection afforded defamatory falsehoods may too often result in an improper balance between the competing interests in this area." Time, Moreover, Hutchinson at no time assumed any role of public prominence in the broad question of concern about expenditures. Neither his applications for federal grants nor his publications in professional journals can be said to have invited that degree of public attention and comment on his receipt of federal grants essential to meet the public figure level. The petitioner in had published books and articles on legal issues; he had been *136 active in local community affairs. Nevertheless, the Court concluded that his activities did not make him a public figure. Finally, we cannot agree that Hutchinson had such access to the media that he should be classified as a public figure. Hutchinson's access was limited to responding to the announcement of the Golden Fleece Award. He did not have the regular and continuing access to the media that is one of the accouterments of having become a public figure. We therefore reverse the judgment of the Court of Appeals and remand the case to the Court of Appeals for further proceedings consistent with this opinion. Reversed and remanded. MR. JUSTICE STEWART joins in all but footnote 10 of the Court's opinion. He cannot agree that the question whether a communication by a Congressman or a member of his staff with a federal agency is entitled to Speech or Debate Clause immunity depends upon whether the communication is defamatory. Because telephone calls to federal agency officials are a routine and essential part of the congressional oversight function, he believes such activity is protected by the Speech or Debate Clause. MR. |
Justice Stevens | 2,010 | 16 | majority | Samantar v. Yousuf | https://www.courtlistener.com/opinion/147531/samantar-v-yousuf/ | From 1980 to 1986 petitioner Mohamed Ali Samantar was the First Vice President and Minister of Defense of Somalia, and from 1987 to he served as its Prime Minister. Respondents are natives of Somalia who allege that they, or members of their families, were the victims of torture and extrajudicial killings during those years. They seek damages from petitioner based on his alleged au thorization of those acts. The narrow question we must decide is whether the Foreign Sovereign Immunities Act of 1976 (FSIA or Act), 28 U.S. C. 1602 et seq., pro vides petitioner with immunity from suit based on actions taken in his official capacity. We hold that the FSIA does not govern the determination of petitioner’s immunity from suit. I Respondents are members of the Isaaq clan, which included well-educated and prosperous Somalis who were subjected to systematic persecution during the 1980’s by the military regime then governing Somalia. They allege that petitioner exercised command and control over mem 2 SAMANTAR v. YOUSUF Opinion of the Court bers of the Somali military forces who tortured, killed, or arbitrarily detained them or members of their families; that petitioner knew or should have known of the abuses perpetrated by his subordinates; and that he aided and abetted the commission of these abuses.1 Respondents’ complaint sought damages from petitioner pursuant to the Torture Victim Protection Act of 1, note following 28 U.S. C. and the Alien Tort Statute, 28 U.S. C. Petitioner, who was in charge of Somalia’s armed forces before its military regime collapsed, fled Somalia in 1 and is now a resident of Virginia. The United States has not recognized any entity as the gov ernment of Somalia since the fall of the military regime. See Brief for United States as Amicus Curiae 4. Respondents filed their complaint in November 2004, and petitioner promptly moved to dismiss. The District Court stayed the proceedings to give the State Depart ment an opportunity to provide a statement of interest regarding petitioner’s claim of sovereign immunity. Each month during the ensuing two years, petitioner advised the court that the State Department had the matter “ ‘still under consideration.’ ” No. 1:04cv1360 App. to Pet. for Cert. 44a. In 2007, having received no response from the State Department, the District Court reinstated the case on its active docket. The court con cluded that it did not have subject-matter jurisdiction and granted petitioner’s motion to dismiss. The District Court’s decision rested squarely on the —————— 1 Although we do not set out respondents’ allegations in detail, the District Court’s written opinion contains a |
Justice Stevens | 2,010 | 16 | majority | Samantar v. Yousuf | https://www.courtlistener.com/opinion/147531/samantar-v-yousuf/ | allegations in detail, the District Court’s written opinion contains a comprehensive summary, describing not only the abuses respondents suffered but also the his torical context in which the abuses occurred, as well as some of the attempts to establish a stable government in Somalia in recent years. See No. 1:04cv1360 App. to Pet. for Cert. 31a– 43a. Cite as: 560 U. S. (2010) 3 Opinion of the Court FSIA.2 The FSIA provides that a “foreign state shall be immune from the jurisdiction” of both federal and state courts except as provided in the Act, 28 U.S. C. and the District Court noted that none of the parties had argued that any exception was applicable, App. to Pet. for Cert. 46a–47a. Although characterizing the statute as silent on its applicability to the officials of a foreign state, the District Court followed appellate decisions holding that a foreign state’s sovereign immunity under the Act extends to “ ‘an individual acting in his official capacity on behalf of a foreign state,’ ” but not to “ ‘an official who acts beyond the scope of his authority.’ ” at 47a (quoting 399 (CA4 2004)). The court rejected respondents’ argu ment that petitioner was necessarily acting beyond the scope of his authority because he allegedly violated inter national law.3 The Court of Appeals reversed, rejecting the District Court’s ruling that the FSIA governs petitioner’s immu nity from suit. It acknowledged “the majority view” —————— 2 Petitioner argued that, in addition to his immunity under the FSIA, the complaint should be dismissed on a number of other grounds, which the District Court did not reach. See at 45a, n. 11. 3 Because we hold that the FSIA does not govern whether an individ ual foreign official enjoys immunity from suit, we need not reach respondents’ argument that an official is not immune under the FSIA for acts of torture and extrajudicial killing. See Brief for Respondents 51–53. We note that in determining petitioner had not acted beyond the scope of his authority, the District Court afforded great weight to letters from the Somali Transitional Federal Government (TFG) to the State Department, App. to Pet. for Cert. 55a, in which the TFG sup ported petitioner’s claim of immunity and stated “the actions attributed to [petitioner] in the lawsuit would have been taken by [petitioner] in his official capacities,” App. 104. Although the District Court de scribed the TFG as “recognized by the United States as the governing body in Somalia,” App. to Pet. for Cert. 54a, the United States does not recognize the TFG (or any other |
Justice Stevens | 2,010 | 16 | majority | Samantar v. Yousuf | https://www.courtlistener.com/opinion/147531/samantar-v-yousuf/ | United States does not recognize the TFG (or any other entity) as the government of Somalia, see Brief for United States as Amicus Curiae 5. 4 SAMANTAR v. YOUSUF Opinion of the Court among the Circuits that “the FSIA applies to individual officials of a foreign state.”4 It disagreed with that view, however, and con cluded, “based on the language and structure of the stat ute, that the FSIA does not apply to individual foreign government agents like [petitioner].”5 Having found that the FSIA does not govern whether petitioner enjoys immunity from suit, the Court of Appeals re manded the case for further proceedings, including a determination of whether petitioner is entitled to immu nity under the common law. at 3–384. We granted certiorari. 557 U. S. II The doctrine of foreign sovereign immunity developed as a matter of common law long before the FSIA was enacted in 1976. In B. V. v. Central Bank of Nigeria, we explained that in Schooner “Chief Jus tice Marshall concluded that the United States had impliedly waived jurisdiction over certain activities of —————— 4 552 F.3d, (holding the FSIA does not govern the immunity of individual foreign officials), and Enahoro v. Abubakar, 408 F.3d 877, 881–882 (CA7 2005) with (concluding that a suit against an individual official for acts committed in his official capacity must be analyzed under the FSIA), In re Terrorist Attacks on September 11, 2001, and (CADC 6) 5 As an alternative basis for its decision, the Court of Appeals held that even if a current official is covered by the FSIA, a former official is not. See 552 F.3d, –3. Because we agree with the Court of Appeals on its broader ground that individual officials are not covered by the FSIA, petitioner’s status as a former official is irrelevant to our analysis. Cite as: 560 U. S. (2010) 5 Opinion of the Court foreign sovereigns.” The Court’s specific holding in Schoo ner Exchange was that a federal court lacked jurisdiction over “a national armed vessel of the emperor of France,” but the opinion was interpreted as extending virtually absolute immunity to foreign sover eigns as “a matter of grace and comity,” 461 U.S., at Following Schooner Exchange, a two-step procedure developed for resolving a foreign state’s claim of sovereign immunity, typically asserted on behalf of seized vessels. See, e.g., Republic of 34– 36 (1945); Ex parte ; Compania de Navegacion Maritima, S. Under that proce dure, the diplomatic representative of the sovereign could request a “suggestion of immunity” from the State De partment. Ex parte If the request was |
Justice Stevens | 2,010 | 16 | majority | Samantar v. Yousuf | https://www.courtlistener.com/opinion/147531/samantar-v-yousuf/ | the State De partment. Ex parte If the request was granted, the district court surrendered its jurisdic tion. ; see also But “in the absence of recognition of the immunity by the Department of State,” a district court “had authority to decide for itself whether all the requisites for such immu nity existed.” Ex parte ; see also Compania (approving judicial inquiry into sovereign immunity when the “Department of State declined to act”); (evaluating sov ereign immunity when the State Department had not responded to a request for its views). In making that decision, a district court inquired “whether the ground of immunity is one which it is the established policy of the [State Department] to recognize.” 324 U.S., at 36. Although cases involving individual foreign officials as defendants were rare, the same two-step procedure was typically followed when a foreign official asserted immu nity. See, e.g., –505; Waltier v. 66 Prior to 1952, the State Department followed a general practice of requesting immunity in all actions against friendly sovereigns, but in that year the Department announced its adoption of the “restrictive” theory of sover eign immunity. 461 U.S., at –487; see also Letter from Jack B. Tate, Acting Legal Adviser, Depart ment of State, to Acting Attorney General Philip B. Perlman reprinted in 26 Dept. State Bull. 984–985 Under this theory, “immunity is confined to suits involving the foreign sovereign’s public acts, and does not extend to cases arising out of a foreign state’s strictly commercial acts.” This change threw “immunity determinations into some disarray,” because “political considerations sometimes led the Department to file ‘suggestions of immunity in cases where immunity would not have been available under the restrictive theory.’ ” Republic of Austria v. 541 U.S. 677, 690 (2004) (quoting 461 U.S., at 487). Congress responded to the inconsistent application of sovereign immunity by enacting the FSIA in 1976. –691; see also 461 U.S., at 487–488. Section 1602 describes the Act’s two primary purposes: (1) to endorse and codify the restrictive theory of sovereign immunity, and (2) to transfer primary responsibility for deciding “claims of foreign states to immunity” from the State Department to the courts.7 —————— 6 Diplomatic and consular officers could also claim the “specialized immunities” accorded those officials, Restatement (Second) of Foreign Relations Law of the United States Comment b (1964–1965) (hereinafter Restatement), and officials qualifying as the “head of state” could claim immunity on that basis, see Schooner (describing “the exemption of the person of the sovereign” from “a jurisdiction incompatible with his dignity”). 7 The full text of entitled “Findings and declaration of |
Justice Stevens | 2,010 | 16 | majority | Samantar v. Yousuf | https://www.courtlistener.com/opinion/147531/samantar-v-yousuf/ | 7 The full text of entitled “Findings and declaration of pur Cite as: 560 U. S. (2010) 7 Opinion of the Court After the enactment of the FSIA, the Act—and not the pre-existing common law—indisputably governs the de termination of whether a foreign state is entitled to sover eign immunity. What we must now decide is whether the Act also covers the immunity claims of foreign officials. We begin with the statute’s text and then consider petitioner’s reliance on its history and purpose. III The FSIA provides that “a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States” except as provided in the Act. Thus, if a defendant is a “foreign state” within the meaning of the Act, then the defendant is immune from jurisdiction unless one of the exceptions in the Act applies. See (enumerating exceptions). The Act, if it applies, is the “sole basis for obtaining jurisdiction over a foreign state in federal court.” Argentine Republic v. Amerada Hess Shipping Corp., The question we face in this case is whether an individual sued for conduct undertaken in his official capacity is a “foreign state” within the meaning of the Act. The Act defines “foreign state” in as follows: “(a) A ‘foreign state’ includes a political subdivi —————— pose,” reads as follows: “The Congress finds that the determination by United States courts of the claims of foreign states to immunity from the jurisdiction of such courts would serve the interests of justice and would protect the rights of both foreign states and litigants in United States courts. Under international law, states are not immune from the jurisdiction of foreign courts insofar as their commercial activities are concerned, and their commercial property may be levied upon for the satisfaction of judgments rendered against them in connection with their commercial activities. Claims of foreign states to immunity should henceforth be decided by courts of the United States and of the States in conformity with the principles set forth in this chapter.” 8 SAMANTAR v. YOUSUF Opinion of the Court sion of a foreign state or an agency or instrumentality of a foreign state as defined in subsection (b). “(b) An ‘agency or instrumentality of a foreign state’ means any entity— “(1) which is a separate legal person, corporate or otherwise, and “(2) which is an organ of a foreign state or political subdivision thereof, or a majority of whose shares or other ownership interest is owned by a foreign state or political subdivision thereof, and “(3) which is neither a citizen |
Justice Stevens | 2,010 | 16 | majority | Samantar v. Yousuf | https://www.courtlistener.com/opinion/147531/samantar-v-yousuf/ | political subdivision thereof, and “(3) which is neither a citizen of a State of the United States as defined in section 1332(c) and (e) of this title, nor created under the laws of any third country.” The term “foreign state” on its face indicates a body politic that governs a particular territory. See, e.g., Re statement (defining “state” as “an entity that has a defined territory and population under the control of a government and that engages in foreign relations”). In (a), however, the Act establishes that “foreign state” has a broader meaning, by mandating the inclusion of the state’s political subdivisions, agencies, and instrumentali ties. Then, in (b), the Act specifically delimits what counts as an agency or instrumentality. Petitioner argues that either “foreign state,” (a), or “agency or instru mentality,” (b), could be read to include a foreign official. Although we agree that petitioner’s interpretation is literally possible, our analysis of the entire statutory text persuades us that petitioner’s reading is not the meaning that Congress enacted. We turn first to the term “agency or instrumentality of a foreign state,” (b). It is true that an individual official could be an “agency or instrumentality,” if that term is given the meaning of “any thing or person through which action is accomplished,” In re Terrorist Attacks on Cite as: 560 U. S. (2010) 9 Opinion of the Court Sept. 11, 2001, But Congress has specifically defined “agency or instrumentality” in the FSIA, and all of the textual clues in that definition cut against such a broad construction. First, the statute specifies that “ ‘agency or instrumen tality’ means any entity” matching three specified characteristics, (b) (emphasis added), and “entity” typically refers to an organization, rather than an individ ual. See, e.g., Black’s Law Dictionary 6 Furthermore, several of the required characteristics apply awkwardly, if at all, to individuals. The phrase “separate legal person, corporate or otherwise,” (b)(1), could conceivably refer to a natural person, solely by virtue of the word “person.” But the phrase “separate legal person” typically refers to the legal fiction that allows an entity to hold personhood separate from the natural persons who are its shareholders or officers. Cf. First Nat. City Bank v. Banco Para el Comercio Exterior de Cuba, 625 (“Separate legal personality has been described as ‘an almost indispensable aspect of the public corpora tion’ ”). It is similarly awkward to refer to a person as an “organ” of the foreign state. See (b)(2). And the third part of the definition could not be applied at all to a natural person. A natural |
Justice Stevens | 2,010 | 16 | majority | Samantar v. Yousuf | https://www.courtlistener.com/opinion/147531/samantar-v-yousuf/ | be applied at all to a natural person. A natural person cannot be a citizen of a State “as defined in section 1332(c) and (e),” (b)(3), because those subsections refer to the citizenship of corpo rations and estates. Nor can a natural person be “created under the laws of any third country.” Ibid.8 Thus, the —————— 8 Petitioner points out that (b)(3) describes only which defen dants cannot be agencies or instrumentalities. He suggests that it therefore tells us nothing about which defendants can be covered by that term. Brief for Petitioner 46. Even if so, reading (b) as petitioner suggests would leave us with the odd result that a corpora tion that is the citizen of a state is excluded from the definition under (b)(3), and thus not immune, whereas a natural person who is the citizen of a state is not excluded, and thus retains his immunity. 10 SAMANTAR v. YOUSUF Opinion of the Court terms Congress chose simply do not evidence the intent to include individual officials within the meaning of “agency or instrumentality.”9 Cf. Dole Food v. Patrickson, 538 U.S. 468, 474 (describing (b) as containing “indicia that Congress had corporate formalities in mind”). Petitioner proposes a second textual route to including an official within the meaning of “foreign state.” He ar gues that the definition of “foreign state” in (a) sets out a nonexhaustive list that “includes” political subdivi sions and agencies or instrumentalities but is not so lim ited. See Brief for Petitioner 22–23. It is true that use of the word “include” can signal that the list that follows is meant to be illustrative rather than exhaustive.10 And, to —————— 9 Nor does anything in the legislative history suggest that Congress intended the term “agency or instrumentality” to include individuals. On the contrary, the legislative history, like the statute, speaks in terms of entities. See, e.g., H. R. Rep. No. 94–1487, p. 15 (1976) (here inafter H. R. Rep.) (“The first criterion, that the entity be a separate legal person, is intended to include a corporation, association, founda tion, or any other entity which, under the law of the foreign state where it was created, can sue or be sued in its own name”). JUSTICE SCALIA may well be correct that it is not strictly necessary to confirm our reading of the statutory text by consulting the legislative history, see post, at 1–2 (opinion concurring in judgment). But as the Court explained some years ago in an opinion authored by Justice White: “As for the propriety of using legislative history at all, common |
Justice Stevens | 2,010 | 16 | majority | Samantar v. Yousuf | https://www.courtlistener.com/opinion/147531/samantar-v-yousuf/ | for the propriety of using legislative history at all, common sense suggests that inquiry benefits from reviewing additional information rather than ignoring it. As Chief Justice Marshall put it, ‘[w]here the mind labours to discover the design of the legislature, it seizes every thing from which aid can be derived.’ United States v. Fisher, 2 Cranch 358, 386 (1805). Legislative history materials are not generally so misleading that jurists should never employ them in a good-faith effort to discern legislative intent. Our precedents demonstrate that the Court’s practice of utilizing legislative history reaches well into its past. See, e.g., (). We suspect that the practice will likewise reach well into the future.” Wisconsin Public (altera tion in original). 10 See 2A N. Singer & J. Singer, Sutherland Statutory Construction Cite as: 560 U. S. (2010) 11 Opinion of the Court be sure, there are fewer textual clues within (a) than within (b) from which to interpret Congress’ silence regarding foreign officials. But even if the list in (a) is merely illustrative, it still suggests that “foreign state” does not encompass officials, because the types of defen dants listed are all entities. See Russell Motor Car v. United States, (“[A] word may be known by the company it keeps”). Moreover, elsewhere in the FSIA Congress expressly mentioned officials when it wished to count their acts as equivalent to those of the foreign state, which suggests that officials are not included within the unadorned term “foreign state.” Cf. Kimbrough v. United States, 552 U.S. 85, 103 (“Drawing meaning from silence is particu larly inappropriate [when] Congress has shown that it knows how to [address an issue] in express terms”). For example, Congress provided an exception from the general grant of immunity for cases in which “money damages are sought against a foreign state” for an injury in the United States “caused by the tortious act or omission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office.” (emphasis added). The same reference to officials is made in a similar, later enacted exception. See 28 U.S. C. A. (eliminating immunity for suits “in which money damages are sought against a foreign state” for certain acts “engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency”); see also (“[T]he word ‘includes’ is usually a term of enlargement, and not of limitation” (some internal quotation marks omitted)). SAMANTAR v. YOUSUF Opinion of the Court agent” thereof).11 If the |
Justice Stevens | 2,010 | 16 | majority | Samantar v. Yousuf | https://www.courtlistener.com/opinion/147531/samantar-v-yousuf/ | v. YOUSUF Opinion of the Court agent” thereof).11 If the term “foreign state” by definition includes an individual acting within the scope of his office, the phrase “or of any official or employee” in 28 U.S. C. would be unnecessary. See Dole Food –477 (“[W]e should not construe the statute in a manner that is strained and, at the same time, would render a statutory term superfluous”). Other provisions of the statute also point away from reading “foreign state” to include foreign officials. Con gress made no express mention of service of process on individuals in which governs service upon a foreign state or political subdivision. Although some of the methods listed could be used to serve individuals—for example, by delivery “in accordance with an applicable international convention,” methods specified are at best very roundabout ways of serving an individual official. Furthermore, Congress made specific remedial choices for different types of defendants. See (allowing punitive damages for an agency or in strumentality but not for a foreign state); (affording a plaintiff greater rights to attach the property of an agency or instrumentality as compared to the property of a foreign state). By adopting petitioner’s reading of “foreign state,” we would subject claims against officials to the more limited remedies available in suits against states, —————— 11 Petitioner argues that abrogates immunity for certain acts by individual officials, which would be superfluous if the officials were not otherwise immune. See Brief for Petitioner 41–43. But the import of is precisely the opposite. First, eliminates the immunity of the state for certain acts of its officers; it says a “foreign state shall not be immune” in a suit “in which money damages are sought against a foreign state.” As it does not expressly refer to the immunity of individual officers, it adds nothing to petitioner’s argu ment. Second, the creation of a cause of action against both the “for eign state” and “any official, employee, or agent” thereof, reinforces the idea that “foreign state” does not by definition include foreign officials. Cite as: 560 U. S. (2010) 13 Opinion of the Court without so much as a whisper from Congress on the sub ject. (And if we were instead to adopt petitioner’s other textual argument, we would subject those claims to the different, more expansive, remedial scheme for agencies). The Act’s careful calibration of remedies among the listed types of defendants suggests that Congress did not mean to cover other types of defendants never mentioned in the text. In sum, “[w]e do not construe statutory phrases in isolation; we read statutes as |
Justice Stevens | 2,010 | 16 | majority | Samantar v. Yousuf | https://www.courtlistener.com/opinion/147531/samantar-v-yousuf/ | not construe statutory phrases in isolation; we read statutes as a whole.” United States v. Morton, Reading the FSIA as a whole, there is nothing to suggest we should read “foreign state” in (a) to include an official acting on behalf of the foreign state, and much to indicate that this meaning was not what Congress enacted. The text does not ex pressly foreclose petitioner’s reading, but it supports the view of respondents and the United States that the Act does not address an official’s claim to immunity. IV Petitioner argues that the FSIA is best read to cover his claim to immunity because of its history and purpose. As discussed at the outset, one of the primary purposes of the FSIA was to codify the restrictive theory of sovereign immunity, which Congress recognized as consistent with extant international law. See We have observed —————— Nor is it the case that the FSIA’s “legislative history does not even hint of an intent to exclude individual officials,” Chuidian, 9 F.2d, at 1101. The legislative history makes clear that Congress did not intend the FSIA to address position-based individual immunities such as diplomatic and consular immunity. H. R. Rep., at (“The bill is not intended to affect either diplomatic or consular immunity”). It also suggests that general “official immunity” is something separate from the subject of the bill. See (“The bill does not attempt to deal with questions of discovery. [I]f a plaintiff sought to depose a diplomat in the United States or a high-ranking official of a foreign government, diplomatic and official immunity would apply”). 14 SAMANTAR v. YOUSUF Opinion of the Court that a related purpose was “codification of international law at the time of the FSIA’s enactment,” Permanent Mission of India to United and have examined the relevant common law and international practice when interpreting the Act, at 200–201. Because of this relationship between the Act and the common law that it codified, petitioner argues that we should construe the FSIA con sistently with the common law regarding individual im munity, which—in petitioner’s view—was coextensive with the law of state immunity and always immunized a for eign official for acts taken on behalf of the foreign state. Even reading the Act in light of Congress’ purpose of codifying state sovereign immunity, however, we do not think that the Act codified the common law with respect to the immunity of individual officials. The canon of construction that statutes should be inter preted consistently with the common law helps us inter pret a statute that clearly covers a field formerly governed |
Justice Stevens | 2,010 | 16 | majority | Samantar v. Yousuf | https://www.courtlistener.com/opinion/147531/samantar-v-yousuf/ | pret a statute that clearly covers a field formerly governed by the common law.13 But the canon does not help us to decide the antecedent question whether, when a statute’s coverage is ambiguous, Congress intended the statute to govern a particular field—in this case, whether Congress intended the FSIA to supersede the common law of official immunity.14 —————— 13 Congress “is understood to legislate against a background of com mon-law principles,” Astoria Fed. Sav. & Loan and when a statute covers an issue previ ously governed by the common law, we interpret the statute with the presumption that Congress intended to retain the substance of the common law. See Isbrandtsen v. Johnson, 7 (“Statutes which invade the common law are to be read with a presumption favoring the retention of long-established and familiar principles, except when a statutory purpose to the contrary is evident”). 14 We find similarly inapposite petitioner’s invocation of the canon that a statute should be interpreted in compliance with international law, see Cite as: 560 U. S. (2010) 15 Opinion of the Court Petitioner argues that because state and official immu nities are coextensive, Congress must have codified official immunity when it codified state immunity. See Brief for Petitioner 26–30. But the relationship between a state’s immunity and an official’s immunity is more complicated than petitioner suggests, although we need not and do not resolve the dispute among the parties as to the precise scope of an official’s immunity at common law. The very authority to which petitioner points us, and which we have previously found instructive, see, e.g., Permanent Mission, states that the immunity of individual officials is subject to a caveat not applicable to any of the other entities or persons15 to which the foreign state’s immunity extends. The Restatement provides that the “immunity of a foreign state extends to any other public minister, official, or agent of the state with respect to acts performed in his official capacity if the effect of exercising jurisdiction would be to enforce a rule of law against the state.” Restatement (emphasis added).16 —————— and his argument that foreign relations and the reciprocal protection of United States officials abroad would be undermined if we do not adopt his reading of the Act. Because we are not deciding that the FSIA bars petitioner’s immunity but rather that the Act does not address the question, we need not determine whether declining to afford immunity to petitioner would be consistent with international law. 15 The Restatement does not apply this caveat to the head of state, head of government, or foreign |
Justice Stevens | 2,010 | 16 | majority | Samantar v. Yousuf | https://www.courtlistener.com/opinion/147531/samantar-v-yousuf/ | to the head of state, head of government, or foreign minister. See Restatement Whether petitioner may be entitled to head of state immunity, or any other immunity, under the common law is a question we leave open for remand. See 3 We express no view on whether Restatement correctly sets out the scope of the common law immunity applicable to current or former foreign officials. 16 Respondents contend that this caveat refers to “the compulsive effect of the judgment on the state,” Brief for Respondents 42, but petitioner disputes that meaning, Reply Brief for Petitioner 17–18. We need not resolve their dispute, as it is enough for present purposes that the Restatement indicates a foreign official’s immunity may turn upon a requirement not applicable to any other type of defendant. 16 SAMANTAR v. YOUSUF Opinion of the Court And historically, the Government sometimes suggested immunity under the common law for individual officials even when the foreign state did not qualify. See, e.g., Greenspan v. Crosbie, No. 74 Civ. 4734 (GLG), 1976 WL 841 (SDNY, Nov. 23, 1976). There is therefore little rea son to presume that when Congress set out to codify state immunity, it must also have, sub silentio, intended to codify official immunity. Petitioner urges that a suit against an official must always be equivalent to a suit against the state because acts taken by a state official on behalf of a state are acts of the state. See Brief for Petitioner 26. We have recog nized, in the context of the act of state doctrine, that an official’s acts can be considered the acts of the foreign state, and that “the courts of one country will not sit in judgment” of those acts when done within the territory of the foreign state. See Underhill v. Hernandez, 168 U.S. 250, 252, 254 (1897). Although the act of state doctrine is distinct from immunity, and instead “provides foreign states with a substantive defense on the merits,” we do not doubt that in some circum stances the immunity of the foreign state extends to an individual for acts taken in his official capacity. But it does not follow from this premise that Congress intended to codify that immunity in the FSIA. It hardly furthers Congress’ purpose of “clarifying the rules that judges should apply in resolving sovereign immunity claims,” at 699, to lump individual officials in with foreign states without so much as a word spelling out how and when individual officials are covered.17 —————— 17 The courts of appeals have had to develop, in the complete absence of any |
Justice Stevens | 2,010 | 16 | majority | Samantar v. Yousuf | https://www.courtlistener.com/opinion/147531/samantar-v-yousuf/ | have had to develop, in the complete absence of any statutory text, rules governing when an official is entitled to immunity under the FSIA. For example, Courts of Appeals have applied the rule that foreign sovereign immunity extends to an individ ual official “for acts committed in his official capacity” but not to “an official who acts beyond the scope of his authority.” Chuidian, 9 Cite as: 560 U. S. (2010) 17 Opinion of the Court Petitioner would have a stronger case if there were any indication that Congress’ intent to enact a comprehensive solution for suits against states extended to suits against individual officials. But to the extent Congress contem plated the Act’s effect upon officials at all, the evidence points in the opposite direction. As we have already men tioned, the legislative history points toward an intent to leave official immunity outside the scope of the Act. See n. And although questions of official immunity did arise in the pre-FSIA period, they were few and far between.18 The immunity of officials simply was not the particular problem to which Congress was responding when it enacted the FSIA. The FSIA was adopted, rather, to address “a modern world where foreign state enter prises are every day participants in commercial activities,” and to assure litigants that decisions regarding claims against states and their enterprises “are made on purely legal grounds.” H. R. Rep., at 7. We have been given no reason to believe that Congress saw as a problem, or wanted to eliminate, the State Department’s role in de terminations regarding individual official immunity.19 —————— F. 2d, at 1106. That may be correct as a matter of common-law principles, but it does not derive from any clarification or codification by Congress. Furthermore, if Congress intended the FSIA to reach individuals, one would expect the Act to have addressed whether former officials are covered, an issue it settled with respect to instrumentali ties, see Dole Food v. Patrickson, (“[I]nstrumentality status [must] be determined at the time suit is filed”). 18 A study that attempted to gather all of the State Department deci sions related to sovereign immunity from the adoption of the restrictive theory in 1952 to the enactment of the FSIA reveals only four decisions related to official immunity, and two related to head of state immunity, out of a total of 110 decisions. Sovereign Immunity Decisions of the Dept. of State, May 1952 to Jan. 1977 (M. Sandler, D. Vagts, & B. Ristau eds.), in Digest of U. S. Practice in Int’l Law 1020, 0 (1977) (hereinafter Digest). 19 |
Justice Stevens | 2,010 | 16 | majority | Samantar v. Yousuf | https://www.courtlistener.com/opinion/147531/samantar-v-yousuf/ | Practice in Int’l Law 1020, 0 (1977) (hereinafter Digest). 19 The FSIA was introduced in accordance with the recommendation 18 SAMANTAR v. YOUSUF Opinion of the Court Finally, our reading of the FSIA will not “in effect make the statute optional,” as some Courts of Appeals have feared, by allowing litigants through “artful pleading to take advantage of the Act’s provisions or, alternatively, choose to proceed under the old common law,” Chuidian v. Philippine Nat. Bank, Even if a suit is not governed by the Act, it may still be barred by foreign sovereign immunity under the common law. And not every suit can successfully be pleaded against an individual official alone.20 Even when a plain tiff names only a foreign official, it may be the case that the foreign state itself, its political subdivision, or an agency or instrumentality is a required party, because —————— of the State Department. H. R. Rep., at 6. The Department sought and supported the elimination of its role with respect to claims against foreign states and their agencies or instrumentalities. See Hearings on H. R. 11315 before the Subcommittee on Administrative Law and Governmental Relations of the House of Representatives Committee on the Judiciary, 94th Cong., 2d Sess., 34 (1976) (testimony of Monroe Leigh, Legal Adviser, Dept. of State) (“[I]t is our judgment that the advantages of having a judicial determination greatly outweigh the advantage of being able to intervene in a lawsuit”). But the Depart ment has from the time of the FSIA’s enactment understood the Act to leave intact the Department’s role in official immunity cases. See Digest 1020 (“These decisions [of the Department regarding the immu nity of officials] may be of some future significance, because the Foreign Sovereign Immunities Act does not deal with the immunity of individ ual officials, but only that of foreign states and their political subdivi sions, agencies and instrumentalities”). 20 Furthermore, a plaintiff seeking to sue a foreign official will not be able to rely on the Act’s service of process and jurisdictional provisions. Thus, a plaintiff will have to establish that the district court has personal jurisdiction over an official without the benefit of the FSIA provision that makes personal jurisdiction over a foreign state auto matic when an exception to immunity applies and service of process has been accomplished in accordance with 28 U.S. C. See (“Personal jurisdiction over a foreign state shall exist as to every claim for relief over which the district courts have jurisdiction under subsec tion (a),” i.e., claims for which the foreign state is not entitled to |
Justice Stevens | 2,010 | 16 | majority | Samantar v. Yousuf | https://www.courtlistener.com/opinion/147531/samantar-v-yousuf/ | claims for which the foreign state is not entitled to immu nity, “where service has been made under section 1608 of this title”). Cite as: 560 U. S. (2010) 19 Opinion of the Court that party has “an interest relating to the subject of the action” and “disposing of the action in the person’s absence may as a practical matter impair or impede the per son’s ability to protect the interest.” Fed. Rule Civ. Proc. 19(a)(1)(B). If this is the case, and the entity is immune from suit under the FSIA, the district court may have to dismiss the suit, regardless of whether the official is im mune or not under the common law. See Republic of (“[W]here sovereign immunity is asserted, and the claims of the sovereign are not frivolous, dismissal of the action must be ordered where there is a potential for injury to the interests of the absent sovereign”). Or it may be the case that some actions against an official in his official capacity should be treated as actions against the foreign state itself, as the state is the real party in interest. Cf. (“[A]n official-capacity suit is, in all respects other than name, to be treated as a suit against the entity. It is not a suit against the official personally, for the real party in inter est is the entity” (citation omitted)). We are thus not persuaded that our construction of the statute’s text should be affected by the risk that plaintiffs may use artful pleading to attempt to select between application of the FSIA or the common law. And we think this case, in which respondents have sued petitioner in his personal capacity and seek damages from his own pockets, is properly governed by the common law because it is not a claim against a foreign state as the Act defines that term. Although Congress clearly intended to supersede the common-law regime for claims against foreign states, we find nothing in the statute’s origin or aims to indicate that Congress similarly wanted to codify the law of foreign official immunity. 20 SAMANTAR v. YOUSUF Opinion of the Court V Our review of the text, purpose, and history of the FSIA leads us to the conclusion that the Court of Appeals cor rectly held the FSIA does not govern petitioner’s claim of immunity. The Act therefore did not deprive the District Court of subject-matter jurisdiction. We emphasize, how ever, the narrowness of our holding. Whether petitioner may be entitled to immunity under the common law, and whether he may have other valid defenses to |
Justice Ginsburg | 2,006 | 5 | majority | Marshall v. Marshall | https://www.courtlistener.com/opinion/145660/marshall-v-marshall/ | In Cohens v. Virginia, Chief Justice Marshall famously cautioned: "It is most true that this Court will not take jurisdiction if it should not: but it is equally true, that it must take jurisdiction if it should. We have no more right to decline the exercise of jurisdiction which is given, than to *299 usurp that which is not given." Among longstanding limitations on federal jurisdiction otherwise properly exercised are the so-called "domestic relations" and "probate" exceptions. Neither is compelled by the text of the Constitution or federal Both are judicially created doctrines stemming in large measure from misty understandings of English legal history. See, e. g., Atwood, Domestic Relations Cases in Federal Court: Toward a Principled Exercise of Jurisdiction, 35 Hastings L. J. 571, 54-5 (194); ; Winkler, The Probate Jurisdiction of the Federal Courts, 14 Probate L. J. 77, 125-126, and n. 256 (1997) (describing historical explanation for probate exception as "an exercise in mythography"). In the years following Marshall's 121 pronouncement, courts have sometimes lost sight of his admonition and have rendered decisions expansively interpreting the two exceptions. In this Court reined in the "domestic relations exception." Earlier, in the Court endeavored similarly to curtail the "probate exception." Nevertheless, the Ninth in the instant case read the probate exception broadly to exclude from the federal courts' adjudicatory authority "not only direct challenges to a will or trust, but questions which would ordinarily be decided by a probate court in determining the validity of the decedent's estate planning instrument." The Court of Appeals further held that a State's vesting of exclusive jurisdiction over probate matters in a special court strips federal courts of jurisdiction to entertain any "probate related matter," including claims respecting "tax liability, debt, gift, [or] tort." We hold that the Ninth had no warrant from Congress, *300 or from decisions of this Court, for its sweeping extension of the probate exception. I Petitioner, Vickie Lynn Marshall (Vickie), known as Anna Nicole Smith, is the surviving widow of J. Howard Marshall II (J. Howard). Vickie and J. Howard met in October 1991. After a courtship lasting more than two years, they were married on June 27, 1994. J. Howard died on August 4, 1995. Although he lavished gifts and significant sums of money on Vickie during their courtship and marriage, J. Howard did not include anything for Vickie in his According to Vickie, J. Howard intended to provide for her financial security through a gift in the form of a "catchall" trust. Respondent, E. Pierce Marshall (Pierce), one of J. Howard's sons, was the ultimate beneficiary |
Justice Ginsburg | 2,006 | 5 | majority | Marshall v. Marshall | https://www.courtlistener.com/opinion/145660/marshall-v-marshall/ | (Pierce), one of J. Howard's sons, was the ultimate beneficiary of J. Howard's estate plan, which consisted of a living trust and a "pourover" Under the terms of the will, all of J. Howard's not already included in the trust were to be transferred to the trust upon his death. Competing claims regarding J. Howard's fortune ignited proceedings in both state and federal courts. In January 1996, while J. Howard's estate was subject to ongoing proceedings in Probate Court in Harris County, Texas, Vickie filed for bankruptcy under Chapter 11 of the Bankruptcy Code, 11 U.S. C. 1101 et seq., in the United States Bankruptcy Court for the Central District of California. See In June 1996, Pierce filed a proof of claim in the federal bankruptcy proceeding, ; see 11 U.S. C. 501, alleging that Vickie had defamed him when, shortly after J. Howard's death, lawyers representing Vickie told members of the press that Pierce had engaged in forgery, fraud, and overreaching to gain control of his father's 275 B.R., Pierce sought a declaration that *301 the debt he asserted in that claim was not dischargeable in bankruptcy. [1] Vickie answered, asserting truth as a defense. She filed counterclaims, among them a claim that Pierce had tortiously interfered with a gift she expected. ; see App. 23-25. Vickie alleged that Pierce prevented the transfer of his father's intended gift to her by, among other things: effectively imprisoning J. Howard against his wishes; surrounding him with hired guards for the purpose of preventing personal contact between him and Vickie; making misrepresentations to J. Howard; and transferring property against J. Howard's expressed wishes. Vickie's tortious interference counterclaim turned her objection to Pierce's claim into an adversary proceeding. ; see Fed. Rule Bkrtcy. Proc. 3007. In that proceeding, the Bankruptcy Court granted summary judgment in favor of Vickie on Pierce's claim and, after a trial on the merits, entered judgment for Vickie on her tortious interference counterclaim. See 55-559 The Bankruptcy Court held that both Vickie's objection to Pierce's claim and Vickie's counterclaim qualified as "core proceedings" under 2 U.S. C. 157, which meant that the court had authority to enter a final judgment disposing of those claims. See The court awarded Vickie compensatory damages of more than $449 millionless whatever she recovered in the ongoing probate action in Texasas well as $25 million in punitive Pierce filed a post-trial motion to dismiss for lack of subject-matter jurisdiction, asserting that Vickie's tortious interference claim could be tried only in the Texas probate proceedings. The Bankruptcy Court held that *302 "the `probate exception' argument |
Justice Ginsburg | 2,006 | 5 | majority | Marshall v. Marshall | https://www.courtlistener.com/opinion/145660/marshall-v-marshall/ | The Bankruptcy Court held that *302 "the `probate exception' argument was waived" because it was not timely raised. Relying on this Court's decision in the court observed that a federal court has jurisdiction to "adjudicate rights in probate property, so long as its final judgment does not undertake to interfere with the state court's possession of the property." 257 B.R., at 3 (citing ). Meanwhile, in the Texas Probate Court, Pierce sought a declaration that the living trust and his father's will were -1125. Vickie, in turn, challenged the validity of the will and filed a tortious interference claim against Pierce, ib but voluntarily dismissed both claims once the Bankruptcy Court entered its judgment, at 112. Following a jury trial, the Probate Court declared the living trust and J. Howard's will Back in the federal forum, Pierce sought district-court review of the Bankruptcy Court's judgment. While rejecting the Bankruptcy Court's determination that Pierce had forfeited any argument based on the probate exception, the District Court held that the exception did not reach Vickie's claim. The Bankruptcy Court "did not assert jurisdiction generally over the probate proceedings or take control over [the] estate's" the District Court observed, "[t]hus, the probate exception would bar federal jurisdiction over Vickie's counterclaim only if such jurisdiction would `interfere' with the probate proceedings," (quoting ). Federal jurisdiction would not "interfere" with the probate proceedings, the District Court concluded, because: (1) success on Vickie's counterclaim did not necessitate any declaration that J. Howard's will was 264 B.R., ; and (2) under Texas law, probate courts do not have exclusive jurisdiction to entertain claims of the kind asserted in Vickie's counterclaim, The District Court held that Vickie's claim did not qualify as a "core proceedin[g] arising under title 11, or arising in a case under title 11." 2 U.S. C. 157(b)(1); see 264 *-632. A bankruptcy court may exercise plenary power only over "core proceedings." See 157(b)-(c).[2] In noncore matters, a bankruptcy court may not enter final judgment; it has authority to issue only proposed findings of fact and conclusions of law, which are reviewed de novo by the district court. See 157(c)(1). Accordingly, the District Court treated the Bankruptcy Court's judgment as "proposed[,] rather than final," and undertook a "comprehensive, complete, and independent review of" the Bankruptcy Court's determinations. *304 Adopting and supplementing the Bankruptcy Court's findings, the District Court determined that Pierce had tortiously interfered with Vickie's expectancy. Specifically, the District Court found that J. Howard directed his lawyers to prepare an inter vivos trust for Vickie consisting of half the appreciation of his from the |
Justice Ginsburg | 2,006 | 5 | majority | Marshall v. Marshall | https://www.courtlistener.com/opinion/145660/marshall-v-marshall/ | Vickie consisting of half the appreciation of his from the date of their marriage. See -30, 51-53. It further found that Pierce conspired to suppress or destroy the trust instrument and to strip J. Howard of his by backdating, altering, and otherwise falsifying documents, arranging for surveillance of J. Howard and Vickie, and presenting documents to J. Howard under false pretenses. See -50, 57-5; see -556, 559-560. Based on these findings, the District Court awarded Vickie some $44.3 million in compensatory -57. In addition, finding "overwhelming" evidence of Pierce's "willfulness, maliciousness, and fraud," the District Court awarded an equal amount in punitive at 57-5. The Court of Appeals for the Ninth reversed. The appeals court recognized that Vickie's claim "does not involve the administration of an estate, the probate of a will, or any other purely probate matter." 392 F.3d, at Nevertheless, the court held that the probate exception bars federal jurisdiction in this case. In the Ninth 's view, a claim falls within the probate exception if it raises "questions which would ordinarily be decided by a probate court in determining the validity of the decedent's estate planning instrument," whether those questions involve "fraud, undue influence[, or] tortious interference with the testator's intent." The Ninth was of the view that state-court delineation of a probate court's exclusive adjudicatory authority could control federal subject-matter jurisdiction. In this regard, the Court of Appeals stated: "Where a state has relegated jurisdiction over probate matters to a special court *305 and [the] state's trial courts of general jurisdiction do not have jurisdiction to hear probate matters, then the federal courts lack jurisdiction over probate matters." Noting that "[t]he [P]robate [C]ourt ruled it had exclusive jurisdiction over all of Vickie[`s] claims," the Ninth held that "ruling binding on the United States [D]istrict [C]ourt." ). We granted certiorari, to resolve the apparent confusion among federal courts concerning the scope of the probate exception. Satisfied that the instant case does not fall within the ambit of the narrow exception recognized by our decisions, we reverse the Ninth 's judgment. II In we addressed both the derivation and the limits of the "domestic relations exception" to the exercise of federal jurisdiction. Carol a citizen of Missouri, brought suit in Federal District Court on behalf of her daughters, naming as defendants their father ('s former husband) and his female companion, both citizens of Louisiana. 's complaint sought damages for the defendants' alleged sexual and physical abuse of the children. Federal jurisdiction was predicated on diversity of citizenship. (citing 2 U.S. C. 1332). The District Court dismissed the case |
Justice Ginsburg | 2,006 | 5 | majority | Marshall v. Marshall | https://www.courtlistener.com/opinion/145660/marshall-v-marshall/ | 2 U.S. C. 1332). The District Court dismissed the case for lack of subject-matter jurisdiction, holding that 's suit fell within "the `domestic relations' exception to diversity jurisdiction." The Court of Appeals agreed and affirmed. We reversed the Court of Appeals' judgment. Holding that the District Court improperly refrained from exercising jurisdiction over 's tort claim, we traced explanation of the current domestic relations *306 exception to 21 How. 52 (159). See -695. In the Court upheld federal-court authority, in a diversity case, to enforce an alimony award decreed by a state court. In dicta, however, the Court announcedwithout citation or discussion that federal courts lack jurisdiction over suits for divorce or the allowance of alimony. 21 How., at 54-59; see -695. Finding no Article III impediment to federal-court jurisdiction in domestic relations cases, the Court in anchored the exception in Congress' original provision for diversity jurisdiction, at 69-701. Beginning at the beginning, the Court recalled: "The Judiciary Act of 179 provided that `the circuit courts shall have original cognizance, concurrent with the courts of the several States, of all suits of a civil nature at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and an alien is a party, or the suit is between a citizen of the State where the suit is brought, and a citizen of another State.'" at 69 (quoting Act of Sept. 24, 179, 11, 1 Stat. 7; emphasis added in ). The defining phrase, "all suits of a civil nature at common law or in equity," the Court stressed, remained in successive statutory provisions for diversity jurisdiction until 194, when Congress adopted the more economical phrase, "all civil actions." 504 U.S., at 69; 194 Judicial Code and Judiciary Act, 2 U.S. C. 1332. The majority, we acknowledged in did not expressly tie its announcement of a domestic relations exception to the text of the diversity 504 U.S., at 69. But the dissenters in that case made the connection. They stated that English courts of chancery lacked *307 authority to issue divorce and alimony decrees. Because "the jurisdiction of the courts of the United States in chancery is bounded by that of the chancery in England," the dissenters reasoned, our federal courts similarly lack authority to decree divorces or award alimony, Such relief, in other words, would not fall within the diversity statute's original grant of jurisdiction over "all suits of a civil nature at common law or in equity." We concluded in that "it may be inferred fairly that the |
Justice Ginsburg | 2,006 | 5 | majority | Marshall v. Marshall | https://www.courtlistener.com/opinion/145660/marshall-v-marshall/ | concluded in that "it may be inferred fairly that the jurisdictional limitation recognized by the [] Court rested on th[e] statutory basis" indicated by the dissenters in that case. We were "content" in "to rest our conclusion that a domestic relations exception exists as a matter of statutory construction not on the accuracy of the historical justifications on which [the exception] was seemingly based." "[R]ather," we relied on "Congress' apparent acceptance of this construction of the diversity jurisdiction provisions in the years prior to 194, when the statute limited jurisdiction to `suits of a civil nature at common law or in equity.'" (quoting 1 Stat. 7). We further determined that Congress did not intend to terminate the exception in 194 when it "replace[d] the law/equity distinction with the phrase `all civil actions.'" 504 U.S., Absent contrary indications, we presumed that Congress meant to leave undisturbed "the Court's nearly century-long interpretation" of the diversity statute "to contain an exception for certain domestic relations matters." We nevertheless emphasized in that the exception covers only "a narrow range of domestic relations issues." The Court itself, we reminded, "sanctioned the exercise of federal jurisdiction over the enforcement of an alimony decree that had been properly obtained in a state court of competent jurisdiction." Noting that some lower federal courts had applied *30 the domestic relations exception "well beyond the circumscribed situations posed by and its progeny," we clarified that only "divorce, alimony, and child custody decrees" remain outside federal jurisdictional bounds, While recognizing the "special proficiency developed by state tribunals in handling issues that arise in the granting of [divorce, alimony, and child custody] decrees," we viewed federal courts as equally equipped to deal with complaints alleging the commission of torts, III Federal jurisdiction in this case is premised on 2 U.S. C. 1334, the statute vesting in federal district courts jurisdiction in bankruptcy cases and related proceedings. Decisions of this Court have recognized a "probate exception," kin to the domestic relations exception, to otherwise proper federal jurisdiction. See ; see (191); Like the domestic relations exception, the probate exception has been linked to language contained in the Judiciary Act of 179. the Court's most recent and pathmarking pronouncement on the probate exception, stated that "the equity jurisdiction conferred by the Judiciary Act of 179, which is that of the English Court of Chancery in 179, did not extend to probate matters." See generally Nicolas, Fighting the Probate Mafia: A Dissection of the Probate Exception to Federal Court Jurisdiction, As in so in this case, "[w]e have no occasion to join the historical debate" |
Justice Ginsburg | 2,006 | 5 | majority | Marshall v. Marshall | https://www.courtlistener.com/opinion/145660/marshall-v-marshall/ | case, "[w]e have no occasion to join the historical debate" over the scope of English chancery jurisdiction in 179, for Vickie Marshall's claim falls far outside the bounds of the probate exception described in We therefore need not consider in this case whether there exists any *309 uncodified probate exception to federal bankruptcy jurisdiction under 1334.[3] In the plaintiff Alien Property Custodian [4] commenced suit in Federal District Court against an executor and resident heirs to determine the Custodian's asserted rights regarding a decedent's -492. Jurisdiction was predicated on 24(1) of the Judicial Code, now 2 U.S. C. 1345, which provides for federal jurisdiction over suits brought by an officer of the United States. At the time the federal suit commenced, the estate was undergoing *310 probate administration in a state court. The Custodian had issued an order vesting in himself all right, title, and interest of German legatees. He sought and gained in the District Court a judgment determining that the resident heirs had no interest in the estate, and that the Custodian, substituting himself for the German legatees, was entitled to the entire net estate, including specified real estate passing under the Reversing the Ninth which had ordered the case dismissed for want of federal subject-matter jurisdiction, this Court held that federal jurisdiction was properly invoked. The Court first stated: "It is true that a federal court has no jurisdiction to probate a will or administer an estate But it has been established by a long series of decisions of this Court that federal courts of equity have jurisdiction to entertain suits `in favor of creditors, legatees and heirs' and other claimants against a decedent's estate `to establish their claims' so long as the federal court does not interfere with the probate proceedings or assume general jurisdiction of the probate or control of the property in the custody of the state court." (quoting ). Next, the Court described a probate exception of distinctly limited scope: "[W]hile a federal court may not exercise its jurisdiction to disturb or affect the possession of property in the custody of a state court, it may exercise its jurisdiction to adjudicate rights in such property where the final judgment does not undertake to interfere with the state court's possession save to the extent that the state court is bound by the judgment to recognize the right adjudicated by the federal court." The first of the above-quoted passages from is not a model of clear statement. The Court observed that *311 federal courts have jurisdiction to entertain suits to determine the rights of creditors, |
Justice Ginsburg | 2,006 | 5 | majority | Marshall v. Marshall | https://www.courtlistener.com/opinion/145660/marshall-v-marshall/ | jurisdiction to entertain suits to determine the rights of creditors, legatees, heirs, and other claimants against a decedent's estate, "so long as the federal court does not interfere with the probate proceedings." Lower federal courts have puzzled over the meaning of the words "interfere with the probate proceedings," and some have read those words to block federal jurisdiction over a range of matters well beyond probate of a will or administration of a decedent's See, e. g., ; Golden ex rel. 32 F.3d 34, ; 34 F.3d 232, ; 32 F.3d 941, ; We read 's enigmatic words, in sync with the second above-quoted passage, to proscribe "disturb[ing] or affect[ing] the possession of property in the custody of a state court." True, that reading renders the first-quoted passage in part redundant, but redundancy in this context, we do not doubt, is preferable to incoherence. In short, we comprehend the "interference" language in as essentially a reiteration of the general principle that, when one court is exercising in rem jurisdiction over a res, a second court will not assume in rem jurisdiction over the same res. See, e. g., Penn General Casualty 294 U.S. 19, ; -46. Thus, the probate exception reserves to state probate courts the probate or annulment of a will and the administration of a decedent's estate; it *312 precludes federal courts from endeavoring to dispose of property that is in the custody of a state probate court. But it does not bar federal courts from adjudicating matters outside those confines and otherwise within federal jurisdiction. A As the Court of Appeals correctly observed, Vickie's claim does not "involve the administration of an estate, the probate of a will, or any other purely probate matter." 392 F.3d, at Provoked by Pierce's claim in the bankruptcy proceedings, Vickie's claim, like Carol 's, alleges a widely recognized tort. See (Tex. App. 197); 4 Restatement (Second) of Torts 774B (1977) ("One who by fraud, duress or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that [s]he would otherwise have received is subject to liability to the other for loss of the inheritance or gift."). Vickie seeks an in personam judgment against Pierce, not the probate or annulment of a Cf. Sutton, 246 U. S., at 20 Nor does she seek to reach a res in the custody of a state court. See Furthermore, no "sound policy considerations" militate in favor of extending the probate exception to cover the case at hand. Cf. Trial courts, both federal and state, often address conduct of the |
Justice Ginsburg | 2,006 | 5 | majority | Marshall v. Marshall | https://www.courtlistener.com/opinion/145660/marshall-v-marshall/ | courts, both federal and state, often address conduct of the kind Vickie alleges. State probate courts possess no "special proficiency in handling [such] issues." Cf. B The Court of Appeals advanced an alternate basis for its conclusion that the federal courts lack jurisdiction over Vickie's claim. Noting that the Texas Probate Court "ruled it had exclusive jurisdiction over all of Vickie Lynn Marshall's *313 claims against E. Pierce Marshall," the Ninth held that "ruling binding on the United States [D]istrict [C]ourt." 392 F.3d, We reject that determination. Texas courts have recognized a state-law tort action for interference with an expected inheritance or gift, modeled on the Restatement formulation. See King, 725 S. W. 2d, at ; (Tex. App. 199).[5] It is clear, under Erie R. (193), that Texas law governs the substantive elements of Vickie's tortious interference claim. It is clear, however, that Texas may not reserve to its probate courts the exclusive right to adjudicate a transitory *314 tort. We have long recognized that "a State cannot create a transitory cause of action and at the same time destroy the right to sue on that transitory cause of action in any court having jurisdiction." Tennessee Coal, Iron & R. Jurisdiction is determined "by the law of the court's creation and cannot be defeated by the extraterritorial operation of a [state] statute, even though it created the right of action." Directly on point, we have held that the jurisdiction of the federal courts, "having existed from the beginning of the Federal government, [can]not be impaired by subsequent state legislation creating courts of probate." 217 U.S. 26, 21 (upholding federal jurisdiction over action by heirs of decedent, who died intestate, to determine their rights in the estate (citing )). Our decision in relied upon by the Ninth 392 F.3d, is not to the contrary. Durfee stands only for the proposition that a state court's final judgment determining its own jurisdiction ordinarily qualifies for full faith and credit, so long as the jurisdictional issue was fully and fairly litigated in the court that rendered the judgment. See 115. At issue here, however, is not the Texas Probate Court's jurisdiction, but the federal courts' jurisdiction to entertain Vickie's tortious interference claim. Under our federal system, Texas cannot render its probate courts exclusively competent to entertain a claim of that genre. We therefore hold that the District Court properly asserted jurisdiction over Vickie's counterclaim against Pierce. IV After determining that Vickie's claim was not a "core proceeding," the District Court reviewed the case de novo and entered its final judgment on March 7, -. |
Justice Douglas | 1,973 | 10 | dissenting | United States v. Chicago, B. & QR Co. | https://www.courtlistener.com/opinion/108806/united-states-v-chicago-b-qr-co/ | While I join the dissent of MR. JUSTICE STEWART, I add a few words. Funds were contributed by the States and by the Federal Government to respondent for the construction of highway overpasses and underpasses and for grade-crossing protection equipment. While the Government provided most of the funds, the respondent did most of the construction workall as found by the Court of Claims. This case is not controlled by Detroit Edison as MR. JUSTICE STEWART says, for there the advances were made by customers of a utility as part of "the price of the service." Here, however, the situation was different. As the Court of Claims found: "[U]nder all the agreements, plaintiff was obligated to maintain and replace as necessary, at its own expense, facilities originally built. The facilities were constructed primarily for the benefit of the public to improve safety and to expedite motor-vehicle traffic flow. The record shows, however, that plaintiff received economic benefits from the facilities, e. g., probable lower accident rates, reduced expenses of operating crossing equipment and, where *417 permitted, higher train speed limits. Plaintiff also received intangible benefits, e. g., goodwill from the community-at-large, which was to plaintiff's long-term economic advantage." 455 F. 2d, at 998. The case is therefore on all fours with Brown Shoe In distinguishing Detroit Edison we said: "Since in this case there are neither customers nor payments for service, we may infer a different purpose in the transactions between petitioner and the community groups. The contributions to petitioner were provided by citizens of the respective communities who neither sought nor could have anticipated any direct service or recompense whatever, their only expectation being that such contributions might prove advantageous to the community at large. Under these circumstances the transfers manifested a definite purpose to enlarge the working capital of the company." I would affirm the judgment of the Court of Claims. MR. JUSTICE STEWART, with whom MR. |
Justice Powell | 1,977 | 17 | dissenting | Zacchini v. Scripps-Howard Broadcasting Co. | https://www.courtlistener.com/opinion/109730/zacchini-v-scripps-howard-broadcasting-co/ | Disclaiming any attempt to do more than decide the narrow case before us, the Court reverses the decision of the Supreme Court of Ohio based on repeated incantation of a single formula: "a performer's entire act." The holding today is summed up in one sentence: "Wherever the line in particular situations is to be drawn between media reports that are protected and those that are not, we are quite sure that the First and Fourteenth Amendments do not immunize the media when they broadcast a performer's entire act without his consent." Ante, at 574-575. I doubt that this formula provides a standard clear enough even for resolution of this case.[1] In any event, I am not persuaded that the Court's opinion is appropriately sensitive *580 to the First Amendment values at stake, and I therefore dissent. Although the Court would draw no distinction, ante, at 575, I do not view respondent's action as comparable to unauthorized commercial broadcasts of sporting events, theatrical performances, and the like where the broadcaster keeps the profits. There is no suggestion here that respondent made any such use of the film. Instead, it simply reported on what petitioner concedes to be a newsworthy event, in a way hardly surprising for a television station by means of film coverage. The report was part of an ordinary daily news program, consuming a total of 15 seconds. It is a routine example of the press' fulfilling the informing function so vital to our system. The Court's holding that the station's ordinary news report may give rise to substantial liability[2] has disturbing implications, for the decision could lead to a degree of media self-censorship. Cf. Hereafter, whenever a television news editor is unsure whether certain film footage received from a camera crew might be held to portray an "entire act,"[3] he may *581 decline coverageeven of clearly newsworthy eventsor confine the broadcast to watered-down verbal reporting, perhaps with an occasional still picture. The public is then the loser. This is hardly the kind of news reportage that the First Amendment is meant to foster. See generally Miami Herald Publishing ; Time, ; New York Times In my view the First Amendment commands a different analytical starting point from the one selected by the Court. Rather than begin with a quantitative analysis of the performer's behavioris this or is this not his entire act? we should direct initial attention to the actions of the news media: what use did the station make of the film footage? When a film is used, as here, for a routine portion of a regular |
Justice Powell | 1,977 | 17 | dissenting | Zacchini v. Scripps-Howard Broadcasting Co. | https://www.courtlistener.com/opinion/109730/zacchini-v-scripps-howard-broadcasting-co/ | used, as here, for a routine portion of a regular news program, I would hold that the First Amendment protects the station from a "right of publicity" or "appropriation" suit, absent a strong showing by the plaintiff that the news broadcast was a subterfuge or cover for private or commercial exploitation.[4] I emphasize that this is a "reappropriation" suit, rather than one of the other varieties of "right of privacy" tort suits identified by Dean Prosser in his classic article. Prosser, Privacy, In those other causes *582 of action the competing interests are considerably different. The plaintiff generally seeks to avoid any sort of public exposure, and the existence of constitutional privilege is therefore less likely to turn on whether the publication occurred in a news broadcast or in some other fashion. In a suit like the one before us, however, the plaintiff does not complain about the fact of exposure to the public, but rather about its timing or manner. He welcomes some publicity, but seeks to retain control over means and manner as a way to maximize for himself the monetary benefits that flow from such publication. But having made the matter publichaving chosen, in essence, to make it newsworthyhe cannot, consistent with the First Amendment, complain of routine news reportage. Cf. Since the film clip here was undeniably treated as news and since there is no claim that the use was subterfuge, respondent's actions were constitutionally privileged. I would affirm. MR. |
Justice Sotomayor | 2,010 | 24 | majority | Carr v. United States | https://www.courtlistener.com/opinion/147527/carr-v-united-states/ | Since 1994, federal law has required States, as a condi tion for the receipt of certain law enforcement funds, to maintain federally compliant systems for sex-offender registration and community notification. In an effort to make these state schemes more comprehensive, uniform, and effective, Congress in 006 enacted the Sex Offender Registration and Notification Act (SORNA or Act) as part of the Adam Walsh Child Protection and Safety Act, Pub. L. 109–48, Tit. I, Among its provisions, the Act established a federal criminal offense covering, inter alia, any person who (1) “is required to register under [SORNA],” () “travels in interstate or foreign com merce,” and (3) “knowingly fails to register or update a registration.” 18 U.S. C. At issue in this case is whether applies to sex offenders whose interstate travel occurred prior to SORNA’s effective date and, if so, whether the statute runs afoul of the Constitution’s prohi bition on ex post facto laws. See Art. I, cl. 3. Liability under we hold, cannot be predicated on pre-SORNA travel. We therefore do not address the ex post facto question. CARR v. UNITED STATES Opinion of the Court I In 004, petitioner Thomas Carr pleaded guilty in Alabama state court to first-degree sexual abuse. He was sentenced to 15 years’ imprisonment, with all but two years suspended. Receiving credit for time previously served, Carr was released on probation on July 3, 004, and he registered as a sex offender as required by Ala bama law. In late 004 or early 005, prior to SORNA’s enactment, Carr relocated from Alabama to Indiana. He did not comply with Indiana’s sex-offender registration require ments. In July Carr came to the attention of law enforcement in Fort Wayne, Indiana, following his in volvement in a fight. On August federal prosecutors filed an indict ment in the United States District Court for the Northern District of Indiana charging Carr with failing to register in violation of Carr moved to dismiss the indictment, asserting that because he traveled to Indiana prior to SORNA’s effective date, it would violate the Ex Post Facto Clause to prosecute him under The District Court denied Carr’s motion, and Carr entered a conditional guilty plea, preserving his right to appeal. He received a 30-month prison sentence. The United States Court of Appeals for the Seventh Circuit consolidated Carr’s appeal with that of a similarly situated defendant, who, in addition to raising an ex post facto claim, asserted that by its terms, does not apply to persons whose interstate travel preceded SORNA’s enactment. Beginning with the statutory argu ment, the Court of |
Justice Sotomayor | 2,010 | 24 | majority | Carr v. United States | https://www.courtlistener.com/opinion/147527/carr-v-united-states/ | enactment. Beginning with the statutory argu ment, the Court of Appeals held that “does not require that the defendant’s travel postdate the Act.” United The court relied principally on its understanding of SORNA’s underlying purpose: Cite as: 560 U. S. (010) 3 Opinion of the Court “The evil at which [the Act] is aimed is that convicted sex offenders registered in one state might move to another state, fail to register there, and thus leave the public unprotected. The concern is as acute in a case in which the offender moved before the Act was passed as in one in which he moved afterward.” (citation omitted). The court drew an analogy to 18 U.S. C. which prohibits convicted felons from “possess[ing] in or affecting commerc[e] any firearm or ammunition.” “The danger posed by such a felon is unaffected by when the gun crossed state lines and so it need not have crossed after the statute was passed.” 551 F.3d, at ). According to the court, (a), like uses move ment in interstate commerce as a jurisdictional element “to establish a constitutional predicate for the statute rather than to create a temporal requirement.” 551 F.3d, at 583. Reading to encompass pre-SORNA travel, the Seventh Circuit recognized, created a conflict with the Tenth Circuit’s decision in United States v. Husted, 545 F.3d 140 In holding that ’s coverage “is limited to those individuals who travel in interstate com merce after the Act’s effective date,” the Tenth Circuit emphasized “Congress’s use of the present tense form of the verb ‘to travel’ which according to ordinary Eng lish grammar, does not refer to travel that has already occurred.” at 143–144. Rejecting this analysis, the Seventh Circuit characterized Congress’ choice of tenses as “ ‘not very revealing.’ ” (quoting Scar ). Having dispensed with the statutory question, the Seventh Circuit considered the claim of Carr and his co appellant that predicating a prosecution on pre 4 CARR v. UNITED STATES Opinion of the Court SORNA travel violates the Ex Post Facto Clause. Reliance on a defendant’s pre-SORNA travel, the court concluded, poses no ex post facto problem so long as the defendant had “reasonable time” to register after SORNA took effect but failed to do Noting that Carr remained unregistered five months after SORNA became applicable to him, the Seventh Circuit affirmed his convic tion. at 586–587. The court reversed the conviction of Carr’s co-appellant, finding that he had not been given a sufficient grace period to register. In view of the division among the Circuits as to the meaning of ’s “travel” requirement,1 we |
Justice Sotomayor | 2,010 | 24 | majority | Carr v. United States | https://www.courtlistener.com/opinion/147527/carr-v-united-states/ | Circuits as to the meaning of ’s “travel” requirement,1 we granted certiorari, 557 U. S. to decide the statute’s applicability to pre-SORNA travel and, if necessary, to consider the statute’s compliance with the Ex Post Facto Clause. —————— 1 While the Seventh and Tenth Circuits have confronted the question directly, other Circuits have also touched on it. Aligning itself with the Seventh Circuit, the Eleventh Circuit has analogized 18 U.S. C. (a) to the felon-in-possession statute, and applied it to a sex offender who traveled before SORNA became applicable to him. United (per cu riam). In contrast, the Eighth Circuit has stated in dictum that (a) “punishes convicted sex offenders who travel in interstate commerce after the enactment of SORNA.” United States v. 535 F.3d 91, 90 (emphasis added). There is a separate conflict among the Courts of Appeals as to when SORNA’s registration requirements became applicable to persons convicted of sex offenses prior to the statute’s enactment. Several Circuits, including the Seventh, have taken the position that the Act did not apply to such sex offenders until the Attorney General provided for their inclusion by issuing an interim regulation, 7 Fed. Reg. 8897, on February 8, See, e.g., United States v. Hatcher, ; United States v. 583 F.3d 408, 414–419 ; United (case below); United 857–859 (per curiam). Other Circuits have held that persons with pre-SORNA sex-offense convictions became subject to the Act’s registration requirements upon the statute’s enactment in July Cite as: 560 U. S. (010) 5 Opinion of the Court II As relevant here, provides: “(a) IN GENERAL.—Whoever— “(1) is required to register under the Sex Offender Registration and Notification Act; “()(A) is a sex offender as defined for the purposes of the Sex Offender Registration and Notification Act by reason of a conviction under Federal law (including the Uniform Code of Military Justice), the law of the District of Columbia, Indian tribal law, or the law of any territory or possession of the United States; or “(B) travels in interstate or foreign commerce, or enters or leaves, or resides in, Indian country; and “(3) knowingly fails to register or update a registra tion as required by the Sex Offender Registration and Notification Act; “shall be fined under this title or imprisoned not more than 10 years, or both.” For a defendant to violate this provision, Carr and the Government agree, the statute’s three elements must “be satisfied in sequence, culminating in a post-SORNA fail —————— 006. See, e.g., –919; United Because Carr traveled from Alabama to Indiana before both the enactment of SORNA and the Attorney |
Justice Sotomayor | 2,010 | 24 | majority | Carr v. United States | https://www.courtlistener.com/opinion/147527/carr-v-united-states/ | Indiana before both the enactment of SORNA and the Attorney General’s regulation, we have no occasion to consider whether a pre-SORNA sex offender whose travel and failure to register occurred between July 006 and February is subject to liability under and we express no view on that question. We similarly express no view as to whether was properly promulgated—a question that has also divided the Circuits. Compare –44 (holding that the Attorney General lacked good cause for issuing the interim regulation without adhering to the notice-and-comment and publication requirements of the Administrative Procedure Act (APA)), with United *3–*8 (CA11, Apr. 8, 010) (finding no APA violation); United States v. Gould, 6 CARR v. UNITED STATES Opinion of the Court ure to register.” Brief for United States 13; see also Reply Brief for Petitioner 4, 7, n. 6. A sequential reading, the parties recognize, helps to assure a nexus between a de fendant’s interstate travel and his failure to register as a sex offender. Persons convicted of sex offenses under state law who fail to register in their State of conviction would otherwise be subject to federal prosecution under even if they had not left the State after being convicted— an illogical result given the absence of any obvious federal interest in punishing such state offenders.3 While both parties accept that the elements of should be read sequentially, they disagree on the event that sets the sequence in motion. In the Government’s view, the statute is triggered by a sex-offense conviction, which must be followed by interstate travel, and then a failure to register under SORNA. Only the last of these events, the Government maintains, must occur after SORNA took effect; the predicate conviction and the travel may both have predated the statute’s enactment. Carr, in contrast, asserts that the statutory sequence begins when a person becomes subject to SORNA’s registration re quirements. The person must then travel in interstate commerce and thereafter fail to register. All of these events, Carr avers, necessarily postdate SORNA’s enact ment because a sex offender could not have been required to register under SORNA until SORNA became the law. Carr’s interpretation better accords with the statutory text. By its terms, the first element of (a) can only be satisfied when a person “is required to register under the Sex Offender Registration and Notification Act.” (a)(1) (emphasis added). In an attempt to reconcile its preferred construction with the words of the statute, —————— 3 For persons convicted of sex offenses under federal or Indian tribal law, interstate travel is not a prerequisite to liability. See (a)()(A). |
Justice Sotomayor | 2,010 | 24 | majority | Carr v. United States | https://www.courtlistener.com/opinion/147527/carr-v-united-states/ | interstate travel is not a prerequisite to liability. See (a)()(A). Cite as: 560 U. S. (010) 7 Opinion of the Court the Government insists that this language is merely “a shorthand way of identifying those persons who have a [sex-offense] conviction in the classes identified by SORNA.” Brief for United States 19–0. To reach this conclusion, the Government observes that another provi sion of SORNA, 4 U.S. C. states that the Act’s registration requirements apply to “sex offender[s].” A “sex offender” is elsewhere defined as “an individual who was convicted of a sex offense.” Thus, as the Government would have it, Congress used 1 words and two implied cross-references to establish that the first element of (a) is that a person has been convicted of a sex offense. Such contortions can scarcely be called “shorthand.” It is far more sensible to conclude that Con gress meant the first precondition to liability to be the one it listed first: a “require[ment] to register under [SORNA].” Once a person becomes subject to SORNA’s registration requirements, which can occur only after the statute’s effective date, that person can be convicted under if he thereafter travels and then fails to register.4 That sets forth the travel requirement in the present tense (“travels”) rather than in the past or present perfect (“traveled” or “has traveled”) reinforces the conclu —————— 4 Offering a variation on the Government’s argument, the dissent contends that, “[i]n accordance with current drafting conventions, (a) speaks, not as of the time when the law went into effect, but as of the time when the first act necessary for conviction is committed.” Post, at 7 (opinion of ALITO, J.). This occurs, the dissent maintains, “when an individual is convicted of a qualifying sex offense, for it is that act that triggers the requirement to register under SORNA.” The dissent’s account cannot be squared with the statutory text. “[T]he first act necessary for conviction” under (a) is not a predicate sex offense conviction. It is a requirement “to register under [SORNA].” (a)(1). Thus, even if the dissent is correct that legislative drafters do not invariably use the moment of enactment to mark the dividing line between covered and uncovered acts, they have clearly done so here. 8 CARR v. UNITED STATES Opinion of the Court sion that preenactment travel falls outside the statute’s compass. Consistent with normal usage, we have fre quently looked to Congress’ choice of verb tense to ascer tain a statute’s temporal reach. See, e.g., United States v. Wilson, (“Congress’ use of a verb tense is significant in construing statutes”); of |
Justice Sotomayor | 2,010 | 24 | majority | Carr v. United States | https://www.courtlistener.com/opinion/147527/carr-v-united-states/ | of a verb tense is significant in construing statutes”); of Smithfield, Ltd. v. Chesapeake Bay Foundation, Inc., 484 U.S. 49, 57 (1987) (“Congress could have phrased its requirement in language that looked to the past but it did not choose this readily available option”); Barrett v. United States, (observing that Congress used the present perfect tense to “denot[e] an act that has been completed”). The Dictionary Act also as cribes significance to verb tense. It provides that, “[i]n determining the meaning of any Act of Congress, unless the context indicates otherwise[,] words used in the present tense include the future as well as the present.” 1 U.S. C. By implication, then, the Dictionary Act in structs that the present tense generally does not include the past. Accordingly, a statute that regulates a person who “travels” is not readily understood to encompass a person whose only travel occurred before the statute took effect. Indeed, neither the Government nor the dissent identifies any instance in which this Court has construed a present-tense verb in a criminal law to reach preenact ment conduct.5 —————— 5 The Court of Appeals quoted a Ninth Circuit decision for the propo sition that “ ‘the present tense is commonly used to refer to past, pre sent, and future all at the same time.’ ” ). Neither court offered examples of such usage. Perhaps, as the Dictionary Act itself recognizes, there may be instances in which “context” supports this sort of omnitemporality, but it is not the typical understanding of the present tense in either normal discourse or statutory construction. Taken in context, the word “travels” as it appears in is indistinguishable from the present-tense verbs that appear in myriad other criminal statutes to proscribe conduct on a Cite as: 560 U. S. (010) 9 Opinion of the Court In this instance, the statutory context strongly supports a forward-looking construction of “travels.” First, the word “travels” is followed in (a)()(B) by a series of other present tense verbs—“enters or leaves, or resides in, Indian country.” (Emphasis added.) This Court has previ ously described a statute’s “undeviating use of the present tense” as a “striking indic[ator]” of its “prospective orien tation.” The Seventh Circuit thought otherwise, reasoning that it would “mak[e] no sense” for “a sex offender who has resided in Indian coun try since long before the Act was passed [to be] subject to the Act but not someone who crossed state lines before the Act was passed.” As a textual matter, however, it is the Seventh Circuit’s approach that makes little sense: If “travels” means “traveled” (i.e., |
Justice Sotomayor | 2,010 | 24 | majority | Carr v. United States | https://www.courtlistener.com/opinion/147527/carr-v-united-states/ | approach that makes little sense: If “travels” means “traveled” (i.e., a person “travels” if he crossed state lines before SORNA’s enact ment), then the only way to avoid an incongruity among neighboring verbs would be to construe the phrase “re sides i[n] Indian country” to encompass persons who once resided in Indian country but who left before SORNA’s enactment and have not since returned—an implausible reading that neither the Seventh Circuit, nor the Govern ment, nor the dissent endorses. Second, the other elements of a violation are similarly set forth in the present tense. Sections 0(a)(1) and (a)(3) refer, respectively, to any person who “is required to register under [SORNA]” and who “know ingly fails to register or update a registration as required —————— prospective basis. Examining a criminal law with a travel element similar to the one at issue here, the Ninth Circuit itself recently agreed that “the present tense verb ‘travels,’ most sensibly read, does not refer to travel that occurred in the past—that is, before the enactment of the statute.” United (interpreting 18 U.S. C. which imposes criminal penalties on “[a]ny United States citizen who travels in foreign commerce, and engages in any illicit sexual conduct with another person”). 10 CARR v. UNITED STATES Opinion of the Court by [SORNA].” (Emphasis added.) The Government ac cepts that this last element—a knowing failure to register or update a registration—must postdate SORNA’s enact ment. Had Congress intended preenactment conduct to satisfy the first two requirements of but not the third, it presumably would have varied the verb tenses to convey this meaning. Indeed, numerous federal statutes use the past-perfect tense to describe one or more ele ments of a criminal offense when coverage of preenact ment events is intended. See, e.g., 18 U.S. C. A. (Supp. 010) (proscribing hate crimes in which “the defendant employs a firearm, dangerous weapon, explosive or incendiary device, or other weapon that has traveled in interstate or foreign commerce” (em phasis added)); 18 U.S. C. (006 ed.) (proscrib ing firearm possession or transport by any person “who has been convicted” of a felony or a misdemeanor crime of domestic violence (emphasis added)); §(a)() (006 ed., Supp. II) (making it unlawful for any person to receive or distribute a visual depiction of a minor engaging in sexually explicit conduct that “has been mailed, or has been shipped or transported in or affecting interstate or foreign commerce” (emphasis added)). The absence of similar phrasing here provides powerful evidence that targets only postenactment travel.6 —————— 6 The dissent identifies several “SORNA provisions that plainly use the present |
Justice Sotomayor | 2,010 | 24 | majority | Carr v. United States | https://www.courtlistener.com/opinion/147527/carr-v-united-states/ | dissent identifies several “SORNA provisions that plainly use the present tense to refer to events that may have occurred before SORNA took effect.” Post, at 10. All of these examples appear in 4 U.S. C. a definitional section that merely elucidates the meaning of certain statutory terms and proscribes no conduct. All but two of the provisions, moreover, rely on the term “sex offender,” which defines to mean “an individual who was convicted of a sex offense.” (Emphasis added.) The remaining provisions are which simply uses “involves” rather than “involved” to define whether a prior conviction qualifies as a “specified offense against a minor,” and which makes plain that its present-tense reference to an offender’s age refers to age “at the time of the offense.” These examples Cite as: 560 U. S. (010) 11 Opinion of the Court III Echoing the Seventh Circuit’s assessment that Con gress’ use of present-tense verbs in is “not very revealing,” Brief for United States 17, the Government offers two principal arguments for construing the statute to cover pre-SORNA travel: First, such a reading avoids an “anomaly” in the statute’s coverage of federal versus state sex offenders; and second, it “better effectuates the statutory purpose.” Neither argument persuades us to adopt the Government’s strained reading of the statutory text. A Section 0 imposes criminal liability on two categories of persons who fail to adhere to SORNA’s registration requirements: any person who is a sex offender “by reason of a conviction under Federal law the law of the District of Columbia, Indian tribal law, or the law of any territory or possession of the United States,” (a)()(A), and any other person required to register under SORNA who “travels in interstate or foreign com merce, or enters or leaves, or resides in, Indian country,” (a)()(B). According to the Government, these cate gories correspond to “two alternate sources of power to achieve Congress’s aim of broadly registering sex offend ers.” Placing pre-SORNA travelers within the statute’s coverage, the Government maintains, “ensures that the jurisdictional reach of Section 0(a)() has a —————— thus provide scant support for the proposition that uses “travels” to refer to pre-SORNA travel. Given the well-established presumption against retroactivity and, in the criminal context, the constitutional bar on ex post facto laws, it cannot be the case that a statutory prohibition set forth in the present tense applies by default to acts completed before the statute’s enactment. See 701 (000) (“Absent a clear statement of that intent, we do not give retroactive effect to statutes burdening private interests”). 1 CARR v. UNITED STATES Opinion of |
Justice Sotomayor | 2,010 | 24 | majority | Carr v. United States | https://www.courtlistener.com/opinion/147527/carr-v-united-states/ | burdening private interests”). 1 CARR v. UNITED STATES Opinion of the Court comparable breadth as applied to both federal and state sex offenders.” The Government’s pronouncement that should have an “equally broad sweep” with respect to federal and state offenders, is little more than ipse dixit. Had Congress intended to subject any unregistered state sex offender who has ever traveled in interstate commerce to federal prosecution under it easily could have adopted language to that effect. That it declined to do so indicates that Congress instead chose to handle federal and state sex offenders differently. There is nothing “anomal[ous]” about such a choice. To the contrary, it is entirely reasonable for Congress to have assigned the Federal Government a special role in ensuring compliance with SORNA’s registration requirements by federal sex offenders—persons who typically would have spent time under federal criminal supervision. It is similarly reason able for Congress to have given the States primary re sponsibility for supervising and ensuring compliance among state sex offenders and to have subjected such offenders to federal criminal liability only when, after SORNA’s enactment, they use the channels of interstate commerce in evading a State’s reach. In this regard, it is notable that the federal sex-offender registration laws have, from their inception, expressly relied on state-level enforcement. Indeed, when it initially set national standards for state sex-offender registration programs in 1994, Congress did not include any federal criminal liability. Congress instead conditioned certain federal funds on States’ adoption of “criminal penalties” on any person “required to register under a State program who knowingly fails to so register and keep such registra tion current.” Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act, Pub. L. 103–3, Tit. XVII, 4 U.S. C. Two years later, Congress supplemented state Cite as: 560 U. S. (010) 13 Opinion of the Court enforcement mechanisms by subjecting to federal prosecu tion any covered sex offender who “changes address to a State other than the State in which the person resided at the time of the immediately preceding registration” and “knowingly fails to” register as required. Pam Lychner Sexual Offender Tracking and Identification Act of 1996, Pub. L. 104–36, 3096, 4 U.S. C. (i).7 The prospective orientation of this provision is apparent. No statutory gap necessitated coverage of unregistered offenders who “change[d] ad dress” before the statute’s enactment; the prosecution of such persons remained the province of the States. In enacting SORNA, Congress preserved this basic allocation of enforcement responsibilities. To strengthen state enforcement of registration requirements, Congress established, as a funding condition, that “[e]ach jurisdic tion, other |
Justice Sotomayor | 2,010 | 24 | majority | Carr v. United States | https://www.courtlistener.com/opinion/147527/carr-v-united-states/ | established, as a funding condition, that “[e]ach jurisdic tion, other than a Federally recognized Indian tribe, shall provide a criminal penalty that includes a maximum term of imprisonment that is greater than 1 year for the failure of a sex offender to comply with the requirements of this subchapter.” Meanwhile, Congress in exposed to federal criminal liability, with penalties of up to 10 years’ imprisonment, persons required to register under SORNA over whom the Federal Government has a direct supervisory interest or who threaten the efficacy of the statutory scheme by traveling in interstate commerce. —————— 7 Pre-SORNA law also exposed to federal criminal liability any person whose State “ha[d] not established a minimally sufficient sexual offender registration program” and who was thus required to register with the Federal Bureau of Investigation (FBI). See 4 U.S. C. (g)(), (i). SORNA does not include a similar FBI registra tion requirement, presumably because, by the time of the statute’s enactment, “every State had enacted some” type of registration system. 8 The law in Indiana, Carr’s State of residence, makes the failure to register a Class D felony, which carries a prison term of up to three years’ imprisonment. –8–8–17(a), 35–50––7(a) 14 CARR v. UNITED STATES Opinion of the Court Understanding the act of travel as an aspect of the harm Congress sought to punish serves to distinguish from the felon-in-possession statute to which the Seventh Circuit analogized. See 551 F.3d, at –583. In Scar this Court held that a prior version of the stat ute, which imposed criminal liability on any convicted felon who “ ‘possesses in commerce or affecting com merce any firearm,’ ” (quoting 18 U.S. C. App. (1970 ed.)), did not require the Government to prove postenactment movement of the firearm across state lines. According to the Court, Con gress had given “no indication of any concern with either the movement of the gun or the possessor or with the time of acquisition.” Its aim was simply “to keep guns out of the hands of” convicted felons, ib and, by using the phrase “in commerce or affecting commerce,” it invoked the full breadth of its Commerce Clause author ity to achieve that end. No one in Scar disputed, however, that the act of possession had to occur post enactment; a felon who “possess[ed]” a firearm only pre enactment was plainly outside the statute’s sweep. In this case, the proper analogy is not, as the Seventh Circuit suggested, between the travel of a sex offender and the movement of a firearm; it is between the sex offender who “travels” and |
Justice Sotomayor | 2,010 | 24 | majority | Carr v. United States | https://www.courtlistener.com/opinion/147527/carr-v-united-states/ | firearm; it is between the sex offender who “travels” and the convicted felon who “possesses.” The act of travel by a convicted sex offender may serve as a juris dictional predicate for but it is also, like the act of possession, the very conduct at which Congress took aim. B In a final effort to justify its position, the Government invokes one of SORNA’s underlying purposes: to locate sex offenders who had failed to abide by their registration obligations. SORNA, the Government observes, was motivated at least in part by Congress’ concern about these “missing” sex offenders—a problem the House Cite as: 560 U. S. (010) 15 Opinion of the Court Committee on the Judiciary expressly linked to interstate travel: “The most significant enforcement issue in the sex offender program is that over 100,000 sex offenders, or nearly one-fifth in the Nation[,] are ‘missing,’ meaning they have not complied with sex offender registration requirements. This typically occurs when the sex offender moves from one State to another.” H. R. Rep. No. 109– 18, pt. 1, p. 6 (005). The goal of tracking down missing sex offenders, the Government maintains, “is surely better served by making Section 0 applicable to them in their new States of residence immediately than by waiting for them to travel in interstate commerce and fail to register yet again.” Brief for United States 3–4. The Court of Appeals expressed a similar view. See 551 F.3d, at9 The Government’s argument confuses a general goal of SORNA with the specific purpose of Section 0 is not a stand-alone response to the problem of missing sex —————— 9 Also making this point, the dissent maintains that “[i]nterpreting (a)()(B) to reach only postenactment travel severely impairs (a)’s effectiveness” by “plac[ing] beyond the reach of the federal criminal laws” “the many sex offenders who had managed to avoid pre existing registration regimes.” Post, at 14. The dissent sees “no appar ent reason why Congress would have wanted to impose such a require ment.” Yet the dissent approves an even greater impairment. Addressing a dispute we leave unresolved, see n. the dissent would hold that, in enacting SORNA, “Congress remained neutral on the question whether the Act reaches those with pre-SORNA sex offense convictions.” Post, at 10. The dissent’s view, in other words, is that SORNA does not apply of its own force to any sex offenders con victed prior to the statute’s enactment—a reading wholly inconsistent with the dissent’s description of SORNA as “a response to a dangerous gap in the then-existing sex-offender-registration laws.” Post, at 13. If, as the dissent |
Justice Sotomayor | 2,010 | 24 | majority | Carr v. United States | https://www.courtlistener.com/opinion/147527/carr-v-united-states/ | then-existing sex-offender-registration laws.” Post, at 13. If, as the dissent accepts, Congress left open the possibility that no preen actment offenders would face liability under then it is certainly not unreasonable to conclude that Congress limited the statute’s coverage to offenders who travel after its enactment. Indeed, it is strange to think that Congress might have enacted a statute that declined to cover pre-SORNA offenders but nevertheless covered pre- SORNA travel. 16 CARR v. UNITED STATES Opinion of the Court offenders; it is embedded in a broader statutory scheme enacted to address the deficiencies in prior law that had enabled sex offenders to slip through the cracks. See 4 U.S. C. §161 (“Congress in this chapter establishes a comprehensive national system for the registration of [sex] offenders”). Among its many provisions, SORNA instructs States to maintain sex-offender registries that compile an array of information about sex offenders, to make this information publicly available online, to share the information with other jurisdictions and with the Attorney General for inclusion in a comprehensive na tional sex-offender registry, §§16919–1691; and to “pro vide a criminal penalty that includes a maximum term of imprisonment that is greater than 1 year for the failure of a sex offender to comply with the requirements of this subchapter,” Sex offenders, in turn, are re quired to “register, and keep the registration current, in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a stu dent,” and to appear in person periodically to “allow the jurisdiction to take a current photograph, and verify the information in each registry in which that of fender is required to be registered,” By facilitat ing the collection of sex-offender information and its dis semination among jurisdictions, these provisions, not stand at the center of Congress’ effort to account for missing sex offenders. Knowing that Congress aimed to reduce the number of noncompliant sex offenders thus tells us little about the specific policy choice Congress made in enacting While subjecting pre-SORNA travelers to punishment under may well be consistent with the aim of find ing missing sex offenders, a contrary construction in no way frustrates that broad goal. Taking account of SORNA’s overall structure, we have little reason to doubt that Congress intended to do exactly what it says: Cite as: 560 U. S. (010) 17 Opinion of the Court to subject to federal prosecution sex offenders who elude SORNA’s registration requirements by traveling in inter state commerce. Cf. Mertens v. Hewitt Associates, 508 U.S. 48, 61 (1993) (“[V]ague notions of a statute’s ‘basic purpose’ |
Justice Sotomayor | 2,010 | 24 | majority | Carr v. United States | https://www.courtlistener.com/opinion/147527/carr-v-united-states/ | 48, 61 (1993) (“[V]ague notions of a statute’s ‘basic purpose’ are inadequate to overcome the words of its text regarding the specific issue under consideration”). C None of the legislative materials the Government cites as evidence of SORNA’s purpose calls this reading into question. To the contrary, the report of the House Judici ary Committee suggests not only that a prohibition on postenactment travel is consonant with Congress’ goals, but also that it is the rule Congress in fact chose to adopt. As the Government acknowledges, the bill under consid eration by the Committee contained a version of that “would not have reached pre-enactment interstate travel.” Brief for United States 4, n. 9. This earlier version imposed federal criminal penalties on any person who “receives a notice from an official that such person is required to register under [SORNA] and thereafter travels in interstate or foreign commerce, or enters or leaves Indian country.” H. R. Rep. No. 109–18, pt. 1, at 9; see also at 6 (“[S]ex offenders will now face Federal prosecution if they cross a State line and fail to comply with the sex offender registration and notification re quirements contained in the legislation”). Yet this did not stop the Committee from describing its legislation as a solution to the problem of missing sex offenders. See at 3–4, 6, 45–46. The Government identifies nothing in the legislative record to suggest that, in modifying this language during the course of the legislative process, Congress intended to alter the statute’s temporal sweep.10 —————— 10 Among other changes, Congress eliminated the language that con ditioned liability on proof of notice, and it removed the word “thereaf ter,” presumably as redundant in light of the sequential structure of the 18 CARR v. UNITED STATES Opinion of the Court At the very least, the close correspondence between the Committee’s discussion of missing sex offenders and its recognition of the travel element’s prospective application would seem to confirm that reading to reach only postenactment travel does not contravene SORNA’s un derlying purposes, let alone result in an absurdity that would compel us to disregard the statutory text. Cf. Ar lington Central School Dist. Bd. of Ed. v. Murphy, 548 U.S. 91, 96 (006) (“We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the statutory language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it according to its terms” (internal quotation |
Justice Sotomayor | 2,010 | 24 | majority | Carr v. United States | https://www.courtlistener.com/opinion/147527/carr-v-united-states/ | absurd—is to enforce it according to its terms” (internal quotation marks and citation omitted)). * * * Having concluded that does not extend to preen actment travel, we need not consider whether such a construction would present difficulties under the Constitu tion’s Ex Post Facto Clause. The judgment of the United States Court of Appeals for the Seventh Circuit is re versed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. —————— enacted statute. Cite as: 560 U. S. (010) 1 Opinion of SCALIA, J. SUPREME COURT OF THE UNITED STATES No. 08–1301 THOMAS CARR, PETITIONER v. UNITED STATES ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT [June 1, 010] JUSTICE SCALIA, concurring in part and concurring in the judgment. I join the Court’s opinion except for Part III–C. I do not join that part because only the text Congress voted on, and not unapproved statements made or comments written during its drafting and enactment process, is an authori tative indicator of the law. But even if those preenact ment materials were relevant, it would be unnecessary to address them here. The Court’s thorough discussion of text, context, and structure, ante, at 5–17, demonstrates that the meaning of 18 U.S. C. (a) is plain. As the Court acknowledges, ante, at 18, but does not heed, we must not say more: “We have stated time and again that courts must pre sume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last: judicial inquiry is complete.” Connecticut Nat. Bank v. Germain, 503 U.S. 49, 53–54 (citations and internal quo tation marks omitted). Cite as: 560 U. S. (010) 1 ALITO, J., dissenting SUPREME COURT OF THE UNITED STATES No. 08–1301 THOMAS CARR, PETITIONER v. |
Justice Stewart | 1,979 | 18 | majority | Arizona Public Service Co. v. Snead | https://www.courtlistener.com/opinion/110058/arizona-public-service-co-v-snead/ | New Mexico has imposed a tax on the privilege of generating electricity within its borders. The question in this case is whether that tax conflicts with federal law, statutory or constitutional. I The Four Corners power plants, located in New Mexico's desert northwest, are owned by the appellants, five public utilities companies.[1] Most of the electricity generated at the plants is ultimately sold to out-of-state consumers.[2] New *143 Mexico imposes a 4% gross receipts tax on retail sellers of electricity,[3] but since the bulk of the appellants' sales are made to consumers in other States, they do not incur significant liability for this tax. In 1975, New Mexico enacted the Electrical Energy Tax Act, the law at issue in this case.[4] That Act imposes a tax on the privilege of generating electricity at the rate of 4/10 of a mill on each net kilowatt hour of electricity generated. This is roughly equivalent to a 2% tax on the retail value of the electricity. The tax is imposed on all companies generating electricity within the State. Section 9 of the Act, however, provides that this electrical energy tax may be fully credited against the company's gross receipts tax liability. The Act and the regulations implementing it insure that the electrical generating company will receive full credit for the *144 tax even if it does not itself make retail sales of electricity. This result is accomplished by requiring the generating company to assign its "potential credit" to the retailer, who in turn is required to reimburse the generating company for the value of this credit.[5] The consequence is that a generating *145 company's 2% tax is completely offset by the credit against the 4% retail sales tax when its electricity is sold within New Mexico. But to the extent that the electricity generated in New Mexico is not sold at retail in the State, there is no gross receipts tax liability against which to offset the electrical energy tax liability of the generating company. In 1976, the State of Arizona, as a consumer of electricity and parens patriae for its citizens, sought to invoke this Court's original jurisdiction by a motion for leave to file a bill of complaint against New Mexico, asking for a declaratory judgment invalidating this New Mexico tax. The litigation now before us had already been initiated in the New Mexico courts by the present appellants, seeking essentially the same relief. This Court denied Arizona leave to file its complaint, concluding: "[T]he pending state-court action provides an appropriate forum in which the issues tendered here may be litigated. |
Justice Stewart | 1,979 | 18 | majority | Arizona Public Service Co. v. Snead | https://www.courtlistener.com/opinion/110058/arizona-public-service-co-v-snead/ | forum in which the issues tendered here may be litigated. If on appeal the New Mexico Supreme Court should hold the electrical energy tax unconstitutional, Arizona will have been vindicated. If, on the other hand, the tax is held to be constitutional, the issues raised now may be brought to this Court by way of direct appeal under 28 U.S. C. 1257 (2)." One of the alternative scenarios foreseen in our 1976 opinion has now eventuated. The New Mexico Supreme Court has upheld the validity of this energy tax against federal statutory and constitutional attacks, Arizona Public Serv. and the issues have been brought to this Court by way of direct appeal under 28 U.S. C. 1257 (2). *146 II The appellants contend that the New Mexico tax is invalid under a specific federal statute as well as under the Commerce, Due Process, and Import-Export Clauses of the constitution. Because we conclude that under the Supremacy Clause[6] the tax is invalid by reason of this federal statute, we do not reach the substantive constitutional issues. When Congress enacted the Tax Reform Act of 1976 it included a provision relating to state taxes on electricity. Section 2121 (a) of the Act, codified at 15 U.S. C. 391, provides: "No State, or political subdivision thereof, may impose or assess a tax on or with respect to the generation or transmission of electricity which discriminates against out-of-State manufacturers, producers, wholesalers, retailers, or consumers of that electricity. For purposes of this section, a tax is discriminatory if it results, either directly or indirectly, in a greater tax burden on electricity which is generated and transmitted in interstate commerce than on electricity which is generated and transmitted in intrastate commerce." This provision was not in the bill as passed by the House of Representatives. Its genesis was in the Senate Finance Committee, although in its original version the definition of a discriminatory tax was different from that in the law finally enacted: "For purposes of this section a tax is discriminatory that either directly or indirectly results in the payment of a higher gross or net tax on electricity which is generated and transmitted in interstate commerce than on electricity *147 which is generated and transmitted in intrastate commerce." H. R. 10612, 94th Cong., 1st Sess., 1323 (1976). The Committee's Report described the reasons for including the provision: "The committee has learned that one State places a discriminatory tax upon the production of electricity within its boundaries for consumption outside its boundaries. While the rate of the tax itself is identical for electricity that is |
Justice Stewart | 1,979 | 18 | majority | Arizona Public Service Co. v. Snead | https://www.courtlistener.com/opinion/110058/arizona-public-service-co-v-snead/ | of the tax itself is identical for electricity that is ultimately consumed outside the State and electricity which is consumed inside the State, discrimination results because the State allows the amount of the tax to be credited against its gross receipts tax if the electricity is consumed within its boundaries. This credit normally benefits only domiciliaries of the taxing State since no credit is allowed for electricity produced within the State and consumed outside the State. As a result, the cost of the electricity to nondomiciliaries is normally increased by the cost the producer of the electricity must bear in paying the tax. However, the cost to domiciliaries of the taxing State does not include the amount of the tax. "The committee believes that this is an example of discriminatory State taxation which is properly within the ability of Congress to prohibit through its power to regulate interstate commerce." (Footnote omitted.) S. Rep. No. 94-938, pt. I, pp. 437-438 (1976). The identity of the unnamed State was disclosed during the course of a subsequent Senate floor debate on a motion by Senator Domenici of New Mexico to strike the provision from the bill. Senators Domenici and Montoya of New Mexico, Senators Fannin and Goldwater of Arizona, and Senator Cranston of California made it clear that the provision was aimed directly at New Mexico's electrical energy tax. 122 *148 Cong. Rec. 24324-24329 (1976). At the conclusion of this debate, Senator Domenici's motion to eliminate the provision was defeated. The appellees concede that this statutory provision was aimed directly at the New Mexico Electrical Energy Tax Act. They contend, however, that the definition of a discriminatory tax was so defused in the Conference Committee that Congress in the law as enacted failed to hit its mark. Specifically, they point out that a discriminatory tax, defined in the Senate Committee's original draft as one that results in "the payment of a higher gross or net tax," became in the statute as enacted one which results in "a greater tax burden" on electricity transmitted out of state than that sold within the State. We are told that the statutory definition was redrafted in the Conference Committee to allay the concerns of Senators from States with somewhat similar taxes. That Committee's Report gave no reason, however, for the change in language. The Report merely stated: "Senate amendment.Under present law, any restrictions on the power of States or their political subdivisions to tax goods or services produced in the taxing State for nondomiciliary use outside the taxing State are derived from court interpretations of the interstate |
Justice Stewart | 1,979 | 18 | majority | Arizona Public Service Co. v. Snead | https://www.courtlistener.com/opinion/110058/arizona-public-service-co-v-snead/ | taxing State are derived from court interpretations of the interstate commerce clause of the Constitution. "The Senate amendment prohibits any State or political subdivision of a State from directly or indirectly imposing any tax on the generation or transmission of electricity which discriminates against out-of-State users. This provision is effective for taxable years beginning after June 30, 1974. "Conference agreement.The conference agreement follows the Senate amendment." H. R. Conf. Rep. No. 94-1515, p. 503 (1976). There is thus no legislative history to show what the Conference Committee's drafting change was intended to accomplish. *149 But the provision as enacted is far from the "sterile" legislation that the appellees contend it is. To the contrary, the provision clearly operates, we think, to carry out the expressed intent of the Senate to invalidate the New Mexico tax. The Act prohibits "a tax on or with respect to the generation or transmission of electricity" which "results, either directly or indirectly, in a greater tax burden on electricity" consumed outside of New Mexico than that consumed in the State. The appellees urge that this statutory provision is no more than a prohibition of a tax that is invalid under the constitutional test of the Commerce Clause. That test, they say, requires examination of New Mexico's total tax structure to determine whether the State in fact imposes a greater tax burden on electricity sent out of state. See Halliburton Oil Well Cementing And the tax in question, they say, clearly survives such an examination. Power sold within New Mexico, they argue, is subject to a 4% tax: 2% from the electrical energy tax and 2% from the gross receipts tax. By contrast, New Mexico subjects electricity sent out of state only to its 2% generation tax. The appellees contend, therefore, that if there is any discrimination in New Mexico's taxing structure, it is discrimination against electricity consumed within the State. But, whatever the validity may be of the Commerce Clause test advanced by the appellees, the federal statutory provision is directed specifically at a state tax "on or with respect to the generation or transmission of electricity," not to the entire tax structure of the State. The tax imposed by New Mexico's Electrical Energy Tax Act is concededly a tax on the generation of electricity. The tax-credit provisions of the Act itself insure that locally consumed electricity is subject to no tax burden from the electrical energy tax, while the bulk of the electricity generated in New Mexico by the appellants is subject to a 2% tax, since it is sold outside the State. To |
Justice Stewart | 1,979 | 18 | majority | Arizona Public Service Co. v. Snead | https://www.courtlistener.com/opinion/110058/arizona-public-service-co-v-snead/ | 2% tax, since it is sold outside the State. To look *150 narrowly to the type of tax the federal statute names, rather than to consider the entire tax structure of the State, is to be faithful not only to the language of that statute but also to the expressed intent of Congress in enacting it. Because the electrical energy tax itself indirectly but necessarily discriminates against electricity sold outside New Mexico, it violates the federal statute.[7] The appellees also argue that if the federal statute is construed to invalidate the New Mexico tax, it exceeds the permissible bounds of congressional action under the Commerce Clause. In view of the broad power of Congress to regulate interstate commerce, this argument must be rejected. See ; Here, the Congress had a rational basis for finding that the New Mexico tax interfered with interstate commerce, and selected a reasonable method to eliminate that interference. The legislation thus was within the constitutional power of Congress to enact. See Heart of Atlanta Motel, ; United The generation of electricity in the Four Corners region undoubtedly also generates environmental and other problems for New Mexico. There is no indication that Congress intended to prevent the State from taxing the generation of *151 electricity to pay for solutions to these problems. But the generation of electricity to be sent to Phoenix causes no more problems than the generation of electricity to be sent to Albuquerque. Congress required only that New Mexico, if it chooses to tax the generation of electricity for consumption in either city, tax it equally for each. The judgment is reversed. It is so ordered. MR. JUSTICE REHNQUIST, with whom MR. JUSTICE WHITE joins, concurring in the judgment. |
Justice Scalia | 2,003 | 9 | concurring | Ewing v. California | https://www.courtlistener.com/opinion/127897/ewing-v-california/ | In my opinion in I concluded that the Eighth Amendment's prohibition of "cruel and unusual punishments" was aimed at excluding only certain modes of punishment, and was not a "guarantee against disproportionate sentences." Out of respect for the principle of stare decisis, I might nonetheless accept the contrary holding of that the Eighth Amendment contains a narrow proportionality principle if I felt I could intelligently apply it. This case demonstrates why I cannot. Proportionality the notion that the punishment should fit the crime is inherently a concept tied to the penological goal of retribution. "[I]t becomes difficult even to speak intelligently of `proportionality,' once deterrence and rehabilitation are given significant weight," at 989 not to mention giving weight to the purpose of California's three strikes law: incapacitation. In the present case, the game is up once the plurality has acknowledged that "the Constitution does not mandate adoption of any one penological theory," and that a "sentence can have a variety of justifications, such as incapacitation, deterrence, retribution, or rehabilitation." Ante, at 25 (internal quotation marks omitted). That acknowledgment having been made, it no longer suffices merely to assess "the gravity of the offense compared to the harshness of the penalty," ante, at 28; that classic description of the proportionality principle (alone and in itself quite resistant to policy-free, legal analysis) now becomes merely the "first" step of the inquiry, Having completed that step (by a discussion which, in all fairness, does not convincingly establish that 25-years-to-life is a "proportionate" punishment for stealing three golf clubs), the *32 plurality must then add an analysis to show that "Ewing's sentence is justified by the State's public-safety interest in incapacitating and deterring recidivist felons." Ante, at 29. Which indeed it is though why that has anything to do with the principle of proportionality is a mystery. Perhaps the plurality should revise its terminology, so that what it reads into the Eighth Amendment is not the unstated proposition that all punishment should be reasonably proportionate to the gravity of the offense, but rather the unstated proposition that all punishment should reasonably pursue the multiple purposes of the criminal law. That formulation would make it clearer than ever, of course, that the plurality is not applying law but evaluating policy. Because I agree that petitioner's sentence does not violate the Eighth Amendment's prohibition against cruel and unusual punishments, I concur in the judgment. JUSTICE THOMAS, concurring in the judgment. I agree with JUSTICE SCALIA's view that the proportionality test announced in is incapable of judicial application. Even were Solem's |
Justice Rehnquist | 1,977 | 19 | dissenting | Wooley v. Maynard | https://www.courtlistener.com/opinion/109638/wooley-v-maynard/ | The Court holds that a State is barred by the Federal Constitution from requiring that the state motto be displayed on a state license plate. The path that the Court travels to reach this result demonstrates the difficulty in supporting it. The Court holds that the required display of the motto is an unconstitutional "required affirmation of belief." The District Court, however, expressly refused to consider this contention, and noted that, in an analogous case, a decision of the Supreme Court of New Hampshire had reached precisely the opposite result. See The District Court found for appellees on the ground that the obscuring of the motto was protected "symbolic speech." This Court, in relying upon a ground expressly avoided by the District Court, appears to disagree with the ground adopted by the District Court; indeed it points out that appellees' claim of symbolic expression has been "substantially undermined" by their very complaint in this action. Ante, at 713 n. 10. I not only agree with the Court's implicit recognition that there is no protected "symbolic speech" in this case, but I think that that conclusion goes far to undermine the Court's ultimate holding that there is an element of protected expression here. The State has not forced appellees to "say" anything; and it has not forced them to communicate ideas with nonverbal actions reasonably likened to "speech," such as wearing a lapel button promoting a political candidate or waving a flag as a symbolic gesture. The State has simply required that all[*] noncommercial automobiles bear license tags with the state motto, "Live Free or Die." Appellees have not been forced to affirm or reject that motto; they are simply required by the State, under its police power, to carry a state auto license tag for identification and registration purposes. In Part 4-A, the Court relies almost solely on Board of The Court cites Barnette for the proposition that there is a constitutional right, in some cases, to "refrain from speaking." Ante, at 714. What the Court does not demonstrate is that there is any "speech" or "speaking" in the context of this case. The Court also relies upon the "right to decline to foster [religious, political, and ideological] concepts," ibid., and treats the state law in this case as if it were forcing appellees to proselytize, or to advocate an ideological point of view. But this begs the question. The issue, unconfronted by the Court, is *721 whether appellees, in displaying, as they are required to do, state license tags, the format of which is known to all as having |
Justice Rehnquist | 1,977 | 19 | dissenting | Wooley v. Maynard | https://www.courtlistener.com/opinion/109638/wooley-v-maynard/ | the format of which is known to all as having been prescribed by the State, would be considered to be advocating political or ideological views. The Court recognizes, as it must, that this case substantially differs from Barnette, in which schoolchildren were forced to recite the pledge of allegiance while giving the flag salute. Ante, at 714-715. However, the Court states "the difference is essentially one of degree." Ante, at 715. But having recognized the rather obvious differences between these two cases, the Court does not explain why the same result should obtain. The Court suggests that the test is whether the individual is forced "to be an instrument for fostering public adherence to an ideological point of view he finds unacceptable." But, once again, these are merely conclusory words, barren of analysis. For example, were New Hampshire to erect a multitude of billboards, each proclaiming "Live Free or Die," and tax all citizens for the cost of erection and maintenance, clearly the message would be "fostered" by the individual citizen-taxpayers and just as clearly those individuals would be "instruments" in that communication. Certainly, however, that case would not fall within the ambit of Barnette. In that case, as in this case, there is no affirmation of belief. For First Amendment principles to be implicated, the State must place the citizen in the position of either apparently or actually "asserting as true" the message. This was the focus of Barnette, and clearly distinguishes this case from that one. In holding that the New Hampshire statute does not run afoul of our holding in Barnette, the New Hampshire Supreme Court in aptly articulated why there is no required affirmation of belief in this case: "The defendants' membership in a class of persons required to display plates bearing the State motto carries *722 no implication and is subject to no requirement that they endorse that motto or profess to adopt it as matter of belief." As found by the New Hampshire Supreme Court in there is nothing in state law which precludes appellees from displaying their disagreement with the state motto as long as the methods used do not obscure the license plates. Thus appellees could place on their bumper a conspicuous bumper sticker explaining in no uncertain terms that they do not profess the motto "Live Free or Die" and that they violently disagree with the connotations of that motto. Since any implication that they affirm the motto can be so easily displaced, I cannot agree that the state statutory system for motor vehicle identification and tourist promotion may be invalidated |
Justice Blackmun | 1,987 | 11 | majority | Fall River Dyeing & Finishing Corp. v. NLRB | https://www.courtlistener.com/opinion/111902/fall-river-dyeing-finishing-corp-v-nlrb/ | [] In this case we are confronted with the issue whether the National Labor Relations Board's decision is consistent with In this Court ruled that the new employer, succeeding to the business of another, had an obligation to bargain with the union representing the predecessor's employees. We first must decide whether is limited to a situation where the union only recently was certified before the transition in employers, or whether that decision applies where the union is entitled to a presumption of majority Our inquiry then proceeds *30 to three questions that concern rules the Labor Board has developed in the successorship context. First, we must determine whether there is substantial record evidence to support the Board's conclusion that petitioner was a "successor" to Sterlingwale Corp., its business predecessor. Second, we must decide whether the Board's "substantial and representative complement" rule, designed to identify the date when a successor's obligation to bargain with the predecessor's employees' union arises, is consistent with is reasonable, and was applied properly in this case. Finally, we must examine the Board's "continuing demand" principle to the effect that, if a union has presented to a successor a premature demand for bargaining, this demand continues in effect until the successor acquires the "substantial and representative complement" of employees that triggers its obligation to bargain. I For over 30 years before 1982, Sterlingwale operated a textile dyeing and finishing plant in Fall River, Mass. Its business consisted basically of two types of dyeing, called, respectively, "converting" and "commission." Under the converting process, which in 1981 accounted for 60% to 70% of its business, see App. 149, Sterlingwale bought unfinished fabrics for its own account, dyed and finished them, and then sold them to apparel manufacturers. In commission dyeing, which accounted for the remainder of its business, Sterlingwale dyed and finished fabrics owned by customers according to their specifications. The financing and marketing aspects of converting and commission dyeing are different. Converting requires capital to purchase fabrics and a sales force to promote the finished products. The production process, however, is the same for both converting and commission dyeing. In the late 1970's the textile-dyeing business, including Sterlingwale's, began to suffer from adverse economic conditions *31 and foreign competition. After business at Sterlingwale took a serious turn for the worse because of the loss of its export market, and the company reduced the number of its employees, Finally, in February 1982, Sterlingwale laid off all its production employees, primarily because it no longer had the capital to continue the converting business. It retained a skeleton crew of workers |
Justice Blackmun | 1,987 | 11 | majority | Fall River Dyeing & Finishing Corp. v. NLRB | https://www.courtlistener.com/opinion/111902/fall-river-dyeing-finishing-corp-v-nlrb/ | the converting business. It retained a skeleton crew of workers and supervisors to ship out the goods remaining on order and to maintain the corporation's building and machinery. In the months following the layoff, Leonard Ansin, Sterlingwale's president, liquidated the inventory of the corporation and, at the same time, looked for a business partner with whom he could "resurrect the business." Ansin felt that he owed it to the community and to the employees to keep Sterlingwale in operation. For almost as long as Sterlingwale had been in existence, its production and maintenance employees had been represented by the United Textile Workers of America, AFL-CIO, Local 292 (Union). The most recent collective-bargaining agreement before Sterlingwale's demise had been negotiated in 1978 and was due to expire in 1981. By an agreement dated October 1980, however, in response to the financial difficulties suffered by Sterlingwale, the Union agreed to amend the 1978 agreement to extend its expiration date by one year, until April 1, 1982, without any wage increase and with an agreement to improve labor productivity. In the months following the final February 1982 layoff, the Union met with company officials over problems involving this job action, and, in particular, Sterlingwale's failure to pay premiums on group-health insurance. In addition, during meetings with Ansin, Union officials told him of their concern with Sterlingwale's future and their interest in helping to keep the *32 company operating or in meeting with prospective buyers. In late summer 1982, however, Sterlingwale finally went out of business. It made an assignment for the benefit of its creditors, primarily Ansin's mother, who was an officer of the corporation and holder of a first mortgage on most of Sterlingwale's real property, and the Massachusetts Capital Resource Corporation (MCRC), which held a security interest on Sterlingwale's machinery and equipment, -114. Ansin hired a professional liquidator to dispose of the company's remaining assets, mostly its inventory, at auction. During this same period, a former Sterlingwale employee and officer, Herbert Chace, and Arthur Friedman, president of one of Sterlingwale's major customers, Marcamy Sales Corporation (Marcamy), formed petitioner Fall River Dyeing & Finishing Corp. Chace, who had resigned from Sterlingwale in February 1982, had worked there for 27 years, had been vice president in charge of sales at the time of his departure, and had participated in collective bargaining with the Union during his tenure at Sterlingwale. Chace and Friedman formed petitioner with the intention of engaging strictly in the commission-dyeing business and of taking advantage of the availability of Sterlingwale's assets and work force. Accordingly, Friedman had Marcamy acquire from |
Justice Blackmun | 1,987 | 11 | majority | Fall River Dyeing & Finishing Corp. v. NLRB | https://www.courtlistener.com/opinion/111902/fall-river-dyeing-finishing-corp-v-nlrb/ | assets and work force. Accordingly, Friedman had Marcamy acquire from MCRC and Ansin's mother Sterlingwale's plant, real property, and equipment, and convey them to petitioner,[1] Petitioner obtained some of Sterlingwale's remaining inventory at the liquidator's auction. Chace became petitioner's vice president in charge of operations and Friedman became its president. In September 1982, petitioner began operating out of Sterlingwale's former facilities and began hiring employees. *33 It advertised for workers and supervisors in a local newspaper, and Chace personally got in touch with several prospective supervisors, Petitioner hired 12 supervisors, of whom 8 had been supervisors with Sterlingwale and 3 had been production employees there. In its hiring decisions for production employees, petitioner took into consideration recommendations from these supervisors and a prospective employee's former employment with Sterlingwale. Petitioner's initial hiring goal was to attain one full shift of workers, which meant from to 60 employees. Petitioner planned to "see how business would be" after this initial goal had been met and, if business permitted, to expand to two shifts. The employees who were hired first spent approximately four to six weeks in start-up operations and an additional month in experimental production. By letter dated October 19, 1982, the Union requested petitioner to recognize it as the bargaining agent for petitioner's employees and to begin collective bargaining. Petitioner refused the request, stating that, in its view, the request had "no legal basis." At that time, 18 of petitioner's 21 employees were former employees of Sterlingwale. See 272 N. L. R. B. 839, 840 By November of that year, petitioner had employees in a complete range of jobs, had its production process in operation, and was handling customer orders, App. 22-226; by mid-January it had attained its initial goal of one shift of workers, Of the workers in this initial shift, a number that represented over half the workers petitioner would eventually hire, 36 were former Sterlingwale employees. Tr. of Oral Arg. 28. Petitioner continued to expand its work force, and by mid-April it had reached two full shifts. For the first time, ex-Sterlingwale employees were in the minority but just barely so (2 or 3 out of 107 employees). App. 294-302; Tr. of Oral Arg. 28. *34 Although petitioner engaged exclusively in commission dyeing, the employees experienced the same conditions they had when they were working for Sterlingwale. The production process was unchanged and the employees worked on the same machines, in the same building, with the same job classifications, under virtually the same supervisors. App. 12-16, 20-206. Over half the volume of petitioner's business came from former Sterlingwale customers, |
Justice Blackmun | 1,987 | 11 | majority | Fall River Dyeing & Finishing Corp. v. NLRB | https://www.courtlistener.com/opinion/111902/fall-river-dyeing-finishing-corp-v-nlrb/ | the volume of petitioner's business came from former Sterlingwale customers, and, in particular, Marcamy. On November 1, 1982, the Union filed an unfair labor practice charge with the Board, alleging that in its refusal to bargain petitioner had violated 8(a)(1) and () of the National Labor Relations Act (NLRA), as amended, 29 U.S. C. 18(a)(1) and ().[2] After a hearing, the Administrative Law Judge (ALJ) decided that, on the facts of the case, petitioner was a successor to Sterlingwale. 272 N. L. R. B., at 840. He observed that petitioner therefore would have an obligation to bargain with the Union if the majority of petitioner's employees were former employees of Sterlingwale. He noted that the proper date for making this determination was not mid-April, when petitioner first had two shifts working, but mid-January, when petitioner had attained a "representative complement" of employees. The ALJ acknowledged that a demand for bargaining from the Union was necessary to trigger petitioner's obligation to bargain, but noted that the Union's demand of October 1982, although premature, was "of a continuing nature." *3 Thus, in the view of the ALJ, petitioner's duty to bargain arose in mid-January because former Sterlingwale employees then were in the majority and because the Union's October demand was still in effect. Petitioner thus committed an unfair labor practice in refusing to bargain. In a brief decision and order, the Board, with one member dissenting, affirmed this decision.[3] The Court of for the First Circuit, by a divided vote, enforced the order. The court first found, that the Board's determination that petitioner was Sterlingwale's successor was consistent with and was "supported by substantial evidence in the record." The court observed: "The differences between [petitioner's] business and Sterlingwale's are not sufficiently significant to require a finding that the continuity of the enterprise, viewed from the employees' standpoint, was broken." The court then noted that the Board's longstanding "substantial and representative complement" standard, which the ALJ applied in this case, is an attempt to establish a method for determining when a successor has to bargain with the predecessor's union in a situation where, at the moment of the transition between the old and new enterprises, it is not clear when the new employer will reach a "full complement of employees." According to the court, the Board's determination that petitioner had "employed a substantial and representative complement of its workforce in mid-January" was reasonable. Finally, the court found that the Board's rule treating a premature union demand for bargaining as a continuing demand was reasonable and "practical" and entitled to deference.[4] *36 Because of |
Justice Blackmun | 1,987 | 11 | majority | Fall River Dyeing & Finishing Corp. v. NLRB | https://www.courtlistener.com/opinion/111902/fall-river-dyeing-finishing-corp-v-nlrb/ | reasonable and "practical" and entitled to deference.[4] *36 Because of the importance of the successorship issue in labor law, and because of our interest in the rules developed by the Board for successorship cases, we granted certiorari. II Fifteen years ago in this Court first dealt with the issue of a successor employer's obligation to bargain with a union that had represented the employees of its predecessor. In about four months before the employer transition, the security-guard employees of Wackenhut Corp. had chosen a particular union as their bargaining representative and that union had negotiated a collective-bargaining agreement with Wackenhut, however, lost its service contract on certain airport property to proceeded to hire 27 of the Wackenhut guards for its 42-guard operation at the airport. told its guards that, as a condition of their employment, they must join the union with which already had collective-bargaining agreements at other locations. When the union that had represented the Wackenhut employees brought unfair labor practice charges against this Court agreed with the Board's determination that had an obligation to bargain with this union. We observed: "In an election held but a few months before, the union had been designated bargaining agent for the employees in the unit and a majority of these employees had been hired by for work in the identical unit. It is undisputed that knew all the relevant facts in this regard and was aware of the certification and of the *37 existence of a collective-bargaining contract. In these circumstances, it was not unreasonable for the Board to conclude that the union certified to represent all employees in the unit still represented a majority of the employees and that could not reasonably have entertained a good-faith doubt about that fact. ' obligation to bargain with the union over terms and conditions of employment stemmed from its hiring of Wackenhut's employees and from the recent election and Board certification." Although our reasoning in was tied to the facts presented there, see we suggested that our analysis would be equally applicable even if a union with which a successor had to bargain had not been certified just before the transition in employers. We cited with approval, and 281, Board and Court of decisions where it "ha[d] been consistently held that a mere change of employers or of ownership in the employing industry is not such an `unusual circumstance' as to affect the force of the Board's certification within the normal operative period if a majority of employees after the change of ownership or management were employed by the preceding employer." Several of |
Justice Blackmun | 1,987 | 11 | majority | Fall River Dyeing & Finishing Corp. v. NLRB | https://www.courtlistener.com/opinion/111902/fall-river-dyeing-finishing-corp-v-nlrb/ | or management were employed by the preceding employer." Several of these cases involved successorship situations where the union in question had not been certified only a short time before the transition date. See, e. g., ; Tom-A-Hawk Transit, Moreover, in defining "the force of the Board's certification within the normal operative period," 406 U.S., we referred in to two presumptions regarding a union's majority status following certification. See n. 3. First, after a union has been certified by the Board as a bargaining-unit representative, it usually is entitled to a conclusive presumption of majority status for one year following the certification. See ib citing ; see 29 U.S. C. 19(c)(3) ("No election shall be directed in any bargaining unit or any subdivision within which in the preceding twelve-month period, a valid election shall have been held"). Second, after this period, the union is entitled to a rebuttable presumption of majority 406 U.S., n. 3, citing Celanese Corp. of America, 9 N. L. R. B. 664, 672 These presumptions are based not so much on an absolute certainty that the union's majority status will not erode following certification, as on a particular policy decision. The overriding policy of the NLRA is "industrial peace." Brooks v. The presumptions of majority support further this policy by "promot[ing] stability in collective-bargaining relationships, without impairing the free choice of employees." Terrell Machine 173 N. L. R. B. 1480 enf'd, (CA4), cert. denied, In essence, they enable a union to concentrate on obtaining and fairly administering a collective-bargaining agreement without worrying that, unless it produces immediate results, it will lose majority support and will be decertified. See Brooks v. The presumptions remove any temptation on the part of the employer to avoid good-faith bargaining in the hope that, by delaying, it will undermine the union's support among the employees. See ibid.; see R. Gorman, Labor Law 3[] The upshot of the presumptions is to permit unions *39 to develop stable bargaining relationships with employers, which will enable the unions to pursue the goals of their members, and this pursuit, in turn, will further industrial peace. The rationale behind the presumptions is particularly pertinent in the successorship situation and so it is understandable that the Court in referred to them. During a transition between employers, a union is in a peculiarly vulnerable position. It has no formal and established bargaining relationship with the new employer, is uncertain about the new employer's plans, and cannot be sure if or when the new employer must bargain with it. While being concerned with the future of its members with the |
Justice Blackmun | 1,987 | 11 | majority | Fall River Dyeing & Finishing Corp. v. NLRB | https://www.courtlistener.com/opinion/111902/fall-river-dyeing-finishing-corp-v-nlrb/ | being concerned with the future of its members with the new employer, the union must protect whatever rights still exist for its members under the collective-bargaining agreement with the predecessor employer.[6] Accordingly, during this unsettling transition period, the union needs the presumptions of majority status to which it is entitled to safeguard its members' rights and to develop a relationship with the successor. The position of the employees supports the application of the presumptions in the successorship situation. If the employees find themselves in a new enterprise that substantially resembles the old, but without their chosen bargaining representative, they may well feel that their choice of a union *40 is subject to the vagaries of an enterprise's transformation. This feeling is not conducive to industrial peace. In addition, after being hired by a new company following a layoff from the old, employees initially will be concerned primarily with maintaining their new jobs. In fact, they might be inclined to shun support for their former union, especially if they believe that such support will jeopardize their jobs with the successor or if they are inclined to blame the union for their layoff and problems associated with it.[7] Without the presumptions of majority support and with the wide variety of corporate transformations possible, an employer could use a successor enterprise as a way of getting rid of a labor contract and of exploiting the employees' hesitant attitude towards the union to eliminate its continuing presence. In addition to recognizing the traditional presumptions of union majority status, however, the Court in was careful to safeguard " `the rightful prerogative of owners independently to rearrange their businesses.' " Golden State Bottling v. quoting John Wiley & Sons, We observed in that, although the successor has an obligation to bargain with the union, it "is ordinarily free to set initial terms on which it will hire the employees of a predecessor," and it is not bound by the substantive provisions of the predecessor's collective-bargaining agreement. We further explained that the successor is under no obligation to hire the employees of its predecessor, subject, of course, to the restriction that it not discriminate against union employees in its hiring. and n. ; see Howard Johnson Thus, to *41 a substantial extent the applicability of rests in the hands of the successor. If the new employer makes a conscious decision to maintain generally the same business and to hire a majority of its employees from the predecessor, then the bargaining obligation of 8(a)() is activated. This makes sense when one considers that the employer intends to take |
Justice Blackmun | 1,987 | 11 | majority | Fall River Dyeing & Finishing Corp. v. NLRB | https://www.courtlistener.com/opinion/111902/fall-river-dyeing-finishing-corp-v-nlrb/ | sense when one considers that the employer intends to take advantage of the trained work force of its predecessor.[8] Accordingly, in we acknowledged the interest of the successor in its freedom to structure its business and the interest of the employees in continued representation by the union. We now hold that a successor's obligation to bargain is not limited to a situation where the union in question has been recently certified. Where, as here, the union has a rebuttable presumption of majority status, this status continues despite the change in employers. And the new employer has an obligation to bargain with that union so long as the new employer is in fact a successor of the old employer and the majority of its employees were employed by its predecessor.[9] *42 III We turn now to the three rules, as well as to their application to the facts of this case, that the Board has adopted for the successorship situation. The Board, of course, is given considerable authority to interpret the provisions of the NLRA. See v. Financial Institution Employees, If the Board adopts a rule that is rational and consistent with the Act, see ib then the rule is entitled to deference from the courts. Moreover, if the Board's application of such a rational rule is supported by substantial evidence on the record, courts should enforce the Board's order. See Beth Israel Hospital v. ; Universal Camera Corp. v. These principles guide our review of the Board's action in a successorship case. See, e. g., Golden State Bottling v. *43 A In we approved the approach taken by the Board and accepted by courts with respect to determining whether a new company was indeed the successor to the 406 U.S., -281, and n. 4. This approach, which is primarily factual in nature and is based upon the totality of the circumstances of a given situation, requires that the Board focus on whether the new company has "acquired substantial assets of its predecessor and continued, without interruption or substantial change, the predecessor's business operations." Golden State Bottling v. Hence, the focus is on whether there is "substantial continuity" between the enterprises. Under this approach, the Board examines a number of factors: whether the business of both employers is essentially the same; whether the employees of the new company are doing the same jobs in the same working conditions under the same supervisors; and whether the new entity has the same production process, produces the same products, and basically has the same body of customers. See 406 U. S., n. 4; Aircraft |
Justice Blackmun | 1,987 | 11 | majority | Fall River Dyeing & Finishing Corp. v. NLRB | https://www.courtlistener.com/opinion/111902/fall-river-dyeing-finishing-corp-v-nlrb/ | body of customers. See 406 U. S., n. 4; Aircraft Magnesium, Division of Grico Corp., 26 N. L. R. B. 1344, 134 (1982), enf'd, ; Premium Foods, Inc., 260 N. L. R. B. 708, 714 (1982), enf'd, In conducting the analysis, the Board keeps in mind the question whether "those employees who have been retained will understandably view their job situations as essentially unaltered." See Golden State Bottling ; v. Jeffries Lithograph This emphasis on the employees' perspective furthers the Act's policy of industrial peace. If the employees find themselves in essentially the same jobs after the employer transition and if their legitimate expectations in continued representation by their union are thwarted, their *44 dissatisfaction may lead to labor unrest. See Golden State Bottling Although petitioner does not challenge the Board's "substantial continuity" approach, it does contest the application of the rule to the facts of this case. Essentially for the reasons given by the Court of however, we find that the Board's determination that there was "substantial continuity" between Sterlingwale and petitioner and that petitioner was Sterlingwale's successor is supported by substantial evidence in the record. Petitioner acquired most of Sterlingwale's real property, its machinery and equipment, and much of its inventory and materials.[10] It introduced no new product line. Of particular significance is the fact that, from the perspective of the employees, their jobs did not change. Although petitioner abandoned converting dyeing in exclusive favor of commission dyeing, this change did not alter the essential nature of the employees' jobs, because both types of dyeing involved the same production process. The job classifications of petitioner were the same as those of Sterlingwale; petitioner's employees worked on the same machines under the direction of supervisors most of whom were former supervisors of Sterlingwale. The record, in fact, is clear that petitioner acquired Sterlingwale's assets with the express purpose of taking advantage of its predecessor's work force. *4 We do not find determinative of the successorship question the fact that there was a 7-month hiatus between Sterlingwale's demise and petitioner's start-up. Petitioner argues that this hiatus, coupled with the fact that its employees were hired through newspaper advertisements not through Sterlingwale employment records, which were not transferred to it resolves in its favor the "substantial continuity" question. See Brief for Petitioner 16-17, 20-22; see Yet such a hiatus is only one factor in the "substantial continuity" calculus and thus is relevant only when there are other indicia of discontinuity. See v. Band-Age, Inc., (CA1), cert. denied, Conversely, if other factors indicate a continuity between the enterprises, and the |
Justice Blackmun | 1,987 | 11 | majority | Fall River Dyeing & Finishing Corp. v. NLRB | https://www.courtlistener.com/opinion/111902/fall-river-dyeing-finishing-corp-v-nlrb/ | other factors indicate a continuity between the enterprises, and the hiatus is a normal start-up period, the "totality of the circumstances" will suggest that these circumstances present a successorship situation. See v. Daneker Clock 16 F.2d 31, (CA4 197); C. G. Conn, Ltd., 197 N. L. R. B. 442, 446-447 enf'd, For the reasons given above, this is a case where the other factors suggest "substantial continuity" between the companies despite the 7-month hiatus. Here, moreover, the extent of the hiatus between the demise of Sterlingwale and the start-up of petitioner is somewhat less than certain. After the February layoff, Sterlingwale retained a skeleton crew of supervisors and employees that continued to ship goods to customers and to maintain the plant. In addition, until the assignment for the benefit of the creditors late in the summer, Ansin was seeking to resurrect the business or to find a buyer for Sterlingwale. The Union was aware of these efforts. Viewed from the employees' perspective, therefore, the hiatus may have been much less than seven months. Although petitioner hired the employees through advertisements, it often relied on recommendations from supervisors, themselves formerly employed by Sterlingwale, and intended *46 the advertisements to reach the former Sterlingwale work force.[11] Accordingly, we hold that, under settled law, petitioner was a successor to Sterlingwale. We thus must consider if and when petitioner's duty to bargain arose. B In the Court determined that the successor had an obligation to bargain with the union because a majority of its employees had been employed by 406 U.S., The "triggering" fact for the bargaining obligation was this composition of the successor's work force.[12] The *47 Court, however, did not have to consider the question when the successor's obligation to bargain arose: Wackenhut's contract expired on June 30 and began its services with a majority of former Wackenhut guards on July 1. See at 27. In other situations, as in the present case, there is a start-up period by the new employer while it gradually builds its operations and hires employees. In these situations, the Board, with the approval of the Courts of has adopted the "substantial and representative complement" rule for fixing the moment when the determination as to the composition of the successor's work force is to be made.[13] If, at this particular moment, a majority of the successor's employees had been employed by its predecessor, then the successor has an obligation to bargain with the union that represented these employees.[14] *48 This rule represents an effort to balance " `the objective of insuring maximum employee participation in the selection |
Justice Blackmun | 1,987 | 11 | majority | Fall River Dyeing & Finishing Corp. v. NLRB | https://www.courtlistener.com/opinion/111902/fall-river-dyeing-finishing-corp-v-nlrb/ | `the objective of insuring maximum employee participation in the selection of a bargaining agent against the goal of permitting employees to be represented as quickly as possible.' " -431, quoting v. Pre-Engineered Building Products, Inc.,[1] In deciding *49 when a "substantial and representative complement" exists in a particular employer transition, the Board examines a number of factors. It studies "whether the job classifications designated for the operation were filled or substantially filled and whether the operation was in normal or substantially normal production." See Premium Foods, In addition, it takes into consideration "the size of the complement on that date and the time expected to elapse before a substantially larger complement would be at work as well as the relative certainty of the employer's expected expansion." Petitioner contends that the Board's "representative complement" rule is unreasonable, given that it injures the representation rights of many of the successor's employees and that it places significant burdens upon the successor, which is unsure whether and when the bargaining obligation will arise. Brief for Petitioner 24-31; see Brief for Chamber of Commerce of United States as Amicus Curiae 21-2. According to petitioner, if majority status is determined at the "full complement" stage, all the employees will have a voice in the selection of their bargaining representative, and this will reveal if the union truly has the support of most of the successor's employees. This approach, however, focuses only on the interest in having a bargaining representative selected by the majority of the employees. It fails to take into account the significant interest of employees in being represented as soon as possible. The latter interest is especially heightened in a situation where many of the successor's employees, who were formerly represented by a union, find themselves after the employer transition in essentially the same enterprise, but without their bargaining representative. Having the new employer refuse to bargain with the chosen representative of these employees "disrupts the employees' morale, deters their organizational activities, and *0 discourages their membership in unions." Franks Bros. v. Accordingly, petitioner's "full complement" proposal must fail.[16] Nor do we believe that this "substantial and representative complement" rule places an unreasonable burden on the employer. It is true that, if an employer refuses to bargain with the employees once the representative complement has been attained, it risks violating 8(a)(). Furthermore, if an employer recognizes the union before this complement has been reached, this recognition could constitute a violation of 8(a)(2), which makes it an unfair labor practice for an employer to support a labor organization. 29 U.S. C. 18(a)(2). And, unlike the |
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