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Justice Thomas | 1,994 | 1 | dissenting | PUD No. 1 of Jefferson Cty. v. Washington Dept. of Ecology | https://www.courtlistener.com/opinion/1087951/pud-no-1-of-jefferson-cty-v-washington-dept-of-ecology/ | does not acknowledge or discuss the shift of power from to the States that is accomplished by its decision. Indeed, the Court merely notes that "any conflict with 's authority under the FPA" in this case is "hypothetical" at this stage, ante, at 723, because " has not yet acted on petitioners' license application," ante, at 722. We are assured that "it is quite possible that any license would contain the same conditions as the state 401 certification." The Court's observations simply miss the point. Even if might have no objection to the stream flow condition established by respondents in this case, such a happy coincidence will likely prove to be the exception, rather than the rule. In issuing licenses, must balance the Nation's power needs together with the need for energy conservation, irrigation, flood control, fish and wildlife protection, and recreation. 16 U.S. C. 797(e). State environmental agencies, by contrast, need only consider parochial environmental interests. Cf., e. g., Wash. Rev. Code 90.54.010(2) As a result, it is likely that conflicts will arise between a -established stream flow level and a state-imposed level. Moreover, the Court ignores the fact that its decision nullifies the congressionally mandated process for resolving such state-federal disputes when they develop. Section 10(j)(1) of the FPA, 16 U.S. C. 803(j)(1), which was added as part *736 of the Electric Consumers Protection Act of 1986 (ECPA), provides that every license must include conditions to "protect, mitigate damag[e] to, and enhance" fish and wildlife, including "related spawning grounds and habitat," and that such conditions "shall be based on recommendations" received from various agencies, including state fish and wildlife agencies. If believes that a recommendation from a state agency is inconsistent with the FPAthat is, inconsistent with what views as the proper balance between the Nation's power needs and environmental concernsit must "attempt to resolve any such inconsistency, giving due weight to the recommendations, expertise, and statutory responsibilities" of the state agency. 803(j)(2). If, after such an attempt, "does not adopt in whole or in part a recommendation of any [state] agency," it must publish its reasons for rejecting that recommendation. After today's decision, these procedures are a dead letter with regard to stream flow levels, because a State's "recommendation" concerning stream flow "shall" be included in the license when it is imposed as a condition under 401(d). More fundamentally, the 1986 amendments to the FPA simply make no sense in the stream flow context if, in fact, the States already possessed the authority to establish minimum stream flow levels under 401(d) of the CWA, which was enacted |
Justice Thomas | 1,994 | 1 | dissenting | PUD No. 1 of Jefferson Cty. v. Washington Dept. of Ecology | https://www.courtlistener.com/opinion/1087951/pud-no-1-of-jefferson-cty-v-washington-dept-of-ecology/ | flow levels under 401(d) of the CWA, which was enacted years before those amendments. Through the ECPA, Congress strengthened the role of the States in establishing conditions, but it did not make that authority paramount. Indeed, although Congress could have vested in the States the final authority to set stream flow conditions, it instead left that authority with See As the Ninth Circuit observed in the course of rejecting California's effort to give a narrow reading, "[t]here would be no point in Congress requiring [] to consider the state agency recommendations on environmental matters and *737 make its own decisions about which to accept, if the state agencies had the power to impose the requirements themselves." Sayles Hydro Given the connection between 401 and federal hydroelectric licensing, it is remarkable that the Court does not at least attempt to fit its interpretation of 401 into the larger statutory framework governing the licensing process. At the very least, the significant impact the Court's ruling is likely to have on that process should compel the Court to undertake a closer examination of 401 to ensure that the result it reaches was mandated by Congress. IV Because the Court today fundamentally alters the federal-state balance Congress carefully crafted in the FPA, and because such a result is neither mandated nor supported by the text of 401, I respectfully dissent. |
Justice Scalia | 1,996 | 9 | dissenting | Lawrence v. Chater | https://www.courtlistener.com/opinion/117987/lawrence-v-chater/ | [*] I dissent because I believe that the dispositions in both No. 94-8988, post, p. 193, and No. 94-9323, ante, p. 163, are improper extensions of our limited power to vacate without first finding error below. It sometimes occurs that, after having considered the lower court decision and found error, an appellate court merely reverses or vacates and then remandsthat is, it sets the judgment aside and sends the case back to the lower court for further proceedings, rather than entering or directing entry of judgment for the appellant or petitioner. That is the appropriate course whenever the finding of error does not automatically entitle the appellant or petitioner to judgment, and the appellate court cannot conduct (or chooses not to conduct) the further inquiry necessary to resolve the questions *178 remaining in the litigation. Our books are full of such cases, from and to Vernonia School Dist. and Tuggle v. Netherland, ante, p. 10. What is at issue here, however, is a different sort of creature, which might be called "no-fault V&R": vacation of a judgment and remand without any determination of error in the judgment below. In our discretionary certiorari system of review, such an order has acquired the acronym "GVR" for the Court grants certiorari, vacates the judgment below, and remands for further proceedings.[1] The question presented by today's cases is whether there is any limitation (other than the mandate "do what is fair") upon this practice. The Court's per curiam opinions answer "no"; I disagree. Title 28 U.S. C. 2106 provides that "[t]he Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances." This facially unlimited statutory text is subject to the implicit limitations imposed by traditional practice and by the nature of the appellate system created by the Constitution and laws of the United States. The inferior federal courts (to say nothing of state courts) are not the creatures *179 and agents of this bodyas are masters, whose work we may reject and send back for redoing at our own pleasure. Inferior courts are separately authorized in the Constitution, see Art. I, 8; Art. III, 1, created by Acts of Congress, see, e. g., Judiciary Act of 1789, ; Evarts Act, Act of Mar. 3, 1891, and staffed by judges whose manner of |
Justice Scalia | 1,996 | 9 | dissenting | Lawrence v. Chater | https://www.courtlistener.com/opinion/117987/lawrence-v-chater/ | Mar. 3, 1891, and staffed by judges whose manner of appointment and tenure of office are the same as our own, see U. S. Const., Art. II, 2; Art. III, 1; 28 U.S. C. 44, 133, 134. Despite the unqualified language of 2106, we cannot, for example, "reverse" a judgment of one of these courts "and direct the entry" of a different judgment whenever we disagree with what has been done, but only when we can identify a controlling error of law. And I think we cannot "vacate" and "remand" in the circumstances here. The Court today seeks to portray our no-fault V&R practice as traditionally covering a kaleidoscopic diversity of situations. See Lawrence v. Chater, ante, at 166-167. That is in my view a misportrayal; the practice has always been limited to a few discrete categories of cases. It began, apparently, in situations calling forth the special deference owed to state law and state courts in our system of federalism. In Missouri ex rel. Wabash R. for example, rather than find error on the basis of the federal constitutional claims raised, this Court set aside the judgment of the Missouri Supreme Court and remanded the case to that court for further proceedings so that it could consider the meaning and effect of a state statute that had been enacted after its judgment had been entered. We reasoned that "[w]hile this Court may decide these [state-law] questions, it is not obliged to do so, and in view of their nature, we deem it appropriate to refer the determination to the state court." at 131. In other words, we left it to the state court to decide the effect of the intervening event, rather than follow our usual practice of deciding that question for ourselves, see, e. g., Steamship See generally United *180 Later cases took the same deferential approach to state courts when the intervening event consisted of one of our own opinions. See, e. g., State Tax By 1945, we could state that it was "[a] customary procedure" for the Court "to vacate the judgment of [a] state court where there has been a supervening event since its rendition which alters the basis upon which the judgment rests, and to remand the case so that the court from which it came might reconsider the question in light of the changed circumstances." State Farm Mut. Automobile Ins. Similarly, where a federal court of appeals' decision on a point of state law had been cast in doubt by an intervening state supreme court decision, it became our practice to vacate and |
Justice Scalia | 1,996 | 9 | dissenting | Lawrence v. Chater | https://www.courtlistener.com/opinion/117987/lawrence-v-chater/ | supreme court decision, it became our practice to vacate and remand so that the question could be decided by judges "familiar with the intricacies and trends of local law and practice." The "intervening event" branch of our no-fault V&R practice has been extended to the seemingly analogous situation (though not one implicating the special needs of federalism) in which an intervening event (ordinarily a postjudgment decision of this Court) has cast doubt on the judgment rendered by a lower federal court or a state court concerning a federal question. See, e. g., ; ; This is undoubtedly the largest category of "GVRs" that now exists. See, e. g., Exxon Corp. v. Youell, post, p. 801; Kapoor v. United States, post, p. 801; Edmond v. United States, post, p. 802; Pacesetter Constr. Co. v. Carpenters 46 Northern Cal. Ctys. Conference Bd., post, p. 802; Doctor's Associates, ; We regularly hold cases that involve the same issue as a case on which certiorari has been granted and plenary review is being conducted in order that (if appropriate) they may be "GVR'd" when the case is decided. More recently, we have indulged in the practice of vacating and remanding in light of a decision of ours that preceded the judgment in question, but by so little time that the lower court might have been unaware of it. See, e. g., These applications of no-fault V&R have nothing to do with federalism, but they are appropriate to preserve the operational premise of a multitiered judicial system (viz., that lower courts will have the first opportunity to apply the governing law to the facts) and to avoid the unseemliness of holding judgments to be in error on the basis of law that did not exist when the judgments were rendered below. They thus serve the interests of efficiency and of concern for the dignity of state and lower federal tribunals. An entirely separate branch of our no-fault V&R jurisprudence, but again one that originates in the special needs of federalism, pertains to decisions of state supreme courts that are ambiguous as to whether they rest on state-law or federal-law grounds. Rather than run the risk of improperly reversing a judgment based on state law, we adopted the practice of vacating and remanding so that the state court could make the reasons for its judgment clear. See, e. g., ; Department of Mental Hygiene of[2] *182 We have GVR'd with increasing frequency in recent years on the basis of suggestions or representations made by the Solicitor General. Some of these cases are nothing more than examples |
Justice Scalia | 1,996 | 9 | dissenting | Lawrence v. Chater | https://www.courtlistener.com/opinion/117987/lawrence-v-chater/ | General. Some of these cases are nothing more than examples of the "intervening-event GVR" discussed above, the Solicitor General pointing out that a case or statute has intervened since the judgment below. See, e. g., ; We have also announced no-fault GVR's, however, when there has been no intervening development other than the Solicitor General's confession of error in the judgment. That is a relatively new practice. As recently as 1942 a unanimous Court (two Justices not participating) wrote the following: "The public trust reposed in the law enforcement officers of the Government requires that they be quick to confess error when, in their opinion, a miscarriage of justice may result from their remaining silent. But such a confession does not relieve this Court of the performance of the judicial function. The considered judgment of the law enforcement officers that reversible error has been committed is entitled to great weight, but our judicial obligations compel us to examine independently the errors confessed. Furthermore, our judgments are precedents, and the proper administration of the criminal law cannot be left merely to the stipulation of the parties." Cf. U. S. Bancorp Mortgage Many of the early GVR's based upon the Government's confession of error appear not to have been no-fault V&R's at all, but rather summary decisions on the merits, with remand for further proceedings. See, e. g., (emphasis added); Our recent practice, however, has been to remand in light of the confession of error without determining the merits, leaving it to the lower court to decide if the confession is correct. As late as 1981, the current Chief Justice, joined by Justice White, objected to this practice. See ("I harbor serious doubt that our adversary system of justice is well served by routinely vacating judgments which the Solicitor General questions without any independent examination of the merits on our own"). I agree with that position. The practice is by now well entrenched, however. See, e. g., ; 510 U.S. 3 It may be considered a separate category of no-fault V&R. Finally (and most questionably) we have in very recent years GVR'd where the Solicitor General has not conceded error in the judgment below, but has merely acknowledged that the ground, or one of the grounds, on which the lower court relied was mistaken. See, e. g., ; That is in my view a mistaken practice, since we should not assume that a court of appeals has adopted a legal position only because the Government supported it. Four Justices now sitting on the Court have disapproved this sort of GVR. See[3] *184 |
Justice Scalia | 1,996 | 9 | dissenting | Lawrence v. Chater | https://www.courtlistener.com/opinion/117987/lawrence-v-chater/ | the Court have disapproved this sort of GVR. See[3] *184 Today's cases come within none of these categories of nofault V&R, not even the questionable last one. In Stutson v. United States, post, p. 193, the decision "in light of" which we vacate the judgment and remand, Pioneer Investment Services had been on the books for well more than a year before the Eleventh Circuit announced the judgment under review, and for almost two years before that court denied rehearing. Moreover, the parties specifically argued to the Court of Appeals the question whether Pioneer established the standard applicable to petitioner's claim of "excusable neglect" under Federal Rule of Appellate Procedure 4(b), with the United States disagreeing with petitioner and taking the position that Pioneer was not controlling. The Eleventh Circuit ruled against petitioner on the merits of his claim; its one-sentence order contained neither a reference to Pioneer nor any suggestion that the court viewed the case as turning on which party's proffered standard was applied. The United States has now revised its legal position and though it makes no suggestion that the Court of Appeals' judgment was incorrectis of the view that Pioneer does establish the standard governing petitioner's claim. But the fact that the party who won below repudiates on certiorari its position on a particular point of law does not give rise to any "intervening," postjudgment factor that must be considered. The law is the law, whatever the parties, including the United States, may have argued. As described above, *185 we have sometimes GVR'd where the Government has, while still supporting the judgment in its favor, conceded the error of a legal point on which the lower court explicitly relied. As I have explained, see in my view even that practice denies valid judgments the respect to which they are entitled. But the GVR in the present case goes still further. We do not know in this case whether the Eleventh Circuit even agreed with the Government's position that has now been repudiated; for all we know, the court applied Pioneer and found against petitioner under that standard. The judgment is declared invalid because the Eleventh Circuit might (or might not) have relied on a standard (non-Pioneer ) that might (or might not) be wrong, that might (or might not) have affected the outcome, and that the Eleventh Circuit might (or might not) abandon (whether or not it is wrong) because the Government has now abandoned it. This seems to me beyond all reason. The Court justifies its setting aside of the judgment on the ground that |
Justice Scalia | 1,996 | 9 | dissenting | Lawrence v. Chater | https://www.courtlistener.com/opinion/117987/lawrence-v-chater/ | its setting aside of the judgment on the ground that "we [do not] place an excessive burden on [the Eleventh Circuit], relative to [petitioner's] liberty and due process interests, by inviting it to clarify its ambiguous ruling." Stutson, post, at 196. Vacating for ambiguity may be justifiable, as I have noted, when the ambiguity calls into question our very power to take and decide the case, see and n. 2. But where that power is (as it is here) beyond doubt, it seems to me quite improper to vacate merely in order to get a better idea of whether the case is "worth" granting full review. If this is appropriate with respect to court of appeals' summary dispositions of criminal cases, I see no reason why it is not appropriate with respect to criminal dispositions accompanied by opinions as well. Or, for that matter, why it is not appropriate for civil cases. "GVR'd for clarification of " should become a common form of order, drastically altering the role of this Court. In my view we have no power to make such a tutelary remand, *186 as to a schoolboy made to do his homework again.[4] The Court insists that declining to remand for clarification would risk "immunizing summary dispositions from our review," Stutson, post, at 196. That is not so. It is fully within our power to review this case, and any other case summarily decided below, by granting certiorari and proceeding to consider the merits; or indeed, where the circumstances warrant, to summarily reverse. Cf. Hellman, "Granted, Vacated, and Remanded"Shedding Light on a Dark Corner of Supreme Court Practice, 67 Judicature 389, 391-392 (noting that in the 1970's as the Court's GVR practice "increased far beyond what ithad been in earlier years," its use of summary reversal based on intervening precedents decreased dramatically). In No. 94-9323, the Court again GVR's because the Government has changed a legal position: The Commissioner of Social Security informs us that she now agrees with petitioner on a preliminary point of law that the Court of Appeals found in the Government's favor. And here again, respondent does not concede that the judgment below was in error, for she "ha[s] not reached a firm conclusion" as to her position on the subsequent point of law that will (if her recantation on the preliminary point is accepted) control the outcome of the case. Brief for Respondent in No. 94-9323, p. 13.[5] There is, however, a special factor in this second case: Respondent is an agency head, whose view on the legal point in question is in |
Justice Scalia | 1,996 | 9 | dissenting | Lawrence v. Chater | https://www.courtlistener.com/opinion/117987/lawrence-v-chater/ | whose view on the legal point in question is in some circumstances entitled to deference, *187 see Chevron U. S. A. If it were clear that respondent's change in position were entitled to deference, I would have no problem with the GVR; the new position would then constitute an intervening postjudgment factor whose effect the Court of Appeals should be allowed to consider. But even if we allow deference to an agency view first expressed in pending litigation ; cf. Merrill, Judicial Deference to Executive Precedent, 101 Yale L. J. 969, 1023 (1992)), surely a decent concern for those litigating against the Government and for our lower court judges should induce us to disregard, for Chevron purposes, a litigating position first expressed at the certiorari stage. The United States is the most frequent, and hence the most calculating, of our litigants. If we accord deference in the circumstances here, we can expect the Government to take full advantage of the opportunity to wash out, on certiorari, disadvantageous positions it has embraced below; and we can expect it to focus less of its energy upon getting its position "right" in the courts of appeals. The Court, however, thinks it unnecessary to decide the deference question. It is enough, as the Court sees it, that its summary review has led it to "believe that [the] agency interpretation is reasonably probably entitled to deference and potentially determinative." Ante, at 172. I do not agree. It seems to me our "intervening-event GVR's" should not be extended to the situation where (1) the intervening event consists of a party's going back on what it argued to the court of appeals, and (2) it is not even certain that the change in position is legally cognizable. That seems to me to accord inadequate respect to the work of our colleagues below. Moreover, it is not clear to me that the question before us (should an agency change of position at the certiorari stage be accorded deference?) can even be reached *188 by the Court of Appeals. Surely we do not expect the Court of Appeals to declare our vacation and remand invalid. Thus, the Court of Appeals will have before it the somewhat different question whether the agency change of position before it is entitled to deference. I suppose it may conclude that, since a change of position on certiorari is not entitled to deference, a change of position on a remand triggered by change of position on certiorari is not entitled to deference but that would assuredly be a convoluted holding. The question of what |
Justice Scalia | 1,996 | 9 | dissenting | Lawrence v. Chater | https://www.courtlistener.com/opinion/117987/lawrence-v-chater/ | would assuredly be a convoluted holding. The question of what is permissible on certiorari seems to me peculiarly within the domain of this Court. Since we are in doubt on the deference point in the present case, we should either deny the petition, or grant it and have the deference point argued. The Court's failure to comprehend why it should make any difference that the Government's changed litigating position may not be entitled to deference, see ante, at 172-173, displays a lamentable lack of appreciation of the concept of adding insult to injury. It is disrespectful enough of a lower court to set its considered judgment aside because the Government has altered the playing field on appeal; it is downright insulting to do so when the Government's baitand-switch performance has not for a certainty altered any factor relevant to the decision. In that situation, at least, we should let the Government live with the consequences of its fickleness or inattention. The Court claims that it would "defeat the purpose of GVR'ing" to determine the deference issue on the merits, since that issue is "based on a circumstance that will not be present in any other case brought under the statute at issue." That is true enough (barring the unlikely event that the Government in a later case under this very statute again switches its position at the certiorari stage). But the issue of whether Chevron deference should be accorded to a certiorari-stage switch of litigating position is not at all unique to the individual case or bound up with the underlying statute. It always arises, of *189 course, in an individual case involving a particular statute, as do most questions of law. But the issue itself is thoroughly generalizable, and of general importance. In any event, I do not urge that we determine the deference issue on the merits; my vote in these cases is to deny the petitions. Finally, I must remark upon the Court's assertion that we issued "just such a GVR order last Term, without recorded dissent," ante, at 173, citing : It is not customary, but quite rare, to record dissents from grants of certiorari, including GVR's. It would be wrong to conclude from the unsigned order in Schmidt that the vote to GVR was unanimous, or even close to unanimous. Thus, Schmidt does not demonstrate that bait-and-switchdeference GVR's are an accepted practice; but the fact that Schmidt was apparently the first-ever such GVR, combined with the fact that the Government is back one Term later for another helping, demonstrates the accuracy of my prediction that |
Justice Scalia | 1,996 | 9 | dissenting | Lawrence v. Chater | https://www.courtlistener.com/opinion/117987/lawrence-v-chater/ | for another helping, demonstrates the accuracy of my prediction that the Solicitor General will be quick to take advantage of this new indulgence. What is more momentous than the Court's judgments in the particular cases before useach of which extends our prior practice just a little bitis its expansive expression of the authority that supports those judgments. It acknowledges, to begin with, no constitutional limitation on our power to vacate lower court orders properly brought before us. Ante, at 166. This presumably means that the constitutional grant of "appellate Jurisdiction" over "Cases arising under [the] Constitution [and] Laws of the United States," Art. III, 2, empowers the Court to vacate a state supreme court judgment, and remand the case, because it finds the opinion, though arguably correct, incomplete and unworkmanlike; or because it observes that there has been a postjudgment change in the personnel of the state supreme court, and wishes to give the new state justices a shot at the case. I think that is not so. When the Constitution divides our jurisdiction into "original Jurisdiction" and "appellate *190 Jurisdiction," I think it conveys, with respect to the latter, the traditional accoutrements of appellate power. There doubtless is room for some innovation, particularly such as may be necessary to adapt to a novel system of federalism; but the innovation cannot be limitless without altering the nature of the power conferred. Not only does the Court reject any constitutional limitation upon its power to vacate; it is unwilling to submit to any prudential constraint as well. Even while acknowledging the potential for "unfair[ness] or manipulat[ion]" and professing to agree that "our GVR power should be exercised sparingly," ante, at 168, 173, the Court commits to no standard that will control that power, other than that cloak for all excesses, "the equities," ante at 168; see ante at 173, 174, ; post, at 196. We may, as the Court now pronounces, set aside valid judgments not merely when they are wrong, not merely when intervening events require that someone (either the lower court or we) reconsider them on new facts or under new legal criteria, not merely when it is ambiguous whether we have power to review them, not merely when the United States concedes that the judgment below (or one of the points of law relied upon below, or even one of the points of law possibly relied upon below) is wrong; but whenever there is "a reasonable probability that the decision below rests upon a premise that the lower court would reject if given the opportunity for further consideration." |
Justice Scalia | 1,996 | 9 | dissenting | Lawrence v. Chater | https://www.courtlistener.com/opinion/117987/lawrence-v-chater/ | court would reject if given the opportunity for further consideration." Ante, at 167. The power to "revis[e] and correc[t]" for error, has become a power to void for suspicion. Comparing the modest origins of the Court's no-fault V&R policy with today's expansive dénouement should make even the most Pollyannish reformer believe in camel's noses, wedges, and slippery slopes. The Court justifies its approach on the ground that it "alleviates the potential for unequal treatment that is inherent in our inability to grant plenary review of all pending cases *191 raising similar issues." Ante, at 167 (internal quotation marks omitted). I do not see how it can promote equal treatment to announce a practice that we cannot possibly pursue in every case. If we were to plumb the "equities" and ponder the "errors" for all the petitions that come before usif we were to conduct, for example, in all cases involving summary decisions, today's balancing of the "burden" to the Court of Appeals against the litigant's "interests" in having clarification of the ruling, see Stutson, post, at 196, or today's calculation of "the overall probabilities and equities," ante, at 173we would have no time left for the cases we grant to consider on the merits. Of course we do not purport to conduct such inquiries, not even the basic one of whether the decision below is probably in "error"which is why we insist that our denial of certiorari does not suggest a view on the merits, see, e. g., ; Moreover, even if we tried applying the Court's "totality-of-thecircumstances" evaluation to all the petitions coming before us, we would be unlikely to achieve equal treatment. Such a plastic criterion is liable to produce inconsistent results in any series of decisions; it is virtually guaranteed to do so in a series of decisions made without benefit of adversary presentation (whether we should GVR is rarely briefed, much less arguedas it has not been here) and announced without accompaniment of a judicial opinion (we almost never give reasons as the Court has done today). The need to afford equal treatment argues precisely against the "totality-of-the-circumstances" approach embraced by the Court, and in favor of a more modest but standardized GVR practice. Henceforth, I shall vote for an order granting certiorari, vacating the judgment below without determination of the merits, and remanding for further consideration, only (1) where an intervening factor has arisen that has a legal bearing *192 upon the decision, (2) where, in a context not governed by clarification of the opinion below is needed to assure our jurisdiction, and (3) (in |
Justice Thomas | 2,016 | 1 | concurring | Cuozzo Speed Technologies, LLC v. Lee | https://www.courtlistener.com/opinion/3214886/cuozzo-speed-technologies-llc-v-lee/ | The Court invokes Chevron U. S. A. and United to resolve one of the questions presented in this case. See ante, at 2, 3–20. But today’s decision does not rest on Chevron’s fiction that ambiguity in a statutory term is best construed as an implicit delegation of power to an administrative agency to determine the bounds of the law. In an appropriate case, this Court should reconsider that fiction of Chevron and its progeny. See Michigan v. EPA, 576 U. S. (THOMAS, J., concurring) (slip op., at 2) (“Chevron deference raises serious separation-of- powers questions”); see also Department of Transportation v. Association of American Railroads, 575 U. S. (THOMAS, J., concurring in judgment) (slip op., at 4) (“[T]he discretion inherent in executive power does not comprehend the discretion to formulate generally applica- ble rules of private conduct”); Perez v. Mortgage Bankers Assn., 575 U. S. – (THOMAS, J., concur- ring in judgment) (slip op., at 8–9) (“Those who ratified the Constitution knew that legal texts would often contain ambiguities. The judicial power was understood to 2 CUOZZO SPEED TECHNOLOGIES, LLC v. LEE THOMAS, J., concurring include the power to resolve these ambiguities over time”); Cass, Is Chevron’s Game Worth the Candle? Burning Interpretation at Both Ends, in Liberty’s Nemesis 57–69 (D. Reuter & J. Yoo eds. 206). The Court avoids those constitutional concerns today because the provision of the America Invents Act at issue contains an express and clear conferral of authority to the Patent Office to promulgate rules governing its own pro- ceedings. See 35 U.S. C. ante, at 3. And by asking whether the Patent Office’s preferred rule is rea- sonable, ante, at 7–20, the Court effectively asks whether the rulemaking was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” in conformity with the Administrative Procedure Act, 5 U.S. C. I therefore join the Court’s opinion in full. Cite as: 579 U. S. (206) ALITO, J., concurring in part Opinion and,dissenting of ALITO J. in part SUPREME COURT OF THE UNITED STATES No. 5–446 CUOZZO SPEED TECHNOLOGIES, LLC, PETITIONER v. MICHELLE K. LEE, UNDER SECRETARY OF COM- MERCE FOR INTELLECTUAL PROPERTY AND DIR- ECTOR, PATENT AND TRADEMARK OFFICE ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT [June 20, 206] JUSTICE ALITO, with whom JUSTICE SOTOMAYOR joins, concurring in part and dissenting in part. Congress has given the Patent and Trademark Office considerable authority to review and cancel issued patent claims. At the same time, Congress has cabined that power by imposing significant conditions on the Patent |
Justice Thomas | 2,016 | 1 | concurring | Cuozzo Speed Technologies, LLC v. Lee | https://www.courtlistener.com/opinion/3214886/cuozzo-speed-technologies-llc-v-lee/ | cabined that power by imposing significant conditions on the Patent Office’s institution of patent review proceedings. Unlike the Court, I do not think that Congress intended to shield the Patent Office’s compliance—or noncompliance—with these limits from all judicial scrutiny. Rather, consistent with the strong presumption favoring judicial review, Congress required only that judicial review, including of issues bearing on the institution of patent review proceed- ings, be channeled through an appeal from the agency’s final decision. I respectfully dissent from the Court’s contrary holding. I In the Leahy-Smith America Invents Act (AIA), 35 U.S. C. et seq., Congress created three new mecha- —————— I agree with the Court that the Patent Office permissibly applies a “broadest reasonable construction” standard to construe patent claims in inter partes review, and I therefore join Parts I and III of its opinion. 2 CUOZZO SPEED TECHNOLOGIES, LLC v. LEE Opinion of ALITO, J. nisms for Patent Office review of issued patent claims— inter partes review, post-grant review, and covered busi- ness method patent review (CBM review). This case involves the first of these proceedings, inter partes review. Under inter partes review, anyone may file a petition challenging the patentability of an issued patent claim at almost any time. (c). The grounds for challenge are limited to the patentability of the claim under (which requires patent claims to be novel) and (which requires patent claims to be nonobvious). The statute imposes other restrictions as well. A peti- tion for inter partes review “may be considered only if ” the petition satisfies certain requirements, including (as rele- vant here) that the petition “identif[y], in writing and with particularity, each claim challenged, the grounds on which the challenge to each claim is based, and the evidence that supports the grounds for the challenge to each claim.” Additionally, “inter partes review may not be instituted” if the party challenging the patent previously filed a civil action challenging the patent’s validity or was sued for infringing the patent more than a year before seeking inter partes review. (b). Finally, the Patent Office may not institute inter partes review “unless the Director [of the Patent Office] determines that the information presented in the [challenger’s] petition and any response [by the patent owner] shows that there is a reasonable likelihood that the petitioner would prevail with respect to at least of the claims challenged in the petition.” The statute provides that “[t]he determination by the —————— 2 The Director of the Patent Office has delegated his authority to institute inter partes review to the Patent Trial and Appeal Board (Board), which |
Justice Thomas | 2,016 | 1 | concurring | Cuozzo Speed Technologies, LLC v. Lee | https://www.courtlistener.com/opinion/3214886/cuozzo-speed-technologies-llc-v-lee/ | review to the Patent Trial and Appeal Board (Board), which also conducts and decides the inter partes review. See (a), 42.08 ; 35 U.S. C. 38(a). I there- fore use the term “Patent Office” to refer to the Director, the Board, and the Patent Office generally, as the case may be. Cite as: 579 U. S. (206) 3 ALITO, J., concurring in part Opinion and,dissenting of ALITO J. in part Director whether to institute an inter partes review under this section shall be final and nonappealable.” If inter partes review is instituted, the Patent Office con- ducts a trial that culminates in a “final written decision” on the patentability of the challenged claims. Any patent owner or challenger that is “dissatisfied” with that decision may appeal to the Federal Circuit. II In this case, the Patent Office instituted inter partes review of claims 0 and 4 of Cuozzo’s patent based on prior art that the challenger’s petition did not cite with respect to those claims. After trial, the Patent Office issued a final written decision holding those claims un- patentable, and Cuozzo appealed that decision to the Federal Circuit. In its appeal, Cuozzo argued (among other things) that the Patent Office had violated the re- quirement that a petition for inter partes review “may be considered only if ” the petition identifies “the grounds on which the challenge to each claim is based, and the evi- dence that supports the grounds for the challenge,” “with particularity.” The Federal Circuit held that it could not entertain this argument because provides that the Patent Of- fice’s decision to institute an inter partes review is “final and nonappealable.” See In re Cuozzo Speed Technolo- gies, LLC, This Court now affirms. I disagree. We have long recognized that “Congress rarely intends to prevent courts from enforcing its direc- tives to federal agencies. For that reason, this Court applies a ‘strong presumption’ favoring judicial review of administrative action.” Mach Mining, LLC v. EEOC, 575 U. S. (slip op., at 4) (quoting Bowen v. Michigan Academy of Family Physicians, 670 (986)). While the “presumption is rebuttable,” “the 4 CUOZZO SPEED TECHNOLOGIES, LLC v. LEE Opinion of ALITO, J. agency bears a ‘heavy burden’ in attempting to show that Congress ‘prohibit[ed] all judicial review’ of the agency’s compliance with a legislative mandate.” Mach Mining, at – (slip op., at 4–5) ). If a provision can reasonably be read to permit judicial review, it should be. Our decision in illustrates the power of this presumption. The statute at issue there provided that agency “ ‘decisions concerning [questions of |
Justice Thomas | 2,016 | 1 | concurring | Cuozzo Speed Technologies, LLC v. Lee | https://www.courtlistener.com/opinion/3214886/cuozzo-speed-technologies-llc-v-lee/ | issue there provided that agency “ ‘decisions concerning [questions of disability and dependency] are final and conclusive and are not subject to review.’ ” The Federal Circuit con- cluded that the statute cut off all judicial review of such decisions, stating that “ ‘[i]t is difficult to conceive of a more clear-cut statement of congressional intent to pre- clude review than one in which the concept of finality is thrice repeated in a single sentence.’ ” We reversed. We acknowledged that the statute “plausibly c[ould] be read as imposing an absolute bar to judicial review,” but we concluded that “it also quite naturally c[ould] be read as precluding review only of factual determinations” underlying the agency’s decision, while permitting review of legal questions. In light of the presumption of reviewability, we adopted the latter read- ing. We observed that “when Congress intends to bar judicial review altogether, it typically employs language far more unambiguous and comprehensive,” giving as an example a statute that made an agency decision “ ‘final and conclusive for all purposes and with respect to all questions of law or fact’ ” and “ ‘not subject to review by another official of the United States or by a court by man- damus or otherwise.’ ” –780, and n. 3.3 —————— 3 The Court tries to recast Lindahl as a decision about “agenc[y] pri- macy” by focusing on its recognition that factual questions were unre- viewable under the relevant statute (no one disputed that) and treating Cite as: 579 U. S. (206) 5 ALITO, J., concurring in part Opinion and,dissenting of ALITO J. in part This is a far easier case than Lindahl. There is no question that the statute now before us can naturally— perhaps most naturally—be read to permit judicial review of issues bearing on the Patent Office’s institution of inter partes review. Section 34(d) reads: “The determination by the Director whether to institute an inter partes review under this section shall be final and nonappealable.” Unlike the statutes we addressed in Lindahl (including the one we found to permit review), does not say that an institution decision is “not subject to review.” Instead, it makes the institution decision “nonappealable.” This is fairly interpreted to bar only an appeal from the in- stitution decision itself, while allowing review of institution- related issues in an appeal from the Patent Office’s final written decision at the end of the proceeding. See Our cases have used the term “nonappealable” in just this way—to refer to matters that are not immediately or independently appealable, but which are subject to review |
Justice Thomas | 2,016 | 1 | concurring | Cuozzo Speed Technologies, LLC v. Lee | https://www.courtlistener.com/opinion/3214886/cuozzo-speed-technologies-llc-v-lee/ | immediately or independently appealable, but which are subject to review at a later point.4 Thus, while the decision to insti- tute inter partes review is “final and nonappealable” in the sense that a court cannot stop the proceeding from going forward,5 the question whether it was lawful to institute —————— the case’s holding that legal questions were reviewable as an after- thought. Ante, at 0. The review that Lindahl permitted—to correct “a substantial departure from important procedural rights, a misconstruc- tion of the governing legislation, or some like error going to the heart of the administrative determination,” (internal quotation marks omitted)—is quite similar to the review I envision of Patent Office decisions to institute inter partes review, as the discussion that follows makes clear. 4 See Mohawk Industries, 09 (2009) (agreeing with decisions holding that attorney-client privi- lege rulings are “nonappealable” because “postjudgment appeals generally suffice to protect the rights of litigants”); Coopers & Lybrand v. Livesay, (describing an order denying class certification as “nonappealable” but noting that it “is subject to effective review after final judgment”). 5 Like the Court, I do not have occasion to address whether in ex- 6 CUOZZO SPEED TECHNOLOGIES, LLC v. LEE Opinion of ALITO, J. review will not escape judicial scrutiny. This approach is consistent with the normal rule that a party may chal- lenge earlier agency rulings that are themselves “not directly reviewable” when seeking review of a final, ap- pealable decision. 5 U.S. C. And it strikes a sensi- ble balance: The Patent Office may proceed unimpeded with the inter partes review process (which must normally be completed within one year, see 35 U.S. C. but it will be held to account for its compliance with the law at the end of the day. In rejecting this commonsense interpretation, the Court gives short shrift to the presumption in favor of judicial review. Its primary reason for disregarding the presump- tion reduces to an assertion—devoid of any textual analy- sis—that surely must bar review of legal questions related to institution decisions. Ante, at 7–8. As I have explained, the statute’s text does not require that conclusion. Moving (further) away from the statutory text, the Court next objects that allowing judicial review “would undercut one important congressional objective, namely, giving the Patent Office significant power to revisit and revise earlier patent grants.” Ante, at 8. I am not sure that the Court appreciates how remarkable this assertion is. It would give us cause to do away with judicial review whenever we think that review makes it harder for an agency to carry out |
Justice Thomas | 2,016 | 1 | concurring | Cuozzo Speed Technologies, LLC v. Lee | https://www.courtlistener.com/opinion/3214886/cuozzo-speed-technologies-llc-v-lee/ | review makes it harder for an agency to carry out important work. In any event, the majority’s logic is flawed. Judicial review enforces the limits that Congress has imposed on the agency’s power. It thus serves to buttress, not “undercut,” Congress’s objectives. By asserting otherwise, the majority loses sight of the principle that “no legislation pursues its pur- poses at all costs.” Rodriguez v. United States, 480 U. S. —————— traordinary cases a patent owner might seek mandamus to stop an inter partes review before the proceeding concludes. Cite as: 579 U. S. (206) 7 ALITO, J., concurring in part Opinion and,dissenting of ALITO J. in part 522, 525–526 (987) (per curiam). “Every statute pur- poses, not only to achieve certain ends, but also to achieve them by particular means—and there is often a consider- able legislative battle over what those means ought to be. The withholding of agency authority is as significant as the granting of it, and we have no right to play favorites between the two.” Director, Office of Workers’ Compensa- tion The inter partes review statute is no exception. It empowers the Patent Office to clean up bad patents, but it expressly forbids the Patent Office to institute inter partes review—or even consider petitions for inter partes review—unless certain conditions are satisfied. Nothing in the statute suggests that Con- gress wanted to improve patent quality at the cost of fidelity to the law. The Court also observes that the inter partes review appeal provision, “limit[s] appellate review to the ‘final written decision.’ ” Ante, at 8. The majority reads too much into this provision. Section 39 provides simply that “[a] party dissatisfied with the final written decision may appeal the decision.” The statute does not restrict the issues that may be raised in such an appeal. As the Patent Office once explained (before having a change of heart), the “plain language of the statutory text” recognizes a “right of judicial review for any party ‘dissatisfied’ by the [Patent Office’s] ultimate ‘written [decision],’ ” and “[n]othing in the statutory scheme limits the reasons that a party might be so ‘dissatisfied.’ ” Memorandum of Law in Support of Defendant’s Motion to Dismiss in Versata Development Group, Inc. v. Rea, Civ. Action No. :3cv328 (ED Va., May 6, 203), p. 6. A party may be dissatisfied with a final written decision in an inter partes review because the Patent Office lacked authority to institute the proceeding in the first place, or because the Office commit- ted some other error in the lead-up to its final decision. 8 CUOZZO SPEED |
Justice Thomas | 2,016 | 1 | concurring | Cuozzo Speed Technologies, LLC v. Lee | https://www.courtlistener.com/opinion/3214886/cuozzo-speed-technologies-llc-v-lee/ | in the lead-up to its final decision. 8 CUOZZO SPEED TECHNOLOGIES, LLC v. LEE Opinion of ALITO, J. Neither nor prevents a party from pressing such issues on an appeal from the final decision. This is familiar practice under 28 U.S. C. which similarly limits appeals to “final decisions of the district courts” but allows appellants to challenge earlier rulings as part of those appeals. See Quackenbush v. Allstate Ins. Co., 57 U.S. 706, 72 (996) (“The general rule is that a party is entitled to a single appeal, to be deferred until final judg- ment has been entered, in which claims of district court error at any stage in the litigation may be ventilated” (internal quotation marks omitted)); 5A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure pp. 250, 252 (2d ed. 992) (noting “the general rule that an appeal from final judgment permits re- view of all rulings that led up to the judgment” and ob- serving that “[t]he variety of orders open to review on subsequent appeal from a final judgment is enormous”). And, as noted above, judicial review of “final agency ac- tion” likewise encompasses earlier rulings that are “not directly reviewable.” 5 U.S. C. see The Court next contends that my interpretation renders 35 U.S. C. “superfluous.” Ante, at 9. Reading the statute to defer review of institution decisions is “unneces- sary,” the Court says, because the “Administrative Proce- dure Act already limits review to final agency decisions” and a “decision to initiate inter partes review is ‘prelimi- nary,’ not ‘final.’ ” But Congress reasonably may have thought that the matter needed clarifying, given that itself calls such a decision “final” (albeit in a dif- ferent sense, see at 5–6). Language is not superflu- ous when it “remove[s] any doubt” about a point that might otherwise be unclear. More important, my reading prevents an appeal from a decision not to institute inter partes review, which is plainly final agency action and so—absent —might otherwise trigger immedi- Cite as: 579 U. S. (206) 9 ALITO, J., concurring in part Opinion and,dissenting of ALITO J. in part ate review. The Court asserts that this too is unnecessary because, in its view, a decision to deny inter partes review is “committed to agency discretion by law” and so unre- viewable under normal principles of administrative law. 5 U.S. C. see ante, at 9. I agree that one can infer from the statutory scheme that the Patent Office has discretion to deny inter partes review even if a challenger satisfies the threshold requirements for review. But |
Justice Thomas | 2,016 | 1 | concurring | Cuozzo Speed Technologies, LLC v. Lee | https://www.courtlistener.com/opinion/3214886/cuozzo-speed-technologies-llc-v-lee/ | if a challenger satisfies the threshold requirements for review. But the law does not say so directly and Congress may not have thought the point self-evident. Again, 35 U.S. C. plays a clarifying role. This gives the provision plenty of work to do. There is no need to read it more broadly.6 III A None of this is to say that courts must—or should— throw out an inter partes review decision whenever there is some technical deficiency in the challenger’s petition or in the Patent Office’s institution decision. Although does not preclude review of issues bearing on institution, normal limits on judicial review still apply. For example, errors that do not cause a patent owner prejudice may not warrant relief. See 5 U.S. C. (“[D]ue account shall be taken of the rule of prejudicial error”). Some errors may also be superseded by later —————— 6 It is true that my interpretation leaves no apparent avenue (short of mandamus, at least) for judicial review of decisions not to institute inter partes review. This demonstrates that the presumption of re- viewability has its limits. Nor is it surprising that Congress would design such a scheme. A patent challenger does not have nearly as much to lose from an erroneous denial of inter partes review as a patent owner stands to lose from an erroneous grant of inter partes review. Although such a challenger loses some of the advantages of inter partes review (such as a more favorable claim construction stand- ard and a lower burden of proof), it remains free to challenge the patent’s validity in litigation. A patent owner, on the other hand, risks the destruction of a valuable property right. 0 CUOZZO SPEED TECHNOLOGIES, LLC v. LEE Opinion of ALITO, J. developments. Most notably, once the Patent Office issues its final written decision, the probabilistic question whether a challenger is “reasonabl[y] likel[y]” to prevail on the merits, 35 U.S. C. will be subsumed by the ultimate question whether the challenger should in fact prevail.7 And while I have no occasion here to decide the matter, it may be that courts owe some degree of deference to the Patent Office’s application of the statutory prereq- uisites to inter partes review. I would leave these considerations for the Court of Appeals to address in the first instance. But I must con- fess doubts that Cuozzo could ultimately prevail. As noted above, Cuozzo argues that the Patent Office improperly granted inter partes review of claims 0 and 4 on grounds not asserted in the petition for inter partes re- view, in violation of |
Justice Thomas | 2,016 | 1 | concurring | Cuozzo Speed Technologies, LLC v. Lee | https://www.courtlistener.com/opinion/3214886/cuozzo-speed-technologies-llc-v-lee/ | the petition for inter partes re- view, in violation of the statutory requirement that a petition must state the grounds for challenge “with partic- ularity.” The problem for Cuozzo is that claim 7—which the petition properly challenged—incorporates all of the elements of claims 0 and 4. Accordingly, an assertion that claim 7 is unpatentable in light of certain prior art is necessarily an assertion that claims 0 and 4 are unpatentable as well. Assuming that Cuozzo must show prejudice from the error it alleges, it is hard to see how Cuozzo could do so here. —————— 7 The Court recognizes that such issues are unreviewable even absent a statute like comparing the Patent Office’s “reasonable likelihood” determination to an indicting grand jury’s finding of proba- ble cause. See ante, at 9. But it draws the wrong analogy for this case. Cuozzo’s complaint is that the petition for inter partes review did not articulate its challenge to certain patent claims with adequate particu- larity. This is more akin to an argument that an indictment did not sufficiently allege an offense and provide notice of the charges against the defendant, which is reviewable after trial and judgment. See, e.g., United (overturning a conviction based on the insufficiency of the indictment). Cite as: 579 U. S. (206) ALITO, J., concurring in part Opinion and,dissenting of ALITO J. in part B But any perceived weakness in the merits of Cuozzo’s appeal does not mean that such issues are unworthy of judicial review. Section 32(a)(3)’s particularity require- ment is designed, at least in part, to ensure that a patent owner has sufficient notice of the challenge against which it must defend. Once inter partes review is instituted, the patent owner’s response—its opening brief, essentially—is filed as an opposition to the challenger’s petition. See Thus, if a petition fails to state its challenge with particularity—or if the Patent Office institutes review on claims or grounds not raised in the petition—the patent owner is forced to shoot into the dark. The potential for unfairness is obvious. Other problems arise if the Patent Office fails to enforce the prohibitions against instituting inter partes review at the behest of challengers that have already sued to invali- date the patent or that were sued for infringement more than a year before seeking inter partes review. 35 U.S. C. (b). Allowing such a challenge exposes the patent owner to the burden of multiplicative proceed- ings—including discovery in both forums, see while permitting the challenger to exploit inter partes review’s lower standard of proof and more favorable claim construction standard. Congress understandably |
Justice Thomas | 2,016 | 1 | concurring | Cuozzo Speed Technologies, LLC v. Lee | https://www.courtlistener.com/opinion/3214886/cuozzo-speed-technologies-llc-v-lee/ | of proof and more favorable claim construction standard. Congress understandably thought that the Patent Office’s power should not be wielded in this way. Yet, according to the Court, Congress made courts powerless to correct such abuses. Even more striking are the consequences that today’s decision portends for the AIA’s other patent review mech- anisms, post-grant review and CBM review, see at –2, which are subject to a “no appeal” provision virtually identical to See (“The determination by the Director whether to institute a post-grant review under this section shall be final and nonappealable”); see AIA note following 35 U.S. C. 2 CUOZZO SPEED TECHNOLOGIES, LLC v. LEE Opinion of ALITO, J. p. 442 (CBM review generally “shall be regarded as, and shall employ the standards and procedures of, a post-grant review”). Post-grant review and CBM review allow for much broader review than inter partes review. While inter partes review is limited to assessing patent- ability under and in post-grant review and CBM review, patent claims can also be scrutinized (and can- celed) on any invalidity ground that may be raised as a defense to infringement, including such grounds as ineli- gible subject matter under indefiniteness under and improper enlargement of reissued claims under See (3). But this broader re- view comes with its own strict limits. A petition for post- grant review must be filed within nine months after a patent is granted. And while CBM review is not subject to this time limit, Congress imposed a subject- matter restriction: The Patent Office “may institute a [CBM review] proceeding only for a patent that is a cov- ered business method patent,” which Congress defined to cover certain patents with claims relating to “a financial product or service.” AIA (d)(), at 442; see ibid.8 Congress thus crafted a three-tiered framework for Patent Office review of issued patents: broad post-grant review in a patent’s infancy, followed by narrower inter partes review thereafter, with a limited exception for broad review of older covered business method patents. Today’s decision threatens to undermine that carefully designed scheme. Suppose that the Patent Office instituted post-grant review on a petition filed 2 months (or even 2 years) after a patent was issued, and then invalidated a patent claim as indefinite under ground available —————— 8 Additionally, a challenger may file a petition for CBM review only if it has been sued for or charged with infringement of the patent. AIA at 442. Cite as: 579 U. S. (206) 3 ALITO, J., concurring in part Opinion and,dissenting of ALITO J. in part in post-grant review but not in |
Justice Thomas | 2,016 | 1 | concurring | Cuozzo Speed Technologies, LLC v. Lee | https://www.courtlistener.com/opinion/3214886/cuozzo-speed-technologies-llc-v-lee/ | ALITO J. in part in post-grant review but not in inter partes review. This would grossly exceed the Patent Office’s authority and would be manifestly prejudicial to the patent owner. Can Congress really have intended to shield such shenanigans from judicial scrutiny? The Court answers with a non sequitur: Of course the Patent Office cannot cancel a patent under “in inter partes review.” Ante, at The Court seems to think that we could overturn the Patent Office’s decision to institute “post-grant review” based on an untimely petition and declare that the agency has really instituted only “inter partes review.” But how is that possible under today’s opinion? After all, the peti- tion’s timeliness, no less than the particularity of its alle- gations, is “closely tied to the application and interpreta- tion of statutes related to the Patent Office’s decision to initiate review,” and the Court says that such ques- tions are unreviewable. ; see To take things a step further, suppose that the Patent Office purported to forgive the post-grant review petition’s tardiness by declaring the challenged patent a “covered business method patent,” even though the patent has nothing to do with financial products or services (it claims, say, a new kind of tempered glass). Again, this involves the application of statutes related to the Patent Office’s institution decision. See AIA at 442 (Patent Office “may institute a [CBM review] proceeding only for a patent that is a covered business method patent”). So is this specious determination immune from judicial scrutiny under the Court’s reasoning? If judicial review of these issues is unavailable, then nothing would prevent the Patent Office from effectively collapsing Congress’s three-tiered review structure and subjecting all patents to broad post-grant review at all times. Congress cannot have intended that. I take the Court at its word that today’s opinion will not permit the Patent Office “to act outside its statutory lim- 4 CUOZZO SPEED TECHNOLOGIES, LLC v. LEE Opinion of ALITO, J. its” in these ways. Ante, at But how to get there from the Court’s reasoning—and how to determine which “stat- utory limits” we should enforce and which we should not— remains a mystery. I would avoid the suspense and hold that 35 U.S. C. does not bar judicial review of the Patent Office’s compliance with any of the limits Congress imposed on the institution of patent review proceedings. That includes the statutory limit, that Cuozzo alleges was violated here. * * * In enacting the AIA, Congress entrusted the Patent Office with a leading role in combating the detrimental effect that bad patents can |
Justice Stevens | 1,987 | 16 | majority | Atchison, T. & SFR Co. v. Buell | https://www.courtlistener.com/opinion/111843/atchison-t-sfr-co-v-buell/ | A railroad has a duty to use reasonable care in furnishing its employees with a safe place to work. That duty was recognized at common law, see is given force through the Federal Employers' Liability Act (FELA), 45 U.S. C. 51 et seq., and is confirmed in some, if not all, collective-bargaining agreements. Breaches of the duty may at times give rise to typical labor disputes for which the Railway Labor Act (RLA), as amended, 45 U.S. C. 151 et seq., sets forth binding arbitration procedures. *559 Breaches may also result in injuries to a railroad's employees injuries for which the FELA would appear to give employees a cause of action for damages. The question in this case is whether the possibility of pursuing a labor grievance under the RLA deprives an employee of his right to bring an FELA action. I Respondent, a carman employed by petitioner, the Atchison, Topeka and Santa Fe Railway Company (Railroad), filed an FELA complaint in Federal District Court, alleging that he had suffered severe personal injuries as a result of the Railroad's failure "to provide [him] with a safe place to work, including, but not limited to, having fellow employees harass, threaten, intimidate [him], and in particular, foreman Ed Wright threatened, harassed, and intimidated [him] maliciously and oppressively, negligently, and intentionally, in order to cause personal injury to [him] and to cause mental and emotional suffering. All said acts were condoned and approved by [the Railroad] and as a direct and proximate result of said negligence and intentional acts, [he] was caused to suffer an emotional breakdown, thus inflicting on [him] injuries and damages as hereinafter alleged." App. 7. The Railroad filed an answer, asserting, among other defenses, that respondent's sole remedy was before the National Railroad Adjustment Board (Adjustment Board) pursuant to the RLA. Through the ensuing discovery, the Railroad identified various incidents of harassment that were embraced within the complaint's allegations,[1] and also established that its *560 collective-bargaining agreement with respondent's union allowed an employee to prosecute a grievance through successive levels of appeal up to and including mutually binding arbitration before the Adjustment Board.[2] Discovery also brought out that respondent had suffered a mental breakdown, and certain associated physical disorders, that required his hospitalization for 17 days. The Railroad then moved for dismissal or for summary judgment. The ground for its motion, in the Railroad's own words, was that "there is no subject matter jurisdiction in the district court to entertain an action concerning a labor dispute between a `carrier' subject to the Railway Labor Act and its employees." |
Justice Stevens | 1,987 | 16 | majority | Atchison, T. & SFR Co. v. Buell | https://www.courtlistener.com/opinion/111843/atchison-t-sfr-co-v-buell/ | `carrier' subject to the Railway Labor Act and its employees." Record Doc. No. 42, p. 6. The District Court accepted this argument, and granted summary judgment on "the narrow question of the availability to an employee covered by the RLA of an FELA remedy based on an alleged negligent failure to maintain a safe workplace." App. to Pet. for Cert. 11a. The Court of Appeals reversed. It held that respondent's claims were not arbitrable under the RLA, and that an FELA action was therefore not precluded. Additionally, although the question had neither been raised by the parties[3] nor addressed by the District Court,[4] the Court of *561 Appeals proclaimed that a relevant "issue, one of first impression in this circuit, is whether a Railroad employee's wholly mental injury stemming from his railroad employment is compensable under the [FELA]." The Court of Appeals concluded that the FELA does authorize recovery for emotional injury. Because of the important role these two statutes play in railway labor relations, we granted certiorari. II In 1906,[5] Congress enacted the FELA to provide a federal remedy for railroad workers who suffer personal injuries as a result of the negligence of their employer or their fellow employees. A primary purpose of the Act was to eliminate a number of traditional defenses to tort liability and to facilitate recovery in meritorious cases. The Act expressly prohibits covered carriers from adopting any regulation, or entering into any contract, to limit their FELA liability.[6] The coverage of the statute is defined in broad language,[7] which *562 has been construed even more broadly.[8] We have recognized generally that the FELA is a broad remedial statute, and have adopted a "standard of liberal construction in order to accomplish [Congress'] objects." The RLA, by contrast, provides a comprehensive framework for the resolution of labor disputes in the railroad industry. Enacted in 1926, the text of the RLA does not mention the FELA or otherwise deal with the subject of tort liability. Rather, the RLA establishes elaborate administrative procedures for the resolution of both major and minor labor disputes.[9] The statutory procedures for resolving "major *563 disputes" those arising "out of the formation or change of collective [bargaining] agreements covering rates of pay, rules, or working conditions," Detroit & T. S. L. R. are not relevant to this case. The "minor dispute" provisions are relevant, however, because the Railroad argues that the underlying dangerous condition in this case could have been grieved as a minor dispute one "growing out of grievances or out of the interpretation or application of agreements concerning |
Justice Stevens | 1,987 | 16 | majority | Atchison, T. & SFR Co. v. Buell | https://www.courtlistener.com/opinion/111843/atchison-t-sfr-co-v-buell/ | or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions," 45 U.S. C. 153, First (i). Minor dispute initially must be dealt with through a railroad's internal dispute resolution processes, and if not settled there, may be submitted to a division of the Adjustment Board, or to a Public Law Board, which is an arbitration board chosen by the parties. Judicial review of these Boards' determinations has been characterized as " `among the narrowest known to the law.' " Union Pacific R. The Railroad makes three arguments in support of its contention that respondent may not bring an FELA action for his injuries. First, it argues that the exclusive forum for any dispute arising out of workplace conditions is the RLA. Second, it argues that even if many workplace injuries are actionable under the FELA, emotional injuries should not be actionable because of their close relationship to minor disputes that are to be brought under the RLA. Finally, the Railroad responds to the Court of Appeals' discussion of whether the term "injury" as used in the FELA includes purely emotional injury, and argues that it does not. We reject the Railroad's first two arguments.[10] As for the third *564 argument, which focuses on the scope of the FELA, we believe that the record is insufficiently developed at this preliminary stage to allow us, or the Court of Appeals, to express an opinion on respondent's ultimate chances of recovery under the FELA. III The Railroad asserts first that employees have the right to have defects in the workplace corrected by resorting to the grievance machinery that is in place pursuant to the RLA, and that the RLA is the exclusive remedy for such minor disputes. Indeed, in this case, preliminary though abortive steps in that direction were actually taken. Thus, the Railroad argues that an FELA action for damages is barred. We find no merit in this argument. The fact that an injury otherwise compensable under the FELA was caused by conduct that may have been subject to arbitration under the RLA does not deprive an employee of his opportunity to bring an FELA action for damages. Presumably a host of personal injuries suffered by railroad employees are caused by negligent practices and conditions that might have been cured or avoided by the timely invocation of the grievance machinery.[11] See 5 F.2d 312, But we have never considered that possibility a bar to an employee's bringing an FELA claim for personal injuries, and the Railroad has not persuaded us to do so now. This |
Justice Stevens | 1,987 | 16 | majority | Atchison, T. & SFR Co. v. Buell | https://www.courtlistener.com/opinion/111843/atchison-t-sfr-co-v-buell/ | Railroad has not persuaded us to do so now. This Court has, on numerous occasions, declined to hold that individual employees are, because of the availability of arbitration, barred from bringing claims under federal statutes. See, e. g., ; ; Although the analysis of the question under each statute is quite distinct, the theory running through these cases is that notwithstanding the strong policies encouraging arbitration, "different considerations apply where the employee's claim is based on rights arising out of a statute designed to provide minimum substantive guarantees to individual workers." Barrentine, This principle is instructive on the question before us. The FELA not only provides railroad workers with substantive protection against negligent conduct that is independent of the employer's obligations under its collective-bargaining agreement, but also affords injured workers a remedy suited to their needs, unlike the limited relief that seems to be available through the Adjustment Board.[12] It is inconceivable that Congress intended that a worker who suffered a disabling injury would be denied recovery under the FELA simply because he might also be able to process a narrow labor grievance under the RLA to a successful conclusion. As then District Judge J. Skelly Wright concluded, "the Railway Labor Act has no application to a claim for damages to the employee resulting from the negligence of an employer railroad." It is true that the RLA remedy for the resolution of minor disputes is "in at least some situations" exclusive. *566 In Andrews, an employee brought a state wrongful discharge claim based squarely on an alleged breach of the collective-bargaining agreement. We held that Congress had intended the RLA dispute resolution mechanism to be mandatory for that type of dispute, and that courts were therefore foreclosed from addressing claims that properly arise under the RLA. In this case, by contrast, Congress has enacted the FELA to serve as the statutory basis for the award of damages to employees injured through an employer's or coworker's negligence. Unwilling to rely solely on the argument that any injury caused by a condition that could have been the subject of a grievance under the RLA is not actionable under the FELA, petitioner and various amici argue, in the alternative, that the RLA requires that a narrow "emotional injury" exception be carved out of the FELA. Because they fear that many workers alleging emotional injuries are really complaining of unhappiness arising out of everyday workplace disputes, they ask us to hold that the RLA provides the exclusive remedy for this ill-defined class of injuries. Even if we were to find some authority allowing us |
Justice Stevens | 1,987 | 16 | majority | Atchison, T. & SFR Co. v. Buell | https://www.courtlistener.com/opinion/111843/atchison-t-sfr-co-v-buell/ | Even if we were to find some authority allowing us to rewrite the FELA in this manner, we are not persuaded that it would be appropriate to do so. There is no basis for assuming that allowing FELA actions for emotional injury will wreak havoc with the general scheme of RLA arbitration,[13] and absent an intolerable *567 conflict between the two statutes, we are unwilling to read the RLA as repealing any part of the FELA. See Although we do not decide today whether purely emotional injuries are cognizable under the FELA, we stress that it is the FELA that controls that inquiry, not the RLA. As far as a worker's right to damages under the FELA is concerned, Congress' enactment of the RLA has had no effect. IV The Railroad also contends that the judgment of the Court of Appeals should be reversed because it erroneously concluded that a railroad employee's "wholly mental injury" is compensable under the FELA. The problem with our addressing this argument is that, because of the posture in which this case comes before us, the record has never been developed on the exact nature of the allegedly tortious activity, or the extent of the injuries that respondent claims to have suffered. As we have mentioned, petitioner's motion for dismissal or for summary judgment was based on the sole ground that an employee's exclusive remedy for a railroad's failure to maintain a safe workplace is to file a grievance *568 under the RLA.[14] Respondent's memorandum, of course, sought to respond to that narrow argument alone, and did not deal with the question whether emotional injury is actionable under the FELA.[15] The question whether "emotional injury" is cognizable under the FELA is not necessarily an abstract point of law or a pure question of statutory construction that might be answerable without exacting scrutiny of the facts of the case. Assuming, as we have, that FELA jurisprudence gleans guidance from common-law developments, see U. S., at 174, whether one can recover for emotional injury might rest on a variety of subtle and intricate distinctions related to the nature of the injury and the character of the tortious activity. For example, while most States now recognize a tort of intentional infliction of emotional distress,[16] they vary in the degree of intent required to *569 establish liability,[17] and the level of physical manifestation of the emotional injury required to support recovery.[18] Moreover, some States consider the context and the relationship between the parties significant, placing special emphasis on the workplace.[19] In addition, although many States have now recognized a |
Justice Stevens | 1,987 | 16 | majority | Atchison, T. & SFR Co. v. Buell | https://www.courtlistener.com/opinion/111843/atchison-t-sfr-co-v-buell/ | workplace.[19] In addition, although many States have now recognized a tort of negligent infliction of emotional distress,[20] they too vary in the degree of objective symptomatology *570 the victim must demonstrate.[21] These issues are only exemplary of the doctrinal divergences in this area. In short, the question whether one can recover for emotional injury may not be susceptible to an all-inclusive "yes" or "no" answer. As in other areas of law, broad pronouncements in this area may have to bow to the precise application of developing legal principles to the particular facts at hand. Since, through no fault of either party, we do not know what all those facts are in this case, we cannot begin to decide whether respondent will be able to support his allegation that petitioners are liable to him under the FELA.[22] Given the posture of the case, there was no reason for the Court of Appeals to express an opinion on this issue. Without agreeing or disagreeing with the merits of the Court of Appeals' discussion of the emotional injury issue, we affirm its judgment *571 only to the extent that it rejects the RLA preclusion argument advanced by the Railroad. Accordingly, the judgment of the Court of Appeals is affirmed in part and vacated in part, and the case is remanded for proceedings consistent with this opinion. It is so ordered. |
per_curiam | 1,976 | 200 | per_curiam | Cook v. Hudson | https://www.courtlistener.com/opinion/109567/cook-v-hudson/ | Certiorari was granted to consider the question presented: whether, consistently with the First and Fourteenth Amendments, a Mississippi public school board may terminate the employment of teachers sending their children not to public schools, but to a private racially segregated school. However, since the grant of certiorari, held that 42 U.S. C. 1981 prohibits private, commercially operated, nonsectarian schools from denying admission to prospective students because they are Negroes. Moreover, a Mississippi statute, Miss. Code Ann. 37-9-59 enacted in 1974 after the school board action here complained of, prohibits school boards "from denying employment or reemployment to any person for the single reason that any eligible child of such person *166 does not attend the school system in which such [person] is employed." Though 37-9-59 was cited in the record at the time of granting the writ, examination of the merits on oral argument in light of and 37-9-59 satisfies us that the grant was improvident. Accordingly, the writ of certiorari is dismissed as improvidently granted. Cf. MR. CHIEF JUSTICE BURGER, concurring in the result. I join in the Court's disposition of this case. In doing so, I emphasize that our decision to dismiss the writ of certiorari as improvidently granted intimates no view on the question of when, if ever, public school teachersor any comparable public employeesmay be required, as a condition of their employment, to enroll their children in any particular school or refrain from sending them to a school which they, as parents, in their sole discretion, consider desirable. Few familial decisions are as immune from governmental interference as parents' choice of a school for their children, so long as the school chosen otherwise meets the educational standards imposed by the State. See ; ; |
Justice Powell | 1,983 | 17 | majority | Dirks v. SEC | https://www.courtlistener.com/opinion/111009/dirks-v-sec/ | Petitioner Raymond Dirks received material nonpublic information from "insiders" of a corporation with which he had no connection. He disclosed this information to investors who relied on it in trading in the shares of the corporation. The question is whether Dirks violated the antifraud provisions of the federal securities laws by this disclosure. I In 1973, Dirks was an officer of a New York broker-dealer firm who specialized in providing investment analysis of insurance company securities to institutional investors.[1] On *649 March 6, Dirks received information from Ronald Secrist, a former officer of Equity Funding of America. Secrist alleged that the assets of Equity Funding, a diversified corporation primarily engaged in selling life insurance and mutual funds, were vastly overstated as the result of fraudulent corporate practices. Secrist also stated that various regulatory agencies had failed to act on similar charges made by Equity Funding employees. He urged Dirks to verify the fraud and disclose it publicly. Dirks decided to investigate the allegations. He visited Equity Funding's headquarters in Los Angeles and interviewed several officers and employees of the corporation. The senior management denied any wrongdoing, but certain corporation employees corroborated the charges of fraud. Neither Dirks nor his firm owned or traded any Equity Funding stock, but throughout his investigation he openly discussed the information he had obtained with a number of clients and investors. Some of these persons sold their holdings of Equity Funding securities, including five investment advisers who liquidated holdings of more than $ million.[2] While Dirks was in Los Angeles, he was in touch regularly with William Blundell, the Wall Street Journal's Los Angeles bureau chief. Dirks urged Blundell to write a story on the fraud allegations. Blundell did not believe, however, that such a massive fraud could go undetected and declined to *650 write the story. He feared that publishing such damaging hearsay might be libelous. During the 2-week period in which Dirks pursued his investigation and spread word of Secrist's charges, the price of Equity Funding stock fell from $26 per share to less than $15 per share. This led the New York Stock Exchange to halt trading on March 27. Shortly thereafter California insurance authorities impounded Equity Funding's records and uncovered evidence of the fraud. Only then did the Securities and Exchange Commission (SEC) file a complaint against Equity Funding[3] and only then, on April 2, did the Wall Street Journal publish a front-page story based largely on information assembled by Dirks. Equity Funding immediately went into receivership.[4] The SEC began an investigation into Dirks' role in the exposure of the fraud. |
Justice Powell | 1,983 | 17 | majority | Dirks v. SEC | https://www.courtlistener.com/opinion/111009/dirks-v-sec/ | investigation into Dirks' role in the exposure of the fraud. After a hearing by an Administrative Law Judge, the SEC found that Dirks had aided and abetted violations of 17(a) of the Securities Act of 1933, as amended, 15 U.S. C. 77q(a),[5] (b) of the Securities *651 Exchange Act of 1934, 15 U.S. C. 78j(b),[6] and SEC Rule b-5, 17 CFR 240.b-5 (1983),[7] by repeating the allegations of fraud to members of the investment community who later sold their Equity Funding stock. The SEC concluded: "Where `tippees' regardless of their motivation or occupation come into possession of material `corporate information that they know is confidential and know or should know came from a corporate insider,' they must either publicly disclose that information or refrain from trading." 21 S.E. C. Docket 1401, 1407 (1981) (footnote omitted) ). Recognizing, however, that Dirks "played an important role in bringing [Equity Funding's] massive fraud *652 to light," 21 S.E. C. Docket, at 1412,[8] the SEC only censured him.[9] Dirks sought review in the Court of Appeals for the District of Columbia Circuit. The court entered judgment against Dirks "for the reasons stated by the Commission in its opinion." App. to Pet. for Cert. C-2. Judge Wright, a member of the panel, subsequently issued an opinion. Judge Robb concurred in the result and Judge Tamm dissented; neither filed a separate opinion. Judge Wright believed that "the obligations of corporate fiduciaries pass to all those to whom they disclose their information before it has been disseminated to the public at large." 2 U. S. App. D. C. 309, 324, Alternatively, Judge Wright concluded that, as an employee of a broker-dealer, Dirks had violated "obligations to the SEC and to the public completely independent of any obligations he acquired" as a result of receiving the information. In view of the importance to the SEC and to the securities industry of the question presented by this case, we granted a writ of certiorari. We now reverse. *653 II In the seminal case of In re Cady, & Co., 40 S.E. C. 907 (1961), the SEC recognized that the common law in some jurisdictions imposes on "corporate `insiders,' particularly officers, directors, or controlling stockholders" an "affirmative duty of disclosure when dealing in securities." and n. 13.[] The SEC found that not only did breach of this common-law duty also establish the elements of a Rule b-5 violation,[11] but that individuals other than corporate insiders could be obligated either to disclose material nonpublic information[12] before trading or to abstain from trading altogether. In we accepted the two elements |
Justice Powell | 1,983 | 17 | majority | Dirks v. SEC | https://www.courtlistener.com/opinion/111009/dirks-v-sec/ | abstain from trading altogether. In we accepted the two elements set out in Cady, for establishing a Rule b-5 violation: "(i) the existence of a relationship affording access to inside information intended to be available only for a corporate purpose, and (ii) the unfairness of allowing a corporate insider to take advantage of that information *654 by trading without disclosure." In examining whether had an obligation to disclose or abstain, the Court found that there is no general duty to disclose before trading on material nonpublic information,[13] and held that "a duty to disclose under (b) does not arise from the mere possession of nonpublic market information." Such a duty arises rather from the existence of a fiduciary relationship. See Not "all breaches of fiduciary duty in connection with a securities transaction," however, come within the ambit of Rule b-5. Santa Fe Industries, There must also be "manipulation or deception." In an inside-trading case this fraud derives from the "inherent unfairness involved where one takes advantage" of "information intended to be available only for a corporate purpose and not for the personal benefit of anyone." In re Merrill Lynch, Pierce, Fenner & Smith, Inc., 43 S.E. C. 933, 936 (1968). Thus, an insider will be liable under Rule b-5 for inside trading only where he fails to disclose material nonpublic information before trading on it and thus makes "secret profits." Cady, III We were explicit in in saying that there can be no duty to disclose where the person who has traded on inside information "was not [the corporation's] agent, was not a fiduciary, [or] was not a person in whom the sellers [of the securities] had placed their trust and confidence." Not to require such a fiduciary relationship, we recognized, would "depar[t] radically from the established doctrine that duty arises from a specific relationship between *655 two parties" and would amount to "recognizing a general duty between all participants in market transactions to forgo actions based on material, nonpublic information." This requirement of a specific relationship between the shareholders and the individual trading on inside information has created analytical difficulties for the SEC and courts in policing tippees who trade on inside information. Unlike insiders who have independent fiduciary duties to both the corporation and its shareholders, the typical tippee has no such relationships.[14] In view of this absence, it has been unclear how a tippee acquires the Cady, duty to refrain from trading on inside information. A The SEC's position, as stated in its opinion in this case, is that a tippee "inherits" the Cady, obligation to shareholders |
Justice Powell | 1,983 | 17 | majority | Dirks v. SEC | https://www.courtlistener.com/opinion/111009/dirks-v-sec/ | is that a tippee "inherits" the Cady, obligation to shareholders whenever he receives inside information from an insider: "In tipping potential traders, Dirks breached a duty which he had assumed as a result of knowingly receiving *656 confidential information from [Equity Funding] insiders. Tippees such as Dirks who receive non-public, material information from insiders become `subject to the same duty as [the] insiders.' ]. Such a tippee breaches the fiduciary duty which he assumes from the insider when the tippee knowingly transmits the information to someone who will probably trade on the basis thereof. Presumably, Dirks' informants were entitled to disclose the [Equity Funding] fraud in order to bring it to light and its perpetrators to justice. However, Dirks standing in their shoes committed a breach of the fiduciary duty which he had assumed in dealing with them, when he passed the information on to traders." 21 S.E. C. Docket, at 1, n. 42. This view differs little from the view that we rejected as inconsistent with congressional intent in In that case, the Court of Appeals agreed with the SEC and affirmed 's conviction, holding that "[a]nyone corporate insider or not who regularly receives material nonpublic information may not use that information to trade in securities without incurring an affirmative duty to disclose." United Here, the SEC maintains that anyone who knowingly receives nonpublic material information from an insider has a fiduciary duty to disclose before trading.[15] *657 In effect, the SEC's theory of tippee liability in both cases appears rooted in the idea that the antifraud provisions require equal information among all traders. This conflicts with the principle set forth in that only some persons, under some circumstances, will be barred from trading while in possession of material nonpublic information.[] Judge Wright correctly read our opinion in as repudiating any notion that all traders must enjoy equal information before trading: "[T]he `information' theory is rejected. Because the disclose-or-refrain duty is extraordinary, it attaches only when a party has legal obligations other than a mere duty to comply with the general antifraud proscriptions in the federal securities laws." 2 U. S. App. D. C., at 322, See 445 U. S., n. We reaffirm today that "[a] duty [to disclose] *658 arises from the relationship between parties and not merely from one's ability to acquire information because of his position in the market." Imposing a duty to disclose or abstain solely because a person knowingly receives material nonpublic information from an insider and trades on it could have an inhibiting influence on the role of market |
Justice Powell | 1,983 | 17 | majority | Dirks v. SEC | https://www.courtlistener.com/opinion/111009/dirks-v-sec/ | could have an inhibiting influence on the role of market analysts, which the SEC itself recognizes is necessary to the preservation of a healthy market.[17] It is commonplace for analysts to "ferret out and analyze information," 21 S.E. C. Docket, at 1406,[18] and this often is done by meeting with and questioning corporate officers and others who are insiders. And information that the analysts *659 obtain normally may be the basis for judgments as to the market worth of a corporation's securities. The analyst's judgment in this respect is made available in market letters or otherwise to clients of the firm. It is the nature of this type of information, and indeed of the markets themselves, that such information cannot be made simultaneously available to all of the corporation's stockholders or the public generally. B The conclusion that recipients of inside information do not invariably acquire a duty to disclose or abstain does not mean that such tippees always are free to trade on the information. The need for a ban on some tippee trading is clear. Not only are insiders forbidden by their fiduciary relationship from personally using undisclosed corporate information to their advantage, but they also may not give such information to an outsider for the same improper purpose of exploiting the information for their personal gain. See 15 U.S. C. 78t(b) (making it unlawful to do indirectly "by means of any other person" any act made unlawful by the federal securities laws). Similarly, the transactions of those who knowingly participate with the fiduciary in such a breach are "as forbidden" as transactions "on behalf of the trustee himself." See ; As the Court explained in Mosser, a contrary rule "would open up opportunities for devious dealings in the name of others that the trustee could not conduct in his own." See (CA2), cert. denied, Thus, the tippee's duty to disclose or abstain is derivative from that of the insider's duty. See Tr. of Oral Arg. 38. Cf. n. 1 As we noted in "[t]he tippee's obligation has been viewed as arising from his role as a participant after the fact in the insider's breach of a fiduciary duty." at *660 Thus, some tippees must assume an insider's duty to the shareholders not because they receive inside information, but rather because it has been made available to them improperly.[19] And for Rule b-5 purposes, the insider's disclosure is improper only where it would violate his Cady, duty. Thus, a tippee assumes a fiduciary duty to the shareholders of a corporation not to trade on material nonpublic information only |
Justice Powell | 1,983 | 17 | majority | Dirks v. SEC | https://www.courtlistener.com/opinion/111009/dirks-v-sec/ | a corporation not to trade on material nonpublic information only when the insider has breached his fiduciary duty to the shareholders by disclosing the information to the tippee and the tippee knows or should know that there has been a breach.[] As Commissioner Smith perceptively observed *661 in In re Investors Management Co., 44 S.E. C. 633 : "[T]ippee responsibility must be related back to insider responsibility by a necessary finding that the tippee knew the information was given to him in breach of a duty by a person having a special relationship to the issuer not to disclose the information" Tipping thus properly is viewed only as a means of indirectly violating the Cady, disclose-or-abstain rule.[21] C In determining whether a tippee is under an obligation to disclose or abstain, it thus is necessary to determine whether the insider's "tip" constituted a breach of the insider's fiduciary duty. All disclosures of confidential corporate information *662 are not inconsistent with the duty insiders owe to shareholders. In contrast to the extraordinary facts of this case, the more typical situation in which there will be a question whether disclosure violates the insider's Cady, duty is when insiders disclose information to analysts. See n. In some situations, the insider will act consistently with his fiduciary duty to shareholders, and yet release of the information may affect the market. For example, it may not be clear either to the corporate insider or to the recipient analyst whether the information will be viewed as material nonpublic information. Corporate officials may mistakenly think the information already has been disclosed or that it is not material enough to affect the market. Whether disclosure is a breach of duty therefore depends in large part on the purpose of the disclosure. This standard was identified by the SEC itself in Cady, : a purpose of the securities laws was to eliminate "use of inside information for personal advantage." 40 S.E. C., n. 15. See n. Thus, the test is whether the insider personally will benefit, directly or indirectly, from his disclosure. Absent some personal gain, there has been no breach of duty to stockholders. And absent a breach by the insider, there is no derivative breach.[22] As Commissioner Smith stated in Investors Management Co.: "It is important in this type of *663 case to focus on policing insiders and what they do rather than on policing information per se and its possession." 44 S.E. C., at 648 The SEC argues that, if inside-trading liability does not exist when the information is transmitted for a proper purpose |
Justice Powell | 1,983 | 17 | majority | Dirks v. SEC | https://www.courtlistener.com/opinion/111009/dirks-v-sec/ | exist when the information is transmitted for a proper purpose but is used for trading, it would be a rare situation when the parties could not fabricate some ostensibly legitimate business justification for transmitting the information. We think the SEC is unduly concerned. In determining whether the insider's purpose in making a particular disclosure is fraudulent, the SEC and the courts are not required to read the parties' minds. Scienter in some cases is relevant in determining whether the tipper has violated his Cady, duty.[23] But to determine whether the disclosure itself "deceive[s], manipulate[s], or defraud[s]" shareholders, the initial inquiry is whether there has been a breach of duty by the insider. This requires courts to focus on objective criteria, i. e., whether the insider receives a direct or indirect personal benefit from the disclosure, such as a pecuniary gain or a reputational benefit that will translate into future earnings. Cf. 40 S.E. C., n. 15; Brudney, Insiders, Outsiders, and Informational Advantages Under the Federal Securities *664 Laws, There are objective facts and circumstances that often justify such an inference. For example, there may be a relationship between the insider and the recipient that suggests a quid pro quo from the latter, or an intention to benefit the particular recipient. The elements of fiduciary duty and exploitation of nonpublic information also exist when an insider makes a gift of confidential information to a trading relative or friend. The tip and trade resemble trading by the insider himself followed by a gift of the profits to the recipient. Determining whether an insider personally benefits from a particular disclosure, a question of fact, will not always be easy for courts. But it is essential, we think, to have a guiding principle for those whose daily activities must be limited and instructed by the SEC's inside-trading rules, and we believe that there must be a breach of the insider's fiduciary duty before the tippee inherits the duty to disclose or abstain. In contrast, the rule adopted by the SEC in this case would have no limiting principle.[24] *665 IV Under the inside-trading and tipping rules set forth above, we find that there was no actionable violation by Dirks.[25] It is undisputed that Dirks himself was a stranger to Equity Funding, with no pre-existing fiduciary duty to its shareholders.[26] He took no action, directly or indirectly, that induced the shareholders or officers of Equity Funding to repose trust or confidence in him. There was no expectation by Dirks' sources that he would keep their information in confidence. Nor did Dirks misappropriate or illegally obtain |
Justice Powell | 1,983 | 17 | majority | Dirks v. SEC | https://www.courtlistener.com/opinion/111009/dirks-v-sec/ | information in confidence. Nor did Dirks misappropriate or illegally obtain the information about Equity Funding. Unless the insiders breached their Cady, duty to shareholders in disclosing the nonpublic information to Dirks, he breached no duty when he passed it on to investors as well as to the Wall Street Journal. *666 It is clear that neither Secrist nor the other Equity Funding employees violated their Cady, duty to the corporation's shareholders by providing information to Dirks.[27]*667 The tippers received no monetary or personal benefit for revealing Equity Funding's secrets, nor was their purpose to make a gift of valuable information to Dirks. As the facts of this case clearly indicate, the tippers were motivated by a desire to expose the fraud. See In the absence of a breach of duty to shareholders by the insiders, there was no derivative breach by Dirks. See n. Dirks therefore could not have been "a participant after the fact in [an] insider's breach of a fiduciary duty." 445 U. S., at V We conclude that Dirks, in the circumstances of this case, had no duty to abstain from use of the inside information that he obtained. The judgment of the Court of Appeals therefore is Reversed. |
Justice Stevens | 1,976 | 16 | concurring | United States v. Foster Lumber Co. | https://www.courtlistener.com/opinion/109555/united-states-v-foster-lumber-co/ | MR. JUSTICE BLACKMUN advances persuasive policy arguments against the Court's reading of 172. But the same *49 arguments apply equally to the Code's treatment of an operating loss which occurs in the same year as an offsetting capital gain. In paragraph 7 of his opinion MR. JUSTICE BLACKMUN seems to accept the necessity of a "wooden and unimaginative reading" of the statute in the "same year" situation though he rejects such a reading in a case involving different years. Since the statutory language seems rather plain in both situations, I think we have the same duty in both to resist the temptation to attempt any creative rewriting of the Internal Revenue Code. The relevant Code provisions were perfectly clear in 1939 and there is simply no basis for concluding that the 1954 Code was intended to achieve the result favored by MR. JUSTICE BLACKMUN, no matter how sensible such a result would be. Accordingly, as much as I would like to reach the result advocated by the dissent, I find the arguments in the Court's opinion, which I join, unanswerable. MR. JUSTICE BLACKMUN, with whom THE CHIEF JUSTICE, MR. JUSTICE BRENNAN, and MR. |
Justice Stewart | 1,981 | 18 | dissenting | Watt v. Alaska | https://www.courtlistener.com/opinion/110466/watt-v-alaska/ | Today the Court strains to conclude that Congress did not mean what it said, and judicially repeals a reasonable[1]*277 and specific legislative provision because the provision announced a change in the law the Court divines to have been unintended. A The Wildlife Refuge Revenue Sharing Act, as amended in 1964, expressly provides that "all revenues received by the Secretary of the Interior from the sale or other disposition of minerals" within federal wildlife refuges administered by the Fish and Wildlife Service shall be "reserved in a separate fund for disposition as hereafter prescribed." 16 U.S. C. 715s (a) (1976 ed., Supp. III). At the end of each fiscal year, a portion of these revenues is to be distributed to the counties in which the refuges are located. In the case of "any reserve area," expressly defined as "land withdrawn from the public domain" for wildlife refuge purposes, 715s (g) (3), the allocation to the county is 25% of net receipts. 715s (c) (2). Alternative formulas are specified for refuges created out of "fee areas." 715s (c) (1). Net receipts remaining after the payments to counties "shall be transferred to the Migratory Bird Conservation Fund for use in the acquisition of suitable areas for migratory bird refuges." 715s (e). The statute draws no distinction between mineral revenues and receipts from other natural resources or between revenues from "acquired" lands and those from "reserved" lands. The statutory scheme is therefore clear: receipts from mineral leases, like all other revenues generated from wildlife refuges, whether the refuge is comprised of reserved or acquired lands, are to be apportioned between the *278 counties and the federal Migratory Bird Conservation Fund. No receipts are to go to the State itself. The Court argues that the addition of the word "minerals" to the Wildlife Refuge Revenue Sharing Act must be read to apply only to acquired refuge lands and not to reserved refuge lands. But there is no support, in law or legislative history, for exempting mineral revenues from refuges consisting of reserved public lands from the distribution formula of the Wildlife Refuge Revenue Sharing Act. The District Court concluded that "there is nothing in 16 U.S. C. 715s which would support a restrictive construction of the word `minerals,'" and that "a literal approach of statutory construction would dictate an expansive definition including both reserved and acquired lands." Similarly, the Court of Appeals found that "under the plain meaning of minerals and of the other provisions of 715s, its language fairly brings the Kenai Moose Range oil and gas revenues within it scope." It was a |
Justice Stewart | 1,981 | 18 | dissenting | Watt v. Alaska | https://www.courtlistener.com/opinion/110466/watt-v-alaska/ | oil and gas revenues within it scope." It was a mistake for either court to proceed further. The addition of the word "minerals" to the Wildlife Refuge Revenue Sharing Act in 1964 would be meaningless if it reached only leases of acquired lands. And, "[i]n construing a statute we are obliged to give effect, if possible, to every word Congress used." Section 6 of the Mineral Leasing Act for Acquired Lands, 30 U.S. C. 355, already provided that mineral leases of acquired lands "shall be distributed in the same manner as prescribed for other receipts from the lands affected by the lease." Accordingly, any allocation scheme established for wildlife refuges encompassing acquired lands would automatically apply to mineral revenues, as well as those from the resources specified in the Refuge Act. As there was no ambiguity on that point, there was no useful purpose for Congress to declare once again how mineral revenues from acquired lands within wildlife refuges would be allocated.[2]*279 The suggestion, therefore, that the 1964 amendment reached only acquired lands presumes that the design of Congress in adding the word minerals was to accomplish precisely nothing. B The Court concludes that the statute does not mean what it says because the Wildlife Refuge Revenue Sharing Act of 1964 is in conflict with the Mineral Leasing Act of 10,[3]*280 and because "repeals by implication are not favored." Ante, at 267. But that canon of construction has no force in this context. The challenged section in the 1964 Act, far from "repealing" the 10 Act, merely established a limited and specific exception to one of the provisions in the earlier law. When the text of a new statute, dealing with a discrete subject, is unambiguous, it should be given effect even if it alters a previous law that dealt with the same general subject. The maxim that "repeals by implication are disfavored" has force when the argument is made that a general statute, wholly occupying a field, eviscerates an earlier and more specific enactment of limited coverage but without an indication of congressional intent to do so. In such a case, it may be reasonable to presume that Congress had not anticipated *281 that its broad pronouncement would have serious implications in a peripheral, or even quite different, area, and that had it recognized that a specific earlier law would be rendered meaningless by a new enactment, it would have expressly indicated its intent to repeal or amend. Thus, in the Court refused to find a repeal where the words of the Equal Employment Opportunity Act of 1972, if |
Justice Stewart | 1,981 | 18 | dissenting | Watt v. Alaska | https://www.courtlistener.com/opinion/110466/watt-v-alaska/ | words of the Equal Employment Opportunity Act of 1972, if taken literally, would have worked a repeal of an Indian preference policy consistently recognized by Congress for almost 40 years. The Court's description of Mancari as "a prototypical case where an adjudication of repeal by implication is not appropriate," is instructive: "The preference is a longstanding, important component of the Government's Indian program. The anti-discrimination provision, aimed at alleviating minority discrimination in employment, obviously is designed to deal with an entirely different and, indeed, opposite problem." Ibid.; see also The contrast with these cases is obvious. The provision in the more recent enactment deals specifically with the same subject distribution of revenue from leases on federal lands that had been the object of an earlier, and more general,[4] statute.[5] In any case, there is more than enough evidence *282 to indicate that Congress was aware of what it was doing when the word "minerals" was added to the Wildlife Refuge Revenue Sharing Act. The legislative history of the 1964 amendments to 16 U.S. C. 715s (1976 ed., Supp. III) discloses that Congress had before it numerous bills from which to choose to compensate counties in which wildlife refuges were located, some of which omitted any reference to "minerals," S. 2138, 87th Cong., 1st Sess. (1961); S. 2678, 2770, 27, 3201, 87th Cong., 2d Sess. (1962); H. R. 12144, 12143, 11535, 11525, 10714, 87th Cong., 2d Sess. (1962); S. 1720, 88th Cong., 1st Sess. (1963); and some that included such reference, H. R. 2393, 1004, 1127, 9030, 5996, 88th Cong., 1st Sess. (1963); H. R. 11008, 88th Cong., 2d Sess. (1964); S. 1363, 88th Cong., 1st Sess. (1963); S. 2498, 88th Cong., 2d Sess. (1964). Presumably when Congress adopted a bill containing the term, it was aware of the difference. Moreover, the 1964 amendment was not a "technical" amendment, nor was it a last-minute addition from the floor. See United The suggestion that the word "minerals" be added to 16 U.S. C. 715s (1976 ed., Supp. III) was raised in June 1962 when the Interior Department submitted a substitute bill for those pending in the House and Senate. Report of the Department of the Interior dated June 20, 1962, in S. Rep. No. 1919, 87th Cong., 2d Sess., 13, 15 (1962); Report of the Department of the Interior of June 22, 1962, in Authorize Increased Payments to Counties for Wildlife Refuges: Hearings on H. R. 10714, H. R. 11525, H. R. 11535, H. R. 12143, and H. R. 12144 before the Subcommittee on Fisheries and Wildlife Conservation of the House Committee |
Justice Stewart | 1,981 | 18 | dissenting | Watt v. Alaska | https://www.courtlistener.com/opinion/110466/watt-v-alaska/ | Subcommittee on Fisheries and Wildlife Conservation of the House Committee on Merchant Marine and Fisheries, 87th Cong., 2d Sess., 7, 9 (1962). *283 The amendment was not highlighted, but it is unlikely that it escaped notice.[6] Later the same year, the relevant Committees of both the House and the Senate adopted the language, S. Rep. No. 1919, ; H. R. Rep. No. 2499, 87th Cong., 2d Sess., 9 (1962), and the text was before Congress for the following two years. It is therefore very difficult to conclude that the addition was inadvertent or unnoticed.[7] But, in any case, nothing in the legislative history demonstrates congressional intent different from that reflected in the words of the statute. "`The most that can be said for the legislative history is that it is on the whole inconclusive. Certainly, it contains nothing that requires the court to reject the construction which the statutory *284 language clearly requires.'" The Court today is bothered because the literal meaning of a statute altered prevailing law.[8] But usually the very point of new legislation is to alter prevailing law. "Every act is made, either for the purpose of making a change in the law, or for the purpose of better declaring the law; and its operation is not to be impeded by the mere fact that it is inconsistent with some previous enactment." T. Sedgwick, The Interpretation and Construction of Statutory and Constitutional Law 104 (2d ed. 1874). Congress does not have the affirmative obligation to explain to this Court why it deems a particular enactment wise or necessary, or to demonstrate that it is aware of the consequences of its action.[9] See And "[i]t *285 is not a function of this Court to presume that `Congress was unaware of what it accomplished.'" (quoting U. S. Railroad Retirement ). Rather than join the Court in its speculative efforts to deal with the doctrine of implied repeal, I would rest decision of these cases upon an established rule of statutory construction: leges posteriores, priores contrarias abrogant. Sedgwick describes this rule with approval as follows: "`If two inconsistent acts be passed at different times, the last,' said the Master of the Rolls, `is to be obeyed; and if obedience cannot be observed without derogating from the first, it is the first which must give way.'" Sedgwick, See District of ; Henderson's Tobacco, ; United Observance of this rule also allows the Court to respect the most basic of all canons of statutory construction: that statutes mean what they plainly say.[10] As Chief Justice Marshall said more than a century and |
Justice Breyer | 2,012 | 2 | dissenting | Setser v. United States | https://www.courtlistener.com/opinion/626206/setser-v-united-states/ | The Sentencing Reform Act of 1984 seeks to reform federal sentencing practices by creating a federal Sentenc- ing Commission instructed to develop and to promulgate federal Sentencing Guidelines. The provision of the Act here at issue concerns “multiple sentences.” See 18 U.S. C. It brings into focus a difficult Guidelines- related problem: How should a federal judge sentence an offender where the offender has been convicted of having violated several different statutes? The convictions may have taken place all at the same time. Or, some convic- tions might have taken place at an earlier time, the of- fender may already have been sentenced to prison, and indeed the offender may still be serving that sentence. The federal judge must decide the extent to which a sen- tence attached to one conviction should be served concur- rently or consecutively with sentences attached to other convictions. An understanding of the nature of this general problem and the Sentencing Commission’s statutorily foreseen solutions will help the reader understand why, in my view, the better legal answer to the question before us is that a federal sentencing judge does not have the power to order that a “federal sentence be consecutive to an anticipated 2 SETSER v. UNITED STATES BREYER, J., dissenting state sentence that has not yet been imposed.” Ante, at 1. I The Sentencing Reform Act (SRA) has two overall objec- tives. See v. Thomas, 560 U. S. (2010) (slip op., at 7); see also United States Sentencing Commission, Guidelines Manual p. 1.2 (Nov. 1987) (USSG) (ad- dressing statutory objectives). First, it seeks greater honesty in sentencing. Instead of a parole commission and a judge trying to second-guess each other about the time an offender will actually serve in prison, the SRA tries to create a sentencing system that will require the offender actually to serve most of the sentence the judge imposes. See (“[The SRA] makes all sentences basically determinate”). Second, the Act seeks greater fairness in sentencing through the creation of Guidelines that will increase the likelihood that two offenders who engage in roughly simi- lar criminal behavior will receive roughly similar sen- tences. See at (slip op., at 7) (noting that Congress sought to achieve, in part, “increased sen- tencing uniformity”). To implement these reforms, the SRA instructs the Commission to write Guidelines that inevitably move in the direction of increased “real offense” sentencing. See USSG p. 1.1. (describing how statute, e.g., by insist- ing upon categories of offense behavior and offender char- acteristics, leads to this result). In principle, real offense sentencing would impose the same sentence upon |
Justice Breyer | 2,012 | 2 | dissenting | Setser v. United States | https://www.courtlistener.com/opinion/626206/setser-v-united-states/ | principle, real offense sentencing would impose the same sentence upon different offenders who engage in the same real conduct irrespective of the statutes under which they are charged. Real offense sentencing, for example, would mean that two individuals, both of whom rob a bank and injure a teller, would receive the same sentence even if the Government charges one of them under a bank robbery statute and the other under an assault statute. See, e.g., USSG App. A (listing federal Cite as: 566 U. S. (2012) 3 BREYER, J., dissenting statutory offenses, while keying them to specific individual Guidelines that determine sentence based upon likely actual behavior). In the event, the Guidelines move the sentencing system in this direction while simultaneously recognizing that other factors require considerable modifi- cation of the real offense principle. See USSG (“real offense vs. charge offense sentencing”). Nonetheless the “real offense” goal influenced the Act’s, and the Commission’s, objectives in respect to the sentenc- ing of an offender with multiple convictions. Insofar as several convictions arise out of the same course of behav- ior, the sentencing judge should treat the crimes underly- ing the convictions as if they were all part of a single crime and sentence accordingly. But, insofar as the crimes un- derlying the convictions arise out of different courses of behavior, the sentencing judge should treat the crimes underlying the convictions as if they were not part of a single crime and should see that the ultimate sentence reflects that fact. To achieve these objectives is easier said than done. For one thing, it requires a definition of what counts as the same course of behavior. The Guidelines set forth that definition in p. 1.17 (“Relevant Conduct”). For another thing, statutes and Guidelines that set forth related instructions must take into account the fact that sentencing-related circumstances can prove highly com- plex. To take a fairly simple example, suppose that a defendant is convicted of both robbery and impersonating a federal official, that he has engaged in a single course of behavior, but that neither the robbery nor the impersona- tion Guidelines take account of the other. Instructions about concurrent/consecutive sentences must give the judge an idea about what to do in such a case. They must also take account of the fact that a maximum penalty contained in a statute will trump a greater penalty con- tained in a Guideline. And they must tell the judge (faced 4 SETSER v. UNITED STATES BREYER, J., dissenting with multiple convictions) what to do where that is so. Reflecting these, and other, complexities, the |
Justice Breyer | 2,012 | 2 | dissenting | Setser v. United States | https://www.courtlistener.com/opinion/626206/setser-v-united-states/ | where that is so. Reflecting these, and other, complexities, the Guidelines contain complex instructions about how to sentence where the offender is convicted of “Multiple Counts,” see USSG or has previously been convicted of a crime for which he is “subject to an Un-discharged Term of Imprisonment,” see The Guidelines also tell the sentencing judge how, through the use of partially concurrent and partially consecutive sentences, to build a total sentence that meets the Guidelines’ requirements. See 5G1.3. With this background it becomes easier to understand the statutory provisions before us. They reflect the fact that Congress expected sentencing judges, when faced with a defendant convicted of multiple crimes, to construct a sentence that would, at least to a degree, reflect the defendant’s real underlying behavior. Where two convic- tions reflect in whole or in part the same behavior, the overall sentences should reflect that fact, say by running concurrently. Accordingly, the statute says that “[m]ultiple terms of imprisonment imposed at the same time run concurrently unless the court orders or the statute mandates that the terms are to run consecutively.” 18 U.S. C. And that statement reflects the fact that often (but not always) multiple convictions after a single trial will reflect a sin- gle course of behavior (different aspects of which violate different criminal statutes). The statute also says that “[m]ultiple terms of imprisonment imposed at different times run consecutively unless the court orders that the terms are to run concurrently.” This statement reflects the fact that several convictions imposed after different trials are more likely to reflect unrelated behav- iors. In the first instance that the statute addresses, concurrent sentences are more likely to be appropriate; in the second, consecutive sentences are more likely to be appropriate. But that is not always so. Thus the statu- Cite as: 566 U. S. (2012) 5 BREYER, J., dissenting tory provisions assure sentencing judges that they retain the power to reach a different conclusion. At this point, I would ask the question that this case poses. Why does the statute say nothing about a sentenc- ing judge imposing a sentence that might run consecu- tively with a sentence that a (typically different) judge has not yet imposed? The answer is this: Because the sentenc- ing judge normally does not yet know enough about the behavior that underlies (or will underlie) a sentence that has not yet been imposed. Normally the sentencing judge does not know, for example, (a) what that sentence will be, (b) whether the behavior underlying that later sentence constitutes part of the same course of behavior that |
Justice Breyer | 2,012 | 2 | dissenting | Setser v. United States | https://www.courtlistener.com/opinion/626206/setser-v-united-states/ | sentence constitutes part of the same course of behavior that under- lies the present sentence or, instead, is totally separate from the behavior underlying the present sentence, or (c) is partly the same and partly different. Even if the judge has an idea about what will happen, he does not know precisely what will happen; and precision in this matter is important. In a word, the sentencing judge normally does not yet know enough about what will happen in the sentencing- proceeding-yet-to-come to be able to construct a sentence that meets the Guidelines’ instructions and which, in doing so, helps to assure that different individuals who engage in the same criminal behavior will typically receive roughly comparable sentences. Of course, the Court is correct when it says that eventu- ally the sentences will run (either wholly in or in part) concurrently or consecutively. And someone must decide how they will run. Ante, at 2–3. But the Court is not correct when it says that this someone should be the first federal sentencing judge. Rather, the Executive and Judicial Branches have devised a system that can draw upon the intentions of that first federal judge, while apply- ing them in light of actual knowledge about what later happened. The Bureau of Prisons (BOP) in effect makes 6 SETSER v. UNITED STATES BREYER, J., dissenting the consecutive/concurrent decision after considering, among other things, “any statement by the court that imposed the sentence,” including statements “concerning the purposes for which the sentence to imprisonment was determined to be warranted.” 18 U.S. C. And its program statement provides that it will review the “intent of the federal sentencing court” when deciding whether in effect to make an earlier federal, and later state, sentence concurrent or consecutive. Dept. of Jus- tice, BOP, Program Statement 5160.05: Designation of State Institution for Service of Federal Sentence 4 (Jan. 16, 2003). The Bureau exercises this authority by desig- nating (or refusing to designate) the state prison where an offender is or will be incarcerated pursuant to his state sentence as the place where he will serve his federal sen- tence. 18 U.S. C. This exercise of authority by the Executive Branch is not constitutionally surprising. After all, “federal sentenc- ing” has “never been thought to be assigned by the Constitution to the exclusive jurisdiction of any one of the three Branches of Government.” 488 U.S., at 364. And, until fairly recently the federal BOP decided (via parole) the far more global question of just how long (within broad limits) each imprisoned offender would serve. See at Thus, the |
Justice Breyer | 2,012 | 2 | dissenting | Setser v. United States | https://www.courtlistener.com/opinion/626206/setser-v-united-states/ | limits) each imprisoned offender would serve. See at Thus, the present Bureau involve- ment represents a further practical accommodation to a fact about the world, namely that the initial sentencing judge typically lacks important sentencing-related infor- mation about a second sentence that has not yet been imposed. II Given the purposes and the mechanics of the SRA’s sentencing system, just described, the better reading of the “multiple sentences” provision is a reading that denies a sentencing judge the authority to “order that the federal Cite as: 566 U. S. (2012) 7 BREYER, J., dissenting sentence be consecutive to an anticipated state sentence that has not yet been imposed.” Ante, at 1. For one thing, nothing in the statute explicitly grants the judge that authority. The text refers to other circumstances, those that involve earlier or contemporaneous (multiple-count) convictions, while it does not refer to later imposed sentences. For another, exercise of any such authority would more likely hinder than advance the basic objectives of the SRA. As I have at 2–5, a sentencing judge typically needs detailed information when constructing a multiple-count or multiple-conviction Guideline sentence. The fact that the future sentence has not yet been imposed means that information will often be lacking, and that in turn means that the exercise of such authority would risk confusion and error. A sentencing judge who believes, for example, that the future conviction will be based upon different relevant conduct (and consequently orders a consecutive sentence) could discover that the second con- viction rests upon the same relevant conduct (warranting a concurrent sentence). Mistakes of this kind increase the risk of sentencing disparity and, insofar as the first judge guesses wrong, they can mean a less honest sentencing process as well. Further, I can find no significant tradition (pre- Guideline or post-Guideline) of federal judges imposing a sentence that runs consecutively with a sentence not yet imposed. The Court refers to four Courts of Appeals cases for the proposition that “traditionally” a judge possessed this authority. Ante, The opinions in three of the cases are each about a page long and do not discuss the matter here at issue. (They assume, without significant discussion, the existence of the relevant sentencing au- thority.) See 493 (CA10 1969) (addressing the question whether a federal sentence runs from the date of its impo- 8 SETSER v. UNITED STATES BREYER, J., dissenting sition or from the date of entry into federal custody); United 179–180 (CA7 1966) (same); United States ex rel. Lester v. Parker, (address- ing the question whether a sentence was insufficiently cer- tain for |
Justice Breyer | 2,012 | 2 | dissenting | Setser v. United States | https://www.courtlistener.com/opinion/626206/setser-v-united-states/ | the question whether a sentence was insufficiently cer- tain for purposes of due process). The fourth case, Salley v. United States, discusses the issue directly and takes the Court’s position. But, like the other three cases, it was decided before the Guidelines took effect (i.e., when the reasons for denying the authority were less strong). And, one judge on the panel disagreed in a separate opinion, and in my view has the better of the argument. See at –550 (Newman, J., concurring in result); see also United 1317 (CA9 1985) (holding that a judge lacks the here- relevant sentencing power). In any event, these instances are too few to constitute a “tradition.” In fact the Senate Committee Report accompanying the SRA provides strong evidence that there was no such tradition. S. Rep. No. 98–225 (1983). That Report thor- oughly surveyed prior law. It says that the SRA is a “comprehensive statement of the Federal law of sentenc- ing,” that it “describes in detail the kinds of sentences that may be imposed,” and that “provides the rules for determining the length of a term of imprisonment for a person convicted of more than one offense.” 125–126. It further states that “[e]xisting law permits the imposition of either concurrent or consecutive sentences,” which practice it then describes as limited to two scenarios: “[t]erms of imprisonment imposed at the same time,” and those “imposed on a person already serving a prison term.” It says the same when describing how is supposed to work. In neither place does it refer to a prac- tice of, or any authority for, imposing a prison term that runs consecutively with a future term not yet imposed. In addition, a grant of such authority risks at least Cite as: 566 U. S. (2012) 9 BREYER, J., dissenting occasional incoherence. For example, the statute, after setting forth the court’s authority to impose a sentence of imprisonment that runs either concurrently or consecu- tively with other terms imposed in the same or in earlier proceedings, creates an exception that says: “except that the terms may not run consecutively for an attempt and for another offense that was the sole objective of the at- tempt.” 18 U.S. C. Now suppose the Court were right, and a sentencing judge had the authority to run a present term consecutively with a not-yet-imposed future term. Would it not be important to apply this same “attempt” exception in such instances as well? Indeed, the exception is phrased in categorical terms, and the legis- lative history in no way indicates that the exception ap- plies only |
Justice Breyer | 2,012 | 2 | dissenting | Setser v. United States | https://www.courtlistener.com/opinion/626206/setser-v-united-states/ | in no way indicates that the exception ap- plies only occasionally. See S. Rep. No. 98–225, (“[C]onsecutive terms of imprisonment may not, contrary to current law, be imposed for [attempt] and for an offense that was the sole objective of the attempt” (emphasis added)). Yet it is difficult, if not impossible, to read the statute’s language as broadening the exception beyond the statutorily listed scenarios. Or, consider, for example, an offender tried for arguably related crimes in two different federal courts at two differ- ent times. The Court’s reading would not only allow the second judge to order concurrent service with the first sentence if warranted, as the statute explicitly permits, but it would also allow the first judge to make an analo- gous but anticipatory order based upon the sentence he expected the second judge would impose. But where com- plex forms of criminal behavior are at issue, these differ- ent judges may reach different conclusions. The result may well be conflict and confusion. Finally, as I said at 5–6, a more practical solution to potential problems presented by a future sen- tencing proceeding lies closer at hand. The BOP has the statutory authority to effect concurrent service of federal 10 SETSER v. UNITED STATES BREYER, J., dissenting and state sentences and is well situated to take into ac- count both the intent of the first sentencing judge and the specific facts developed in the second sentencing. The relevant statute provides that “[t]he Bureau may desig- nate any available penal or correctional facility whether maintained by the Federal Government or other- wise” 18 U.S. C. And in reliance on this authority, the Bureau has concluded that it has the power to “designat[e] a state institution for concurrent ser- vice of a federal sentence.” Program Statement 5160.05, at 1. The Program Statement further provides that exer- cise of this power will be guided by, in part, “the intent of the federal sentencing court” in addition to “any other pertinent information regarding the inmate.” The Court’s only criticism of this system is that it is less “natural” to read the statute “as giving the Bureau of Prisons what amounts to sentencing authority.” Ante, at 8. But what is unnatural about giving the Bureau that authority? The sentencing process has long involved cooperation among the three branches of Government. And until the Guidelines the BOP itself decided, within broad limits, precisely how much prison time every typical offender would serve. Even today, it still decides that question within certain limits. 18 U.S. C. (2006 ed. and Supp. IV) (delegat- ing to the |
Justice Scalia | 1,990 | 9 | concurring | Texaco Inc. v. Hasbrouck | https://www.courtlistener.com/opinion/112463/texaco-inc-v-hasbrouck/ | I agree with the Court that none of the arguments pressed by petitioner for removing its conduct from the coverage of the Robinson-Patman Act is persuasive. I cannot, however, adopt the Court's reasoning, which seems to create an exemption for functional discounts that are "reasonable" even though prohibited by the text of the Act. The Act provides: "It shall be unlawful for any person engaged in commerce, in the course of such commerce, either directly or indirectly, to discriminate in price between different purchasers of commodities of like grade and quality where the effect of such discrimination may be substantially to lessen competition or tend to create a monopoly in any line of commerce, or to injure, destroy, or prevent *577 competition with any person who either grants or knowingly receives the benefit of such discrimination, or with customers of either of them: Provided, That nothing herein contained shall prevent differentials which make only due allowance for differences in the cost of manufacture, sale, or delivery resulting from the differing methods or quantities in which such commodities are to such purchasers sold or delivered." 15 U.S. C. 13(a). As the Court notes, ante, at 556, sales of like goods in interstate commerce violate this provision if three conditions are met: (1) the seller discriminates in price between purchasers, (2) the effect of such discrimination may be to injure competition between the victim and beneficiaries of the discrimination or their customers, and (3) the discrimination is not cost based. Petitioner makes three arguments, one related to each of these conditions. First, petitioner argues that a price differential between purchasers at different levels of distribution is not discrimination in price. As the Court correctly concludes, that cannot be so. As long ago as we held that the Act prohibits differentials in the prices offered to wholesalers and retailers. True, in Morton Salt the retailers were being favored over the wholesalers, the reverse of the situation here. But if that factor could make any difference, it would bear not upon whether price discrimination occurred, but upon whether it affected competition, the point I address next. Second, petitioner argues that its practice of giving wholesalers Gull and Dompier discounts unavailable to retailer Hasbrouck could not have injured Hasbrouck's competition with retailers who purchased from Gull and Dompier. Any competitive advantage enjoyed by the competing retailers, petitioner asserts, was the product of independent decisions by Gull and Dompier to pass on the discounts to those retailers. This also is unpersuasive. The Act forbids price discrimination whose effect may be "to injure, destroy, or *578 prevent |
Justice Scalia | 1,990 | 9 | concurring | Texaco Inc. v. Hasbrouck | https://www.courtlistener.com/opinion/112463/texaco-inc-v-hasbrouck/ | whose effect may be "to injure, destroy, or *578 prevent competition with any person who knowingly receives the benefit of such discrimination, or with customers of [that person]." 15 U.S. C. 13(a) (emphasis added). Obviously, that effect upon "competition with customers" occurs whether or not the beneficiary's choice to pass on the discount is his own. The existence of an implied "proximate cause" requirement that would cut off liability by reason of the voluntary act of passing on is simply implausible. This field is laden with "voluntary acts" of third persons that do not relieve the violator of liability beginning with the act of the ultimate purchaser, who in the last analysis causes the injury to competition by "voluntarily" choosing to buy from the seller who offers the lower price that the price discrimination has made possible. The Act focuses not upon free will, but upon predictable commercial motivation; and it is just as predictable that a wholesaler will ordinarily increase sales (and thus profits) by passing on at least some of a price advantage, as it is that a retailer will ordinarily buy at the lower price. To say that when the Act refers to injury of competition "with customers" of the beneficiary it has in mind only those customers to whom the beneficiary is compelled to sell at the lower price is to assume that Congress focused upon the damage caused by the rare exception rather than the damage caused by the almost universal rule. The Court rightly rejects that interpretation. The independence of the pass-on decision is beside the point. Petitioner's third point relates to the third condition of liability (i. e., lack of a cost justification for the discrimination), but does not assert that such a justification is present here. Rather, joined by the United States as amicus curiae, petitioner argues at length that even if petitioner's discounts to Gull and Dompier cannot be shown to be cost based they should be exempted, because the "functional discount" is an efficient and legitimate commercial practice that is ordinarily cost based, though it is all but impossible to establish *579 cost justification in a particular case. The short answer to this argument is that it should be addressed to Congress. The Court does not, however, provide that response, but accepts this last argument in somewhat modified form. Petitioner has violated the Act, it says, only because the discount it gave to Gull and Dompier was not a "reasonable reimbursement for the value to [petitioner] of their actual marketing functions." Ante, at 562; see also ante, at 570. |
Justice Scalia | 1,990 | 9 | concurring | Texaco Inc. v. Hasbrouck | https://www.courtlistener.com/opinion/112463/texaco-inc-v-hasbrouck/ | marketing functions." Ante, at 562; see also ante, at 570. Relying on a mass of extratextual materials, the Court concludes that the Act permits such "reasonable" functional discounts even if the supplier cannot satisfy the "rigorous requirements of the cost justification defense." Ante, at 561. I find this conclusion quite puzzling. The language of the Act is straightforward: Any price discrimination whose effect "may be substantially. to injure, destroy, or prevent competition" is prohibited, unless it is immunized by the "cost justification" defense, i. e., unless it "make[s] only due allowance for differences in the cost of manufacture, sale, or delivery resulting from the differing methods or quantities in which [the] commodities are sold or delivered." 15 U.S. C. 13(a). There is no exception for "reasonable" functional discounts that do not meet this requirement. Indeed, I am at a loss to understand what makes a functional discount "reasonable" unless it meets this requirement. It does not have to meet it penny for penny, of course: The "rigorous requirements of the cost justification defense" to which the Court refers, ante, at 561, are not the rigors of mathematical precision, but the rigors of proof that the amount of the discount and the amount of the cost saving are close enough that the difference cannot produce any substantial lessening of competition. See ante, at 561-562, n. 18. How is one to determine that a functional discount is "reasonable" except by proving (through the normally, alas, "rigorous" means) that it meets this test? Shall we use a nationwide average? I suppose a functional discount can be "reasonable" (in the relevant sense of being unlikely to subvert the purposes of *580 the Act) if it is not commensurate with the supplier's costs saved (as the cost justification defense requires), but is commensurate with the wholesaler's costs incurred in performing services for the supplier. Such a discount would not produce the proscribed effect upon competition, since if it constitutes only reimbursement for the wholesaler one would not expect him to pass it on. The relevant measure of the discount in order to determine "reasonableness" on that basis, however, is not the measure the Court applies to Texaco ("value to [the supplier] of [the distributor's] actual marketing functions," ante, at 562), but rather "cost to the distributor of the distributor's actual marketing functions" which is of course not necessarily the same thing. I am therefore quite unable to understand what the Court has in mind by its "reasonable" functional discount that is not cost justified. To my mind, there is one plausible argument for the |
Justice Scalia | 1,990 | 9 | concurring | Texaco Inc. v. Hasbrouck | https://www.courtlistener.com/opinion/112463/texaco-inc-v-hasbrouck/ | To my mind, there is one plausible argument for the proposition that a functional basis for differential pricing ipso facto cost justification or not negates the probability of competitive injury, thus destroying an element of the plaintiff's prima facie case, see Falls City Industries, : In a market that is really functionally divided, retailers are in competition with one another, not with wholesalers. That competition among retailers cannot be injured by the supplier's giving lower prices to wholesalers because if the price differential is passed on, all retailers will simply purchase from wholesalers instead of from the supplier. Or, to put it differently, when the market is functionally divided all competing retailers have the opportunity of obtaining the same price from wholesalers, and the supplier's functional price discrimination alone does not cause any injury to competition. Therefore (the argument goes), if functional division of the market is established, it should be up to the complaining retailer to show that some special factor (e. g., an agreement between the supplier and the wholesaler that the latter will not sell to the former's retailer-customers) prevents this normal market *581 mechanism from operating. As the Court notes, ante, at 571, n. 30, this argument was not raised by the parties here or below, and it calls forth a number of issues that would benefit from briefing and factual development. I agree that we should not decide the merit of this argument in the first instance. For the foregoing reasons, I concur in the judgment. |
per_curiam | 1,973 | 200 | per_curiam | INS v. Hibi | https://www.courtlistener.com/opinion/108872/ins-v-hibi/ | Respondent filed his petition for naturalization in the United States District Court for the Northern District of California on September 13, 1967. The District Court granted the petition, rejecting the negative recommendation of the naturalization examiner appointed by the Attorney General pursuant to 335 of the Immigration and Nationality Act, 8 U.S. C. 1446. The Court of Appeals affirmed, holding that even though the deadline fixed by Congress for the filing of applications such as respondent's had expired more than 20 years earlier, petitioner was "estopped" from relying on this fact. Respondent was born in Manila in 1917, and in February 1941 enlisted in the Philippine Scouts, a unit that was part of the United States Army. He was captured by the Japanese Armed Forces and released after six months' internment. In April 1945 after the liberation of the Philippines by Allied Forces, he rejoined the Scouts *6 and served until his discharge in December 1945. Sections 701 and 702 of the Nationality Act of 1940, as amended, provided for the naturalization of noncitizens who served honorably in the Armed Forces of the United States during World War II.[*] Section 701 *7 exempted certain alien servicemen who served outside the continental limits of the United States from some of the usual requirements for naturalization, including those of a period of residence in the United States and literacy in English. An amendment to this section specified that all petitions filed under it had to be filed no later than December 31, 1946. Section 702 provided for the overseas naturalization of persons eligible for naturalization under 701 who were not within the jurisdiction of any court authorized to naturalize aliens; naturalization under 702 could take place only during active service in the Armed Forces. Section 705 authorized the Commissioner of Immigration and Naturalization, with the approval of the Attorney General, to make such rules and regulations as were necessary to carry into effect the provisions of the Act. Respondent entered the United States for the first and only time on April 25, 1964, more than 17 years after the expiration of the time limit established by Congress for claiming naturalization under the "exemptions of the Act." He entered on a visitor-for-business visa, which expired on June 30, 1964. His subsequent petition for naturalization was based on the assertion that the Government was estopped from relying on the statutory time limit which Congress had attached to the provisions under which he claimed. The estoppel was said to arise from petitioner's failure to advise him, during the time he was *8 eligible, of his |
per_curiam | 1,973 | 200 | per_curiam | INS v. Hibi | https://www.courtlistener.com/opinion/108872/ins-v-hibi/ | him, during the time he was *8 eligible, of his right to apply for naturalization, and from petitioner's failure to provide a naturalization representative in the Philippines during all of the time respondent and those in his class were eligible for naturalization. The District Court adopted respondent's contention, and its conclusions were upheld by the Court of Appeals. It is well settled that the Government is not in a position identical to that of a private litigant with respect to its enforcement of laws enacted by Congress. "As a general rule laches or neglect of duty on the part of officers of the Government is no defense to a suit by it to enforce a public right or protect a public interest. A suit by the United States to enforce and maintain its policy respecting lands which it holds in trust for all the people stands upon a different plane in this and some other respects from the ordinary private suit to regain the title to real property or to remove a cloud from it." Utah Power & Light Here the petitioner has been charged by Congress with administering an Act which both made available benefits of naturalization to persons in respondent's class and established a cutoff date for the claiming of such benefits. Petitioner, in enforcing the cutoff date established by Congress, as well as in recognizing claims for the benefits conferred by the Act, is enforcing the public policy established by Congress. While the issue of whether "affirmative misconduct" on the part of the Government might estop it from denying citizenship was left open in no conduct of the sort there adverted to was involved here. We do not think that the failure to fully publicize the rights which Congress accorded *9 under the Act of 1940, or the failure to have stationed in the Philippine Islands during all of the time those rights were available an authorized naturalization representative, can give rise to an estoppel against the Government. Respondent's effort to claim naturalization under a statute which by its terms had expired more than 20 years before he filed his lawsuit must therefore fail. The petition for certiorari is granted and the judgment of the Court of Appeals is reversed. MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN and MR. |
Justice Stevens | 1,984 | 16 | concurring | Massachusetts v. Upton | https://www.courtlistener.com/opinion/111172/massachusetts-v-upton/ | In my opinion the judgment of the Supreme Judicial Court of Massachusetts reflects an error of a more fundamental character than the one this Court corrects today. It rested its decision on the Fourth Amendment to the United States Constitution without telling us whether the warrant was valid as a matter of Massachusetts law.[1] It has thereby increased its own burdens as well as ours. For when the case returns to that court, it must then review the probable-cause issue once again and decide whether or not a violation of the state constitutional protection against unreasonable searches and seizures has occurred. If such a violation did take place, much of that court's first opinion and all of this Court's opinion are for naught.[2] If no such violation occurred, the second *736 proceeding in that court could have been avoided by a ruling to that effect when the case was there a year ago. If the Magistrate had violated a state statute when he issued the warrant, surely the State Supreme Judicial Court would have so held and thereby avoided the necessity of deciding a federal constitutional question. I see no reason why it should not have followed the same sequence of analysis when an arguable violation of the State Constitution is disclosed by the record. As the Oregon Supreme Court has stated: "The proper sequence is to analyze the state's law, including its constitutional law, before reaching a federal constitutional claim. This is required, not for the sake either of parochialism or of style, but because the state does not deny any right claimed under the federal Constitution when the claim before the court in fact is fully met by state law."[3] The maintenance of the proper balance between the respective jurisdictions of state and federal courts is always a difficult task. In recent years I have been concerned by what I have regarded as an encroachment by this Court into territory that should be reserved for state judges. See, e. g., ; South ; ; Idaho Department of The maintenance of this balance is, however, a two-way *737 street. It is also important that state judges do not unnecessarily invite this Court to undertake review of state-court judgments. I believe the Supreme Judicial Court of Massachusetts unwisely and unnecessarily invited just such review in this case. Its judgment in this regard reflects a misconception of our constitutional heritage and the respective jurisdictions of state and federal courts. The absence of a Bill of Rights in the Constitution proposed by the Federal Constitutional Convention of 1787 was a major objection |
Justice Stevens | 1,984 | 16 | concurring | Massachusetts v. Upton | https://www.courtlistener.com/opinion/111172/massachusetts-v-upton/ | the Federal Constitutional Convention of 1787 was a major objection to the Convention's proposal. See, e. g., 12 The Papers of Thomas Jefferson 438 (Boyd ed. 1955). In defense of the Convention's plan Alexander Hamilton argued that the enumeration of certain rights was not only unnecessary, given that such rights had not been surrendered by the people in their grant of limited powers to the Federal Government, but "would even be dangerous" on the ground that enumerating certain rights could provide a "plausible pretense" for the Government to claim powers not granted in derogation of the people's rights. The Federalist No. 84, pp. 573, 574 (Ford ed. 1898) (A. Hamilton). The latter argument troubled the First Congress during deliberations on the Bill of Rights, and its solution became the Ninth Amendment. See 1 Annals of Congress 439 (1789) (remarks of Rep. Madison). The Ninth Amendment provides: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." To the extent that the Bill of Rights is applicable to the States under the Fourteenth Amendment, the principle embodied in the Ninth Amendment is applicable as well. The Ninth Amendment, it has been said, states but a truism. But that truism goes to the very core of the constitutional relationship between the individual and governmental authority, and, indeed, between sovereigns exercising authority over the individual. In my view, the court below lost sight of this truism, and permitted the enumeration of certain rights in the Fourth Amendment to disparage the rights retained by the people of *738 Massachusetts under Art. 14 of the Massachusetts Declaration of Rights. It is of course not my role to state what rights Art. 14 confers upon the people of Massachusetts; under our system of federalism, only Massachusetts can do that. The state court refused to perform that function, however, and instead strained to rest its judgment on federal constitutional grounds. Whatever protections Art. 14 does confer are surely disparaged when the Supreme Judicial Court of Massachusetts refuses to adjudicate their very existence because of the enumeration of certain rights in the Constitution of the United States. The rights conferred by Art. 14 may not only exceed the rights conferred by the Fourth Amendment as construed by this Court in Gates, but indeed may exceed the rights conferred by the Fourth Amendment as construed by the state court. The dissent followed the approach of the majority to its logical conclusion, stating that there "appears to be no logical basis, and no support in the case law, for |
Justice Stevens | 1,984 | 16 | concurring | Massachusetts v. Upton | https://www.courtlistener.com/opinion/111172/massachusetts-v-upton/ | logical basis, and no support in the case law, for interpreting the term `cause' in art. 14 differently from the `probable cause' requirement of the Fourth Amendment." "The right question," however, "is not whether a state's guarantee is the same as or broader than its federal counterpart as interpreted by the Supreme Court. The right question is what the state's guarantee means and how it applies to the case at hand. The answer may turn out the same as it would under federal law. The state's law may prove to be more protective than federal law. The state law also may be less protective. In that case the court must go on to decide the claim under federal law, assuming it has been raised." Linde, E Pluribus Constitutional Theory and State Courts, It must be remembered that for the first century of this Nation's history, the Bill of Rights of the Constitution of the United States was solely a protection for the individual in relation to federal authorities. State Constitutions protected *739 the liberties of the people of the several States from abuse by state authorities. The Bill of Rights is now largely applicable to state authorities and is the ultimate guardian of individual rights. The States in our federal system, however, remain the primary guardian of the liberty of the people. The Massachusetts court, I believe, ignored this fundamental premise of our constitutional system of government. In doing so, it made an ill-advised entry into the federal domain. Accordingly, I concur in the Court's judgment. |
Justice Ginsburg | 2,014 | 5 | dissenting | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs. See ante, at 16–. Compelling governmental interests in uniform compliance with the law, and disadvantages that religion-based opt- outs impose on others, hold no sway, the Court decides, at least when there is a “less restrictive alternative.” And such an alternative, the Court suggests, there always will be whenever, in lieu of tolling an enterprise claiming a 2 BURWELL v. HOBBY LOBBY STORES, INC. GINSBURG, J., dissenting religion-based exemption, the government, i.e., the general public, can pick up the tab. See ante, at 41–43.1 The Court does not pretend that the First Amendment’s Free Exercise Clause demands religion-based accommoda- tions so extreme, for our decisions leave no doubt on that score. See infra, –8. Instead, the Court holds that Congress, in the Religious Freedom Restoration Act of 19 (RFRA), 42 U.S. C. et seq., dictated the extraordinary religion-based exemptions today’s decision endorses. In the Court’s view, RFRA demands accommo- dation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on third parties who do not share the corporation owners’ religious faith—in these cases, thousands of women employed by Hobby Lobby and Conestoga or dependents of persons those corporations employ. Persuaded that Congress enacted RFRA to serve a far less radical purpose, and mindful of the havoc the Court’s judgment can introduce, I dissent. I “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.” Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 856 (1992). Congress acted on that understand- —————— 1 TheCourt insists it has held none of these things, for another less restrictive alternative is at hand: extending an existing accommoda- tion, currently limited to religious nonprofit organizations, to encom- pass commercial enterprises. See ante, at 3–4. With that accommoda- tion extended, the Court asserts, “women would still be entitled to all [Food and Drug Administration]-approved contraceptives without cost sharing.” Ante, at 4. In the end, however, the Court is not so sure. In stark contrast to the Court’s initial emphasis on this accommodation, it ultimately declines to decide whether the highlighted accommodation is even lawful. See ante, at 44 (“We do not decide today whether an approach of this type complies with RFRA”). Cite as: 573 U. S. (2014) 3 GINSBURG, J., dissenting ing when, |
Justice Ginsburg | 2,014 | 5 | dissenting | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | 573 U. S. (2014) 3 GINSBURG, J., dissenting ing when, as part of a nationwide insurance program intended to be comprehensive, it called for coverage of preventive care responsive to women’s needs. Carrying out Congress’ direction, the Department of Health and Human Services in consultation with public health experts, promulgated regulations requiring group health plans to cover all forms of contraception approved by the Food and Drug Administration (FDA). The genesis of this coverage should enlighten the Court’s resolution of these cases. A The Affordable Care Act (ACA), in its initial form, speci- fied three categories of preventive care that health plans must cover at no added cost to the plan participant or beneficiary.2 Particular services were to be recommended by the U. S. Preventive Services Task Force, an independ- ent panel of experts. The scheme had a large gap, how- ever; it left out preventive services that “many women’s health advocates and medical professionals believe are critically important.” 155 Cong. Rec. 28841 (2009) (state- ment of Sen. Boxer). To correct this oversight, Senator Barbara Mikulski introduced the Women’s Health Amendment, which added to the ACA’s minimum coverage requirements a new category of preventive services specific to women’s health. Women paid significantly more than men for preventive care, the amendment’s proponents noted; in fact, cost —————— 2 See 42 U.S. C. (group health plans must pro- vide coverage, without cost sharing, for (1) certain “evidence-based items or services” recommended by the U. S. Preventive Services Task Force; (2) immunizations recommended by an advisory committee of the Centers for Disease Control and Prevention; and (3) “with respect to infants, children, and adolescents, evidence-informed preventive care and screenings provided for in the comprehensive guidelines supported by the Health Resources and Services Administration”). 4 BURWELL v. HOBBY LOBBY STORES, INC. GINSBURG, J., dissenting barriers operated to block many women from obtaining needed care at all. See, e.g., (statement of Sen. Feinstein) (“Women of childbearing age spend 68 percent more in out-of-pocket health care costs than men.”); (“co- payments are [often] so high that [women] avoid getting [preventive and screening services] in the first place”). And increased access to contraceptive services, the spon- sors comprehended, would yield important public health gains. See, e.g., (“This bill will expand health insurance coverage to the vast majority of [the 17 million women of reproductive age in the United States who are uninsured] This ex- panded access will reduce unintended pregnancies.”). As altered by the Women’s Health Amendment’s pas- sage, the ACA requires new insurance plans to include coverage without cost sharing of “such additional preven- tive care |
Justice Ginsburg | 2,014 | 5 | dissenting | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | coverage without cost sharing of “such additional preven- tive care and screenings as provided for in comprehen- sive guidelines supported by the Health Resources and Services Administration [(HRSA)],” a unit of HHS. 42 U.S. C. Thus charged, the HRSA devel- oped recommendations in consultation with the Institute of Medicine (IOM). See –8726 (2012).3 The IOM convened a group of independent experts, includ- ing “specialists in disease prevention [and] women’s health”; those experts prepared a report evaluating the efficacy of a number of preventive services. IOM, Clinical Prevention Services for Women: Closing the Gaps 2 (hereinafter IOM Report). Consistent with the findings of “[n]umerous health professional associations” and other organizations, the IOM experts determined that preven- —————— 3 The IOM is an arm of the National Academy of Sciences, an organi- zation Congress established “for the explicit purpose of furnishing advice to the Government.” Public Cite as: 573 U. S. (2014) 5 GINSBURG, J., dissenting tive coverage should include the “full range” of FDA- approved contraceptive methods. See also 2–110. In making that recommendation, the IOM’s report expressed concerns similar to those voiced by congres- sional proponents of the Women’s Health Amendment. The report noted the disproportionate burden women carried for comprehensive health services and the adverse health consequences of excluding contraception from preventive care available to employees without cost sharing. See, e.g., (“[W]omen are consistently more likely than men to report a wide range of cost-related barriers to receiving medical tests and treatments and to filling prescriptions for themselves and their families.”); at 103–104, 107 (pregnancy may be contraindicated for women with certain medical conditions, for example, some congenital heart diseases, pulmonary hypertension, and Marfan syndrome, and contraceptives may be used to reduce risk of endometrial cancer, among other serious medical conditions); 3 (women with unintended pregnancies are more likely to experience depression and anxiety, and their children face “increased odds of preterm birth and low birth weight”). In line with the IOM’s suggestions, the HRSA adopted guidelines recommending coverage of “[a]ll [FDA-] approved contraceptive methods, sterilization procedures, and patient education and counseling for all women with reproductive capacity.”4 Thereafter, HHS, the Depart- ment of Labor, and the Department of Treasury promul- gated regulations requiring group health plans to include coverage of the contraceptive services recommended in the —————— 4 HRSA, HHS, Women’s Preventive Services Guidelines, available at http://www.hrsa.gov/womensguidelines/ (all Internet materials as visited June 27, 2014, and available in Clerk of Court’s case file), reprinted in App. to Brief for Petitioners in No. 13–354, pp. 43–44a. See also –8726 (2012). 6 BURWELL v. HOBBY LOBBY STORES, INC. GINSBURG, J., |
Justice Ginsburg | 2,014 | 5 | dissenting | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | (2012). 6 BURWELL v. HOBBY LOBBY STORES, INC. GINSBURG, J., dissenting HRSA guidelines, subject to certain exceptions, described infra, at 25–27.5 This opinion refers to these regulations as the contraceptive coverage requirement. B While the Women’s Health Amendment succeeded, a countermove proved unavailing. The Senate voted down the so-called “conscience amendment,” which would have enabled any employer or insurance provider to deny cov- erage based on its asserted “religious beliefs or moral convictions.” 158 Cong. Rec. S539 (Feb. 9, 2012); see at S1162–S1173 (Mar. 1, 2012) (debate and vote).6 That amendment, Senator Mikulski observed, would have “pu[t] the personal opinion of employers and insurers over the practice of medicine.” at S1127 (Feb. 29, 2012). Re- jecting the “conscience amendment,” Congress left health care decisions—including the choice among contraceptive methods—in the hands of women, with the aid of their health care providers. II Any First Amendment Free Exercise Clause claim Hobby Lobby or Conestoga7 might assert is foreclosed by this Court’s decision in Employment Div., Dept. of Human Resources of In Smith, two members of the Native American Church were dis- —————— 5 (a)(1)(iv) ; – 3(a)(1)(iv) (Labor); –3(a)(1)(iv) (Treasury). 6 Separating moral convictions from religious beliefs would be of ques- tionable legitimacy. See 357–358 (1970) (Harlan, J., concurring in result). 7 As the Court explains, see ante, at 11–16, these cases arise from two separate lawsuits, one filed by Hobby Lobby, its affiliated business (Mardel), and the family that operates these businesses (the Greens); the other filed by Conestoga and the family that owns and controls that business (the Hahns). Unless otherwise specified, this opinion refers to the respective groups of plaintiffs as Hobby Lobby and Conestoga. Cite as: 573 U. S. (2014) 7 GINSBURG, J., dissenting missed from their jobs and denied unemployment benefits because they ingested peyote at, and as an essential ele- ment of, a religious ceremony. Oregon law forbade the consumption of peyote, and this Court, relying on that prohibition, rejected the employees’ claim that the denial of unemployment benefits violated their free exercise rights. The First Amendment is not offended, Smith held, when “prohibiting the exercise of religion is not the object of [governmental regulation] but merely the inci- dental effect of a generally applicable and otherwise valid provision.” ; see –879 (“an individ- ual’s religious beliefs [do not] excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate”). The ACA’s contraceptive cover- age requirement applies generally, it is “otherwise valid,” it trains on women’s well being, not on the exercise of religion, and any effect it |
Justice Ginsburg | 2,014 | 5 | dissenting | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | not on the exercise of religion, and any effect it has on such exercise is incidental. Even if Smith did not control, the Free Exercise Clause would not require the exemption Hobby Lobby and Cones- toga seek. Accommodations to religious beliefs or obser- vances, the Court has clarified, must not significantly impinge on the interests of third parties.8 —————— 8 See (“This case, of course, is not one in which any harm to the physical or mental health of the child or to the public safety, peace, order, or welfare has been demonstrated or may be properly inferred.”); Estate of Thornton v. Caldor, Inc., (invalidating state statute requiring employers to accommodate an employee’s Sabbath observance where that statute failed to take into account the burden such an accommoda- tion would impose on the employer or other employees). Notably, in construing the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S. C. et seq., the Court has cautioned that “adequate account” must be taken of “the burdens a requested accommodation may impose on nonbeneficiaries.” ; see (“an accommodation must be measured so that it does not override other significant interests”). A 8 BURWELL v. HOBBY LOBBY STORES, INC. GINSBURG, J., dissenting The exemption sought by Hobby Lobby and Conestoga would override significant interests of the corporations’ employees and covered dependents. It would deny legions of women who do not hold their employers’ beliefs access to contraceptive coverage that the ACA would otherwise secure. See Catholic Charities of Sacramento, Inc. v. Superior Court, (2004) (“We are unaware of any decision in which [the U. S. Supreme Court] has exempted a religious objector from the operation of a neutral, generally applicable law despite the recognition that the requested exemption would detrimentally affect the rights of third parties.”). In sum, with respect to free exercise claims no less than free speech claims, “ ‘[y]our right to swing your arms ends just where the other man’s nose begins.’ ” Chafee, Freedom of Speech in War Time, 32 Harv. L. Rev. 2, III A Lacking a tenable claim under the Free Exercise Clause, Hobby Lobby and Conestoga rely on RFRA, a statute instructing that “[g]overnment shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability” unless the government shows that application of the burden is “the least restrictive means” to further a “compelling govern- mental interest.” 42 U.S. C. –1(a), (b)(2). In RFRA, Congress “adopt[ed] a statutory rule comparable to the constitutional rule rejected in Smith.” Gonzales v. O Centro Espírita Beneficente União |
Justice Ginsburg | 2,014 | 5 | dissenting | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | rejected in Smith.” Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U.S. 418, 424 RFRA’s purpose is specific and written into the statute itself. The Act was crafted to “restore the compelling —————— balanced approach is all the more in order when the Free Exercise Clause itself is at stake, not a statute designed to promote accommoda- tion to religious beliefs and practices. Cite as: 573 U. S. (2014) 9 GINSBURG, J., dissenting interest test as set forth in v. Verner, 374 U.S. 398 (1963) and and to guarantee its application in all cases where free exercise of religion is substantially burdened.” (b)(1).9 See also (a)(5) (“[T]he compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental in- terests.”); ante, at 48 (agreeing that the pre-Smith compel- ling interest test is “workable” and “strike[s] sensible balances”). The legislative history is correspondingly emphatic on RFRA’s aim. See, e.g., S. Rep. No. 103–111, p. 12 (19) (hereinafter Senate Report) (RFRA’s purpose was “only to overturn the Supreme Court’s decision in Smith,” not to “unsettle other areas of the law.”); 139 Cong. Rec. 26178 (19) (statement of Sen. Kennedy) (RFRA was “designed to restore the compelling interest test for deciding free exercise claims.”). In line with this restorative purpose, Congress expected courts considering RFRA claims to “look to free exercise cases decided prior to Smith for guidance.” Senate Report 8. See also H. R. Rep. No. 103– 88, pp. 6–7 (19) (hereinafter House Report) (same). In short, the Act reinstates the law as it was prior to Smith, without “creat[ing] new rights for any religious prac- tice or for any potential litigant.” 139 Cong. Rec. 26178 (statement of Sen. Kennedy). Given the Act’s moderate purpose, it is hardly surprising that RFRA’s enactment in 19 provoked little controversy. See Brief for Senator Murray et al. as Amici Curiae 8 (O’Connor, J., concurring in judgment). 10 BURWELL v. HOBBY LOBBY STORES, INC. GINSBURG, J., dissenting Brief ) (RFRA was approved by a 97-to-3 vote in the Senate and a voice vote in the House of Representatives). B Despite these authoritative indications, the Court sees RFRA as a bold initiative departing from, rather than restoring, pre-Smith jurisprudence. See ante, n. 3, 7, 17, 25–27. To support its conception of RFRA as a meas- ure detached from this Court’s decisions, one that sets a new course, the Court points first to the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S. C. et seq., which altered |
Justice Ginsburg | 2,014 | 5 | dissenting | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | of 2000 (RLUIPA), 42 U.S. C. et seq., which altered RFRA’s defini- tion of the term “exercise of religion.” RFRA, as originally enacted, defined that term to mean “the exercise of reli- gion under the First Amendment to the Constitution.” –2(4) (1994 ed.). See ante, –7. As amended by RLUIPA, RFRA’s definition now includes “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” –2(4) (2012 ed.) (cross- referencing –5). That definitional change, accord- ing to the Court, reflects “an obvious effort to effect a complete separation from First Amendment case law.” Ante, at 7. The Court’s reading is not plausible. RLUIPA’s altera- tion clarifies that courts should not question the centrality of a particular religious exercise. But the amendment in no way suggests that Congress meant to expand the class of entities qualified to mount religious accommodation claims, nor does it relieve courts of the obligation to in- quire whether a government action substantially burdens a religious exercise. See 535 (CADC 2009) (Brown, J., concurring) (“There is no doubt that RLUIPA’s drafters, in changing the definition of ‘exercise of religion,’ wanted to broaden the scope of the kinds of practices protected by RFRA, not increase the universe of individuals protected by RFRA.”); H. R. Rep. Cite as: 573 U. S. (2014) 11 GINSBURG, J., dissenting No. 106–219, p. 30 (1999). See also 1211 (RFRA, as amended, “provides us with no helpful definition of ‘exercise of religion.’ ”); Henderson v. Kennedy, (“The [RLUIPA] amendments did not alter RFRA’s basic prohi- bition that the ‘[g]overnment shall not substantially bur- den a person’s exercise of religion.’ ”).10 Next, the Court highlights RFRA’s requirement that the government, if its action substantially burdens a person’s religious observance, must demonstrate that it chose the least restrictive means for furthering a compelling inter- est. “[B]y imposing a least-restrictive-means test,” the Court suggests, RFRA “went beyond what was required by our pre-Smith decisions.” Ante, at 17, n. 18 ). See also ante, n. 3. But as RFRA’s statements of purpose and legislative history make clear, Congress intended only to restore, not to scrap or alter, the balancing test as this Court had applied it pre-Smith. See at 8–9. See also Senate Report 9 (RFRA’s “compelling interest test generally should not be construed more stringently or more leniently than it was prior to Smith.”); House Report 7 (same). The Congress that passed RFRA correctly read this Court’s pre-Smith case law as including within the “com- pelling interest test” a “least restrictive means” require- ment. See, e.g., Senate Report 5 (“Where [a |
Justice Ginsburg | 2,014 | 5 | dissenting | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | means” require- ment. See, e.g., Senate Report 5 (“Where [a substantial] burden is placed upon the free exercise of religion, the Court ruled [in ], the Government must demon- —————— 10 RLUIPA, the Court notes, includes a provision directing that “[t]his chapter [i.e., RLUIPA] shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of [the Act] and the Constitution.” 42 U.S. C. –3(g); see ante, at 6–7, 26. RFRA incorporates RLUIPA’s definition of “exercise of reli- gion,” as RLUIPA does, but contains no omnibus rule of construction governing the statute in its entirety. 12 BURWELL v. HOBBY LOBBY STORES, INC. GINSBURG, J., dissenting strate that it is the least restrictive means to achieve a compelling governmental interest.”). And the view that the pre-Smith test included a “least restrictive means” requirement had been aired in testimony before the Sen- ate Judiciary Committee by experts on religious freedom. See, e.g., Hearing on S. 2969 before the Senate Committee on the Judiciary, 102d Cong., 2d Sess., 78–79 (19) (statement of Prof. Douglas Laycock). Our decision in City of Boerne, it is true, states that the least restrictive means requirement “was not used in the pre-Smith jurisprudence RFRA purported to codify.” See ante, n. 3, 17, n. 18. As just indicated, however, that statement does not accurately convey the Court’s pre- Smith jurisprudence. See (“[I]t would plainly be incumbent upon the [government] to demonstrate that no alternative forms of regulation would combat [the problem] without infringing First Amendment rights.”); (“The state may justify an inroad on religious liberty by showing that it is the least restrictive means of achieving some compelling state interest.”). See also Berg, The New Attacks on Reli- gious Freedom Legislation and Why They Are Wrong, 21 Cardozo L. Rev. 415, 424 (1999) (“In Boerne, the Court erroneously said that the least restrictive means test ‘was not used in the pre-Smith jurisprudence.’ ”).11 C With RFRA’s restorative purpose in mind, I turn to the —————— 11 The Court points out that I joined the majority opinion in City of Boerne and did not then question the statement that “least restrictive means was not used [pre-Smith].” Ante, at 17, n. 18. Concerning that observation, I remind my colleagues of Justice Jackson’s sage comment: “I see no reason why I should be consciously wrong today because I was unconsciously wrong yesterday.” Massachusetts v. United States, Cite as: 573 U. S. (2014) 13 GINSBURG, J., dissenting Act’s application to the instant lawsuits. That task, in view of the positions taken by the Court, |
Justice Ginsburg | 2,014 | 5 | dissenting | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | task, in view of the positions taken by the Court, requires consid- eration of several questions, each potentially dispositive of Hobby Lobby’s and Conestoga’s claims: Do for-profit corpo- rations rank among “person[s]” who “exercise reli- gion”? Assuming that they do, does the contraceptive coverage requirement “substantially burden” their reli- gious exercise? If so, is the requirement “in furtherance of a compelling government interest”? And last, does the requirement represent the least restrictive means for furthering that interest? Misguided by its errant premise that RFRA moved beyond the pre-Smith case law, the Court falters at each step of its analysis. 1 RFRA’s compelling interest test, as noted, see at 8, applies to government actions that “substantially bur- den a person’s exercise of religion.” 42 U.S. C. – 1(a) (emphasis added). This reference, the Court submits, incorporates the definition of “person” found in the Dic- tionary Act, 1 U.S. C. which extends to “corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” See ante, at 19–20. The Dictionary Act’s definition, however, controls only where “context” does not “indicat[e] otherwise.” Here, context does so indicate. RFRA speaks of “a person’s exercise of religion.” 42 U.S. C. –1(a) (emphasis added). See also §–2(4), 2000cc–5(7)(a).12 Whether —————— 12 As earlier explained, see –11, RLUIPA’s amendment of the definition of “exercise of religion” does not bear the weight the Court places on it. Moreover, it is passing strange to attribute to RLUIPA any purpose to cover entities other than “religious as- sembl[ies] or institution[s].” 42 U.S. C. (a)(1). But cf. ante, at 26. That law applies to land-use regulation. (a)(1). To permit commercial enterprises to challenge zoning and other land-use regula- 14 BURWELL v. HOBBY LOBBY STORES, INC. GINSBURG, J., dissenting a corporation qualifies as a “person” capable of exercis- ing religion is an inquiry one cannot answer without refer- ence to the “full body” of pre-Smith “free-exercise caselaw.” There is in that case law no support for the notion that free exercise rights pertain to for-profit corporations. Until this litigation, no decision of this Court recognized a for-profit corporation’s qualification for a religious ex- emption from a generally applicable law, whether under the Free Exercise Clause or RFRA.13 The absence of such precedent is just what one would expect, for the exercise of religion is characteristic of natural persons, not artificial legal entities. As Chief Justice Marshall observed nearly two centuries ago, a corporation is “an artificial being, invisible, intangible, and existing only in contemplation of law.” Trustees of Dartmouth College v. Woodward, 4 Wheat. 518, 636 (1819). Corporations, Justice |
Justice Ginsburg | 2,014 | 5 | dissenting | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | College v. Woodward, 4 Wheat. 518, 636 (1819). Corporations, Justice Stevens more recently reminded, “have no consciences, no beliefs, no feelings, no thoughts, no desires.” Citizens United v. Federal Election Comm’n, (opin- ion concurring in part and dissenting in part). The First Amendment’s free exercise protections, the —————— tions under RLUIPA would “dramatically expand the statute’s reach” and deeply intrude on local prerogatives, contrary to Congress’ intent. Brief for National League of Cities et al. as Amici Curiae 26. 13 The Court regards as “suggest[ing] that for-profit corporations possess [free-exercise] rights.” Ante, at 26–27. See also ante, at 21, n. 21. The suggestion is barely there. True, one of the five challengers to the Sunday closing law assailed in Gallagher was a corporation owned by four Orthodox Jews. The other challengers were human individuals, not artificial, law-created entities, so there was no need to determine whether the corporation could institute the litiga- tion. Accordingly, the plurality stated it could pretermit the question “whether appellees ha[d] standing” because 366 U.S. 599 which upheld a similar closing law, was fatal to their claim on the Cite as: 573 U. S. (2014) 15 GINSBURG, J., dissenting Court has indeed recognized, shelter churches and other nonprofit religion-based organizations.14 “For many indi- viduals, religious activity derives meaning in large meas- ure from participation in a larger religious community,” and “furtherance of the autonomy of religious organiza- tions often furthers individual religious freedom as well.” Corporation of Presiding Bishop of Church of Jesus Christ of Latter-day (Brennan, J., concurring in judgment). The Court’s “spe- cial solicitude to the rights of religious organizations,” Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, U. S. (2012) (slip op., at 14), how- ever, is just that. No such solicitude is traditional for com- mercial organizations.15 Indeed, until today, religious —————— 14 See, e.g., Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, U. S. (2012); ; Church of Lukumi Babalu Aye, (19); Jimmy Swaggart Ministries v. Board of Equalization of Cal., 4 U.S. 378 15 Typically, Congress has accorded to organizations religious in char- acter religion-based exemptions from statutes of general application. E.g., 42 U.S. C. (Title VII exemption from prohibition against employment discrimination based on religion for “a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on of its activities”); 42 U.S. C. It can scarcely be maintained that RFRA enlarges these exemp- tions to allow Hobby Lobby and Conestoga to hire only persons who share the religious beliefs of the Greens or |
Justice Ginsburg | 2,014 | 5 | dissenting | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | persons who share the religious beliefs of the Greens or Hahns. Nor does the Court suggest otherwise. Cf. ante, at 28. The Court does identify two statutory exemptions it reads to cover for-profit corporations, 42 U.S. C. and 238n(a), and infers from them that “Congress speaks with specificity when it intends a religious accommodation not to extend to for-profit corporations,” ante, at 28. The Court’s inference is unwarranted. The exemptions the Court cites cover certain medical personnel who object to performing or assisting with abortions. Cf. ante, at 28, n. 27 (“the protection provided by differs significantly from the protection provided by 16 BURWELL v. HOBBY LOBBY STORES, INC. GINSBURG, J., dissenting exemptions had never been extended to any entity operat- ing in “the commercial, profit-making world.” Amos, 483 U.S., at 337.16 The reason why is hardly obscure. Religious organiza- tions exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community. Indeed, by law, no religion-based criterion can restrict the —————— RFRA”). Notably, the Court does not assert that these exemptions have in fact been afforded to for-profit corporations. See (“health care entity” covered by exemption is a term defined to include “an individual physician, a postgraduate physician training program, and a participant in a program of training in the health professions”); Tozzi, Whither Free Exercise: Employment Division v. Smith and the Rebirth of State Constitutional Free Exercise Clause Jurisprudence?, 48 J. Catholic Legal Studies 269, 296, n. 133 (2009) (“Catholic physicians, but not necessarily hospitals, may be able to invoke []”); cf. S. 137, 113th Cong., 1st Sess. (as introduced) (Abortion Non-Discrimination Act of which would amend the definition of “health care entity” in to include “hospital[s],” “health insurance plan[s],” and other health care facilities). These provisions are reveal- ing in a way that detracts from one of the Court’s main arguments. They show that Congress is not content to rest on the Dictionary Act when it wishes to ensure that particular entities are among those eligible for a religious accommodation. Moreover, the exemption codified in was not enacted until three years after RFRA’s passage. See Omnibus Consolidated Rescis- sions and Appropriations Act of 1996, –245. If, as the Court believes, RFRA opened all statutory schemes to religion- based challenges by for-profit corporations, there would be no need for a statute-specific, post-RFRA exemption of this sort. 16 That is not to say that a category of plaintiffs, such as resident aliens, may bring RFRA claims |
Justice Ginsburg | 2,014 | 5 | dissenting | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | of plaintiffs, such as resident aliens, may bring RFRA claims only if this Court expressly “addressed their [free-exercise] rights before Smith.” Ante, at 27. Continuing with the Court’s example, resident aliens, unlike corporations, are flesh-and- blood individuals who plainly count as persons sheltered by the First Amendment, see United ), and a fortiori, RFRA. Cite as: 573 U. S. (2014) 17 GINSBURG, J., dissenting work force of for-profit corporations. See 42 U.S. C. 2000e–1(a), 2000e–2(a); cf. Trans World Air lines, (Title VII requires reasonable accommodation of an employee’s religious exercise, but such accommodation must not come “at the expense of other[ employees]”). The distinction between a community made up of believers in the same religion and one embracing persons of diverse beliefs, clear as it is, constantly escapes the Court’s attention.17 One can only wonder why the Court shuts this key difference from sight. Reading RFRA, as the Court does, to require extension of religion-based exemptions to for-profit corporations surely is not grounded in the pre-Smith precedent Con- gress sought to preserve. Had Congress intended RFRA to initiate a change so huge, a clarion statement to that effect likely would have been made in the legislation. See 468 (Congress does not “hide elephants in mouse- holes”). The text of RFRA makes no such statement and the legislative history does not so much as mention for- profit corporations. See Hobby Lobby Stores, (Briscoe, C. J., concurring in part and dissenting in part) (legislative record lacks “any suggestion that Congress foresaw, let alone intended that, RFRA would cover for-profit corpora- tions”). See also Senators Brief 10–13 (none of the —————— 17 I part ways with JUSTICE KENNEDY on the context relevant here. He sees it as the employers’ “exercise [of] their religious beliefs within the context of their own closely held, for-profit corporations.” Ante, at 2 (concurring opinion). See also ante, at 45–46 (opinion of the Court) (similarly concentrating on religious faith of employers without refer- ence to the different beliefs and liberty interests of employees). I see as the relevant context the employers’ asserted right to exercise religion within a nationwide program designed to protect against health haz- ards employees who do not subscribe to their employers’ religious beliefs. 18 BURWELL v. HOBBY LOBBY STORES, INC. GINSBURG, J., dissenting cases cited in House or Senate Judiciary Committee reports accompanying RFRA, or mentioned during floor speeches, recognized the free exercise rights of for-profit corporations). The Court notes that for-profit corporations may sup- port charitable causes and use their funds for religious ends, and therefore questions the distinction between such corporations and religious |
Justice Ginsburg | 2,014 | 5 | dissenting | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | and therefore questions the distinction between such corporations and religious nonprofit organizations. See ante, at 20–25. See also ante, at 3 (KENNEDY, J., concur- ring) (criticizing the Government for “distinguishing be- tween different religious believers—burdening one while accommodating the other—when it may treat both equally by offering both of them the same accommodation”).18 Again, the Court forgets that religious organizations exist to serve a community of believers. For-profit corporations do not fit that bill. Moreover, history is not on the Court’s side. Recognition of the discrete characters of “ecclesiasti- cal and lay” corporations dates back to Blackstone, see 1 W. Blackstone, Commentaries on the Laws of England 458 (1765), and was reiterated by this Court centuries before the enactment of the Internal Revenue Code. See Terrett v. Taylor, (describing religious corporations); Trustees of Dartmouth College, 4 Wheat., at 645 (discussing “eleemosynary” corporations, including those “created for the promotion of religion”). To reiterate, “for-profit corporations are different from religious non- —————— 18 According to the Court, the Government “concedes” that “nonprofit corporation[s]” are protected by RFRA. Ante, See also ante, at 20, 24, 30. That is not an accurate description of the Government’s position, which encompasses only “churches,” “religious institutions,” and “religious non-profits.” Brief for Respondents in No. 13–356, p. 28 (emphasis added). See also Reply Brief in No. 13–354, p. 8 (“RFRA incorporates the longstanding and common-sense distinction between religious organizations, which sometimes have been accorded accom- modations under generally applicable laws in recognition of their accepted religious character, and for-profit corporations organized to do business in the commercial world.”). Cite as: 573 U. S. (2014) 19 GINSBURG, J., dissenting profits in that they use labor to make a profit, rather than to perpetuate [the] religious value[s] [shared by a commu- nity of believers].” (Edwards, J., concurring in part and dissenting in part) (emphasis deleted). Citing the Court questions why, if “a sole proprietorship that seeks to make a profit may assert a free-exercise claim, [Hobby Lobby and Conestoga] can’t do the same?” Ante, at 22 (footnote omitted). See also ante, at 16–17. But even accepting, arguendo, the premise that unincorporated business enterprises may gain religious accommodations under the Free Exercise Clause, the Court’s conclusion is unsound. In a sole proprietorship, the business and its owner are one and the same. By incorporating a business, however, an individual separates herself from the entity and escapes personal responsibility for the entity’s obliga- tions. One might ask why the separation should hold only when it serves the interest of those who control the corpo- ration. In any event, is hardly impressive authority |
Justice Ginsburg | 2,014 | 5 | dissenting | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | the corpo- ration. In any event, is hardly impressive authority for the entitlement Hobby Lobby and Conestoga seek. The free exercise claim asserted there was promptly rejected on the The Court’s determination that RFRA extends to for- profit corporations is bound to have untoward effects. Although the Court attempts to cabin its language to closely held corporations, its logic extends to corporations of any size, public or private.19 Little doubt that RFRA —————— 19 The Court does not even begin to explain how one might go about ascertaining the religious scruples of a corporation where shares are sold to the public. No need to speculate on that, the Court says, for “it seems unlikely” that large corporations “will often assert RFRA claims.” Ante, at 29. Perhaps so, but as Hobby Lobby’s case demon- strates, such claims are indeed pursued by large corporations, employ- ing thousands of persons of different faiths, whose ownership is not diffuse. “Closely held” is not synonymous with “small.” Hobby Lobby is 20 BURWELL v. HOBBY LOBBY STORES, INC. GINSBURG, J., dissenting claims will proliferate, for the Court’s expansive notion of corporate personhood—combined with its other errors in construing RFRA—invites for-profit entities to seek religion-based exemptions from regulations they deem offensive to their faith. 2 Even if Hobby Lobby and Conestoga were deemed RFRA “person[s],” to gain an exemption, they must demonstrate that the contraceptive coverage requirement “substan- tially burden[s] [their] exercise of religion.” 42 U.S. C. –1(a). Congress no doubt meant the modifier “substantially” to carry weight. In the original draft of RFRA, the word “burden” appeared unmodified. The word “substantially” was inserted pursuant to a clarifying amendment offered by Senators Kennedy and Hatch. See —————— hardly the only enterprise of sizable scale that is family owned or closely held. For example, the family-owned candy giant Mars, Inc., takes in $33 billion in revenues and has some 72,000 employees, and closely held Cargill, Inc., takes in more than $136 billion in reve- nues and employs some 140,000 persons. See Forbes, America’s Larg- est Private Companies available at http://www.forbes.com/ largest-private-companies/. Nor does the Court offer any instruction on how to resolve the dis- putes that may crop up among corporate owners over religious values and accommodations. The Court is satisfied that “[s]tate corporate law provides a ready means for resolving any conflicts,” ante, at 30, but the authorities cited in support of that proposition are hardly helpful. See Del. Code Ann., Tit. 8, (certificates of incorporation may specify how the business is managed); 1 J. Cox & T. Hazen, Treatise on the Law of Corporations (section entitled |
Justice Ginsburg | 2,014 | 5 | dissenting | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | T. Hazen, Treatise on the Law of Corporations (section entitled “Selecting the state of incorporation”); (observing that “[d]espite the frequency of dissension and deadlock in close corporations, in some states neither legislatures nor courts have provided satisfactory solu- tions”). And even if a dispute settlement mechanism is in place, how is the arbiter of a religion-based intracorporate controversy to resolve the disagreement, given this Court’s instruction that “courts have no business addressing [whether an asserted religious belief] is substan- tial,” ante, at 36? Cite as: 573 U. S. (2014) 21 GINSBURG, J., dissenting 139 Cong. Rec. 26180. In proposing the amendment, Senator Kennedy stated that RFRA, in accord with the Court’s pre-Smith case law, “does not require the Govern- ment to justify every action that has some effect on reli- gious exercise.” The Court barely pauses to inquire whether any burden imposed by the contraceptive coverage requirement is substantial. Instead, it rests on the Greens’ and Hahns’ “belie[f ] that providing the coverage demanded by the HHS regulations is connected to the destruction of an embryo in a way that is sufficient to make it immoral for them to provide the coverage.” Ante, at 36.20 I agree with the Court that the Green and Hahn families’ religious convictions regarding contraception are sincerely held. See (courts are not to question where an individual “dr[aws] the line” in defining which practices run afoul of her religious beliefs). See also 42 U.S. C. §–1(a), 2000bb–2(4), 2000cc–5(7)(A).21 But those beliefs, however deeply held, do not suffice to sustain a RFRA claim. RFRA, properly understood, dis- tinguishes between “factual allegations that [plaintiffs’] —————— 20 The Court dismisses the argument, advanced by some amici, that the $2,000-per-employee tax charged to certain employers that fail to provide health insurance is less than the average cost of offering health insurance, noting that the Government has not provided the statistics that could support such an argument. See ante, at 32–34. The Court overlooks, however, that it is not the Government’s obligation to prove that an asserted burden is insubstantial. Instead, it is incumbent upon plaintiffs to demonstrate, in support of a RFRA claim, the substantial- ity of the alleged burden. 21 The Court levels a criticism that is as wrongheaded as can be. In no way does the dissent “tell the plaintiffs that their beliefs are flawed.” Ante, at 37. Right or wrong in this domain is a judgment no Member of this Court, or any civil court, is authorized or equipped to make. What the Court must decide is not “the plausibility of a religious claim,” ante, at |
Justice Ginsburg | 2,014 | 5 | dissenting | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | is not “the plausibility of a religious claim,” ante, at 37 but whether accommodating that claim risks depriving others of rights accorded them by the laws of the United States. See at 7–8; infra, at 27. 22 BURWELL v. HOBBY LOBBY STORES, INC. GINSBURG, J., dissenting beliefs are sincere and of a religious nature,” which a court must accept as true, and the “legal conclusion that [plaintiffs’] religious exercise is substantially burdened,” an inquiry the court must undertake. Kaemmerling v. Lappin, That distinction is a facet of the pre-Smith jurispru- dence RFRA incorporates. 476 U.S. 6 is instructive. There, the Court rejected a free exercise challenge to the Government’s use of a Native American child’s Social Security number for purposes of administering benefit programs. Without questioning the sincerity of the father’s religious belief that “use of [his daughter’s Social Security] number may harm [her] spirit,” the Court concluded that the Government’s internal uses of that number “place[d] [no] restriction on what [the father] may believe or what he may do.” Recognizing that the father’s “religious views may not accept” the position that the challenged uses concerned only the Government’s internal affairs, the Court ex- plained that “for the adjudication of a constitutional claim, the Constitution, rather than an individual’s religion, must supply the frame of reference.” at 700–701, n. 6. See also 0 U.S. 680, (distinguishing between, on the one hand, “ques- tion[s] [of] the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpreta- tions of those creeds,” and, on the other, “whether the alleged burden imposed [by the challenged government action] is a substantial one”). Inattentive to this guidance, today’s decision elides entirely the distinction between the sincerity of a challenger’s religious belief and the substan- tiality of the burden placed on the challenger. Undertaking the inquiry that the Court forgoes, I would conclude that the connection between the families’ reli- gious objections and the contraceptive coverage require- ment is too attenuated to rank as substantial. The re- Cite as: 573 U. S. (2014) 23 GINSBURG, J., dissenting quirement carries no command that Hobby Lobby or Con- estoga purchase or provide the contraceptives they find objectionable. Instead, it calls on the companies covered by the requirement to direct money into undifferentiated funds that finance a wide variety of benefits under com- prehensive health plans. Those plans, in order to comply with the ACA, see at 3–6, must offer contraceptive coverage without cost sharing, just as they must cover an array of other preventive services. Importantly, the decisions whether to claim benefits under |
Justice Ginsburg | 2,014 | 5 | dissenting | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | preventive services. Importantly, the decisions whether to claim benefits under the plans are made not by Hobby Lobby or Cones- toga, but by the covered employees and dependents, in consultation with their health care providers. Should an employee of Hobby Lobby or Conestoga share the religious beliefs of the Greens and Hahns, she is of course under no compulsion to use the contraceptives in question. But “[n]o individual decision by an employee and her physi- cian—be it to use contraception, treat an infection, or have a hip replaced—is in any meaningful sense [her employ- er’s] decision or action.” 865 (Rovner, J., dissenting). It is doubtful that Congress, when it specified that burdens must be “sub- stantia[l],” had in mind a linkage thus interrupted by independent decisionmakers (the woman and her health counselor) standing between the challenged government action and the religious exercise claimed to be infringed. Any decision to use contraceptives made by a woman covered under Hobby Lobby’s or Conestoga’s plan will not be propelled by the Government, it will be the wo- man’s autonomous choice, informed by the physician she consults. 3 Even if one were to conclude that Hobby Lobby and Conestoga meet the substantial burden requirement, the Government has shown that the contraceptive coverage 24 BURWELL v. HOBBY LOBBY STORES, INC. GINSBURG, J., dissenting for which the ACA provides furthers compelling interests in public health and women’s well being. Those interests are concrete, specific, and demonstrated by a wealth of empirical evidence. To recapitulate, the mandated contra- ception coverage enables women to avoid the health prob- lems unintended pregnancies may visit on them and their children. See IOM Report 102–107. The coverage helps safeguard the health of women for whom pregnancy may be hazardous, even life threatening. See Brief for Ameri- can College of Obstetricians and Gynecologists et al. as Amici Curiae 14–15. And the mandate secures benefits wholly unrelated to pregnancy, preventing certain cancers, menstrual disorders, and pelvic pain. Brief for Ovarian Cancer National Alliance et al. as Amici Curiae 4, 6–7, 15– 16; ; IOM Report 107. That Hobby Lobby and Conestoga resist coverage for only 4 of the 20 FDA-approved contraceptives does not lessen these compelling interests. Notably, the corpora- tions exclude intrauterine devices (IUDs), devices signifi- cantly more effective, and significantly more expensive than other contraceptive methods. See 5.22 Moreover, the Court’s reasoning appears to permit com- mercial enterprises like Hobby Lobby and Conestoga to exclude from their group health plans all forms of contra- ceptives. See Tr. of Oral Arg. 38–39 (counsel for Hobby Lobby acknowledged that his “argument would apply |
Justice Ginsburg | 2,014 | 5 | dissenting | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | (counsel for Hobby Lobby acknowledged that his “argument would apply just as well if the employer said ‘no contraceptives’ ” (in- ternal quotation marks added)). Perhaps the gravity of the interests at stake has led the —————— 22 IUDs, which are among the most reliable forms of contraception, generally cost women more than $1,000 when the expenses of the office visit and insertion procedure are taken into account. See McNicholas, & Peipert, Cost as a Barrier to Long-Acting Reversible Contraceptive (LARC) Use in Adolescents, 52 J. Adolescent Health S59, S60 See also Winner et al., Effectiveness of Long-Acting Re- versible Contraception, 366 New Eng. J. Medicine 1998, 1999 (2012). Cite as: 573 U. S. (2014) 25 GINSBURG, J., dissenting Court to assume, for purposes of its RFRA analysis, that the compelling interest criterion is met in these cases. See ante,23 It bears note in this regard that the cost of an IUD is nearly equivalent to a month’s full-time pay for workers earning the minimum wage, Brief for Guttmacher Institute et al. as Amici Curiae 16; that almost one-third of women would change their contraceptive method if costs were not a factor, Frost & Darroch, Factors Associated With Contraceptive Choice and Inconsistent Method Use, United States, 2004, 40 Perspectives on Sexual & Repro- ductive Health 94, 98 ; and that only one-fourth of women who request an IUD actually have one inserted after finding out how expensive it would be, Gariepy, Simon, Patel, Creinin, & Schwarz, The Impact of Out-of- Pocket Expense on IUD Utilization Among Women With Private Insurance, 84 Contraception e39, e40 See also at S60 (recent study found that women who face out-of-pocket IUD costs in excess of $50 were “11-times less likely to obtain an IUD than women who had to pay less than $50”); Postlethwaite, Trussell, Zoolakis, Shabear, & Petitti, A Comparison of Contracep- tive Procurement Pre- and Post-Benefit Change, 76 Con- traception 360, 361–362 (2007) (when one health system eliminated patient cost sharing for IUDs, use of this form of contraception more than doubled). Stepping back from its assumption that compelling interests support the contraceptive coverage requirement, the Court notes that small employers and grandfathered plans are not subject to the requirement. If there is a compelling interest in contraceptive coverage, the Court —————— 23 Although the Court’s opinion makes this assumption grudgingly, see ante, at 39–40, one Member of the majority recognizes, without reservation, that “the [contraceptive coverage] mandate serves the Government’s compelling interest in providing insurance coverage that is necessary to protect the health of female employees.” Ante, at 2 (opinion of |
Justice Ginsburg | 2,014 | 5 | dissenting | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | the health of female employees.” Ante, at 2 (opinion of KENNEDY, J.). 26 BURWELL v. HOBBY LOBBY STORES, INC. GINSBURG, J., dissenting suggests, Congress would not have created these exclu- sions. See ante, at 39–40. Federal statutes often include exemptions for small employers, and such provisions have never been held to undermine the interests served by these statutes. See, e.g., Family and Medical Leave Act of 19, 29 U.S. C. (applicable to employers with 50 or more employees); Age Discrimination in Employment Act of 29 U.S. C. (originally exempting employers with fewer than 50 employees, the statute now governs employers with 20 or more employees); Amer- icans With Disabilities Act, 42 U.S. C. (ap- plicable to employers with 15 or more employees); Title VII, 42 U.S. C. the statute now governs employers with 15 or more employees). The ACA’s grandfathering provision, 42 U.S. C. allows a phasing-in period for compliance with a number of the Act’s requirements (not just the contraceptive cov- erage or other preventive services provisions). Once speci- fied changes are made, grandfathered status ceases. See (g). Hobby Lobby’s own situation is illustrative. By the time this litigation commenced, Hobby Lobby did not have grandfathered status. Asked why by the District Court, Hobby Lobby’s counsel explained that the “grandfathering requirements mean that you can’t make a whole menu of changes to your plan that involve things like the amount of co-pays, the amount of co- insurance, deductibles, that sort of thing.” App. in No. 13– 354, pp. 39–40. Counsel acknowledged that, “just because of economic realities, our plan has to shift over time. I mean, insurance plans, as everyone knows, shif[t] over time.”24 The percentage of employees in grand- —————— 24 Hobby Lobby’s amicus National Religious Broadcasters similarly Cite as: 573 U. S. (2014) 27 GINSBURG, J., dissenting fathered plans is steadily declining, having dropped from 56% in to 48% in 2012 to 36% in Kaiser Family Foundation & Health Research & Educ. Trust, Employer Benefits Annual Survey 7, 196. In short, far from ranking as a categorical exemption, the grandfathering provision is “temporary, intended to be a means for gradu- ally transitioning employers into mandatory coverage.” (Edwards, J., concurring in part and dissenting in part). The Court ultimately acknowledges a critical point: RFRA’s application “must take adequate account of the burdens a requested accommodation may impose on non- beneficiaries.” Ante, at 42, n. 37 ; emphasis added). No tradition, and no prior decision under RFRA, allows a religion-based exemption when the accommodation would be harmful to others—here, the very persons the contra- ceptive coverage requirement was designed |
Justice Ginsburg | 2,014 | 5 | dissenting | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | the very persons the contra- ceptive coverage requirement was designed to protect. Cf. at 7–8; (1944) (Jackson, J., dissenting) (“[The] limitations which of necessity bound religious freedom begin to operate whenever activities begin to affect or collide with liberties of others or of the public.”). 4 After assuming the existence of compelling government interests, the Court holds that the contraceptive coverage requirement fails to satisfy RFRA’s least restrictive means test. But the Government has shown that there is no less restrictive, equally effective means that would both (1) satisfy the challengers’ religious objections to providing —————— states that, “[g]iven the nature of employers’ needs to meet changing economic and staffing circumstances, and to adjust insurance coverage accordingly, the actual benefit of the ‘grandfather’ exclusion is de minimis and transitory at best.” Brief for National Religious Broad- casters as Amicus Curiae in No. 13–354, p. 28. 28 BURWELL v. HOBBY LOBBY STORES, INC. GINSBURG, J., dissenting insurance coverage for certain contraceptives (which they believe cause abortions); and (2) carry out the objective of the ACA’s contraceptive coverage requirement, to ensure that women employees receive, at no cost to them, the preventive care needed to safeguard their health and well being. A “least restrictive means” cannot require employ- ees to relinquish benefits accorded them by federal law in order to ensure that their commercial employers can adhere unreservedly to their religious tenets. See at 7–8, 27.25 Then let the government pay (rather than the employees who do not share their employer’s faith), the Court sug- gests. “The most straightforward [alternative],” the Court asserts, “would be for the Government to assume the cost of providing contraceptives to any women who are unable to obtain them under their health-insurance poli- cies due to their employers’ religious objections.” Ante, at 41. The ACA, however, requires coverage of preventive services through the existing employer-based system of health insurance “so that [employees] face minimal logisti- cal and administrative obstacles.” Impeding women’s receipt of benefits “by requiring them to take steps to learn about, and to sign up for, a new [government funded and administered] health benefit” was scarcely what Congress contemplated. More- over, Title X of the Public Health Service Act, 42 U.S. C. et seq., “is the nation’s only dedicated source of federal —————— 25 As the Court made clear in Cutter, the government’s license to grant religion-based exemptions from generally applicable laws is constrained by the Establishment 544 U.S., at –722. “[W]e are a cosmopolitan nation made up of people of almost every conceiva- ble religious preference,” a “rich mosaic of religious faiths,” Town of |
Justice Ginsburg | 2,014 | 5 | dissenting | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | religious preference,” a “rich mosaic of religious faiths,” Town of Greece v. Galloway, 572 U. S. (2014) (KAGAN, J., dissenting) (slip op., at 15). Consequently, one person’s right to free exercise must be kept in harmony with the rights of her fellow citizens, and “some religious practices [must] yield to the com- mon good.” United Cite as: 573 U. S. (2014) 29 GINSBURG, J., dissenting funding for safety net family planning services.” Brief for National Health Law Program et al. as Amici Curiae 23. “Safety net programs like Title X are not designed to absorb the unmet needs of insured individuals.” at 24. Note, too, that Congress declined to write into law the preferential treatment Hobby Lobby and Conestoga de- scribe as a less restrictive alternative. See And where is the stopping point to the “let the govern- ment pay” alternative? Suppose an employer’s sincerely held religious belief is offended by health coverage of vaccines, or paying the minimum wage, see Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290, 303 or according women equal pay for sub- stantially similar work, see ? Does it rank as a less restrictive alternative to require the government to provide the money or benefit to which the employer has a religion-based objection?26 Because the Court cannot easily answer that question, it proposes something else: Extension to commercial enterprises of the accommodation already afforded to nonprofit religion-based organizations. See ante, at 3–4, 9–10, 43–45. “At a minimum,” according to the Court, such an approach would not “impinge on [Hobby Lobby’s and Conestoga’s] religious belief.” Ante, at 44. I have already discussed the “special solicitude” gen- erally accorded nonprofit religion-based organizations that exist to serve a community of believers, solicitude never before accorded to commercial enterprises comprising employees of diverse faiths. See at 14–17. Ultimately, the Court hedges on its proposal to align for- profit enterprises with nonprofit religion-based organiza- —————— 26 Cf. (2004) (in context of First Amendment Speech Clause challenge to a content-based speech restriction, courts must determine “whether the challenged regulation is the least restrictive means among available, effective alternatives” (emphasis added)). 30 BURWELL v. HOBBY LOBBY STORES, INC. GINSBURG, J., dissenting tions. “We do not decide today whether [the] approach [the opinion advances] complies with RFRA for purposes of all religious claims.” Ante, at 44. Counsel for Hobby Lobby was similarly noncommittal. Asked at oral argu- ment whether the Court-proposed alternative was ac- ceptable,27 counsel responded: “We haven’t been offered that accommodation, so we haven’t had to decide what kind of objection, if any, we would make to |
Justice Ginsburg | 2,014 | 5 | dissenting | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | what kind of objection, if any, we would make to that.” Tr. of Oral Arg. 86–87. Conestoga suggests that, if its employees had to acquire and pay for the contraceptives (to which the corporation objects) on their own, a tax credit would qualify as a less restrictive alternative. See Brief for Petitioners in No. 13– 356, p. 64. A tax credit, of course, is one variety of “let the government pay.” In addition to departing from the exist- ing employer-based system of health insurance, Conesto- ga’s alternative would require a woman to reach into her own pocket in the first instance, and it would do nothing for the woman too poor to be aided by a tax credit. In sum, in view of what Congress sought to accomplish, —————— 27 On brief, Hobby Lobby and Conestoga barely addressed the exten- sion solution, which would bracket commercial enterprises with non- profit religion-based organizations for religious accommodations pur- poses. The hesitation is understandable, for challenges to the adequacy of the accommodation accorded religious nonprofit organizations are currently sub judice. See, e.g., Little Sisters of the Poor Home for the WL 6839900 injunction pending appeal granted, 571 U. S. (2014). At another point in today’s decision, the Court refuses to consider an argument neither “raised below [nor] advanced in this Court by any party,” giving Hobby Lobby and Conestoga “[no] opportunity to respond to [that] novel claim.” Ante, at 33. Yet the Court is content to decide this case (and this case only) on the ground that HHS could make an accommodation never suggested in the parties’ presentations. RFRA cannot sensibly be read to “requir[e] the government to refute each and every conceivable alternative regulation,” United especially where the alternative on which the Court seizes was not pressed by any challenger. Cite as: 573 U. S. (2014) 31 GINSBURG, J., dissenting i.e., comprehensive preventive care for women furnished through employer-based health plans, none of the prof- fered alternatives would satisfactorily serve the compel- ling interests to which Congress responded. IV Among the pathmarking pre-Smith decisions RFRA preserved is United a sole proprietor engaged in farming and carpentry, was a member of the Old Order Amish. He sincerely believed that withholding Social Security taxes from his employees or paying the employer’s share of such taxes would violate the Amish faith. This Court held that, although the obligations imposed by the Social Security system conflicted with ’s religious beliefs, the burden was not unconstitutional. at 260–261. See also at 258 (recognizing the important governmental interest in providing a “nationwide comprehensive insurance system with a variety |
Justice Ginsburg | 2,014 | 5 | dissenting | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | in providing a “nationwide comprehensive insurance system with a variety of benefits available to all partici- pants, with costs shared by employers and employees”).28 The Government urges that should control the chal- lenges brought by Hobby Lobby and Conestoga. See Brief for Respondents in No. 13–356, p. 18. In contrast, today’s Court dismisses as a tax case. See ante, at 46–47. Indeed, it was a tax case and the Court in homed in on “[t]he difficulty in attempting to accommodate religious beliefs in the area of taxation.” 455 U.S., at But the Court made two key points one cannot confine to tax cases. “When followers of a particular sect enter into commercial activity as a matter of choice,” the Court observed, “the limits they accept on their own con- duct as a matter of conscience and faith are not to be —————— 28 Asa sole proprietor, was subject to personal liability for violat- ing the law of general application he opposed. His claim to a religion- based exemption would have been even thinner had he conducted his business as a corporation, thus avoiding personal liability. 32 BURWELL v. HOBBY LOBBY STORES, INC. GINSBURG, J., dissenting superimposed on statutory schemes which are binding on others in that activity.” The statutory scheme of employer-based comprehensive health coverage in- volved in these cases is surely binding on others engaged in the same trade or business as the corporate challengers here, Hobby Lobby and Conestoga. Further, the Court recognized in that allowing a religion-based exemption to a commercial employer would “operat[e] to impose the employer’s religious faith on the employees.” 29 No doubt the Greens and Hahns and all who share their beliefs may decline to acquire for themselves the contra- ceptives in question. But that choice may not be imposed on employees who hold other beliefs. Working for Hobby Lobby or Conestoga, in other words, should not deprive employees of the preventive care available to workers at the shop next door,30 at least in the absence of directions from the Legislature or Administration to do so. Why should decisions of this order be made by Congress or the regulatory authority, and not this Court? Hobby Lobby and Conestoga surely do not stand alone as com- mercial enterprises seeking exemptions from generally applicable laws on the basis of their religious beliefs. See, e.g., Newman v. Piggie Park Enterprises, Inc., 256 F. Supp. —————— 29 Congress amended the Social Security Act in response to The amended statute permits Amish sole proprietors and partnerships (but not Amish-owned corporations) to obtain an exemption from the obliga- tion |
Justice Ginsburg | 2,014 | 5 | dissenting | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | Amish-owned corporations) to obtain an exemption from the obliga- tion to pay Social Security taxes only for employees who are co- religionists and who likewise seek an exemption and agree to give up their Social Security benefits. See 26 U.S. C. (b)(1). Thus, employers with sincere religious beliefs have no right to a religion- based exemption that would deprive employees of Social Security benefits without the employee’s consent—an exemption analogous to the one Hobby Lobby and Conestoga seek here. 30 Cf. Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290, 299 (disallowing religion-based exemption that “would undoubtedly give [the commercial enterprise seeking the exemption] and similar organizations an advantage over their competitors”). Cite as: 573 U. S. (2014) 33 GINSBURG, J., dissenting 941, 945 (SC 1966) (owner of restaurant chain refused to serve black patrons based on his religious beliefs opposing racial integration), aff ’d in relevant part and rev’d in part on other grounds, aff ’d and modified on other grounds, ; In re Minnesota ex rel. McClure, (born-again Christians who owned closely held, for- profit health clubs believed that the Bible proscribed hiring or retaining an “individua[l] living with but not married to a person of the opposite sex,” “a young, single woman working without her father’s consent or a married woman working without her husband’s consent,” and any person “antagonistic to the Bible,” including “fornicators and homosexuals” ), appeal dismissed, ; Elane Photog raphy, LLC v. Willock, –NMSC–040, N. M. (for-profit photography business owned by a husband and wife refused to photograph a lesbian couple’s commitment ceremony based on the religious beliefs of the company’s owners), cert. denied, 572 U. S. (2014). Would RFRA require exemptions in cases of this ilk? And if not, how does the Court divine which religious beliefs are worthy of accommodation, and which are not? Isn’t the Court disarmed from making such a judgment given its recognition that “courts must not presume to determine the plausibility of a religious claim”? Ante, at 37. Would the exemption the Court holds RFRA demands for employers with religiously grounded objections to the use of certain contraceptives extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian 34 BURWELL v. HOBBY LOBBY STORES, INC. GINSBURG, J., dissenting Scientists, among others)?31 According to counsel for Hobby Lobby, “each one of these cases would have to be evaluated on its own apply[ing] the compelling interest-least restrictive alternative test.” Tr. of |
Justice Ginsburg | 2,014 | 5 | dissenting | Burwell v. Hobby Lobby Stores, Inc. | https://www.courtlistener.com/opinion/2681317/burwell-v-hobby-lobby-stores-inc/ | own apply[ing] the compelling interest-least restrictive alternative test.” Tr. of Oral Arg. 6. Not much help there for the lower courts bound by today’s decision. The Court, however, sees nothing to worry about. To- day’s cases, the Court concludes, are “concerned solely with the contraceptive mandate. Our decision should not be understood to hold that an insurance-coverage mandate must necessarily fall if it conflicts with an employer’s religious beliefs. Other coverage requirements, such as immunizations, may be supported by different interests (for example, the need to combat the spread of infectious diseases) and may involve different arguments about the least restrictive means of providing them.” Ante, at 46. But the Court has assumed, for RFRA purposes, that the interest in women’s health and well being is compelling and has come up with no means adequate to serve that interest, the one motivating Congress to adopt the Wom- en’s Health Amendment. There is an overriding interest, I believe, in keeping the courts “out of the business of evaluating the relative mer- its of differing religious claims,” n. 2 (Stevens, J., concurring in judgment), or the sincerity with which an asserted religious belief is held. Indeed, approv- ing some religious claims while deeming others unworthy of accommodation could be “perceived as favoring one religion over another,” the very “risk the Establishment Clause was designed to preclude.” The Court, I fear, —————— 31 Religious objections to immunization programs are not hypothet- ical. See (EDNY, June 5, 2014) (dismissing free exercise challenges to New York’s vaccination practices); Liberty Counsel, Compulsory Vaccina- tions Threaten Religious Freedom (2007), available at http://www.lc.org/ media/9980/attachments/memo_vaccination.pdf. Cite as: 573 U. S. (2014) 35 GINSBURG, J., dissenting has ventured into a minefield, cf. (O’Scannlain, J., con- curring), by its immoderate reading of RFRA. I would confine religious exemptions under that Act to organiza- tions formed “for a religious purpose,” “engage[d] primarily in carrying out that religious purpose,” and not “engaged substantially in the exchange of goods or services for money beyond nominal amounts.” See (Klein- feld, J., concurring). * * * For the reasons stated, I would reverse the judgment of the Court of Appeals for the Tenth Circuit and affirm the judgment of the Court of Appeals for the Third Circuit. Cite as: 573 U. S. (2014) 1 BREYER and KAGAN, JJ., dissenting SUPREME COURT OF THE UNITED STATES Nos. 13–354 and 13–356 SYLVIA BURWELL, SECRETARY OF HEALTH AND HUMAN SERVICES, ET AL., PETITIONERS 13–354 v. HOBBY LOBBY STORES, INC., ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT AND CONESTOGA WOOD |
Justice Roberts | 2,007 | 0 | majority | Jones v. Bock | https://www.courtlistener.com/opinion/145763/jones-v-bock/ | In an effort to address the large number of prisoner complaints filed in federal court, Congress enacted the Prison Litigation Reform Act of 1995 (PLRA), -71, as amended, 4 U.S.C. e et seq. Among other reforms, the PLRA mandates early judicial screening of prisoner complaints and requires prisoners to exhaust prison grievance procedures before filing suit. 8 U.S.C. 1915A; 4 U.S.C. e(a). The Sixth Circuit, along with some other lower courts, adopted several procedural s designed to implement this exhaustion requirement and facilitate early judicial screening. These s require a prisoner to allege and demonstrate exhaustion in his complaint, permit suit only against defendants who were identified by the prisoner in his grievance, and require courts to dismiss the entire action if the prisoner fails to satisfy the exhaustion requirement as to any single claim in his complaint. Other lower courts declined to adopt such s. We granted certiorari to resolve the conflict and now conclude that these s are not required by the PLRA, and that crafting and imposing them exceeds the proper limits on the judicial role. I Prisoner litigation continues to "account for an outsized share of filings" in federal district courts. (slip op., n. 4). In nearly 10 percent of all civil cases filed in federal courts nationwide were prisoner complaints challenging prison conditions or claiming civil rights violations.[1] Most of these cases have no merit; many are frivolous. Our legal system, however, remains committed to guaranteeing that prisoner claims of illegal conduct by their custodians are fairly handled according to law. The challenge lies in ensuring that the flood of nonmeritorious claims does not submerge and effectively preclude consideration of the allegations with merit. See Congress addressed that challenge in the PLRA. What this country needs, Congress decided, is fewer and better prisoner suits. See To that end, Congress enacted a variety of reforms designed to filter out the bad claims and facilitate consideration of the good. Key among these was the requirement that inmates complaining about prison conditions exhaust prison grievance remedies before initiating a lawsuit. The exhaustion provision of the PLRA states: "No action shall be brought with respect to prison conditions under [4 U.S.C. 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 4 U.S.C. e(a). Requiring exhaustion allows prison officials an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into court. This has the potential to reduce the number of inmate suits, and also to improve the quality |
Justice Roberts | 2,007 | 0 | majority | Jones v. Bock | https://www.courtlistener.com/opinion/145763/jones-v-bock/ | number of inmate suits, and also to improve the quality *915 of suits that are filed by producing a useful administrative record. at (slip op., ). In an attempt to implement the exhaustion requirement, some lower courts have imposed procedural s that have become the subject of varying levels of disagreement among the federal courts of appeals. The first question presented centers on a conflict over whether exhaustion under the PLRA is a pleading requirement the prisoner must satisfy in his complaint or an affirmative defense the defendant must plead and prove.[] The Sixth Circuit, adopting the former view, requires prisoners to attach proof of exhaustiontypically copies of the grievancesto their complaints to avoid dismissal. If no written record of the grievance is available, the inmate must plead with specificity how and when he exhausted the grievance procedures. Knuckles The next issue concerns how courts determine whether a prisoner has properly exhausted administrative remediesspecifically, the level of detail required in a grievance to put the prison and individual officials on notice of the claim. The Sixth Circuit requires that a prisoner have identified, in the first step of the grievance process, each individual later named in the lawsuit to properly exhaust administrative remedies. Other circuits have taken varying approaches to this question, see, e.g., ; ; none going as far as the Sixth Circuit in requiring in every case that the defendants have been named from the beginning of the grievance process. Finally, the circuits are divided over what the PLRA requires when both exhausted and unexhausted claims are included in a complaint.[3] Some circuits, including *916 the Sixth Circuit, apply a "total exhaustion" under which no part of the suit may proceed if any single claim in the action is not properly exhausted. See, e.g., Jones Among circuits requiring total exhaustion there is further disagreement over what to do if the requirement is not met. Most courts allow the prisoner to amend his complaint to include only exhausted claims, e.g., but the Sixth Circuit denies leave to amend, dismisses the action, and requires that it be filed anew with only unexhausted claims, ; Jones See also Other circuits reject total exhaustion altogether, instead dismissing only unexhausted claims and considering the rest on the merits. See, e.g., A Petitioners are inmates in the custody of the Michigan Department of Corrections (MDOC). At the time petitioners filed their grievances, MDOC Policy Directive 03.0.130 set forth the applicable grievance procedures. -157.[4] The policy directive describes what issues are grievable and contains instructions for filing and processing grievances. Inmates must first attempt to |
Justice Roberts | 2,007 | 0 | majority | Jones v. Bock | https://www.courtlistener.com/opinion/145763/jones-v-bock/ | for filing and processing grievances. Inmates must first attempt to resolve a problem orally within two business days of becoming aware of the grievable issue. If oral resolution is unsuccessful, the inmate may proceed to Step I of the grievance process, and submit a completed grievance form within five business days of the attempted oral resolution. 149-150. The Step I grievance form provided by MDOC (a one-page form on which the inmate fills out identifying information and is given space to describe the complaint) advises inmates to be "brief and concise in describing your grievance issue." The inmate submits the grievance to a designated grievance coordinator, who assigns it to a respondent generally the supervisor of the person being grieved. 1 50. If the inmate is dissatisfied with the Step I response, he may appeal to Step II by obtaining an appeal form within five business days of the response, and submitting the appeal within five business days of obtaining the form. 5. The respondent at Step II is designated by the policy, 5-153 If still dissatisfied after Step II, the inmate may further appeal to Step III using the same appeal form; the MDOC director is designated as respondent for all Step III appeals. 54. Lorenzo Jones Petitioner Lorenzo Jones is incarcerated at the MDOC's Saginaw Correctional Facility. In November while in MDOC's custody, Jones was involved in a vehicle accident and suffered significant injuries to his neck and back. Several months later Jones was given a work assignment he allegedly could not perform in light of his injuries. According to Jones, respondent Paul Morrisonin charge of work assignments at the prisonmade the inappropriate assignment, even though he knew of Jones's injuries. When Jones reported to the assignment, he informed the staff member in chargerespondent Michael Opanasenkothat he could not perform *917 the work; Opanasenko allegedly told him to do the work or "`suffer the consequences.'" Jones performed the required tasks and allegedly aggravated his injuries. After unsuccessfully seeking redress through the MDOC's grievance process, Jones filed a complaint in the Eastern District of Michigan under 4 U.S.C. 1983 for deliberate indifference to medical needs, retaliation, and harassment. Jones named as defendants, in addition to Morrison and Opanasenko, respondents Barbara Bock (the warden), Valerie Chaplin (a deputy warden), Janet Konkle (a registered nurse), and Ahmad Aldabaugh (a physician). A Magistrate recommended dismissal for failure to state a claim with respect to Bock, Chaplin, Konkle, and Aldabaugh, and the District Court agreed. With respect to Morrison and Opanasenko, however, the Magistrate recommended that the suit proceed, finding that Jones had |
Justice Roberts | 2,007 | 0 | majority | Jones v. Bock | https://www.courtlistener.com/opinion/145763/jones-v-bock/ | Magistrate recommended that the suit proceed, finding that Jones had exhausted his administrative remedies as to those two. 8-9. The District Court disagreed. In his complaint, Jones provided the dates on which his claims were filed at various steps of the MDOC grievance procedures. He did not, however, attach copies of the grievance forms or describe the proceedings with specificity. Respondents attached copies of all of Jones's grievances to their own motion to dismiss, but the District Judge d that Jones's failure to meet his burden to plead exhaustion in his complaint could not be cured by respondents. The Sixth Circuit agreed, holding both that Jones failed to comply with the specific pleading requirements applied to PLRA suits, (citing Knuckles 15 F.3d, at ), and that, even if Jones had shown that he exhausted the claims against Morrison and Opanasenko, dismissal was still required under the total exhaustion 135 Fed.Appx., at (citing Jones ). Timothy Williams Petitioner Timothy Williams is incarcerated at the MDOC's Adrian Correctional Facility. He suffers from noninvoluting cavernous hemangiomas in his right arm, a medical condition that causes pain, immobility, and disfigurement of the limb, and for which he has undergone several surgeries. An MDOC physician recommended further surgery to provide pain relief, but MDOC's Correctional Medical Services denied the recommendation (and subsequent appeals by the doctor) on the ground that the danger of surgery outweighed the benefits, which it viewed as cosmetic. The MDOC Medical Services Advisory Committee upheld this decision. After Correctional Medical Services indicated that it would take the request under advisement, Williams filed a grievance objecting to the quality of his medical care and seeking authorization for the surgery. He later filed another grievance complaining that he was denied a single-occupancy handicapped cell, allegedly necessary to accommodate his medical condition. After both grievances were denied at all stages, Williams filed a complaint in the Eastern District of Michigan under 1983, naming as respondents William Overton (former director of MDOC), David Jamrog (the warden), Mary Jo Pass and Paul Klee (assistant deputy wardens), Chad Markwell (corrections officer), Bonnie Peterson (health unit manager), and Dr. George Pramstaller (chief medical officer for MDOC). The District Judge found that Williams had failed to exhaust his administrative remedies with regard to his medical care claim because he had not identified any of the respondents named in his lawsuit during *918 the grievance process.[5] Although Williams's claim concerning the handicapped cell had been properly exhausted, the District Judgeapplying the total exhaustion dismissed the entire suit. The Sixth Circuit affirmed. and Jones 407 F.3d, at ). John Walton Petitioner |
Justice Roberts | 2,007 | 0 | majority | Jones v. Bock | https://www.courtlistener.com/opinion/145763/jones-v-bock/ | affirmed. and Jones 407 F.3d, at ). John Walton Petitioner John Walton is incarcerated at the MDOC's Alger Maximum Correctional Facility. After assaulting a guard, he was sanctioned with an indefinite "upper slot" restriction.[6] Several months later, upon learning that other prisoners had been given upper slot restrictions of only three months for the same infraction, he filed a grievance claiming that this disparity was the result of racial discrimination (Walton is black, the two other prisoners he identified in his grievances are white). After the grievance was denied, Walton filed a complaint in the Western District of Michigan under 1983, claiming race discrimination. He named as respondents Barbara Bouchard (former warden), Ken Gearin, David Bergh, and Ron Bobo (assistant deputy wardens), Catherine Bauman (resident unit manager), and Denise Gerth (assistant resident unit supervisor). The District Judge dismissed the lawsuit because Walton had not named any respondent other than Bobo in his grievance. His claims against the other respondents were thus not properly exhausted, and the court dismissed the entire action under the total exhaustion The Sixth Circuit affirmed, reiterating its requirement that a prisoner must "file a grievance against the person he ultimately seeks to sue," and that this requirement can only be satisfied by naming each defendant at Step I of the MDOC grievance process. Because Walton had exhausted prison remedies only as to respondent Bobo, the Sixth Circuit affirmed the District Court's dismissal of the entire action. B Jones sought review in a petition for certiorari, arguing that the Sixth Circuit's heightened pleading requirement and total exhaustion contravene the clear language of the Federal Rules of Civil Procedure and the PLRA. Williams and Walton filed a joint petition under this Court's Rule 1.4, contending that the requiring every defendant to be named during the grievance process is not required by the PLRA, and also challenging the total exhaustion We granted both petitions for certiorari, 547 U.S. and consolidated the cases for our review. II There is no question that exhaustion is mandatory under the PLRA and *919 that unexhausted claims cannot be brought in court. 534 U.S., at What is less clear is whether it falls to the prisoner to plead and demonstrate exhaustion in the complaint, or to the defendant to raise lack of exhaustion as an affirmative defense. The minority adopted by the Sixth Circuit, places the burden of pleading exhaustion in a case covered by the PLRA on the prisoner; most courts view failure to exhaust as an affirmative defense. See n. We think petitioners, and the majority of courts to consider the question, |
Justice Roberts | 2,007 | 0 | majority | Jones v. Bock | https://www.courtlistener.com/opinion/145763/jones-v-bock/ | petitioners, and the majority of courts to consider the question, have the better of the argument. Federal Rule of Civil Procedure 8(a) requires simply a "short and plain statement of the claim" in a complaint, while Rule 8(c) identifies a nonexhaustive list of affirmative defenses that must be pleaded in response. The PLRA itself is not a source of a prisoner's claim; claims covered by the PLRA are typically brought under 4 U.S.C. 1983, which does not require exhaustion at all, see 10 S. Ct. 557, 73 L. Ed. d 17 (198). Petitioners assert that courts typically regard exhaustion as an affirmative defense in other contexts, see Brief for Petitioners 34-36, and nn. 1-13 (citing cases), and respondents do not seriously dispute the general proposition. We have referred to exhaustion in these terms, see, e.g., 55 U.S. 70, 14 L. Ed. d 361 including in the similar statutory scheme governing habeas corpus, 16 S. Ct. 16 (slip op., at 8) (referring to exhaustion as a "defense"). The PLRA dealt extensively with the subject of exhaustion, see 4 U.S.C. e(a), (c)(), but is silent on the issue whether exhaustion must be pleaded by the plaintiff or is an affirmative defense. This is strong evidence that the usual practice should be followed, and the usual practice under the Federal Rules is to regard exhaustion as an affirmative defense. In a series of recent cases, we have explained that courts should generally not depart from the usual practice under the Federal Rules on the basis of perceived policy concerns. Thus, in 1 L. Ed. d 517 we unanimously reversed the court of appeals for imposing a heightened pleading standard in 1983 suits against municipalities. We explained that "[p]erhaps if [the] Rules. were rewritten today, claims against municipalities under 1983 might be subjected to the added specificity requirement. But that is a result which must be obtained by the process of amending the Federal Rules, and not by judicial interpretation." 68, In 1 S. Ct. 99, 15 L. Ed. d 1 we unanimously reversed the court of appeals for requiring employment discrimination plaintiffs to specifically allege the elements of a prima facie case of discrimination. We explained that "the Federal Rules do not contain a heightened pleading standard for employment discrimination suits," and a "requirement of greater specificity for particular claims" must be obtained by amending the Federal Rules. 1 S. Ct. 99 (citing Leatherman). And just last Term, in 16 S. Ct. 096, 165 L. Ed. d 44 we unanimously rejected a proposal that 1983 suits challenging a method of execution must identify |
Justice Roberts | 2,007 | 0 | majority | Jones v. Bock | https://www.courtlistener.com/opinion/145763/jones-v-bock/ | that 1983 suits challenging a method of execution must identify an acceptable alternative: "Specific pleading requirements are mandated by the Federal Rules of Civil Procedure, and not, as a general through case-by-case determinations of the federal *90 courts." at 16 S. Ct. 096 (slip op., at 8) (citing Swierkiewicz). The Sixth Circuit and other courts requiring prisoners to plead and demonstrate exhaustion in their complaints contend that if the "new regime" mandated by the PLRA for prisoner complaints is to function effectively, prisoner complaints must be treated outside of this typical framework. See These courts explain that the PLRA not only imposed a new mandatory exhaustion requirement, but also departed in a fundamental way from the usual procedural ground s by requiring judicial screening to filter out nonmeritorious claims: Courts are to screen inmate complaints "before docketing, if feasible, or as soon as practicable after docketing," and dismiss the complaint if it is "frivolous, malicious, fails to state a claim upon which relief may be granted[,] or seeks monetary relief from a defendant who is immune from such relief." 8 U.S.C. 1915A(a), (b). All this may take place before any responsive pleading is filed unlike in the typical civil case, defendants do not have to respond to a complaint covered by the PLRA until required to do so by the court, and waiving the right to reply does not constitute an admission of the allegations in the complaint. See 4 U.S.C. e(g)(1), (). According to respondents, these departures from the normal litigation framework of complaint and response mandate a different pleading requirement for prisoner complaints, if the screening is to serve its intended purpose. See, e.g., ; Knuckles 15 F.3d, at See also Brief for Respondents 17. We think that the PLRA's screening requirement does notexplicitly or implicitlyjustify deviating from the usual procedural practice beyond the departures specified by the PLRA itself. Before the PLRA, the in forma pauperis provision of 1915, applicable to most prisoner litigation, permitted sua sponte dismissal only if an action was frivolous or malicious. 8 U.S.C. 1915(d) (1994 ed.); see also 490 U.S., at 30, (concluding that a complaint that fails to state a claim was not frivolous under 1915(d) and thus could not be dismissed sua sponte). In the PLRA, Congress added failure to state a claim and seeking monetary relief from a defendant immune from such relief as grounds for sua sponte dismissal of in forma pauperis cases, 1915(e)()(B) ( ed.), and provided for judicial screening and sua sponte dismissal of prisoner suits on the same four grounds, 1915A(b); 4 U.S.C. e(c)(1). Although |
Justice Roberts | 2,007 | 0 | majority | Jones v. Bock | https://www.courtlistener.com/opinion/145763/jones-v-bock/ | on the same four grounds, 1915A(b); 4 U.S.C. e(c)(1). Although exhaustion was a "centerpiece" of the PLRA, 548 U.S., at (slip op., -), failure to exhaust was notably not added in terms to this enumeration. There is thus no reason to suppose that the normal pleading s have to be altered to facilitate judicial screening of complaints specifically for failure to exhaust. Some courts have found that exhaustion is subsumed under the PLRA's enumerated ground authorizing early dismissal for "fail[ure] to state a claim upon which relief may be granted." 8 U.S.C. 1915A(b)(1), 1915(e)()(B); 4 U.S.C. e(c)(1). See ; 355 F.3d 104, 110 ; The point is a bit of a red herring. A complaint is subject to dismissal for failure to state a claim if the allegations, taken as true, show the plaintiff is not entitled to relief. If the allegations, for example, show that relief is barred by the applicable statute of limitations, the complaint is subject *91 to dismissal for failure to state a claim; that does not make the statute of limitations any less an affirmative defense, see Fed. Rule Civ. Proc. 8(c). Whether a particular ground for opposing a claim may be the basis for dismissal for failure to state a claim depends on whether the allegations in the complaint suffice to establish that ground, not on the nature of the ground in the abstract. See 58 F.3d 156, ("[A] complaint may be subject to dismissal under Rule 1(b)(6) when an affirmative defense appears on its face" (internal quotation marks omitted)). See also (dismissing a complaint barred by the statute of limitations under Rule 1(b)(6)); 15 F.3d 67, 74- (dismissing a complaint barred by official immunity under Rule 1(b)(6)). See also 5B C. Wright & A. Miller, Federal Practice and Procedure 1357, pp. 708-710, 71-79 Determining that Congress meant to include failure to exhaust under the rubric of "failure to state a claim" in the screening provisions of the PLRA would thus not support treating exhaustion as a pleading requirement rather than an affirmative defense. The argument that screening would be more effective if exhaustion had to be shown in the complaint proves too much; the same could be said with respect to any affirmative defense. The rejoinder that the PLRA focused on exhaustion rather than other defenses simply highlights the failure of Congress to include exhaustion in terms among the enumerated grounds justifying dismissal upon early screening. As noted, that is not to say that failure to exhaust cannot be a basis for dismissal for failure to state a claim. It is to say |
Justice Roberts | 2,007 | 0 | majority | Jones v. Bock | https://www.courtlistener.com/opinion/145763/jones-v-bock/ | for failure to state a claim. It is to say that there is no basis for concluding that Congress implicitly meant to transform exhaustion from an affirmative defense to a pleading requirement by the curiously indirect route of specifying that courts should screen PLRA complaints and dismiss those that fail to state a claim. Respondents point to 4 U.S.C. e(g) as confirming that the usual pleading s should not apply to PLRA suits, but we think that provision supports petitioners. It specifies that defendants can waive their right to reply to a prisoner complaint without the usual consequence of being deemed to have admitted the allegations in the complaint. See e(g)(1) (allowing defendants to waive their response without admitting the allegations "[n]otwithstanding any other law or of procedure"). This shows that when Congress meant to depart from the usual procedural requirements, it did so expressly. We conclude that failure to exhaust is an affirmative defense under the PLRA, and that inmates are not required to specially plead or demonstrate exhaustion in their complaints. We understand the reasons behind the decisions of some lower courts to impose a pleading requirement on plaintiffs in this context, but that effort cannot fairly be viewed as an interpretation of the PLRA. "Whatever temptations the statesmanship of policy-making might wisely suggest," the judge's job is to construe the statutenot to make it better. Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L.Rev. 57, 533 (1947). The judge "must not read in by way of creation," but instead abide by the "duty of restraint, th[e] humility of function as merely the translator of another's command." See United 4 L. Ed. 394 ("No mere omission which it may seem wise to have specifically provided for, justif[ies] any judicial addition to the language of the *9 statute"). Given that the PLRA does not itself require plaintiffs to plead exhaustion, such a result "must be obtained by the process of amending the Federal Rules, and not by judicial interpretation." Leatherman, 507 U.S., 68, III The Sixth Circuit threw out the Williams and Walton suits because those prisoners had not identified in their initial grievances each defendant they later 136 Fed.Appx., at 86-863; at See 31 F.3d, at[7] Here again the lower court's procedural lacks a textual basis in the PLRA. The PLRA requires exhaustion of "such administrative remedies as are available," 4 U.S.C. e(a), but nothing in the statute imposes a "name all defendants" requirement along the lines of the Sixth Circuit's judicially created Respondents argue that without such a the exhaustion requirement would become a "`useless |
Justice Roberts | 2,007 | 0 | majority | Jones v. Bock | https://www.courtlistener.com/opinion/145763/jones-v-bock/ | without such a the exhaustion requirement would become a "`useless appendage,'" Brief for Respondents 44 (quoting 548 U.S., at (slip op., 1)), but the assertion is hyperbole, and the citation of misplaced. held that "proper exhaustion" was required under the PLRA, and that this requirement was not satisfied when grievances were dismissed because prisoners had missed deadlines set by the grievance policy. at (slip op., 1-13). At the time each of the grievances at issue here was filed, in contrast, the MDOC policy did not contain any provision specifying who must be named in a grievance. MDOC's policy required only that prisoners "be as specific as possible" in their grievances, while at the same time the required forms advised them to "[b]e brief and concise." The MDOC grievance form does not require a prisoner to identify a particular responsible party, and the respondent is not necessarily the allegedly culpable prison official, but rather an administrative official designated in the policy to respond to particular types of grievances at different The grievance policy specifically provides that the grievant at Step I "shall have the opportunity to explain the grievance more completely at [an] interview, enabling the Step I respondent to gather any additional information needed to respond to the grievance." Nothing in the MDOC policy itself supports the conclusion that the grievance process was improperly invoked simply because an individual later named as a defendant was not named at the first step of the grievance process. Nor does the PLRA impose such a requirement. In we held that to properly exhaust administrative remedies prisoners must "complete the administrative review process in accordance with the applicable procedural s," 548 U.S., at (slip op., at 5)s that are defined not by the PLRA, but by the prison grievance process itself. Compliance with prison grievance procedures, *93 therefore, is all that is required by the PLRA to "properly exhaust." The level of detail necessary in a grievance to comply with the grievance procedures will vary from system to system and claim to claim, but it is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion. As the MDOC's procedures make no mention of naming particular officials, the Sixth Circuit's imposing such a prerequisite to proper exhaustion is unwarranted. We have identified the benefits of exhaustion to include allowing a prison to address complaints about the program it administers before being subjected to suit, reducing litigation to the extent complaints are satisfactorily resolved, and improving litigation that does occur by leading to the preparation of a useful record. See at |
Justice Roberts | 2,007 | 0 | majority | Jones v. Bock | https://www.courtlistener.com/opinion/145763/jones-v-bock/ | leading to the preparation of a useful record. See at (slip op., -8); 534 U.S., at -55, The Sixth Circuit may promote early notice to those who might later be sued, but that has not been thought to be one of the leading purposes of the exhaustion requirement. See 385 F.3d, at ; see also Brief for American Civil Liberties Union et al. as Amici Curiae 8-9, and n. 6 (collecting grievance procedures and noting that the majority do not require prisoners to identify specific individuals). We do not determine whether the grievances filed by petitioners satisfied the requirement of "proper exhaustion," at (slip op., 1), but simply conclude that exhaustion is not per se inadequate simply because an individual later sued was not named in the grievances. We leave it to the court below in the first instance to determine the sufficiency of the exhaustion in these cases. IV The final issue concerns how courts should address complaints in which the prisoner has failed to exhaust some, but not all, of the claims asserted in the complaint.[8] All agree that no unexhausted claim may be considered. The issue is whether the court should proceed with the exhausted claims, or insteadas the Sixth Circuit has helddismiss the entire action if any one claim is not properly exhausted. See Jones 407 F.3d,[9] Here the Sixth Circuit can point to language in the PLRA in support of its Section e(a) provides that "[n]o action shall be brought" unless administrative procedures are exhausted. Respondents argue that if Congress intended courts to dismiss only unexhausted claims while retaining the balance of the lawsuit, the word *94 "claim" rather than "action" would have been used in this provision. This statutory phrasing"no action shall be brought"is boilerplate language. There are many instances in the Federal Code where similar language is used, but such language has not been thought to lead to the dismissal of an entire action if a single claim fails to meet the pertinent standards. Statutes of limitations, for example, are often introduced by a variant of the phrase "no action shall be brought," see, e.g., 53 U.S. 410, 140 L. Ed. d 566 ; 18 U.S.C. 0(g) ( ed., Supp. IV), but we have never heard of an entire complaint being thrown out simply because one of several discrete claims was barred by the statute of limitations, and it is hard to imagine what purpose such a would serve. The same is true with respect to other uses of the "no action shall be brought" phrasing. See, e.g., Hawksbill Sea 16 F.3d 461, |
Justice Roberts | 2,007 | 0 | majority | Jones v. Bock | https://www.courtlistener.com/opinion/145763/jones-v-bock/ | be brought" phrasing. See, e.g., Hawksbill Sea 16 F.3d 461, (dismissing only claims that fail to comply with the citizen suit notification requirement of 16 U.S.C. 1540(g)(), which states that "[n]o action may be commenced" until an agency has declined to act after being given written notice). More generally, statutory references to an "action" have not typically been read to mean that every claim included in the action must meet the pertinent requirement before the "action" may proceed. See, e.g., Exxon Mobil 15 S. Ct. 611, 16 L. Ed. d 50 (District Court had jurisdiction over a "civil action" under 8 U.S.C. 1367(a), even if it might not have jurisdiction over each separate claim comprising the action); U.S. 156, 118 S. Ct. 53, 139 L. Ed. d 55 As a general matter, if a complaint contains both good and bad claims, the court proceeds with the good and leaves the bad. "[O]nly the bad claims are dismissed; the complaint as a whole is not. If Congress meant to depart from this norm, we would expect some indication of that, and we find none." (considering e(e)). Respondents note an exception to this general the total exhaustion in habeas corpus. In 10 S. Ct. 1198, 71 L. Ed. d 379 (198), we held that "mixed" habeas petitionscontaining both exhausted and unexhausted claimscannot be adjudicated. This total exhaustion applied in habeas was initially derived from considerations of "comity and federalism," not any statutory command. 544 U.S. 69, 73, 15 S. Ct. 158, L. Ed. d 440 ; at 74, 15 S. Ct. 158 (noting that Congress "preserved Lundy's total exhaustion requirement" in 8 U.S.C. 54(b)(1)(A)). Separate claims in a single habeas petition generally seek the same relief from custody, and success on one is often as good as success on another. In such a case it makes sense to require exhaustion of all claims in state court before allowing the federal action to proceed. A typical PLRA suit with multiple claims, on the other hand, may combine a wide variety of discrete complaints, about interactions with guards, prison conditions, generally applicable s, and so on, seeking different relief on each claim. There is no reason failure to exhaust on one necessarily affects any other. In any event, even if the habeas total exhaustion is pertinent, it does not in fact depart from the usual practiceas we recently held, a *95 court presented with a mixed habeas petition "should allow the petitioner to delete the unexhausted claims and to proceed with the exhausted claims" Rhines, at 78, 15 S. Ct. 158. This is the |
Justice Roberts | 2,007 | 0 | majority | Jones v. Bock | https://www.courtlistener.com/opinion/145763/jones-v-bock/ | Rhines, at 78, 15 S. Ct. 158. This is the opposite of the the Sixth Circuit adopted, and precisely the that respondents argue against. Respondents' reading of 4 U.S.C. e(a) to contain a total exhaustion is bolstered by the fact that other sections of the PLRA distinguish between actions and claims. Section e(c)(1), for example, provides that a court shall dismiss an action for one of four enumerated deficiencies, while e(c)() allows a court to dismiss a claim for one of these reasons without first determining whether the claim is exhausted. Similarly, 8 U.S.C. 1915A(b) directs district courts to dismiss "the complaint, or any portion of the complaint" before docketing under certain circumstances. This demonstrates that Congress knew how to differentiate between the entire action and particular claims when it wanted to, and suggests that its use of "action" rather than "claim" in 4 U.S.C. e(a) should be given effect. But the interpretation respondents advocate creates its own inconsistencies. Section e(e) contains similar language, "[n]o action may be brought for mental or emotional injury suffered while in custody without a prior showing of physical injury," yet respondents cite no case interpreting this provision to require dismissal of the entire lawsuit if only one claim does not comply, and again we see little reason for such an approach. Accord, (dismissing only the portions of the complaint barred by e(e)); see also 30 F.3d 1361 (same). Interpreting the phrase "no action shall be brought" to require dismissal of the entire case under e(a) but not e(e) would contravene our normal s of statutory construction. National Credit Union U.S. 479, 501-50, 118 S. Ct. 97, 140 L. Ed. d 1 In pressing the total exhaustion argument, respondents also marshal the policy and purpose underlying the PLRAthis time in a supporting rather than lead role. The invigorated exhaustion requirement is a "centerpiece" of the statute, 548 U.S., at (slip op., -), and if the exhaustion requirement of e(a) is not effectuated by a total exhaustion they argue, inmates will have little incentive to ensure that they have exhausted all available administrative remedies before proceeding to court. The PLRA mandated early judicial screening to reduce the burden of prisoner litigation on the courts; a total exhaustion allows courts promptly to dismiss an action upon identifying an unexhausted claim. The alternative approach turns judges into editors of prisoner complaints, rather than creating an incentive for prisoners to exhaust properly. See We are not persuaded by these policy arguments. In fact, the effect of a total exhaustion could be that inmates will file various claims in separate |
Justice Roberts | 2,007 | 0 | majority | Jones v. Bock | https://www.courtlistener.com/opinion/145763/jones-v-bock/ | could be that inmates will file various claims in separate suits, to avoid the possibility of an unexhausted claim tainting the others. That would certainly not comport with the purpose of the PLRA to reduce the quantity of inmate suits. Additionally, district judges who delve into a prisoner complaint only to realize it contains an unexhausted claim, requiring dismissal of the entire complaint under the total exhaustion will often have to begin the process all over again *96 when the prisoner refiles. In light of typically short prison grievance time limits, prisoners' refiled complaints will often be identical to what the district court would have considered had it simply dismissed unexhausted claims as it encountered them and proceeded with the exhausted ones. Perhaps filing fees and concerns about the applicability of the "three strikes" 8 U.S.C. 1915(g), would mitigate these effects, but the debate about consequences is close enough that there is no clear reason to depart from the more typical claim-by-claim approach. * * * We are not insensitive to the challenges faced by the lower federal courts in managing their dockets and attempting to separate, when it comes to prisoner suits, not so much wheat from chaff as needles from haystacks. We once again reiterate, howeveras we did unanimously in Leatherman, Swierkiewicz, and Hillthat adopting different and more onerous pleading s to deal with particular categories of cases should be done through established making procedures, and not on a case-by-case basis by the courts. The judgments of the United States Court of Appeals for the Sixth Circuit are reversed, and the cases are remanded for further proceedings consistent with this opinion. It is so ordered. |
Justice Scalia | 1,994 | 9 | concurring | United States v. Irvine | https://www.courtlistener.com/opinion/117840/united-states-v-irvine/ | I join the judgment of the Court, and its opinion except for Part IIIA. It seems to me that the basis for the "reasonable time" limitation in the Regulation cannot be, as the Court says, ante, at 235, the need to deprive the beneficiary of "a virtually unlimited opportunity to consider estate planning consequences." Considering estate planning consequences (not a malum in se ) is nowhere condemned by the tax laws, and I would see no basis for the Treasury Department's arbitrarily declaring a disclaimer to be a gift solely in order to deter such consideration. The Secretary undoubtedly has broad discretion to determine the meaning of the term "transfer" as it is used in the gift tax statute, and undoubtedly may indulge an antagonism to estate planning in choosing among permissible meanings. But "disclaimer after opportunity for estate tax planning" is simply not a permissible meaning. The justification for the "reasonable time" limitation must, as always, be a textual one. It consists, in my view, of the fact that the failure to make a reasonably prompt disclaimer of a known bequest is an implicit acceptance. Qui tacet, consentire videtur. Thus, a later disclaimer, which causes the property to go to someone else by operation of law, is effectively a transfer to that someone else. resolved that issueperhaps incorrectly.) While state disclaimer laws have chosen to override the reasonable implication of nondisclaimer, the Treasury Department regulations correctly (or at least permissibly) conclude that the federal gift tax does not. |
Justice Powell | 1,981 | 17 | concurring | HL v. Matheson | https://www.courtlistener.com/opinion/110432/hl-v-matheson/ | I This case requires the Court to consider again the divisive questions raised by a state statute intended to encourage *414 parental involvement in the decision of a pregnant minor to have an abortion. See Planned Parenthood of Central ; I agree with the Court that (2) (1978) does not unconstitutionally burden this appellant's right to an abortion. I join the opinion of the Court on the understanding that it leaves open the question whether 76-7-304 (2) unconstitutionally burdens the right of a mature minor or a minor whose best interests would not be served by parental notification. See ante, at 412, n. 22. I write to make clear that I continue to entertain the views on this question stated in my opinion in See n. 8, infra. Section 76-7-304 (2) requires that a physician "[n]otify, if possible, the parents or guardian of the woman upon whom the abortion is to be performed, if she is a minor."[1] Appellant attacks this notice requirement on the ground that it burdens the right of a minor who is emancipated, or who is mature enough to make the abortion decision independently of parental involvement, or whose parents will react obstructively upon notice. See ante, at 405. The threshold question, as the Court's opinion notes, is whether appellant has standing to make such a challenge. Standing depends initially on what the complaint alleges, as courts have the power "only to redress or otherwise to protect against injury to the complaining party." *415 The complaint in this case was carefully drawn. Appellant's allegations about herself and her familial situation are few and laconic. She alleged that she did "not wish to inform her parents of her condition and believe[d] that it [was] in her best interest that her parents not be informed of her condition." Complaint ¶ 6. She also alleged that she understood "what is involved in her decision," ¶ 9, and that the physician she consulted had told her that "he could not and would not perform an abortion upon her without informing her parents prior to aborting her." ¶ 7. Appellant was 15 years of age and lived at home with her parents when she filed her complaint. She did not claim to be mature, and made no allegations with respect to her relationship with her parents. She did not aver that they would be obstructive if notified, or advance any other reason why notice to her parents would not be in her best interest. Similarly, the complaint contains no allegation that the physician while apparently willing to perform the abortion believed |
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