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Justice Brennan
| 1,983 | 13 |
majority
|
Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal.
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https://www.courtlistener.com/opinion/110990/franchise-tax-bd-of-cal-v-construction-laborers-vacation-trust-for/
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is pending." If it appears before final judgment that a case was not properly removed, because it was not within the original jurisdiction of the United States district courts, the district court must remand it to the state court from which it was removed. See 28 U.S. C. 1447(c). For this case as for many cases where there is no diversity of citizenship between the parties the propriety of removal turns on whether the case falls within the original "federal question" jurisdiction of the United States district courts: "The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S. C. 1331 (1976 ed., Supp. V).[7] Since the first version of 1331 was enacted, Act of Mar. 3, 1875, ch. 137, 1, the statutory phrase "arising under the Constitution, laws, or treaties of the United States" has resisted all attempts to frame a single, precise definition for determining which cases fall within, and which cases fall outside, the original jurisdiction of the district courts. Especially when considered in light of 1441's removal jurisdiction, the phrase "arising under" masks a welter of issues regarding the interrelation of federal and state authority and the proper management of the federal judicial system.[8] The most familiar definition of the statutory "arising under" limitation is Justice Holmes' statement, "A suit arises *9 under the law that creates the cause of action." American Well Works However, it is well settled that Justice Holmes' test is more useful for describing the vast majority of cases that come within the district courts' original jurisdiction than it is for describing which cases are beyond district court jurisdiction. We have often that a case "arose under" federal law where the vindication of a right under state law necessarily turned on some construction of federal law, see, e. g., ; and even the most ardent proponent of the Holmes test has admitted that it has been rejected as an exclusionary principle, see See also T. B. Harms Leading commentators have suggested that for purposes of 1331 an action "arises under" federal law "if in order for the plaintiff to secure the relief sought he will be obliged to establish both the correctness and the applicability to his case of a proposition of federal law." P. Bator, P. Mishkin, D. Shapiro, & H. Wechsler, Hart and Wechsler's The Federal Courts and the Federal System 889 (2d ed. 1973) (hereinafter Hart & Wechsler); cf. T. B. Harms at One powerful doctrine has emerged, however the "well-pleaded complaint" rule
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Justice Brennan
| 1,983 | 13 |
majority
|
Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal.
|
https://www.courtlistener.com/opinion/110990/franchise-tax-bd-of-cal-v-construction-laborers-vacation-trust-for/
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powerful doctrine has emerged, however the "well-pleaded complaint" rule which as a practical matter severely limits the number of cases in which state law "creates the cause of action" that may be initiated in or removed to *10 federal district court, thereby avoiding more-or-less automatically a number of potentially serious federal-state conflicts. "[W]hether a case is one arising under the Constitution or a law or treaty of the United States, in the sense of the jurisdictional statute, must be determined from what necessarily appears in the plaintiff's statement of his own claim in the bill or declaration, unaided by anything alleged in anticipation of avoidance of defenses which it is thought the defendant may interpose." Thus, a federal court does not have original jurisdiction over a case in which the complaint presents a state-law cause of action, but also asserts that federal law deprives the defendant of a defense he may raise, Louisville & Nashville R. v. or that a federal defense the defendant may raise is not sufficient to defeat the claim, "Although such allegations show that very likely, in the course of the litigation, a question under the Constitution would arise, they do not show that the suit, that is, the plaintiff's original cause of action, arises under the Constitution." Louisville & Nashville R. v. For better or worse, under the present statutory scheme as it has existed since 1887, a defendant may not remove a case to federal court unless the plaintiff's complaint establishes that the case "arises under" federal law.[9] "[A]right or immunity created by the *11 Constitution or laws of the United States must be an element, and and an essential one, of the plaintiff's cause of action." For many cases in which federal law becomes relevant only insofar as it sets bounds for the operation of state authority, the well-pleaded complaint rule makes sense as a quick rule of thumb. Describing the case before the Court in Gully,[10] Justice Cardozo wrote: "Petitioner will have to prove that the state law has been obeyed before the question will be reached whether anything in its provisions or in administrative conduct under it is inconsistent with the federal rule. If what was done by the taxing officers in levying the tax in suit did not amount in substance under the law of Mississippi to an assessment of the shareholders, but in substance as *12 well as in form was an assessment of the bank alone, the conclusion will be inescapable that there was neither tax nor debt, apart from any barriers Congress may have built.
|
Justice Brennan
| 1,983 | 13 |
majority
|
Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal.
|
https://www.courtlistener.com/opinion/110990/franchise-tax-bd-of-cal-v-construction-laborers-vacation-trust-for/
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nor debt, apart from any barriers Congress may have built. On the other hand, a finding upon evidence that the Mississippi law has been obeyed may compose the controversy altogether, leaving no room for a contention that the federal law has been infringed. The most that one can say is that a question of federal law is lurking in the background, just as farther in the background there lurks a question of constitutional law, the question of state power in our federal form of government. A dispute so doubtful and conjectural, so far removed from plain necessity, is unavailing to extinguish the jurisdiction of the states." The rule, however, may produce awkward results, especially in cases in which neither the obligation created by state law nor the defendant's factual failure to comply are in dispute, and both parties admit that the only question for decision is raised by a federal pre-emption defense. Nevertheless, it has been correctly understood to apply in such situations.[11] As we said in Gully: "By unimpeachable authority, a suit brought upon a state statute does not arise under an act of Congress or the Constitution of the United States because prohibited thereby."[12] *13 III Simply to state these principles is not to apply them to the case at hand. Appellant's complaint sets forth two "causes of action," one of which expressly refers to ERISA; if either comes within the original jurisdiction of the federal courts, removal was proper as to the whole case. See 28 U.S. C. 1441(c). Although appellant's complaint does not specifically assert any particular statutory entitlement for the relief it seeks, the language of the complaint suggests (and the parties do not dispute) that appellant's "first cause of action" states a claim under Cal. Rev. & Tax. Code Ann. 18818 (West Supp. 1983), see and its "second cause of action" states a claim under California's Declaratory Judgment Act, Cal. Civ. Proc. Code Ann. 1060 (West 1980). As an initial proposition, then, the "law that creates the cause of action" is state law, and original federal jurisdiction is unavailable unless it appears that some substantial, disputed question of federal law is a necessary element of one of the well-pleaded state claims, or that one or the other claim is "really" one of federal law. A Even though state law creates appellant's causes of action, its case might still "arise under" the laws of the United States if a well-pleaded complaint established that its right to relief under state law requires resolution of a substantial question of federal law in dispute between the parties. For
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Justice Brennan
| 1,983 | 13 |
majority
|
Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal.
|
https://www.courtlistener.com/opinion/110990/franchise-tax-bd-of-cal-v-construction-laborers-vacation-trust-for/
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question of federal law in dispute between the parties. For appellant's first cause of action to enforce its levy, under 18818 a straightforward application of the well-pleaded complaint rule precludes original federal-court jurisdiction. California law establishes a set of conditions, without reference to federal law, under which a tax levy may be enforced; federal law becomes relevant only by way of a defense to an obligation created entirely by state law, and then only if appellant has made out a valid claim for relief under state law. See The well-pleaded complaint rule was framed to deal with precisely such a situation. As we discuss *14 above, since 1887 it has been settled law that a case may not be removed to federal court on the basis of a federal defense, including the defense of pre-emption, even if the defense is anticipated in the plaintiff's complaint, and even if both parties admit that the defense is the only question truly at issue in the case. Appellant's declaratory judgment action poses a more difficult problem. Whereas the question of federal pre-emption is relevant to appellant's first cause of action only as a potential defense, it is a necessary element of the declaratory judgment claim. Under Cal. Civ. Proc. Code Ann. 1060 (West 1980), a party with an interest in property may bring an action for a declaration of another party's legal rights and duties with respect to that property upon showing that there is an "actual controversy relating to the legal rights and duties" of the parties. The only questions in dispute between the parties in this case concern the rights and duties of CLVT and its trustees under ERISA. Not only does appellant's request for a declaratory judgment under California law clearly encompass questions governed by ERISA, but appellant's complaint identifies no other questions as a subject of controversy between the parties. Such questions must be raised in a well-pleaded complaint for a declaratory judgment.[13] Therefore, it is clear on the face of its well-pleaded complaint that appellant may not obtain the relief it seeks in its second cause of action ("[t]hat the court declare defendants legally obligated to honor all future levies by the Board upon [CLVT]," App. 9) without a construction of ERISA and/or an adjudication of its pre-emptive effect and constitutionality all questions of federal law. *15 Appellant argues that original federal-court jurisdiction over such a complaint is foreclosed by our decision in Skelly Oil v. Phillips Petroleum As we shall see, however, Skelly Oil is not directly controlling. In Skelly Oil, Skelly Oil and
|
Justice Brennan
| 1,983 | 13 |
majority
|
Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal.
|
https://www.courtlistener.com/opinion/110990/franchise-tax-bd-of-cal-v-construction-laborers-vacation-trust-for/
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is not directly controlling. In Skelly Oil, Skelly Oil and Phillips had a contract, for the sale of natural gas, that entitled the seller Skelly Oil to terminate the contract at any time after December 1, 1946, if the Federal Power Commission had not yet issued a certificate of convenience and necessity to a third party, a pipeline company to whom Phillips intended to resell the gas purchased from Skelly Oil. Their dispute began when the Federal Power Commission informed the pipeline company on November 30 that it would issue a conditional certificate, but did not make its order public until December 2. By this time Skelly Oil had notified Phillips of its decision to terminate their contract. Phillips brought an action in United States District Court under the federal Declaratory Judgment Act, 28 U.S. C. 2201, seeking a declaration that the contract was still in -671. There was no diversity between the parties, and we that Phillips' claim was not within the federal-question jurisdiction conferred by 1331. We reasoned: " `[T]he operation of the Declaratory Judgment Act is procedural only.' Aetna Life Ins. v. Haworth, Congress enlarged the range of remedies available in the federal courts but did not extend their jurisdiction. When concerned as we are with the power of the inferior federal courts to entertain litigation within the restricted area to which the Constitution and Acts of Congress confine them, `jurisdiction' means the kinds of issues which give right of entrance to federal courts. Jurisdiction in this sense was not altered by the Declaratory Judgment Act. Prior to that Act, a federal court would entertain a suit on a contract only if the plaintiff asked for an immediately enforceable remedy *16 like money damages or an injunction, but such relief could only be given if the requisites of jurisdiction, in the sense of a federal right or diversity, provided foundation for resort to the federal courts. The Declaratory Judgment Act allowed relief to be given by way of recognizing the plaintiff's right even though no immediate enforcement of it was asked. But the requirements of jurisdiction the limited subject matters which alone Congress had authorized the District Courts to adjudicate were not impliedly repealed or modified." -672. We then observed that, under the well-pleaded complaint rule, an action by Phillips to enforce its contract would not present a federal question. Skelly Oil has come to stand for the proposition that "if, but for the availability of the declaratory judgment procedure, the federal claim would arise only as a defense to a state created
|
Justice Brennan
| 1,983 | 13 |
majority
|
Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal.
|
https://www.courtlistener.com/opinion/110990/franchise-tax-bd-of-cal-v-construction-laborers-vacation-trust-for/
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would arise only as a defense to a state created action, jurisdiction is lacking." 10A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure 2767, pp. 744-745 (2d ed. 1983). Public Service Comm'n of Utah v. Wycoff[14] *17 1. As an initial matter, we must decide whether the doctrine of Skelly Oil limits original federal-court jurisdiction under 1331 and by extension removal jurisdiction under 1441 when a question of federal law appears on the face of a well-pleaded complaint for a state-law declaratory judgment. Apparently, it is a question of first impression.[15] As the passage quoted above makes clear, Skelly Oil relied significantly on the precise contours of the federal Declaratory Judgment Act as well as of 1331. The Court's emphasis that the Declaratory Judgment Act was intended to affect only the remedies available in a federal district court, not the court's jurisdiction, was critical to the Court's reasoning. Our interpretation of the federal Declaratory Judgment Act in Skelly Oil does not apply of its own force to state declaratory judgment statutes, many of which antedate the federal statute, see Developments in the Law Declaratory Judgments 1941-1949,[16] Nashville, C. & St. L. R. v. Wallace, 288 *, Yet while Skelly Oil itself is limited to the federal Declaratory Judgment Act, fidelity to its spirit leads us to extend it to state declaratory judgment actions as well. If federal district courts could take jurisdiction, either originally or by removal, of state declaratory judgment claims raising questions of federal law, without regard to the doctrine of Skelly Oil, the federal Declaratory Judgment Act with the limitations Skelly Oil read into it would become a dead letter. For any case in which a state declaratory judgment action was available, litigants could get into federal court for a declaratory judgment despite our interpretation of 2201, simply by pleading an adequate state claim for a declaration of federal law. Having interpreted the Declaratory Judgment Act of 1934 to include certain limitations on the jurisdiction of federal district courts to entertain declaratory judgment suits, we should be extremely hesitant to interpret the Judiciary Act of 1875 and its 1887 amendments in a way that renders the limitations in the later statute nugatory. Therefore, we hold that under the jurisdictional statutes as they now stand[17]*19 federal courts do not have original jurisdiction, nor do they acquire jurisdiction on removal, when a federal question is presented by a complaint for a state declaratory judgment, but Skelly Oil would bar jurisdiction if the plaintiff had sought a federal declaratory judgment. 2.
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Justice Brennan
| 1,983 | 13 |
majority
|
Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal.
|
https://www.courtlistener.com/opinion/110990/franchise-tax-bd-of-cal-v-construction-laborers-vacation-trust-for/
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if the plaintiff had sought a federal declaratory judgment. 2. The question, then, is whether a federal district court could take jurisdiction of appellant's declaratory judgment claim had it been brought under 28 U.S. C. 2201.[18] The application of Skelly Oil to such a suit is somewhat unclear. Federal courts have regularly taken original jurisdiction over declaratory judgment suits in which, if the declaratory judgment defendant brought a coercive action to enforce its rights, that suit would necessarily present a federal question.[19] Section 502(a)(3) of ERISA specifically grants trustees of ERISA-covered plans like CLVT a cause of action for *20 injunctive relief when their rights and duties under ERISA are at issue, and that action is exclusively governed by federal law.[20] If CLVT could have sought an injunction under ERISA against application to it of state regulations that require acts inconsistent with ERISA,[21] does a declaratory judgment suit by the State "arise under" federal law? We think not. We have always interpreted what Skelly Oil called "the current of jurisdictional legislation since the Act of March 3, 1875," with an eye to practicality and necessity. "What is needed is something of that common-sense accommodation of judgment to kaleidoscopic situations which characterizes the law in its treatment of problems of causation a selective process which picks the substantial causes out of the web and lays the other ones *21 aside." 299 U. S., -118. There are good reasons why the federal courts should not entertain suits by the States to declare the validity of their regulations despite possibly conflicting federal law. States are not significantly prejudiced by an inability to come to federal court for a declaratory judgment in advance of a possible injunctive suit by a person subject to federal regulation. They have a variety of means by which they can enforce their own laws in their own courts, and they do not suffer if the pre-emption questions such enforcement may raise are tested there.[22] The express grant of federal jurisdiction in ERISA is limited to suits brought by certain parties, see infra, at as to whom Congress presumably determined that a right to enter federal court was necessary to further the statute's purposes.[23] It did not go so far as to provide that any suit against such parties must also be brought in federal court when they themselves did not choose to sue. The situation presented by a State's suit for a declaration of the validity of state law is sufficiently removed from the spirit of necessity and careful limitation of district court jurisdiction *22 that informed our statutory
|
Justice Brennan
| 1,983 | 13 |
majority
|
Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal.
|
https://www.courtlistener.com/opinion/110990/franchise-tax-bd-of-cal-v-construction-laborers-vacation-trust-for/
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limitation of district court jurisdiction *22 that informed our statutory interpretation in Skelly Oil and Gully to convince us that, until Congress informs us otherwise, such a suit is not within the original jurisdiction of the United States district courts. Accordingly, the same suit brought originally in state court is not removable either.[24] B CLVT also argues that appellant's "causes of action" are, in substance, federal claims. Although we have often repeated that "the party who brings a suit is master to decide what law he will rely upon," The Fair v. Kohler Die & Specialty it is an independent corollary of the well-pleaded complaint rule that a plaintiff may not defeat removal by omitting to plead necessary federal questions in a complaint, see Avco aff'd, CLVT's best argument stems from our decision in Avco Corp. v. Aero Lodge No. 735. In that case, the petitioner filed suit in state court alleging simply that it had a valid contract with the respondent, a union, under which the respondent had agreed to submit all grievances to binding arbitration and not to cause or sanction any "work stoppages, strikes, or slowdowns." The petitioner further alleged that the respondent and its officials had violated the agreement by *23 participating in and sanctioning work stoppages, and it sought temporary and permanent injunctions against further breaches. App., O. T. No. 445, pp. 2-9. It was clear that, had petitioner invoked it, there would have been a federal cause of action under 301 of the Labor Management Relations Act, 1947 (LMRA), 29 U.S. C. 185, see Textile and that, even in state court, any action to enforce an agreement within the scope of 301 would be controlled by federal law, see Teamsters v. Lucas Flour It was also clear, however, under the law in effect at the time, that independent limits on federal jurisdiction made it impossible for a federal court to grant the injunctive relief petitioner sought. See Sinclair Refining v. Atkinson, The Court of Appeals and we affirmed, that the petitioner's action "arose under" 301, and thus could be removed to federal court, although the petitioner had undoubtedly pleaded an adequate claim for relief under the state law of contracts and had sought a remedy available only under state law. The necessary ground of decision was that the pre-emptive force of 301 is so powerful as to displace entirely any state cause of action "for violation of contracts between an employer and a labor organization."[] Any such suit is purely a creature of federal law, notwithstanding the fact that state law would provide a
|
Justice Brennan
| 1,983 | 13 |
majority
|
Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal.
|
https://www.courtlistener.com/opinion/110990/franchise-tax-bd-of-cal-v-construction-laborers-vacation-trust-for/
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law, notwithstanding the fact that state law would provide a cause of action in the absence of 301. Avco *24 stands for the proposition that if a federal cause of action completely pre-empts a state cause of action any complaint that comes within the scope of the federal cause of action necessarily "arises under" federal law. CLVT argues by analogy that ERISA, like 301, was meant to create a body of federal common law, and that "any state court action which would require the interpretation or application of ERISA to a plan document `arises under' the laws of the United States." Brief for Appellees 20-21. ERISA contains provisions creating a series of express causes of action in favor of participants, beneficiaries, and fiduciaries of ERISA-covered plans, as well as the Secretary of Labor. 502(a), 29 U.S. C. 1132(a).[26] It may be that, as with 301 as interpreted in Avco, any state action coming within the scope of 502(a) of ERISA would be removable to federal district court, even if an otherwise adequate state cause of action were pleaded without reference to federal law.[27] It does not follow, however, that either of appellant's * claims in this case comes within the scope of one of ERISA's causes of action. The phrasing of 502(a) is instructive. Section 502(a) specifies which persons participants, beneficiaries, fiduciaries, or the Secretary of Labor may bring actions for particular kinds of relief. It neither creates nor expressly denies any cause of action in favor of state governments, to enforce tax levies or for any other purpose. It does not purport to reach every question relating to plans covered by ERISA.[28] Furthermore, 514(b)(2)(A) of ERISA, 29 U.S. C. 1144(b)(2)(A), makes clear that Congress did not intend to pre-empt entirely every state cause of action relating to such plans. With important, but express limitations, it states that "nothing in this subchapter shall be construed to exempt or relieve any person from any law of any State which regulates insurance, banking, or securities." Against this background, it is clear that a suit by state tax authorities under a statute like 18818 does not "arise under" ERISA. Unlike the contract rights at issue in Avco, the State's right to enforce its tax levies is not of central concern *26 to the federal statute. For that reason, as in Gully, see on the face of a well-pleaded complaint there are many reasons completely unrelated to the provisions and purposes of ERISA why the State may or may not be entitled to the relief it seeks.[29] Furthermore, ERISA does not provide
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Justice Brennan
| 1,983 | 13 |
majority
|
Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal.
|
https://www.courtlistener.com/opinion/110990/franchise-tax-bd-of-cal-v-construction-laborers-vacation-trust-for/
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to the relief it seeks.[29] Furthermore, ERISA does not provide an alternative cause of action in favor of the State to enforce its rights, while 301 expressly supplied the plaintiff in Avco with a federal cause of action to replace its pre-empted state contract claim. Therefore, even though the Court of Appeals may well be correct that ERISA precludes enforcement of the State's levy in the circumstances of this case, an action to enforce the levy is not itself pre-empted by ERISA. Once again, appellant's declaratory judgment cause of action presents a somewhat more difficult issue. The question on which a declaration is sought that of the CLVT trustees' "power to honor the levies made upon them by the State of California," see at 6 is undoubtedly a matter of concern under ERISA. It involves the meaning and enforceability of provisions in CLVT's trust agreement forbidding the trustees to assign or otherwise to alienate funds in trust, see and n. 3, and thus comes within the class of questions for which Congress intended that federal courts create federal common law.[30] Under 502(a)(3)(B) of *27 ERISA, a participant, beneficiary, or fiduciary of a plan covered by ERISA may bring a declaratory judgment action in federal court to determine whether the plan's trustees may comply with a state levy on funds in trust.[31] Nevertheless, CLVT's argument that appellant's second cause of action arises under ERISA fails for the second reason given above. ERISA carefully enumerates the parties entitled to seek relief under 502; it does not provide anyone other than participants, beneficiaries, or fiduciaries with an express cause of action for a declaratory judgment on the issues in this case. A suit for similar relief by some other party does not "arise under" that provision.[32] IV Our concern in this case is consistent application of a system of statutes conferring original federal-court jurisdiction, as they have been interpreted by this Court over many years. Under our interpretations, Congress has given the lower federal courts jurisdiction to hear, originally or by removal from a state court, only those cases in which a well-pleaded complaint establishes either that federal law creates *28 the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law. We hold that a suit by state tax authorities both to enforce its levies against funds in trust pursuant to an ERISA-covered employee benefit plan, and to declare the validity of the levies notwithstanding ERISA, is neither a creature of ERISA itself nor a suit of which the
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Justice Blackmun
| 1,980 | 11 |
dissenting
|
Allied Chemical Corp. v. Daiflon, Inc.
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https://www.courtlistener.com/opinion/110354/allied-chemical-corp-v-daiflon-inc/
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I have no quarrel with the general principles enunciated by the Court in its per curiam opinion. Of course, only exceptional circumstances justify the extraordinary remedy of mandamus. I sense, however, from the rather voluminous material that is before us (as contrasted with the average petition for certiorari), and from the Court of Appeals' careful review of the law and the decided cases concerning the use of the mandamus power, that this is an unusual case and that there well may be more here than appears at first glance. I therefore would not decide, peremptorily and summarily, what circumstances, if any, justify a federal appellate court's issuance of a writ of mandamus to overturn a trial court's order granting a new trial.[*] Instead, I would grant the *38 petition for certiorari and give the case plenary consideration so that we may examine carefully the factors and considerations that prompted the Court of Appeals to issue the writ. I feel that the case deserves at least that much.
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Justice Stevens
| 1,987 | 16 |
dissenting
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Perry v. Thomas
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https://www.courtlistener.com/opinion/111920/perry-v-thomas/
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Despite the striking similarity between this case and Merrill Lynch, Pierce, Fenner & Smith, the Court correctly concludes that the precise question now presented was not decided in Ware. Even though the Arbitration Act had been on the books for almost 50 years in 1973, apparently neither the Court nor the litigants even considered the possibility that the Act had pre-empted state-created rights. It is only in the last few years that the Court has effectively rewritten the statute to give it a pre-emptive scope that Congress certainly did not intend. See Southland The dicta in some of these recent cases are admittedly broad enough to cover this case, see ante, at 489-491, but since none of our prior holdings is on point, the doctrine of stare decisis is not controlling. Cf. Shearson/American Express Inc. v. McMahon, ante, at 268-269 Accordingly, because I share *494 JUSTICE O'CONNOR's opinion that the States' power to except certain categories of disputes from arbitration should be preserved unless Congress decides otherwise, I would affirm the judgment of the California Court of Appeal.
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Justice Marshall
| 1,983 | 15 |
majority
|
Herman & MacLean v. Huddleston
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https://www.courtlistener.com/opinion/110825/herman-maclean-v-huddleston/
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These consolidated cases raise two unresolved questions concerning 10(b) of the Securities Exchange Act of 1934 (1934 Act), 15 U.S. C. 78j(b). The first is whether purchasers of registered securities who allege they were defrauded by misrepresentations in a registration statement may maintain an action under 10(b) notwithstanding the express remedy for misstatements and omissions in registration statements provided by 11 of the Securities Act of 1933 (1933 Act), as amended, 15 U.S. C. 77k. The second question is whether persons seeking recovery under 10(b) must prove their cause of action by clear and convincing evidence rather than by a preponderance of the evidence. I In 1969 International Speedway, (TIS), filed a registration statement and prospectus with the Securities and Exchange Commission offering a total of $4,398,900 in securities to the public. The proceeds of the sale were to be used to finance the construction of an automobile speedway. The entire issue was sold on the offering date, October 30, 1969. TIS did not meet with success, however, and the corporation filed a petition for bankruptcy on November 30, 1970. *378 In 1972 plaintiffs Huddleston and Bradley instituted a class action in the United States District Court for the Southern District of [1] on behalf of themselves and other purchasers of TIS securities. The complaint alleged violations of 10(b) of the 1934 Act and Rule 10b-5 promulgated thereunder, 17 CFR 240.10b-5[2] Plaintiffs sued most of the participants in the offering, including the accounting firm, Herman & MacLean, which had issued an opinion concerning certain financial statements and a pro forma balance sheet[3] that were contained in the registration statement and prospectus. Plaintiffs claimed that the defendants had engaged in a fraudulent scheme to misrepresent or conceal material facts regarding the financial condition of TIS, including the costs incurred in building the speedway. After a 3-week trial, the District Judge submitted the case to the jury on special interrogatories relating to liability. The judge instructed the jury that liability could be found only if the defendants acted with scienter.[4] The judge also instructed the jury to determine whether plaintiffs had proved their cause of action by a preponderance of the evidence. *379 After the jury rendered a verdict in favor of the plaintiffs on the submitted issues, the judge concluded that Herman & MacLean and others had violated 10(b) and Rule 10b-5 by making fraudulent misrepresentations in the TIS registration statement.[5] The court then determined the amount of damages and entered judgment for the plaintiffs. On appeal, the United States Court of Appeals for the Fifth Circuit held that a cause
|
Justice Marshall
| 1,983 | 15 |
majority
|
Herman & MacLean v. Huddleston
|
https://www.courtlistener.com/opinion/110825/herman-maclean-v-huddleston/
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of Appeals for the Fifth Circuit held that a cause of action may be maintained under 10(b) of the 1934 Act for fraudulent misrepresentations and omissions even when that conduct might also be actionable under 11 of the 1933 Act. However, the Court of Appeals disagreed with the District Court as to the appropriate standard of proof for an action under 10(b), concluding that a plaintiff must prove his case by "clear and convincing" evidence. The Court of Appeals reversed the District Court's judgment on other grounds and remanded the case for a new trial. We granted certiorari to consider whether an implied cause of action under 10(b) of the 1934 Act will lie for conduct subject to an express civil remedy under the 1933 Act, an issue we have previously reserved,[6] and to decide the standard of proof applicable to actions under 10(b).[7] We now affirm the Court of Appeals' holding that plaintiffs could maintain an action under 10(b) of the 1934 Act, but we reverse as to the applicable standard of proof. II The Securities Act of 1933 and the 1934 Act "constitute interrelated components of the federal regulatory scheme governing transactions in securities." Ernst & The Acts created several express private rights of action,[8] one of which is contained in 11 of the 1933 Act. In addition to the private actions created explicitly by the 1933 and 1934 Acts, federal courts have implied private remedies under other provisions of the two laws.[9] Most significantly for present purposes, a private right of action under 10(b) of the 1934 Act and Rule 10b-5 has been consistently recognized for more than 35 years.[10] The existence of this implied remedy is simply beyond peradventure. *381 The issue in this case is whether a party should be barred from invoking this established remedy for fraud because the allegedly fraudulent conduct would apparently also provide the basis for a damages action under 11 of the 1933 Act.[11] The resolution of this issue turns on the fact that the two provisions involve distinct causes of action and were intended to address different types of wrongdoing. Section 11 of the 1933 Act allows purchasers of a registered security to sue certain enumerated parties in a registered offering when false or misleading information is included in a registration statement. The section was designed to assure compliance with the disclosure provisions of the Act by imposing a stringent standard of liability[] on the parties who *382 play a direct role in a registered offering.[13] If a plaintiff purchased a security issued pursuant to a registration statement, he
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Justice Marshall
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Herman & MacLean v. Huddleston
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purchased a security issued pursuant to a registration statement, he need only show a material misstatement or omission to establish his prima facie case. Liability against the issuer of a security is virtually absolute,[14] even for innocent misstatements. Other defendants bear the burden of demonstrating due diligence. See 15 U.S. C. 77k(b). Although limited in scope, 11 places a relatively minimal burden on a plaintiff. In contrast, 10(b) is a "catchall" antifraud provision,[15] but it requires a plaintiff to carry a heavier burden to establish a cause of action. While a 11 action must be brought by a purchaser of a registered security, must be based on misstatements or omissions in a registration statement, and can only be brought against certain parties, a 10(b) action can be brought by a purchaser or seller of "any security" against "any person" who has used "any manipulative or deceptive device or contrivance" in connection with the purchase or sale of a security. 15 U.S. C. 78j (emphasis added). However, a 10(b) plaintiff carries a heavier burden than a 11 plaintiff. Most significantly, he must prove that the defendant acted with scienter, i. e., with intent to deceive, manipulate, or defraud.[16] Since 11 and 10(b) address different types of wrongdoing, we see no reason to carve out an exception to 10(b) for fraud occurring in a registration statement just because the *383 same conduct may also be actionable under 11.[17] Exempting such conduct from liability under 10(b) would conflict with the basic purpose of the 1933 Act: to provide greater protection to purchasers of registered securities. It would be anomalous indeed if the special protection afforded to purchasers in a registered offering by the 1933 Act were deemed to deprive such purchasers of the protections against manipulation and deception that 10(b) makes available to all persons who deal in securities. While some conduct actionable under 11 may also be actionable under 10(b), it is hardly a novel proposition that the 1934 Act and the 1933 Act "prohibit some of the same conduct." United (applying 17(a) of the 1933 Act to conduct also prohibited by 10(b) of the 1934 Act in an action by the ). " `The fact that there may well be some overlap is neither unusual nor unfortunate.' " quoting In saving clauses included in the 1933 and 1934 Acts, Congress rejected the notion that the express remedies of the securities laws would pre-empt all other rights of action. Section 16 of the 1933 Act states unequivocally that "[t]he rights and remedies provided by this title shall be in addition to any
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provided by this title shall be in addition to any and all other rights and remedies that may exist at law or in equity." 15 U.S. C. 77p. Section 28(a) of the 1934 Act contains a parallel provision. 15 U.S. C. 78bb(a). These provisions confirm that the remedies in each Act were to be supplemented by "any and all" additional remedies. This conclusion is reinforced by our reasoning in Ernst & which held that actions under 10(b) require proof of scienter and do not encompass negligent conduct. In so holding, we noted that each of the express civil *384 remedies in the 1933 Act allowing recovery for negligent conduct is subject to procedural restrictions not applicable to a 10(b) action.[18] -210. We emphasized that extension of 10(b) to negligent conduct would have allowed causes of action for negligence under the express remedies to be brought instead under 10(b), "thereby nullify[ing] the effectiveness of the carefully drawn procedural restrictions on these express actions." In reasoning that scienter should be required in 10(b) actions in order to avoid circumvention of the procedural restrictions surrounding the express remedies, we necessarily assumed that the express remedies were not exclusive. Otherwise there would have been no danger of nullification. Conversely, because the added burden of proving scienter attaches to suits under 10(b), invocation of the 10(b) remedy will not "nullify" the procedural restrictions that apply to the express remedies.[19] This cumulative construction of the remedies under the 1933 and 1934 Acts is also supported by the fact that, when Congress comprehensively revised the securities laws in 1975, a consistent line of judicial decisions had permitted plaintiffs to sue under 10(b) regardless of the availability of express remedies. In 1975 Congress enacted the "most substantial and significant revision of this country's Federal securities laws since the passage of the Securities Exchange *385 Act in 1934."[20] See Securities Acts Amendments of 1975, Stat. 97. When Congress acted, federal courts had consistently and routinely permitted a plaintiff to proceed under 10(b) even where express remedies under 11 or other provisions were available.[21] In light of this *386 well-established judicial interpretation, Congress' decision to leave 10(b) intact suggests that Congress ratified the cumulative nature of the 10(b) action. See Merrill Lynch, Pierce, Fenner & Smith, ; A cumulative construction of the securities laws also furthers their broad remedial purposes. In enacting the 1934 Act, Congress stated that its purpose was "to impose requirements necessary to make [securities] regulation and control reasonably complete and effective." 15 U.S. C. 78b. In furtherance of that objective, 10(b) makes it unlawful to use
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furtherance of that objective, 10(b) makes it unlawful to use "any manipulative or deceptive device or contrivance" in connection with the purchase or sale of any security. The effectiveness of the broad proscription against fraud in 10(b) would be undermined if its scope were restricted by the existence of an express remedy under 11.[22] Yet we have repeatedly recognized that securities laws combating fraud should be construed "not technically and *387 restrictively, but flexibly to effectuate [their] remedial purposes." Accord, Superintendent of ; Affiliated Ute 406 U.S. 8, We therefore reject an interpretation of the securities laws that displaces an action under 10(b).[23] Accordingly, we hold that the availability of an express remedy under 11 of the 1933 Act does not preclude defrauded purchasers of registered securities from maintaining an action under 10(b) of the 1934 Act. To this extent the judgment of the Court of Appeals is affirmed. III In a typical civil suit for money damages, plaintiffs must prove their case by a preponderance of the evidence.[24] Similarly, in an action by the to establish fraud under 17(a) of the 1933 Act, 15 U.S. C. 77q(a), we have held that proof by a preponderance of the evidence suffices to establish liability. "Where proof is offered in a civil action, as here, a preponderance of the evidence will establish the case" *388 The same standard applies in administrative proceedings before the [25] and has been consistently employed by the lower courts in private actions under the securities laws.[26] The Court of Appeals nonetheless held that plaintiffs in a 10(b) suit must establish their case by clear and convincing evidence. The Court of Appeals relied primarily on the traditional use of a higher burden of proof in civil fraud actions at common 640 F.2d, Reference to common-law practices can be misleading, however, since the historical considerations underlying the imposition of a higher standard of proof have questionable pertinence here.[27] See Blue Chip Moreover, the antifraud provisions of the securities laws are not coextensive with *389 common-law doctrines of fraud.[28] Indeed, an important purpose of the federal securities statutes was to rectify perceived deficiencies in the available common-law protections by establishing higher standards of conduct in the securities industry. See We therefore find reference to the common law in this instance unavailing. Where Congress has not prescribed the appropriate standard of proof and the Constitution does not dictate a particular standard, we must prescribe one. See See generally Blue Chip (private cause of action under 10(b) and Rule 10b-5 must be judicially delimited until Congress acts). In doing so, we are
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judicially delimited until Congress acts). In doing so, we are mindful that a standard of proof "serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision." See also In re Winship, Thus, we have required proof by clear and convincing evidence where particularly important individual interests or rights are at stake. See, e. g., ; ;[29] By contrast, imposition of even severe civil sanctions that do not implicate such interests has been permitted after proof by a *390 preponderance of the evidence. See, e. g., United Thus, in interpreting a statutory provision in we upheld use of the preponderance standard in administrative proceedings concerning alleged violations of the antifraud provisions. The sanctions imposed in the proceedings included an order permanently barring an individual from practicing his profession. And in 320 U. S., at we held that a preponderance of the evidence suffices to establish fraud under 17(a) of the 1933 Act. A preponderance-of-the-evidence standard allows both parties to "share the risk of error in roughly equal fashion." at Any other standard expresses a preference for one side's interests. The balance of interests in this case warrants use of the preponderance standard. On the one hand, the defendants face the risk of opprobrium that may result from a finding of fraudulent conduct, but this risk is identical to that in an action under 17(a), which is governed by the preponderance-of-the-evidence standard. The interests of defendants in a securities case do not differ qualitatively from the interests of defendants sued for violations of other federal statutes such as the antitrust or civil rights laws, for which proof by a preponderance of the evidence suffices. On the other hand, the interests of plaintiffs in such suits are significant. Defrauded investors are among the very individuals Congress sought to protect in the securities laws. If they prove that it is more likely than not that they were defrauded, they should recover. We therefore decline to depart from the preponderance-of-the-evidence standard generally applicable in civil actions.[30]*391 Accordingly, the Court of Appeals' decision as to the appropriate standard of proof is reversed. IV The judgment of the Court of Appeals is affirmed in part and reversed in part, and the cases are otherwise remanded for proceedings consistent with this opinion. It is so ordered. JUSTICE POWELL took no part in the decision of these cases.
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Reno v. Bossier Parish School Bd.
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https://www.courtlistener.com/opinion/118334/reno-v-bossier-parish-school-bd/
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These cases present the question whether 5 of the Voting Rights Act of 1965, as amended, 42 U.S. C. *323 1973c, prohibits preclearance of a redistricting plan enacted with a discriminatory but nonretrogressive purpose. This is the second time the present cases are before us, and we thus recite the facts and procedural history only in brief. Like every other political subdivision of the State of Louisiana, Bossier Parish, because of its history of discriminatory voting practices, is a jurisdiction covered by 5 of the Voting Rights Act. See 42 U.S. C. 1973c, 1973b(a), (b); (1965). t is therefore prohibited from enacting any change in a "voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting," without first obtaining either administrative preclearance from the Attorney General or judicial preclearance from the United States District Court for the District of Columbia. 42 U.S. C. 1973c. Bossier Parish is governed by a 12-member Police Jury elected from single-member districts for 4-year terms. n the early 1990's, the Police Jury set out to redraw its electoral districts in order to account for demographic changes reflected in the decennial census. n 1991, it adopted a redistricting plan which, like the plan then in effect, contained no majority-black districts, although blacks made up approximately 20% of the parish's population. On May 28, 1991, the Police Jury submitted its new districting plan to the Attorney General; two months later, the Attorney General granted preclearance. The Bossier Parish School Board (Board) is constituted in the same fashion as the Police Jury, and it too undertook to redraw its districts after the 1990 census. During the course of that redistricting, appellant-intervenor George Price, president of the local chapter of the National Association for the Advancement of Colored People (NAACP), proposed that the Board adopt a plan with majority-black districts. n the fall of 1992, amid some controversy, the *324 Board rejected Price's suggestion and adopted the Police Jury's 1991 redistricting plan as its own. On January 4, 1993, the Board submitted its redistricting plan to the Attorney General for preclearance. Although the Attorney General had precleared the identical plan when submitted by the Police Jury, she interposed a formal objection to the Board's plan, asserting that "new information"specifically, the NAACP plan proposed by appellantintervenor Pricedemonstrated that "black residents are sufficiently numerous and geographically compact so as to constitute a majority in two single-member districts." App. to Juris. Statement in No. 98-405, p. 235a. The Attorney General disclaimed any attempt to compel the Board to "adopt any particular plan," but maintained that the Board
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to "adopt any particular plan," but maintained that the Board was "not free to adopt a plan that unnecessarily limits the opportunity for minority voters to elect their candidates of choice." After the Attorney General denied the Board's request for reconsideration, the Board filed the present action for judicial preclearance of the 1992 plan in the United States District Court for the District of Columbia. Section 5 of the Voting Rights Act authorizes preclearance of a proposed voting change that "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color." 42 U.S. C. 1973c. Before the District Court, appellants conceded that the Board's plan did not have a prohibited "effect" under 5, since it did not worsen the position of minority voters. we held that a plan has a prohibited "effect" only if it is retrogressive.) nstead, appellants made two distinct claims. First, they argued that preclearance should be denied because the Board's plan, by not creating as many majority-black districts as it should create, violated 2 of the Voting Rights Act, which bars discriminatory voting practices. Second, they contended that, *325 although the Board's plan would have no retrogressive effect, it nonetheless violated 5 because it was enacted for a discriminatory "purpose." The District Court granted preclearance. Bossier Parish School As to the first of appellants' two claims, the District Court held that it could not deny preclearance of a proposed voting change under 5 simply because the change violated 2. Moreover, in order to prevent the Government "[from doing] indirectly what it cannot do directly," the District Court stated that it would "not permit section 2 evidence to prove discriminatory purpose under section 5." As to the second of appellants' claims, the District Court concluded that the Board had borne its burden of proving that the 1992 plan was adopted for two legitimate, nondiscriminatory purposes: to assure prompt preclearance (since the identical plan had been precleared for the Police Jury), and to enable easy implementation (since the adopted plan, unlike the NAACP's proposed plan, required no redrawing of precinct lines). Appellants filed jurisdictional statements in this Court, and we noted probable jurisdiction. On appeal, we agreed with the District Court that a proposed voting change cannot be denied preclearance simply because it violates 2, but disagreed with the proposition that all evidence of a dilutive (but nonretrogressive) effect forbidden by 2 was irrelevant to whether the Board enacted the plan with a retrogressive purpose forbidden by 5. Since some language in the District
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purpose forbidden by 5. Since some language in the District Court's opinion left us uncertain whether the court had in fact applied that proposition in its decision, we vacated and remanded for further proceedings as to the Board's purpose in adopting the 1992 plan. n light of our disposition, we left open the additional question "whether *326 the 5 purpose inquiry ever extends beyond the search for retrogressive " "The existence of such a purpose," we said, "and its relevance to 5, are issues to be decided on remand." On remand, the District Court, in a comparatively brief opinion relying on, but clarifying, its extensive earlier opinion, again granted preclearance. First, in response to our invitation to address the existence of a discriminatory but nonretrogressive purpose, the District Court summarily concluded that "the record will not support a conclusion that extends beyond the presence or absence of retrogressive " t noted that one could "imagine a set of facts that would establish a `nonretrogressive, but nevertheless discriminatory, purpose,' but those imagined facts are not present here." The District Court therefore left open the question that we had ourselves left open on remand: namely, whether the 5 purpose inquiry extends beyond the search for retrogressive Second, the District Court considered, at greater length, how any dilutive impact of the Board's plan bore on the question whether the Board enacted the plan with a retrogressive t concluded, applying the multifactor test we articulated in Arlington that allegations of dilutive effect and of discriminatory animus were insufficient to establish retrogressive 7 F. Supp. 2d, -32. n their jurisdictional statements in this Court, appellants contended, first, that the District Court's conclusion that there was no evidence of discriminatory but nonretrogressive purpose was clearly erroneous, and second, that 5 of the Voting Rights Act prohibits preclearance of a redistricting plan enacted with a discriminatory but nonretrogressive purpose. Appellants did not challenge the District Court's determination that there was no evidence of retrogressive We again noted probable jurisdiction. *327 Before proceeding to the merits, we must dispose of a challenge to our jurisdiction. The Board contends that these cases are now moot, since its 1992 plan "will never again be used for any purpose." Motion to Dismiss or Affirm 9. Under Louisiana law, school board members are elected to serve 4-year terms. La. Rev. Stat. Ann. 17:52(A) One month after appellants filed the jurisdictional statements for this appeal, the scheduled election for the Board took place. The next scheduled election will not occur until 2002, by which time, as appellants concede, the data from the upcoming
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Reno v. Bossier Parish School Bd.
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which time, as appellants concede, the data from the upcoming decennial census will be available and the Board will be required by our "one-man-one-vote" precedents to have a new apportionment plan in place. Accordingly, appellee argues, the District Court's declaratory judgment with respect to the 1992 plan is no longer of any moment and the dispute no longer presents a live "case or controversy" for purposes of Article of the Constitution. ; Appellants posit several contingencies in which the Board's 1992 plan would be put to useincluding resignation or death of one of the 12 Board members before 2002, and failure to agree upon a replacement plan for the 2002 election. They also assert that, if we were to hold preclearance improper, they "could seek" an injunction voiding the elections held under the 1992 plan and ordering a special election, Brief for Appellants Price et al. Opposing Motion to Dismiss or Affirm 3, and "might be entitled" to such an injunction, Brief for Appellant Reno in Opposition to Motion to Dismiss or Affirm 2. We need not pause to consider whether the possibility of these somewhat speculative and uncertain events suffices to keep these cases alive, since in at least one respect the 1992 plan will have probable continuing effect: Absent a successful subsequent challenge under 2, it, rather than the 1980 predecessor planwhich contains quite *328 different voting districtswill serve as the baseline against which appellee's next voting plan will be evaluated for the purposes of preclearance. Whether (and precisely how) that future plan represents a change from the baseline, and, if so, whether it is retrogressive in effect, will depend on whether preclearance of the 1992 plan was proper. We turn, then, to the merits. Appellants press the two claims initially raised in their jurisdictional statements: first, that the District Court's factual conclusion that there was no evidence of discriminatory but nonretrogressive intent was clearly erroneous, and second, that 5 of the Voting Rights Act prohibits preclearance of a redistricting plan enacted with a discriminatory but nonretrogressive purpose. Our resolution of the second claim renders it unnecessary to address the first. When considered in light of our longstanding interpretation of the "effect" prong of 5 in its application to vote-dilution claims, the language of 5 leads to the conclusion that the "purpose" prong of 5 covers only retrogressive dilution. As noted earlier, in order to obtain preclearance under 5, a covered jurisdiction must demonstrate that the proposed change "does not have the purpose and will not have the effect of denying or abridging the right to vote on
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effect of denying or abridging the right to vote on account of race or color." 42 U.S. C. 1973c. A covered jurisdiction, therefore, must make two distinct showings: first, that the proposed change "does not have the purpose of denying or abridging the right to vote on account of race or color," and second, that the proposed change "will not have the effect of denying or abridging the right to vote on account of race or color." The covered jurisdiction bears the burden of persuasion on both points. See Bossier Parish ; 28 CFR 51.52(a) *329 n this Court addressed the meaning of the no-effect requirement in the context of an allegation of vote dilution. The case presented the question whether a reapportionment plan that would have a discriminatory but nonretrogressive effect on the rights of black voters should be denied preclearance. Reasoning that 5 must be read in light of its purpose of "insur[ing] that no voting-procedure changes would be made that would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise," we held that "a legislative reapportionment that enhances the position of racial minorities with respect to their effective exercise of the electoral franchise can hardly have the `effect' of diluting or abridging the right to vote on account of race within the meaning of 5." n other words, we concluded that, in the context of a 5 challenge, the phrase "denying or abridging the right to vote on account of race or color"or more specifically, in the context of a vote-dilution claim, the phrase "abridging the right to vote on account of race or color"limited the term it qualified, "effect," to retrogressive effects. Appellants contend that in qualifying the term "purpose," the very same phrase does not impose a limitation to retrogressioni. e., that the phrase "abridging the right to vote on account of race or color" means retrogression when it modifies "effect," but means discrimination more generally when it modifies "purpose." We think this is simply an untenable construction of the text, in effect recasting the phrase "does not have the purpose and will not have the effect of x " to read "does not have the purpose of y and will not have the effect of x. " As we have in the past, we refuse to adopt a construction that would attribute different meanings to the same phrase in the same sentence, depending on which object it is modifying. See Bank America Appellants point out that we did give the purpose prong of
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point out that we did give the purpose prong of 5 a broader meaning than the effect prong in That case involved requested preclearance for a proposed annexation that would have reduced the black population of the city of Richmond, Virginia, from 52% to 42%. We concluded that, although the annexation may have had the effect of creating a political unit with a lower percentage of blacks, so long as it "fairly reflect[ed] the strength of the Negro community as it exist[ed] after the annexation" it did not violate 5. We reasoned that this interpretation of the effect prong of 5 was justified by the peculiar circumstances presented in annexation cases: "To hold otherwise would be either to forbid all such annexations or to require, as the price for approval of the annexation, that the black community be assigned the same proportion of council seats as before, hence perhaps permanently over representing them and underrepresenting other elements in the community, including the nonblack citizens in the annexed area. We are unwilling to hold that Congress intended either consequence in enacting 5." We refused, however, to impose a similar limitation on 5's purpose prong, stating that preclearance could be denied when the jurisdiction was acting with the purpose of effecting a percentage reduction in the black population, even though it could not be denied when the jurisdiction's action merely had that effect. t must be acknowledged that Richmond created a discontinuity between the effect and purpose prongs of 5. We regard that, however, as nothing more than an ex necessitate limitation upon the effect prong in the particular context of annexationto avoid the invalidation of all annexations of *331 areas with a lower proportion of minority voters than the annexing unit. The case certainly does not stand for the proposition that the purpose and effect prongs have fundamentally different meaningsthe latter requiring retrogression, and the former notwhich is what is urged here. The approved effect of the redistricting in Richmond, and the hypothetically disapproved purpose, were both retrogressive. We found it necessary to make an exception to normal retrogressive-effect principles, but not to normal retrogressive-purpose principles, in order to permit routine annexation. That sheds little light upon the issue before us here. Appellants' only textual justification for giving the purpose and effect prongs different meanings is that to do otherwise "would reduce the purpose prong of Section 5 to a trivial matter," Brief for Federal Appellant on Reargument 13; would "effectively delet[e] the `purpose' prong," Reply Brief for Appellants Price et al. on Reargument 3; and would give the purpose prong
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al. on Reargument 3; and would give the purpose prong "a trivial reach, limited to the case of the incompetent retrogressor," Reply Brief for Federal Appellant 9. f this were trueand if it were adequate to justify giving the very same words a different meaning when qualifying "purpose" than when qualifying "effect"one would expect appellants to cite at least some instances in which this Court applied such muscular construction to the innumerable statutes barring conduct with a particular "purpose or effect." See, e. g., 7 U.S. C. 192(d) (prohibiting sale of any article "for the purpose or with the effect of manipulating or controlling prices" in the meat packing industry); 12 U.S. C. 1467a(c)(1)(A) (barring savings and loan holding companies from engaging in any activity on behalf of a savings association subsidiary "for the purpose or with the effect of evading any law or regulation applicable to such savings association"); 47 U.S. C. 541(b)(3)(B) (1994 ed., Supp. ) (prohibiting cable franchising authorities from imposing any requirement that "has *332 the purpose or effect of prohibiting, limiting, restricting, or conditioning the provision of a telecommunications service by a cable operator or an affiliate thereof"). They cite not a single one, and we are aware of none. t is true enough that, whenever Congress enacts a statute that bars conduct having "the purpose or effect of x, " the purpose prong has application entirely separate from that of the effect prong only with regard to unlikely conduct that has "the purpose of x " but fails to have "the effect of x " in the present context, the conduct of a so-called "incompetent retrogressor." The purpose prong has value and effect, however, even when it does not cover additional conduct. With regard to conduct that has both "the purpose of x " and "the effect of x, " the Government need only prove that the conduct at issue has "the purpose of x " in order to prevail. n the specific context of 5, where the covered jurisdiction has the burden of persuasion, the Government need only refute the covered jurisdiction's prima facie showing that a proposed voting change does not have a retrogressive purpose in order for preclearance to be denied. When it can do so, it is spared the necessity of countering the jurisdiction's evidence regarding actual retrogressive effectwhich, in vote-dilution cases, is often a complex undertaking. This advantage, plus the ability to reach malevolent incompetence, may not represent a massive addition to the effect prong, but it is enough to justify the separate existence of the purpose prong in
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to justify the separate existence of the purpose prong in this statute, and is no less than what justifies the separate existence of such a provision in many other laws.[1] *333 At bottom, appellants' disagreement with our reading of 5 rests not upon textual analysis, but upon their opposition to our holding in Although they do not explicitly contend that should be overruled, they all but do so by arguing that it would be "untenable" to conclude (as we did in ) that the phrase "abridging the right to vote on account of race or color" refers only to retrogression in 5, Reply Brief for Federal Appellant on Reargument 1, in light of the fact that virtually identical language elsewhere in the Voting Rights Actand indeed, in the Fifteenth Amendmenthas never been read to refer only to retrogression. See 2(a) of the Voting Rights Act, 42 U.S. C. 1973(a) ("No voting [practice] shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color"); U. S. Const., Amdt. 15, 1 ("The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude").[2] The term "abridge," howeverwhose *334 core meaning is "shorten," see Webster's New nternational Dictionary 7 (2d ed. 1950); American Heritage Dictionary 6 (3d ed. 1992)necessarily entails a comparison. t makes no sense to suggest that a voting practice "abridges" the right to vote without some baseline with which to compare the practice. n 5 preclearance proceedingswhich uniquely deal only and specifically with changes in voting proceduresthe baseline is the status quo that is proposed to be changed: f the change "abridges the right to vote" relative to the status quo, preclearance is denied, and the status quo (however discriminatory it may be) remains in effect. n 2 or Fifteenth Amendment proceedings, by contrast, which involve not only changes but (much more commonly) the status quo itself, the comparison must be made with a hypothetical alternative: f the status quo "results in [an] abridgement of the right to vote" or "abridge[s] [the right to vote]" relative to what the right to vote ought to be, the status quo itself must be changed. Our reading of "abridging" as referring only to retrogression in 5, but to discrimination more generally in 2 and the Fifteenth Amendment, is faithful to the differing contexts
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and the Fifteenth Amendment, is faithful to the differing contexts in which the term is used.[3] *335 n another argument that applies equally to our holding in appellants object that our reading of 5 would require the District Court or Attorney General to preclear proposed voting changes with a discriminatory effect or purpose, or even with both. That strikes appellants as an inconceivable prospect only because they refuse to accept the limited meaning that we have said preclearance has in the vote-dilution context. t does not represent approval of the voting change; it is nothing more than a determination that the voting change is no more dilutive than what it replaces, and therefore cannot be stopped in advance under the extraordinary burden-shifting procedures of 5, but must be attacked through the normal means of a 2 action. As we have repeatedly noted, in vote-dilution cases 5 prevents nothing but backsliding, and preclearance under 5 affirms nothing but the absence of backsliding. Bossier Parish ; ; 425 U. S.,[4] This explains why the *336 sole consequence of failing to obtain preclearance is continuation of the status quo. To deny preclearance to a plan that is not retrogressiveno matter how unconstitutional it may be would risk leaving in effect a status quo that is even worse. For example, in the case of a voting change with a discriminatory but nonretrogressive purpose and a discriminatory but ameliorative effect, the result of denying preclearance would be to preserve a status quo with more discriminatory effect than the proposed change. n sum, by suggesting that 5 extends to discriminatory but nonretrogressive vote-dilutive purposes, appellants ask us to do what we declined to do in Bossier Parish : to blur the distinction between 2 and 5 by "shift[ing] the focus of 5 from nonretrogression to vote dilution, and chang[ing] the 5 benchmark from a jurisdiction's existing plan to a hypothetical, undiluted plan." Such a reading would also exacerbate the "substantial" federalism costs that the preclearance procedure already exacts, perhaps to the extent of raising concerns about 5's constitutionality, see at -927. Most importantly, however, in light of our holding in appellants' reading finds no support in the language of 5.[5] *337 V Notwithstanding the fact that Bossier Parish explicitly "le[ft] open for another day" the question whether 5 extends to discriminatory but nonretrogressive intent, see 520 U.S., appellants contend that two of this Court's prior decisions have already reached the conclusion that it does. First, appellants note that, in this Court stated that "an ameliorative new legislative apportionment cannot violate 5 unless the new apportionment itself
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Reno v. Bossier Parish School Bd.
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https://www.courtlistener.com/opinion/118334/reno-v-bossier-parish-school-bd/
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legislative apportionment cannot violate 5 unless the new apportionment itself so discriminates on the basis of race or color as to violate the Constitution." 425 U.S., Appellants contend that this suggests that, at least in some cases in which the covered jurisdiction acts with a discriminatory but nonretrogressive dilutive purpose, the covered jurisdiction should be denied preclearance because it is acting unconstitutionally. We think that a most implausible interpretation. At the time was decided, it had not been established that discriminatory purpose as well as discriminatory effect was necessary for a constitutional violation, compare with f the statement in had meant what appellants suggest, it would either have been anticipating (without argument) that later holding, or else would have been gutting `s holding (since a showing of discriminatory but nonretrogressive effect would have been a constitutional violation and would, despite the holding of have sufficed to deny preclearance). A much more plausible explanation of the statement is that it referred to a constitutional violation other than vote dilutionand, *338 more specifically, a violation consisting of a "denial" of the right to vote, rather than an "abridgement." Although in the context of denial claims, no less than in the context of abridgment claims, the antibacksliding rationale for 5 (and its effect of avoiding preservation of an even worse status quo) suggests that retrogression should again be the criterion, arguably in that context the word "deny" (unlike the word "abridge") does not import a comparison with the status quo.[6] n any event, it is entirely clear that the statement in was pure dictum: The Government had made no contention that the proposed reapportionment at issue was n. 14. And though we have quoted the dictum in subsequent cases, we have never actually applied it to deny preclearance. See Bossier Parish ; (Shaw ); We have made clear, on the other hand, what we reaffirm today: that proceedings to preclear apportionment schemes and proceedings to consider the constitutionality of apportionment schemes are entirely distinct. "Although the Court concluded that the redistricting scheme at issue in was nonretrogressive, it *339 did not hold that the plan, for that reason, was immune from constitutional challenge. ndeed, the Voting Rights Act and our case law make clear that a reapportionment plan that satisfies 5 still may be enjoined as " (Shaw ) (emphasis added). See also City of (describing the holding of as follows: "Although the new plan may have remained discriminatory, it nevertheless was not a regressive change. Since the new plan did not increase the degree of discrimination against blacks, it was entitled to
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Justice Scalia
| 2,000 | 9 |
majority
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Reno v. Bossier Parish School Bd.
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https://www.courtlistener.com/opinion/118334/reno-v-bossier-parish-school-bd/
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the degree of discrimination against blacks, it was entitled to 5 preclearance"); ("Once the State has successfully complied with the 5 approval requirements, private parties may enjoin the enforcement of the new enactment only in traditional suits attacking its constitutionality"). As we noted in Shaw 5 explicitly states that neither administrative nor judicial preclearance "`shall bar a subsequent action to enjoin enforcement' of [a change in voting practice]." 509 U.S., at (quoting 42 U.S. C. 1973c). That fully available remedy leaves us untroubled by the possibility that 5 could produce preclearance of an unconstitutionally dilutive redistricting plan. Second, appellants contend that we denied preclearance on the basis of a discriminatory but nonretrogressive purpose in Pleasant That case involved an unusual fact pattern. The city of Pleasant Grove, Alabamawhich, at the time of the District Court's decision, had 32 black inhabitants, none of whom was registered to vote and of whose existence city officials appear to have been unaware, n. 2 sought to annex two parcels of land, one inhabited by a few whites, and the other vacant but likely to be inhabited by whites in the near future. We upheld the District Court's conclusion that the city acted with a discriminatory purpose in annexing the land, rejecting the city's contention *340 that it could not have done so because it was unaware of the existence of any black voters against whom it could have intended to discriminate: "[The city's] argument is based on the incorrect assumption that an impermissible purpose under 5 can relate only to present circumstances. Section 5 looks not only to the present effects of changes, but to their future effects as well Likewise, an impermissible purpose under 5 may relate to anticipated as well as present circumstances. "t is quite plausible to see [the annexation] as motivated, in part, by the impermissible purpose of minimizing future black voting strength. This is just as impermissible a purpose as the dilution of present black voting strength." Appellants assert that we must have viewed the city's purpose as discriminatory but nonretrogressive because, as the city noted in contending that it lacked even a discriminatory purpose, the city could not have been acting to worsen the voting strength of any present black residents, since there were no black voters at the time. However, as the above quoted passage suggests, we did not hold that the purpose prong of 5 extends beyond retrogression, but rather held that a jurisdiction with no minority voters can have a retrogressive purpose, at the present time, by intending to worsen the voting strength of future
|
Justice Stevens
| 1,989 | 16 |
concurring
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Brower v. County of Inyo
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https://www.courtlistener.com/opinion/112218/brower-v-county-of-inyo/
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The Court is unquestionably correct in concluding that respondents' use of a roadblock to stop Brower's car constituted a seizure within the meaning of the Fourth Amendment. I therefore concur in its judgment. I do not, however, join its opinion because its dicta seem designed to decide a number of cases not before the Court and to establish the proposition that "[v]iolation of the Fourth Amendment requires an intentional acquisition of physical control." Ante, at 596. The intentional acquisition of physical control of something is no doubt a characteristic of the typical seizure, but I am not entirely sure that it is an essential element of every seizure or that this formulation is particularly helpful in deciding close cases. The Court suggests that the test it articulates does not turn on the subjective intent of the officer. Ante, at 598. This, of course, not only comports with the recent trend in our cases, see, e. g., ; United but also makes perfect sense. No one would suggest that the Fourth Amendment provides no protection against a police officer who is too drunk to act intentionally, yet who appears in uniform brandishing a weapon in a threatening manner. Alternatively, however, the concept of objective intent, at least in the vast majority of cases, adds little to the well-established rule that "a person has been `seized' within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave." at 554 *601 ; see also There may be a case that someday comes before this Court in which the concept of intent is useful in applying the Fourth Amendment. What is extraordinary about the Court's discussion of the intent requirement in this case is that there is no dispute that the roadblock was intended to stop the decedent. Decision in the case before us is thus not advanced by pursuing a hypothetical inquiry concerning whether an unintentional act might also violate the Fourth Amendment. Rather, as explained in Judge Pregerson's dissent in the Court of Appeals, this case is plainly controlled by our decision in In that case, we held that "there can be no question that apprehension by the use of deadly force is a seizure subject to the reasonableness requirement of the Fourth Amendment." Because it was undisputed that the police officer acted intentionally, we did not discuss the hypothetical case of an unintentional seizure. I would exercise the same restraint here. I am in full accord with Judge Pregerson's dissenting
|
Justice Gorsuch
| 2,019 | 7 |
dissenting
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BNSF R. Co. v. Loos
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https://www.courtlistener.com/opinion/4595944/bnsf-r-co-v-loos/
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BNSF Railway’s negligence caused one of its employees a serious injury. After a trial, a court ordered the company to pay damages. But instead of sending the full amount to the employee, BNSF asserted that it had to divert a portion to the Internal Revenue Service. Why? BNSF said the money represented taxable “compensation” for “services rendered as an employee.” 26 U.S. C. Today, the Court agrees with the company. Respectfully, I do not. When an employee suffers a physical injury due to his employer’s negligence and has to sue in court to recover damages, it seems more natural to me to describe the final judgment as compensation for his injury than for services (never) rendered. The Court does not lay out the facts of the case, but they are relevant to my analysis and straightforward enough. Years ago, Michael Loos was working for BNSF in a train yard when he fell into a hidden drainage grate and injured his knee. He missed work for many months, and upon his return he had a series of absences, many of which he attributed to knee-injury flareups. When the company moved to fire him for allegedly violating its attendance policies, Mr. Loos sued. Among other things, Mr. Loos sought damages for BNSF’s negligence in maintaining the 2 BNSF R. CO. v. LOOS GORSUCH, J., dissenting train yard. He brought his claim under the Federal Employers’ Liability Act (FELA), an analogue to traditional state-law tort suits that makes an interstate railroad “liable in damages to any person suffering injury while he is employed” by the railroad “for such injury resulting in whole or in part from the [railroad’s] negligence.” 45 U.S. C. Ultimately, and again much like in any other tort suit, the jury awarded damages in three categories: $85,000 in pain and suffering, $11,212.78 in medical expenses, and $30,000 in lost wages—the final category representing the amount Mr. Loos was unable to earn because of the injury BNSF’s negligence caused. Then a strange thing happened. BNSF argued that the lost wages portion of Mr. Loos’s judgment represented “compensation” to him “for services rendered as an employee” and was thus taxable income under the Railroad Retirement Tax Act (RRTA). 26 U.S. C. et seq. In much the same way the Social Security Act taxes other citizens’ incomes to fund their retirement benefits, the RRTA taxes railroad employees’ earnings to pay for their public pensions. And BNSF took the view that, because Mr. Loos owed the IRS taxes on the lost wages portion of his judgment, it had to withhold an appropriate sum and
|
Justice Gorsuch
| 2,019 | 7 |
dissenting
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BNSF R. Co. v. Loos
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https://www.courtlistener.com/opinion/4595944/bnsf-r-co-v-loos/
|
his judgment, it had to withhold an appropriate sum and redirect it to the government. The company took this position even though it meant BNSF would owe corresponding excise taxes. See 26 U.S. C. It took this position, too, even though no one has identified for us a single case where the IRS has sought to collect RRTA taxes on a FELA judgment in the 80 years the two statutes have coexisted. The company even persisted in its view after, first, the district court and, then, the Eighth Circuit ruled that Mr. Loos’s award wasn’t subject to RRTA taxes. Even after all that, BNSF went to the trouble of seeking review in this Court to win the right to pay the IRS. What’s the reason for BNSF’s tireless campaign? Is the Cite as: 586 U. S. (2019) 3 GORSUCH, J., dissenting company really moved by a selfless desire to protect a federal program from “a long-term risk of insolvency”? See ante, at 5, n. 2. Several amici offer a more prosaic possibility. Under the rule BNSF seeks and wins today, RRTA taxes will be due on (but only on) the portion of a FELA settlement or judgment designated as lost wages. Taxes will not attach to other amounts attributed to, say, pain and suffering or medical costs. At trial, of course, a plaintiff ’s damages are what they are, and often juries will attribute a significant portion of damages to lost wages. But with the help of the asymmetric tax treatment they secure today, railroads like BSNF can now sweeten their settlement offers while offering less money. Forgo trial and accept a lower settlement, they will tell injured workers, and in return we will designate a small fraction (maybe even none) of the payments as taxable lost wages. In this way, the Court’s decision today may do precisely nothing to increase the government’s tax collections or protect the solvency of any federal program. Instead, it may only mean that employees will pay a tax for going to trial—and railroads will succeed in buying cheaper settlements in the future at the bargain basement price of a few thousand dollars in excise taxes in one case today. See Brief for American Association for Justice as Amicus Curiae 34–36; Brief for SMART et al. as Amici Curiae 5–7. Whatever the reason for BNSF’s gambit, the problems with it start for me at the first step of the statutory interpretation analysis—with the text of the law itself. The RRTA taxes an employee’s “compensation,” which it defines as “money remuneration for services rendered as an
|
Justice Gorsuch
| 2,019 | 7 |
dissenting
|
BNSF R. Co. v. Loos
|
https://www.courtlistener.com/opinion/4595944/bnsf-r-co-v-loos/
|
it defines as “money remuneration for services rendered as an employee to one or more employers.” 26 U.S. C. A “service” refers to “duty or labor by one person bound to submit his will to the direction and control of [another].” Black’s Law Dictionary 1607 (3d ed. 1933). And “remuneration” means “a quid pro quo,” “rec- ompense” or “reward” for such services. So 4 BNSF R. CO. v. LOOS GORSUCH, J., dissenting the words “remuneration for services rendered” naturally cover things like an employee’s salary or hourly wage. Nor do they stop there, as the Court correctly notes. Rather, and contrary to the court of appeals’ view, those words also fairly encompass benefits like sick or disability pay. After all, an employer offers those benefits to attract and keep employees working on its behalf. In that way, these benefits form part of the “quid pro quo” (compensa- tion) the employer pays to secure the “duty or labor” (ser- vices) the employee renders. Cf. United But damages for negligence are different. No one would describe a dangerous fall or the wrenching of a knee as a “service rendered” to the party who negligently caused the accident. BNSF hardly directed Mr. Loos to fall or offered to pay him for doing so. In fact, BNSF didn’t even pay Mr. Loos voluntarily; he had to wrest a judgment from the railroad at the end of a legal battle. So Mr. Loos’s FELA judgment seems to me, as it did to every judge in the proceedings below, unconnected to any service Mr. Loos rendered to BNSF. Instead of being “compensation” for “services rendered as an employee,” it seems more natural to say that the negligence damages BNSF paid are “com- pensation” to Mr. Loos for his injury. That’s exactly how we usually understand tort damages—as “compensation” for an “injury” caused by “the unlawful act or omission or negligence of another.” Black’s Law Dictionary 314 (2d ed. 1910). And that’s exactly how FELA describes the damages it provides—stating that it renders a railroad “liable” not for services rendered but for any “injury” caused by the defendant’s “negligence.” 45 U.S. C. see also New York Central R. (Brandeis, J., dissenting) (FELA liability is “a penalty for wrong doing,” a “remedy” that “mak[es] the wrongdoer indemnify him whom he has wronged”). Of course, BNSF isn’t without a reply. Time and again Cite as: 586 U. S. (2019) 5 GORSUCH, J., dissenting it highlights the fact that the district court measured the lost wages portion of Mr. Loos’s award by reference to what he could have earned but
|
Justice Gorsuch
| 2,019 | 7 |
dissenting
|
BNSF R. Co. v. Loos
|
https://www.courtlistener.com/opinion/4595944/bnsf-r-co-v-loos/
|
award by reference to what he could have earned but for his injury. But if BNSF’s negligence had injured a passenger on a train instead of an employee in a train yard, a jury could have measured the passenger’s tort damages in exactly the same way, taking account of the wages she could have earned from her own employer but for the railroad’s negli- gence. Vicksburg & Meridian R. Co. v. Putnam, 118 U.S. 545, 554 (1886). In those circumstances, I doubt any of us would say the passenger’s damages award represented compensation for “services rendered” to her employer rather than compensation for her injury. And I don’t see why we would reach a different result here simply because the victim of BNSF’s negligence happened to be one of its own workers. Of course, as the Court points out, ante, at 11, n. 5, FELA suits may be brought only by railroad employees against their employers. But in cases like ours a FELA suit simply serves in the interstate railroad in- dustry as a federalized substitute for a traditional state negligence tort claim of the sort that could be brought by anyone the railroad injured, employee or not. Inescapably, “the basis of liability under [FELA] is and remains negli- gence.” (Douglas, J., concurring). Looking beyond the statute’s text to its history only compounds BNSF’s problems. To be clear, the statutory history I have in mind here isn’t the sort of unenacted legislative history that often is neither truly legislative (having failed to survive bicameralism and presentment) nor truly historical (consisting of advocacy aimed at win- ning in future litigation what couldn’t be won in past statutes). Instead, I mean here the record of enacted changes Congress made to the relevant statutory text over time, the sort of textual evidence everyone agrees can sometimes shed light on meaning. See United States v. 6 BNSF R. 1 U.S. 649, The RRTA’s statutory history is long and instructive. Beginning in 1937, the statute defined taxable “compensa- tion” to include remuneration “for services rendered,” but with the further instruction that this included compensa- tion “for time lost.” Carriers Taxing Act of 1937, 50 Stat. 436. Courts applying the RRTA’s sister statute, the Railroad Retirement Act (RRA), understood this language to capture settlement payments for personal injury claims that would not otherwise qualify as “remuneration for services rendered.” See, e.g., ; Congress itself seemed to agree, explaining in 1946 that remuneration for “time lost” includes payments made “with respect to an absence on account of personal injury.” But then Congress reversed field. In 1975, it
|
Justice Gorsuch
| 2,019 | 7 |
dissenting
|
BNSF R. Co. v. Loos
|
https://www.courtlistener.com/opinion/4595944/bnsf-r-co-v-loos/
|
personal injury.” But then Congress reversed field. In 1975, it removed payments “for time lost” from the RRTA’s definition of “compensation.” 89 Stat. 466. And in 1983, Congress overwrote the last remaining reference to payments “for time lost” in a nearby section. –426. To my mind, Congress’s decision to remove the only language that could have fairly cap- tured the damages here cannot be easily ignored. Yet BNSF would have us do exactly that. On its ac- count, the RRTA’s discussions about compensation for time lost and personal injuries only ever served to illus- trate what has qualified all along as remuneration for “services rendered.” So, on its view, when Congress first added and then removed language about time lost and personal injuries, it quite literally wasted its time because none of its additions and subtractions altered the statute’s meaning. Put another way, BNSF asks us to read back into the law words (time lost, personal injury) that Con- gress deliberately removed on the assumption they were never really needed in the first place. As I see it, that is Cite as: 586 U. S. (2019) 7 GORSUCH, J., dissenting less “ ‘a construction of a statute [than] an enlargement of it by the court, so that what was omitted, [BNSF] pre- sum[es] by inadvertence, may be included within its scope. To supply omissions [like that] transcends the judicial function.’ ” West Virginia Univ. Hospitals, ). Looking beyond the text and history of this statute to compare it with others confirms the conclusion. Where the RRTA directs the taxation of railroad employee income to fund retirement benefits, the RRA controls the calcula- tion of those benefits. And, unlike the RRTA, that statute continues to include “pay for time lost” in the definition of “compensation” it uses to calculate benefits. 45 U.S. C. Normally, when Congress chooses to exclude terms in one statute while introducing or retaining them in another closely related law, we give effect to rather than pass a blind eye over the difference. Nor is there any question that Congress knows exactly how to tax a favor- able tort judgment when it wants. See, e.g., 26 U.S. C. (punitive damages are not deductible). Its failure to offer any comparably clear command here should, once more, tell us something. With so much in the statute’s text, history, and sur- roundings now pointing for Mr. Loos, BNSF is left to lean heavily on case law. The company says we must rule its way primarily because of Social Security But I do not see anything in that case dictating a victory
|
Justice Gorsuch
| 2,019 | 7 |
dissenting
|
BNSF R. Co. v. Loos
|
https://www.courtlistener.com/opinion/4595944/bnsf-r-co-v-loos/
|
do not see anything in that case dictating a victory for BNSF. Nierotko concerned a different statute, a different legal claim, and a different factual context. There, the plaintiff brought a wrongful termination claim before the National Labor Relations Board, claiming that his employer fired him in retaliation for union activity. The NLRB ordered the employee rein- stated to his former job and paid as if he had never left. Under those circumstances, this Court held that for pur- 8 BNSF R. CO. v. LOOS GORSUCH, J., dissenting poses of calculating the plaintiff ’s Social Security Act benefits, his “wages” should include his backpay award, allocated to the period when he would have been working but for the employer’s misconduct. Since then, however, the Court has suggested that at least one of Nierotko’s holdings was likely motivated more by a policy concern with protecting the employee’s full retirement to Social Security benefits than by a careful reading of the Social Security Act. See United ; at 220– 221 (Scalia, J., concurring in judgment). Besides, in this case we’re simply not faced with a wrongful termination claim, an award of backpay, or the interpretation of the Social Security Act—let alone reason to worry that ruling for Mr. Loos would inequitably shortchange an employee. So whatever light Nierotko might continue to shed on the question it faced, and whatever superficial similarities one might point to here, that decision simply doesn’t dictate an answer to the question whether a tort victim’s damages for a physical injury qualify as “compensation for services rendered” under the RRTA. By this point BNSF is left with only one argument, which it treats as no more than a last resort: Chevron deference. In the past, the briefs and oral argument in this case likely would have centered on whether we should defer to the IRS’s administrative interpretation of the RRTA. After all, the IRS (at least today) agrees with BNSF’s interpretation that “compensation for services rendered” includes damages for personal injuries. And the Chevron doctrine, if it retains any force, would seem to allow BNSF to parlay any statutory ambiguity into a colorable argument for judicial deference to the IRS’s view, regardless of the Court’s best independent understanding of the law. See Chevron U. S. A. Of course, any Chevron analysis here would be complicated by the gov- Cite as: 586 U. S. (2019) 9 GORSUCH, J., dissenting ernment’s change of heart. For if Nierotko is as relevant as BNSF contends, then it must also be relevant that, back when Nierotko was decided, the IRS took the view
|
Justice Gorsuch
| 2,019 | 7 |
dissenting
|
BNSF R. Co. v. Loos
|
https://www.courtlistener.com/opinion/4595944/bnsf-r-co-v-loos/
|
back when Nierotko was decided, the IRS took the view that the term “wages” in the Social Security Act did not include backpay awards for wrongful termination. See –367. And if “wages” don’t include back- pay awards for wrongful terminations, it’s hard to see how “compensation for services rendered” might include damages for an act of negligence. Still, even with the complications that follow from executive agencies’ pench- ant for changing their views about the law’s meaning almost as often as they change administrations, a plea for deference surely would have enjoyed pride of place in BNSF’s submission not long ago. But nothing like that happened here. BNSF devoted scarcely any of its briefing to Chevron. At oral argument, BNSF’s lawyer didn’t even mention the case until the final seconds—and even then “hate[d] to cite” it. Tr. of Oral Arg. 58. No doubt, BNSF proceeded this way well aware of the mounting criticism of Chevron deference. See, e.g., Pereira v. Sessions, 585 U. S. – (2018) (Kenne- dy, J., concurring). And no doubt, too, this is all to the good. Instead of throwing up our hands and letting an interested party—the federal government’s executive branch, no less—dictate an inferior interpretation of the law that may be more the product of politics than a scru- pulous reading of the statute, the Court today buckles down to its job of saying what the law is in light of its text, its context, and our precedent. Though I may disagree with the result the Court reaches, my colleagues rightly afford the parties before us an independent judicial inter- pretation of the law. They deserve no less
|
per_curiam
| 1,980 | 200 |
per_curiam
|
Baldasar v. Illinois
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https://www.courtlistener.com/opinion/110249/baldasar-v-illinois/
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In the Court held that an uncounseled misdemeanor conviction is constitutionally valid if the offender is not incarcerated. This case presents the question whether such a conviction may be used under an enhanced penalty statute to convert a subsequent misdemeanor into a felony with a prison term. *223 Under Illinois law, theft "not from the person" of property worth less than $150 is a misdemeanor punishable by not more than a year of imprisonment and a fine of not more than $1,000. Ill. Rev. Stat., ch. 38, 16-1 (e) (1), 1005-8-3 (a) (1), 1005-9-1 (a) (2) (1975). A second conviction for the same offense, however, may be treated as a felony with a prison term of one to three years. 1005-8-1 (b) (5). Thomas Baldasar, the petitioner, was convicted of misdemeanor theft in Cook County Circuit Court in May 1975. The record of that proceeding indicates that he was not represented by a lawyer and did not formally waive any right to counsel. Baldasar was fined $159 and sentenced to one year of probation. In November 1975 the State charged him with stealing a shower head worth $29 from a department store. The case was tried to a jury in Du Page County Circuit Court in August 1976. The prosecution introduced evidence of the prior conviction and asked that Baldasar be punished as a felon under the Illinois enhancement statute. Defense counsel objected to the admission of the 1975 conviction. She argued unsuccessfully that because Baldasar had not been represented by a lawyer at the first proceeding, the conviction was too unreliable to support enhancement of the second misdemeanor. App. 7-9. The jury returned a guilty verdict on the felony charge, and Baldasar was sentenced to prison for one to three years. The Illinois Appellate Court affirmed by a divided vote. It emphasized that when the right to counsel in misdemeanor cases was recognized in this Court confined that right to prosecutions that "`end up in the actual deprivation of a person's liberty.'" quoting The Illinois court rejected petitioner's argument that the Sixth and Fourteenth Amendments prevented the imposition of the enhanced prison term. "The fact is," the court wrote, "that [Baldasar] was sentenced to imprisonment for his second theft conviction only and not, as *224 he suggests, sentenced again, and this time to imprisonment, for the first theft conviction." The Supreme Court of Illinois denied leave to appeal, and we granted certiorari. For the reasons stated in the concurring opinions, the judgment is reversed, and the case is remanded to the Appellate Court of Illinois, Second District, for further
|
Justice Sotomayor
| 2,013 | 24 |
majority
|
Sebelius v. Cloer
|
https://www.courtlistener.com/opinion/868381/sebelius-v-cloer/
|
* The National Childhood Vaccine Injury Act of 19 (NCVIA or Act), 42 U.S. C. et seq., provides that a court may award attorney’s fees and costs “incurred [by a claimant] in any proceeding on” an unsuccessful vaccine-injury “petition filed under sec- tion 300aa–11,” if that petition “was brought in good faith and there was a reasonable basis for the claim for which the petition was brought.” 5(e)(1). The Act’s limitations provision states that “no petition may be filed for compensation” more than 3 months after the claim- ant’s initial symptoms occur. (a)(2). The ques- tion before us is whether an untimely petition can garner an award of attorney’s fees. We agree with a majority of the en banc Court of Appeals for the Federal Circuit that it can. —————— * JUSTICE SCALIA and JUSTICE THOMAS join all but Part II–B of this opinion. 2 SEBELIUS v. CLOER Opinion of the Court I A The NCVIA “establishes a no-fault compensation pro- gram ‘designed to work faster and with greater ease than the civil tort system.’ ” Bruesewitz v. Wyeth LLC, 52 U.S. (2011) (slip op., at 3) ). Congress enacted the NCVIA to stabilize the vaccine market and expedite com- pensation to injured parties after complaints mounted regarding the inefficiencies and costs borne by both in- jured consumers and vaccine manufacturers under the pre- vious civil tort compensation regime. 52 U. S., at – (slip op., at 2–3); H. R. Rep. No. 99–90, pt. 1, pp. –7 (19) (hereinafter H. R. Rep.). The compensation program’s procedures are straight- forward. First, “[a] proceeding for compensation under the Program for a vaccine-related injury or death shall be initiated by service upon the Secretary [for the Depart- ment of Health and Human Services] and the filing of a petition containing the matter prescribed by subsection (c) of this section with the United States Court of Federal Claims.” 42 U.S. C. 1(a)(1). Subsection (c) pro- vides in relevant part that a petition must include “an affidavit, and supporting documentation, demonstrating that the person who suffered such injury” was actually vaccinated and suffered an injury. 1(c)(1). Next, upon receipt of an NCVIA petition, “[t]he clerk of the United States Court of Federal Claims shall immediately forward the filed petition to the chief special master for assignment to a special master.” 1(a)(1). This special master then “makes an informal adjudication of the petition.” Bruesewitz, 52 U. S., at (slip op., at 3) (citing 2(d)(3)). A successful claimant may re- cover medical costs, lost earning capacity, and an award for pain and suffering, 42 U.S. C. 5(a),
|
Justice Sotomayor
| 2,013 | 24 |
majority
|
Sebelius v. Cloer
|
https://www.courtlistener.com/opinion/868381/sebelius-v-cloer/
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an award for pain and suffering, 42 U.S. C. 5(a), with compensation paid out from a federal trust fund supported Cite as: 59 U. S. (2013) 3 Opinion of the Court by an excise tax levied on each dose of certain covered vaccines, see 2 U.S. C. 4132, 9510; 42 U.S. C. 5(f)(4)(A). But under the Act’s limitations provi- sion, “no petition may be filed for compensation under the Program for [a vaccine-related] injury after the expiration of 3 months after the date of the occurrence of the first symptom or manifestation of onset or of the significant aggravation of ” the alleged injury. (a)(2). The Act also includes an unusual scheme for compensat- ing attorneys who work on NCVIA petitions. See 15(e).1 “No attorney may charge any fee for services in connection with a petition filed under section 300aa–11 of this title.” 5(e)(3).2 But a court may award attorney’s fees in certain circumstances. In the case of successful petitions, the award of attorney’s fees is auto- matic. 5(e)(1) (“In awarding compensation on a petition filed under section 300aa–11 of this title the special master or court shall also award as part of such compensation an amount to cover reasonable attor- neys’ fees, and other costs”). For unsuccessful peti- tions, “the special master or court may award an amount of compensation to cover petitioner’s reasonable attorneys’ —————— 1 The relevant paragraph provides: “(1) In awarding compensation on a petition filed under section 300aa–11 of this title the special master or court shall also award as part of such compensation an amount to cover— “(A) reasonable attorneys’ fees, and “(B) other costs, “incurred in any proceeding on such petition. If the judgment of the United States Court of Federal Claims on such a petition does not award compensation, the special master or court may award an amount of compensation to cover petitioner’s reasonable attorneys’ fees and other costs incurred in any proceeding on such petition if the special master or court determines that the petition was brought in good faith and there was a reasonable basis for the claim for which the petition was brought.” 5(e). 2 For simplicity, we refer to attorney’s fees and costs as simply attor- ney’s fees. 4 SEBELIUS v. CLOER Opinion of the Court fees and other costs incurred in any proceeding on such petition if the special master or court determines that the petition was brought in good faith and there was a reason- able basis for the claim for which the petition was brought.” In other words, “[a]ttorney’s fees are provided, not only for
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In other words, “[a]ttorney’s fees are provided, not only for successful cases, but even for unsuc- cessful claims that are not frivolous.” Bruesewitz, 52 U. S., at (slip op., at 4). B Respondent, Dr. Melissa Cloer, received three Hepatitis- B immunizations from September 199 to April 1997. Shortly after receiving the third vaccine, Dr. Cloer began to experience numbness and strange sensations in her left forearm and hand. She sought treatment in 199 and 1999, but the diagnoses she received were inconclusive. By then, Dr. Cloer was experiencing numbness in her face, arms, and legs, and she had difficulty walking. She in- termittently suffered these symptoms until 2003, when she began to experience the full manifestations of, and was eventually diagnosed with, multiple sclerosis (MS). In 2004, Dr. Cloer became aware of a link between MS and the Hepatitis-B vaccine, and in September 2005, she filed a claim for compensation under the NCVIA, alleging that the vaccinations she received had caused or exacerbated her MS. Dr. Cloer’s petition was sent by the clerk of the Court of Federal Claims to the Chief Special Master, who went on to adjudicate it. After reviewing the petition and its sup- porting documentation, the Chief Special Master concluded that Dr. Cloer’s claim was untimely because the Act’s 3-month limitations period began to run when she first experienced the symptoms of MS in 1997. (opin- ion of Golkiewicz, Chief Special Master) (citing Cite as: 59 U. S. (2013) 5 Opinion of the Court 1(a)(2) (NCVIA’s limitations provision)). Relying on Federal Circuit precedent, the Chief Special Master also rejected Dr. Cloer’s argument that the NCVIA’s limita- tions period should be subject to equitable tolling. at *9 ). A divided panel of the Fed- eral Circuit reversed the Chief Special Master, concluding that the NCVIA’s limitations period did not commence until “the medical community at large objectively recog- nize[d] a link between the vaccine and the injury.” Cloer v. Secretary of Health and Human Servs., 134 The en banc court then reversed the panel’s decision, 54 F.3d 1322 (2011), cert. denied, 5 U. S. (2012), and held that the statute’s limitations period begins to run on “the calendar date of the occurrence of the first medically recognized symptom or manifestation of onset of the injury claimed by the petitioner.” –1325. The Court of Appeals also held that the Act’s limitations provi- sion was nonjurisdictional and subject to equitable tolling in limited circumstances, overruling its prior holding in –1344. The court concluded, however, that Dr. Cloer was ineligible for tolling and that her petition was untimely. at 1344–1345.
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for tolling and that her petition was untimely. at 1344–1345. Following this decision, Dr. Cloer moved for an award of attorney’s fees. The en banc Federal Circuit agreed with her that a person who files an untimely NCVIA petition “assert[ing] a reasonable limitations argument” may re- cover fees and costs so long as “ ‘the petition was brought in good faith and there was a reasonable basis for the claim for which the petition was brought.’ ” 75 F.3d 135, 1359–131 (2012) (quoting 5(e)(1)). Six judges disagreed with this conclusion and instead read the NCVIA to bar such awards for untimely petitions. at 134–13 (Bryson, J., dissenting). We granted the Gov- SEBELIUS v. CLOER Opinion of the Court ernment’s petition for writ of certiorari. 5 U. S. (2012). We now affirm. II A As in any statutory construction case, “[w]e start, of course, with the statutory text,” and proceed from the understanding that “[u]nless otherwise defined, statutory terms are generally interpreted in accordance with their ordinary” BP America Production The Act’s fees provision ties eligi- bility for attorney’s fees broadly to “any proceeding on such petition,” referring specifically to “a petition filed under section 300aa–11.” 42 U.S. C. §5(e)(1), (3). Section 300aa–11 provides that “[a] proceeding for com- pensation” is “initiated” by “service upon the Secretary” and “the filing of a petition containing” certain documen- tation with the clerk of the Court of Federal Claims who then “immediately forward[s] the filed petition” for as- signment to a special master. 1(a)(1). See at 2. Nothing in these two provisions suggests that the rea- son for the subsequent dismissal of a petition, such as its untimeliness, nullifies the initial filing of that petition. We have explained that “[a]n application is ‘filed,’ as that term is commonly understood, when it is delivered to, and accepted by, the appropriate court officer for placement into the official record.” When this ordinary is applied to the text of the statute, it is clear that an NCVIA petition which is delivered to the clerk of the court, forwarded for pro- cessing, and adjudicated in a proceeding before a special master is a “petition filed under section 300aa–11.” 42 U.S. C. 5(e)(1). And so long as such a petition was brought in good faith and with a reasonable basis, it is eligible for an award of attorney’s fees, even if it is Cite as: 59 U. S. (2013) 7 Opinion of the Court ultimately unsuccessful. If Congress had intended to limit fee awards to timely petitions, it could easily have done so. But the NCVIA instead authorizes courts
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easily have done so. But the NCVIA instead authorizes courts to award attorney’s fees for those unsuccessful petitions “brought in good faith and [for which] there was a reason- able basis.” 3 The Government argues that the Act’s limitations provi- sion, which states that “no petition may be filed for com- pensation” 3 months after a claimant’s initial symptoms began, (a)(2), constitutes “a statutory prerequi- site to the filing of a petition ‘for compensation under the Program,’ ” Brief for Petitioner 1. Thus, the Government contends, a petition that fails to comply with these time limits is not “a petition filed under section 300aa–11” and is therefore ineligible for fees under 5(e)(1). See –13 (Bryson, J., dissenting). The Government’s argument lacks textual support. First, as noted, there is no cross-reference to the Act’s limitations provision in its fees provision, 5(e), or the other section it references, 1(a)(1). When these two linked sections are read in tandem they simply indicate that petitions filed with the clerk of the court are eligible for attorney’s fees so long as they comply with the other requirements of the Act’s fees provision. By its terms, the NCVIA requires nothing more for the award of attorney’s fees. A petition filed in violation of the limita- tions period will not result in the payment of compensa- tion, of course, but it is still a petition filed under 11(a)(1).4 —————— 3 The en banc dissent reasoned that a dismissal for untimeliness does not constitute a judgment on the merits of a petition. See 75 F.3d 135, 135 (CA Fed. 2012) (opinion of Bryson, J.). That argument is not pressed here by the Government, which acknowledged at oral argument that dismissals for untimeliness result in judgment against the petitioner. Tr. of Oral Arg. 12–13. 4 The Government suggests that giving the words of their statute SEBELIUS v. CLOER Opinion of the Court When the Act does require compliance with the limita- tions period, it provides so expressly. For example, 1(a)(2)(A) prevents claimants from bringing suit against vaccine manufacturers “unless a petition has been filed, in accordance with section 300aa–1 of this title [the limitations provision], for compensation under the Pro- gram for such injury or death.” (Emphasis added.) We have long held that “[w]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Bates v. United States, 522 U.S. 23, 29–30 (1997) (internal quotation marks omitted). The absence of any cross-reference to
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(internal quotation marks omitted). The absence of any cross-reference to the limitations provision in either the fees provision, 5(e)(1), or the in- structions for initiating a compensation proceeding, 1(a)(1), indicates that a petition can be “filed” without being “in accordance with [the limitations provi- sion].” Tellingly, nothing in 1(a)(1) requires a petitioner to allege or demonstrate the timeliness of his or —————— their plain would produce incongruous results; notably, it might indicate that “a failure to comply with the limitations provision would not even bar recovery under the Compensation Program itself because 42 U.S. C. 300aa-13 (‘Determination of eligibility and compen- sation’) does not expressly cross-reference the limitations provision.” Brief for Petitioner 1. The Government’s argument assumes that both sections are equivalently affected by absence of a cross-reference. This is incorrect. The Government is right that because “the law typically treats a limitations defense as an affirmative defense,” John R. Sand & Gravel a failure to apply the limitations provision to the section outlining the conditions under which compensation should be awarded would be “contrary to [the Act’s] plain and would produce an absurd result,” Milavetz, Gallop & Milavetz, P. In contrast, giving the Act’s fees provision its plain would pro- duce no such absurd result. It would simply allow petitioners to recover attorney’s fees for untimely petitions. Cite as: 59 U. S. (2013) 9 Opinion of the Court her petition to initiate such a proceeding.5 Second, to adopt the Government’s position, we would have to conclude that a petition like Dr. Cloer’s, which was “filed” under the ordinary of that term but was later found to be untimely, was never filed at all because, on the Government’s reading, “no petition may be filed for compensation” late. (a)(2) (emphasis added). Yet the court below identified numerous instances throughout the NCVIA where the word “filed” is given its ordinary and the Govern- ment does not challenge this aspect of its decision. In- deed, the Government’s reading would produce anomalous results with respect to these other NCVIA provisions. Consider 2(b)(2), which provides that “[w]ithin 30 days after the Secretary receives service of any petition filed under section 300aa–11 of this title the Secretary shall publish notice of such petition in the Federal Regis- ter.” If the NCVIA’s limitations provision worked to void the filing of an untimely petition, then one would expect the Secretary to make timeliness determinations prior to publishing such notice or to strike any petitions found to be untimely from the Federal Register. But there is no indication that the Secretary does either of these things. The Government asks
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the Secretary does either of these things. The Government asks us to adopt a different definition of the term “filed” for a single subsection so that for fees —————— 5 If the NCVIA’s limitations period were jurisdictional, then we might reach a different conclusion because the Chief Special Master would have lacked authority to act on Dr. Cloer’s untimely petition in the first place. But the Government chose not to seek certiorari from the Federal Circuit’s en banc decision holding that the period is nonjuris- dictional, see 54 F. 3d 2, 1341–1344 (2011), and the Government now acknowledges that the NCVIA contains no “clear statement” that ’s filing deadlines carry jurisdictional consequences. See Reply Brief 7 (discuss- ing Sebelius v. Auburn Regional Medical Center, 5 U. S. (2013)). Dr. Cloer’s petition was published, and remains, in the Federal Reg- ister. See 73014 (2005). 10 SEBELIUS v. CLOER Opinion of the Court purposes, and only for fees purposes, a petition filed out of time must be treated retroactively as though it was never filed in the first place. Nothing in the text or structure of the statute requires the unusual result the Government asks us to accept. In the NCVIA, the word “filed” carries its common See 531 U. S., at That “no petition may be filed for compensation” after the limita- tions period has run does not mean that a late petition was never filed at all. Our “inquiry ceases [in a statutory construction case] if the statutory language is unambiguous and the statutory scheme is coherent and consistent.” 534 U.S. 43, (internal quotation marks omitted). The text of the statute is clear: like any other unsuccessful petition, an untimely petition brought in good faith and with a reasonable basis that is filed with— delivered to and received by—the clerk of the Court of Federal Claims is eligible for an award of attorney’s fees. B The Government’s position is also inconsistent with the goals of the fees provision itself. A stated purpose of the Act’s fees scheme was to avoid “limit[ing] petitioners’ ability to obtain qualified assistance” by making fees awards available for “non-prevailing, good-faith claims.” H. R. Rep., at 22. The Government does not explain why Congress would have intended to discourage counsel from representing petitioners who, because of the difficulty of distinguishing between the initial symptoms of a vaccine- related injury and an unrelated malady, see, e.g., Smith v. Secretary of Dept. of Health and Human Servs., No. 02– 93V, (opinion of Golkiewicz, Chief Special Master), may have good-faith claims with a reasonable basis that will only later
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good-faith claims with a reasonable basis that will only later be found untimely. Cite as: 59 U. S. (2013) 11 Opinion of the Court III The Government offers two additional lines of argument for barring the award of attorney’s fees for untimely peti- tions. It first invokes two canons of construction: the canon favoring strict construction of waivers of sovereign immunity and the “ ‘presumption favoring the retention of long-established and familiar [common-law] principles.’ ” Brief for Petitioner 32 (quoting United States v. Texas, 507 U.S. 529, 534 (1993)). Similarly, the Government also argues that the NCVIA should be construed so as to min- imize complex and costly fees litigation. But as the Gov- ernment acknowledges, such canons and policy arguments come into play only “[t]o the extent that the Vaccine Act is ambiguous.” Brief for Petitioner 2. These “rules of thumb” give way when “the words of a statute are unam- biguous,” as they are here. Connecticut Nat. Bank v. Germain, Second, the Government argues that permitting the recovery of attorney’s fees for untimely petitions will force special masters to carry out costly and wasteful “shadow trials,” with no benefit to claimants, in order to determine whether these late petitions were brought in good faith and with a reasonable basis. We reiterate that “when [a] statute’s language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it according to its terms.” Hartford Underwriters Ins. (internal quotation marks omitted). Consequently, even if the plain text of the NCVIA requires that special masters occasionally carry out such “shadow trials,” that is not such an absurd bur- den as to require departure from the words of the Act. This is particularly true here because Congress has specif- ically provided for such “shadow trials” by permitting the award of attorney’s fees “in any proceeding [on an unsuc- cessful] petition” if such petition was brought in good faith 12 SEBELIUS v. CLOER Opinion of the Court and with a reasonable basis, 42 U.S. C. 5(e)(1) (emphasis added), irrespective of the reasons for the peti- tion’s failure, see, e.g., 2012 WL 9512, (Fed. Cl., Dec. 20, 2012) (opinion of Moran, Special Mas- ter) (awarding attorney’s fees despite petitioner’s failure to prove causation). In any event, the Government’s fears appear to us exag- gerated. Special masters consistently make fee deter- minations on the basis of the extensive documentation required by 1(c) and included with the petition.7 Indeed, when adjudicating the timeliness of a petition, the special master may often have to develop a good
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the special master may often have to develop a good sense of the merits of a case, and will therefore be able to deter- mine if a reasonable basis exists for the petitioner’s claim, including whether there is a good-faith reason for the untimely filing. In this case, for example, the Chief Spe- cial Master conducted a “review of the record as a whole,” including the medical evidence that would have supported the merits of Dr. Cloer’s claim, before determining that her petition was untimely. Cloer, *1– *2, *10. The Government also argues that permitting attorney’s fees on untimely petitions will lead to the filing of more untimely petitions. But the Government offers no evi- dence to support its speculation. Additionally, this argu- ment is premised on the assumption that in the pursuit of fees, attorneys will choose to bring claims lacking good faith or a reasonable basis in derogation of their ethical duties. There is no basis for such an assumption. Finally, the special masters have shown themselves more than —————— 7 See, e.g., Wells v. Secretary of Dept. of Health and Human Servs., 2 Fed. Cl. 47, 49–51 (1993); WL 32930, *2–* (opinion of Moran, Special Master); Hamrick v. Secretary of Health and Human Servs., No. 99–3V, *2–*3, *5–*9 (Fed. Cl., Nov. 19, 2007) (opinion of Moran, Special Master). Cite as: 59 U. S. (2013) 13 Opinion of the Court capable of discerning untimely claims supported by good faith and a reasonable basis from those that are specious. * * * We hold that an NCVIA petition found to be untimely may qualify for an award of attorney’s fees if it is filed in good faith and there is a reasonable basis for its claim. The judgment of the Court of Appeals is affirmed. It is so ordered
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Ppl Montana, LLC v. Montana
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This case concerns three rivers which flow through Montana and then beyond its borders. The question is whether discrete, identifiable segments of these rivers in Montana were nonnavigable, as federal law defines that concept for purposes of determining whether the State acquired title to the riverbeds underlying those segments, when the State entered the Union in 1889. Montana contends that the rivers must be found navigable at the disputed locations. From this premise, the State asserts that in 1889 it gained title to the disputed riverbeds under the constitutional equal-footing doctrine. Based on its title claims, Montana sought compensation from PPL Montana, LLC, a power company, for its use of the riv erbeds for hydroelectric projects. The Montana courts granted summary judgment on title to Montana, awarding it $41 million in rent for the riverbeds for the period from 2000 to 2007 alone. That judgment must be reversed. I The three rivers in question are the Missouri River, the Madison River, and the Clark Fork River. The Missouri and the Madison are on the eastern side of the Continen 2 PPL MONTANA, LLC v. MONTANA Opinion of the Court tal Divide. The Madison flows into the Missouri, which then continues at length to its junction with the Missis sippi River. The Clark Fork River is on the western side of the Continental Divide. Its waters join the Columbia River system that flows into the Pacific Ocean. Each river shall be described in somewhat more detail. A The Missouri River originates in Montana and traverses seven States before a point just north of St. Louis where it joins the Mississippi. 19 Encyclopedia Americana 270 (int’l ed. 2006). If considered with the continuous path formed by certain streams that provide the Missouri Riv er’s headwaters, the Missouri is over 2,500 miles long, the longest river in the United States. The Missouri River’s basin (the land area drained by the river) is the second largest in the Nation, surpassed only by the Mis sissippi River basin of which it is a part. Rivers of North America 427 (A. Benke & C. Cushing eds. 2005) (hereinaf ter Rivers of North America). As a historical matter, the river shifted and flooded often, and contained many sand bars, islands, and unstable banks. at 432–433. The river was once described as one of the most “variable beings in creation,” as “inconstant [as] the action of the jury,” Sioux City Register (Mar. 28, 1868); and its high quantity of downstream sediment flow spawned its nick name, the “Big Muddy,” Rivers of North America 433. The upstream part of
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Muddy,” Rivers of North America 433. The upstream part of the Missouri River in Montana, known as the Upper Missouri River, is better charac terized as rocky rather than muddy. While one usually thinks of the Missouri River as flowing generally south, as indeed it does beginning in North Dakota, the Upper Missouri in Montana flows north from its principal head waters at Three Forks, which is located about 4,000 feet above sea level in the Rocky Mountain area of southwest ern Montana. It descends through scenic mountain ter Cite as: 565 U. S. (2012) 3 Opinion of the Court rain including the deep gorge at the Gates of the Moun tains; turns eastward through the Great Falls reach, cascading over a roughly 10-mile stretch of cataracts and rapids over which the river drops more than 400 feet; and courses swiftly to Fort Benton, a 19th-century fur trading post, before progressing farther east into North Dakota and on to the Great Plains. 19 Encyclopedia Americana, ; 8 New Encyclopaedia Britannica 190 (15th ed. 2007) (hereinafter Encyclopaedia Britannica); 2 Co lumbia Gazetteer of the World 2452 (2d ed. 2008) (here- inafter Columbia Gazetteer); F. Montana and the Northwest Territory 75 (1879). In 1891, just after Mon tana became a State, the Upper Missouri River above Fort Benton was “seriously obstructed by numerous rapids and rocks,” and the 168-mile portion flowing eastward “[f]rom Fort Benton to Carroll, Mont., [was] called the rocky riv er.” Annual Report of the Chief of Engineers, U. S. Army (1891), in 2 H. R. Exec. Doc. No. 1, 52d Cong., 1st Sess., pt. 2, pp. 275–276 (1891) (hereinafter H. R. Exec. Doc.). The Great Falls exemplify the rocky, rapid character of the Upper Missouri. They consist of five cascade-like waterfalls located over a stretch of the Upper Missouri leading downstream from the city of Great Falls in mid western Montana. The waterfall farthest downstream, and the one first encountered by Meriwether Lewis and William Clark when they led their remarkable expedition through the American West in 1805, is the eponymous “Great Falls,” the tallest of the five falls at 87 feet. W. Clark, Dear Brother: Letters of William Clark to Jonathan Clark 109, n. 5 (J. Holmberg ed. 2002) (hereinafter Dear Brother). Lewis recorded observations of this “sublimely grand specticle”: “[T]he whole body of water passes with incredible swiftness. over a precipice of at least eighty feet [T]he irregular and somewhat projecting rocks 4 PPL MONTANA, LLC v. MONTANA Opinion of the Court below receives the water and brakes it into a per fect white foam which
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and brakes it into a per fect white foam which assumes a thousand forms in a moment sometimes flying up in jets [that] are scarcely formed before large roling bodies of the same beaten and foaming water is thrown over and conceals them. [T]he [rainbow] reflection of the sun on the sprey or mist adds not a little to the beauty of this majestically grand senery.” The Lewis and Clark Journals: An American Epic of Discovery 129 (G. Moulton ed. 2003) (hereinafter Lewis and Clark Jour nals); The Journals of Lewis and Clark 136–138 If one proceeds alongside the river upstream from Great Falls, as Lewis did in scouting the river for the expedition, the other four falls in order are “Crooked Falls” (19 feet high); “Rainbow Falls” (48 feet), which Lewis called “one of the most bea[u]tifull objects in nature”; “Colter Falls” (7 feet), and “Black Eagle Falls” (26 feet). See Lewis and Clark Journals 131–132; Dear Brother 109, n. 5; P. Cut- right, Lewis & Clark: Pioneering Naturalists 1–156 (2003). Despite the falls’ beauty, Lewis could see that their steep cliffs and swift waters would impede progress on the river, which had been the expedition’s upstream course for so many months. The party proceeded over a more circuitous land route by means of portage, circum venting the Great Falls and their surrounding reach of river before returning to travel upon the river about a month later. See Lewis and Clark Journals 126–152. The Upper Missouri River, both around and further upstream of the Great Falls, shares the precipitous and fast-moving character of the falls themselves. As it moves downstream over the Great Falls reach, a 17-mile stretch that begins somewhat above the head of Black Eagle Falls, the river quickly descends about 520 feet in elevation, see Montana Power v. Federal Power Comm’n, 1 F. 2d Cite as: 565 U. S. (2012) 5 Opinion of the Court 491 ; ¶¶29–30, 108–109, 355 Mont. 402, 416, dropping over 400 feet within 10 miles from the first rapid to the foot of Great Falls, Parker, Black Eagle Falls Dam, 27 Transactions of the Am. Soc. of Civil Engineers 56 In 1879, that stretch was a “constant succession of rapids and falls.” ; see also 9 The Journals of the Lewis & Clark Expedition 171 (G. Moulton ed. 1995) (hereinafter Journals of the Lewis & Clark Expedition) (“a continued rapid the whole way for 17 miles”). Lewis noted the water was so swift over the area that buffalo were swept over the cataracts in “considerable quantities” and were “instantly crushed.” Lewis
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the cataracts in “considerable quantities” and were “instantly crushed.” Lewis and Clark Journals 136– 137. Well above the Great Falls reach, the Stubbs Ferry stretch of the river from Helena to Cascade also had steep gradient and was “much obstructed by rocks and danger ous rapids.” Report of the Secretary of War, 2 H. R. Doc. No. 2, th Cong., 1st Sess., pt. 1, p. 301 (1895). B The second river to be considered is the Madison, one of the Missouri River’s headwater tributaries. Named by Lewis and Clark for then-Secretary of State James Madi son, the Madison River courses west out of the Northern Rocky Mountains of Wyoming and Montana in what is now Yellowstone National Park, then runs north and merges with the Jefferson and Gallatin Rivers at Three Forks, Montana, to form the Upper Missouri. Lewis and Clark Journals 158; Rivers of North America 459; 7 En- cyclopaedia Britannica 658; 2 Columbia Gazetteer 2242. Along its path, the Madison River flows through two lakes artificially created by dams built in canyons: Hebgen Lake and Ennis Lake. Federal Writers’ Project of the Work Projects Administration, Montana: A State Guide Book 356 (J. Stahlberg ed. 1949); R. Aarstad, E. Arguimbau, E. Baumler, C. Porsild, & B. Shovers, Montana Place Names 6 PPL MONTANA, LLC v. MONTANA Opinion of the Court from Alzada to Zortman: A Montana Historical Society Guide 166 (2009). C The third river at issue in this case is the Clark Fork. That river, which consists in large part of “long, narrow streams confined by mountainous terrain,” rises at an ele- vation of about 5,000 feet in the Silver Bow Mountains of southwestern Montana. 3 Encyclopaedia Britannica 352; Dept. of Interior, U. S. Geological Survey, J. Stevens & F. Henshaw, Surface Water Supply of the United States, 1907–8, Water-Supply Paper 252, pp. 81–82 (1910). The river flows northward for about 40 miles; turns northwest for a stretch; then turns abruptly north east for a short stint, by which time it has descended nearly 2,500 feet in altitude. It then resumes a north westward course until it empties into Lake Pend Oreille in northern Idaho, out of which flows a tributary to the Co lumbia River of the Pacific Northwest. ; 1 Columbia Gazetteer 816. The Clark Fork is “one of the wildest and most picturesque streams in the West,” marked by “many waterfalls and boxed gorges.” Federal Writers’ Projects of the Works Progress Administration, Idaho: A Guide in Word and Picture 230 Lewis and Clark knew of the Clark Fork River but did not try to navigate
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the Clark Fork River but did not try to navigate it, in part because the absence of salm on in one of its tributaries made Lewis believe “ ‘there must be a considerable fall in [the river] below.’ ” H. Fritz, The Lewis and Clark Expedition 38–39 (2004). This was correct, for shortly before the Clark Fork exits to Idaho from the northwest corner of Montana, “the waters of the river dash madly along their rocky bed,” dropping over 30 feet in a half-mile as they rush over falls and rapids in cluding a “foaming waterfall” now known as Thompson Falls. O. Rand, A Vacation Excursion: From Massachu setts Bay to Puget Sound 176–177 ; C. Kirk, A Cite as: 565 U. S. (2012) 7 Opinion of the Court History of the Montana Power Company 231 (2008). II Petitioner PPL Montana, LLC (PPL), owns and operates hydroelectric facilities that serve Montana residents and businesses. Ten of its facilities are built upon riverbeds underlying segments of the Upper Missouri, Madison, and Clark Fork Rivers. It is these beds to which title is disputed. On the Upper Missouri River, PPL has seven hydroelec tric dams. Five of them are along the Great Falls reach, including on the three tallest falls; and the other two are in canyons upstream on the Stubbs Ferry stretch. See K. Robison, Cascade County and Great Falls 56 (2011); Aar stad et 5–6. On the Madison River, two hydroelectric dams are located in steep can yons. On the Clark Fork River, a hydroelectric facility is constructed on the Thompson Falls. The dams on the Upper Missouri and Madison are called the Missouri-Madison project. The Thompson Falls facility is called the Thompson Falls project. Both projects are licensed by the Federal Energy Regulatory Commis sion. PPL acquired them in 1999 from its predecessor, the Montana Power –, 229 P.3d, at 426. PPL’s power facilities have existed at their locations for many decades, some for over a century. See Robison, Until recently, these facilities were operated without title based objection by the State of Montana. The State was well aware of the facilities’ existence on the riverbeds— indeed, various Montana state agencies had participated in federal licensing proceedings for these hydroelectric projects. See, e.g., Montana Power 8 F. P. C. 751, 752 (1949) (Thompson Falls project); Montana Power 27 (Ryan Dam of 8 PPL MONTANA, LLC v. MONTANA Opinion of the Court Missouri-Madison project). Yet the State did not seek, and accordingly PPL and its predecessor did not pay, compen sation for use of the 355 Mont., 6, 229 P.
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sation for use of the 355 Mont., 6, 229 P. 3d, at 427. Instead, the understanding of PPL and the United States is that PPL has been paying rents to the United States for use of those riverbeds, as well as for use of river uplands flooded by PPL’s projects. Reply Brief for Petitioner 4; App. to Supp. Brief for Petitioner 4–5; Brief for United States as Amicus Curiae 3, n. 3. In 2003, parents of Montana schoolchildren sued PPL in the United States District Court for the District of Mon tana, arguing that PPL had built its facilities on riverbeds that were state owned and part of Montana’s school trust 355 Mont., 6, Prompted by the litigation, the State joined the lawsuit, for the first time seeking rents for PPL’s riverbed use. The case was dismissed in September 2005 for lack of diversity juris- diction. Dolan v. PPL Montana, LLC, No. 9:03–cv–167 (D Mont., Sept. 27, 2005). PPL and two other power companies sued the State of Montana in the First Judicial District Court of Montana, arguing that the State was barred from seeking compensa tion for use of the 355 Mont., 7–, 229 P. 3d, at 427–428. By counterclaim, the State sought a declaration that under the equal-footing doctrine it owns the riverbeds used by PPL and can charge rent for their use. 8, The Montana trial court granted summary judgment to Montana as to navi gability for purposes of determining riverbed title. at –409, 413–, 431–432; App. to Pet. for Cert. 3. The court decided that the State owned the –, The court ordered PPL to pay $40,956,180 in rent for use of the riverbeds between 2000 and 2007. at 431–432, –443. Whether a lease for future periods would commence, and, if so, at what rental rate, seems to Cite as: 565 U. S. (2012) 9 Opinion of the Court have been left to the discretion of the Montana Board of Land Commissioners. App. to Pet. for Cert. 128–129. In a decision by a divided court, the Montana Supreme Court affirmed. –, – 461; at The court reasoned from the background principle that “navigability for title purposes is very liberally construed.” It dismissed as having “limited applicability” this Court’s approach of assessing the navigability of the disputed segment of the river ra ther than the river as a whole. at 441–, 229 P. 3d, at 448–449. The Montana court accepted that certain relevant stretches of the rivers were not navigable but declared them “merely short interruptions” insufficient as a matter of law to find nonnavigability, since traffic
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as a matter of law to find nonnavigability, since traffic had circumvented those stretches by overland 449. Placing extensive reliance upon evidence of present-day use of the Madison River, the court found that river navigable as a matter of law at the time of statehood. Justice Rice dissented. at He stated that “courts are not to assume an entire river is navigable merely because certain reaches of the river are navigable.” 229 P. 3d, at The majority erred, he wrote, in rejecting the “section-by-section ap proach” and “declaring, as a matter of law, that the reaches claimed by PPL to be non-navigable are simply too ‘short’ to matter,” when in fact PPL’s evidence showed the “disputed reaches of the rivers were, at the time of state hood, non-navigable.” at 463–466, 476–477, 229 P.3d, at –, 470. This Court granted certiorari, 564 U. S. (2011), and now reverses the judgment. 10 PPL MONTANA, LLC v. MONTANA Opinion of the Court III A PPL contends the opinion of the Montana Supreme Court is flawed in three respects: first, the court’s failure to consider with care the navigability of the particular river segments to which title is disputed, and its disregard of the necessary overland portage around some of those segments; second, its misplaced reliance upon evidence of present-day, recreational use; and third, what the state court itself called its liberal construction of the navigabil ity test, which did not place the burden of proof upon the State to show navigability. Brief for Petitioner 26. The United States as amicus is in substantial agreement with PPL’s arguments, although it offers a more extended dis cussion with respect to evidence of present-day, recrea tional use. Brief for United States 27–33. It is appropriate to begin the analysis by discussing the legal principles that control the case. B The rule that the States, in their capacity as sovereigns, hold title to the beds under navigable waters has origins in English common law. See v. Bowlby, 152 U.S. 1, 13 (1894). A distinction was made in England between waters subject to the ebb and flow of the tide (royal rivers) and nontidal waters (public highways). With respect to royal rivers, the Crown was presumed to hold title to the riverbed and soil, but the public retained the right of passage and the right to fish in the stream. With respect to public highways, as the name suggests, the public also retained the right of water passage; but title to the riv erbed and soil, as a general matter, was held in private ownership. Riparian landowners shared
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general matter, was held in private ownership. Riparian landowners shared title, with each owning from his side to the center thread of the stream, as well as the exclusive right to fish there. See Idaho v. Coeur d’ Tribe of Idaho, Cite as: 565 U. S. (2012) 11 Opinion of the Court (summarizing J. Angell, A Treatise on the Common Law in Relation to Water-Courses –18 (1824)); 3 J. Kent, Commentaries on American Law 528–529 (9th ed. 18). While the tide-based distinction for bed title was the initial rule in the 13 Colonies, after the Revolution Ameri can law moved to a different standard. Some state courts came early to the conclusion that a State holds presump tive title to navigable waters whether or not the waters are subject to the ebb and flow of the tide. See, e.g., Car- ; Executors of Cates v. Wadlington, 12 S. C. L. 580 (1822); Wilson v. Forbes, 13 N. C. 30 (1828); ; The tidal rule of “navigability” for sovereign ownership of riverbeds, while perhaps appropriate for England’s dominant coastal geog raphy, was ill suited to the United States with its vast number of major inland rivers upon which navigation could be sustained. See L. Houck, Law of Navigable Riv ers 26–27, 31–35 (1868); 667–669 (1891). By the late 19th century, the Court had recognized “the now prevailing doctrine” of state sovereign “title in the soil of rivers really navigable.” at 31; see (“In this country, as a general thing, all waters are deemed navigable which are really so”). This title rule became known as “navigability in fact.” The rule for state riverbed title assumed federal consti tutional significance under the equal-footing doctrine. In 1842, the Court declared that for the 13 original States, the people of each State, based on principles of sovereign ty, “hold the absolute right to all their navigable waters and the soils under them,” subject only to rights surren dered and powers granted by the Constitution to the Federal Martin v. Lessee of Waddell, 16 Pet. 367, 410 (1842). In a series of 19th-century cases, the Court determined that the same principle applied to 12 PPL MONTANA, LLC v. MONTANA Opinion of the Court States later admitted to the Union, because the States in the Union are coequal sovereigns under the Constitution. See, e.g., Lessee of 228–229 ; 183 (1891); at 26–31; see United States v. Texas, These precedents are the basis for the equal-footing doctrine, under which a State’s title to these lands was “conferred not by Congress but by the Constitution itself.” ex rel. State
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by Congress but by the Constitution itself.” ex rel. State Land Bd. v. Corvallis Sand & Gravel U.S. 363, It follows that any ensuing questions of navigability for de- termining state riverbed title are governed by federal law. See, e.g., United 75 (1931); United The title consequences of the equal-footing doctrine can be stated in summary form: Upon statehood, the State gains title within its borders to the beds of waters then navigable although that is not relevant in this case). It may allocate and govern those lands according to state law subject only to “the para mount power of the United States to control such waters for purposes of navigation in interstate and foreign com merce.” at ; see ; United The United States retains any title vested in it before statehood to any land beneath waters not then navigable (and not tidally influ enced), to be transferred or licensed if and as it chooses. See ; at Returning to the “navigability in fact” rule, the Court has explained the elements of this test. A basic formula tion of the rule was set forth in The Daniel Ball, 10 Wall. 557 (1871), a case concerning federal power to regulate navigation: Cite as: 565 U. S. (2012) 13 Opinion of the Court “Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are sus ceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.” The Daniel Ball formulation has been invoked in con sidering the navigability of waters for purposes of as sessing federal regulatory authority under the Constitu tion, and the application of specific federal statutes, as to the waters and their beds. See, e.g., ibid.; The Montello, ; United (Fed eral Power Act); 7 U.S. 715, 730–731 (2006) (plurality opinion) (Clean Water Act); 1 (KENNEDY, J., concurring in judgment) It has been used as well to determine questions of title to water beds under the equal-footing doctrine. See ; 586 ; Holt State It should be noted, however, that the test for navigability is not applied in the same way in these distinct types of cases. Among the differences in application are the following. For state title under the equal-footing doctrine, naviga bility is determined at the time of statehood, see and based on the “natural and ordinary con- dition” of the water, see In contrast, admiralty jurisdiction extends
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dition” of the water, see In contrast, admiralty jurisdiction extends to water routes made navigable even if not formerly so, see, e.g., Ex parte Boyer, ; and federal regulatory authority encompasses waters that only recently have become navigable, see, e.g., Philadelphia v. Stimson, were once navigable but are no longer, see Economy Light & Power PPL MONTANA, LLC v. MONTANA Opinion of the Court or are not navigable and never have been but may become so by reasonable improvements, see Appalachian Elec. Power 7–. With respect to the federal com merce power, the inquiry regarding navigation historically focused on interstate commerce. See The Daniel Ball, 4. And, of course, the commerce power ex tends beyond navigation. See Kaiser In contrast, for title purposes, the inquiry depends only on navigation and not on interstate travel. See This list of differences is not exhaustive. Indeed, “[e]ach application of [the Daniel Ball] test is apt to uncover variations and refinements which require further elaboration.” Ap- palachian Elec. Power 6. IV A The primary flaw in the reasoning of the Montana Su preme Court lies in its treatment of the question of river segments and overland To determine title to a riverbed under the equal-footing doctrine, this Court considers the river on a segment by-segment basis to assess whether the segment of the river, under which the riverbed in dispute lies, is navigable or not. In United for example, the Court noted, “the controversy relates only to the sections of the riv ers which are described in the complaint, and the Master has limited his findings and conclusions as to navigability accordingly. The propriety of this course, in view of the physical characteristics of the streams, is apparent. Even where the navigability of a river, speaking generally, is a matter of common knowledge, and hence one of which judicial notice may be taken, it may yet be a question, to be determined upon evi Cite as: 565 U. S. (2012) 15 Opinion of the Court dence, how far navigability extends.” The Court went on to conclude, after reciting and as sessing the evidence, that the Colorado River was naviga ble for its first roughly 4-mile stretch, nonnavigable for the next roughly 36-mile stretch, and navigable for its remain ing 9 miles. at 73–74, 79–81, 89. The Court noted the importance of determining “the exact point at which navigability may be deemed to end.” Similarly, in Brewer-Elliott Oil & Gas v. United States, the Court examined the segment of the Arkansas River that ran along the Osage Indian Reservation, assessing whether the Arkansas River was
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the Osage Indian Reservation, assessing whether the Arkansas River was “navigable in fact at the locus in quo.” The Court concluded that the United States originally, and the Osag es as its grantees, unequivocally held title to the riverbeds because the Arkansas River “is and was not navigable at the place where the river bed lots, here in controversy, are.” The Court found the segment of river along the reservation to be nonnavigable even though a segment of the river that began further downstream was navigable. See also 587–588, 589–591 (noting that “how far up the streams navigability extended was not known”; assessing separate ly the segments of the Red River above and below its confluence with the Washita River within ’s borders; and concluding that neither segment, and hence “no part of the river within” was navigable). The Montana Supreme Court discounted the segment by-segment approach of this Court’s cases, calling it “a piecemeal classification of navigability—with some stretches declared navigable, and others declared non navigable.” –, –449. This was error. The segment-by-segment approach to navigability for title is well settled, and it should not be disregarded. A key justification for sovereign ownership of 16 PPL MONTANA, LLC v. MONTANA Opinion of the Court navigable riverbeds is that a contrary rule would allow private riverbed owners to erect improvements on the riverbeds that could interfere with the public’s right to use the waters as a highway for commerce. While the Federal Government and States retain regulatory power to protect public navigation, allocation to the State of the beds un derlying navigable rivers reduces the possibility of conflict between private and public interests. See at 82–83; By contrast, segments that are nonnavigable at the time of statehood are those over which commerce could not then occur. Thus, there is no reason that these segments also should be deemed owned by the State under the equal-footing doctrine. Practical considerations also support segmentation. Physical conditions that affect navigability often vary significantly over the length of a This is particularly true with longer rivers, which can traverse vastly different terrain and the flow of which can be affected by varying local climates. The Missouri River provides an excellent example: Between its headwaters and mouth, it runs for over 2,000 miles out of steep mountains, through canyons and upon rocky beds, over waterfalls and rapids, and across sandy plains, capturing runoff from snow melt and farmland rains alike. These shifts in physical conditions provide a means to determine appropriate start points and end points for the segment in question. Topographical and geographical indicators may
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for the segment in question. Topographical and geographical indicators may assist. See, e.g., at 77–80 (gradient changes); (location of tributary providing additional flow). A segment approach to riverbed title allocation under the equal-footing doctrine is consistent with the manner in which private parties seek to establish riverbed title. For centuries, where title to the riverbed was not in the sover eign, the common-law rule for allocating riverbed title among riparian landowners involved apportionment de fined both by segment (each landowner owns bed and soil Cite as: 565 U. S. (2012) 17 Opinion of the Court along the length of his land adjacent) and thread (each landowner owns bed and soil to the center of the stream). See J. Angell, A Treatise on the Law of Watercourses 18 (6th ed. 1869); 474 (No.312) (CC RI 1827) (Story, J.). Montana, moreover, cannot suggest that segmentation is inadministrable when the state courts managed to divide up and apportion the underlying riverbeds for purposes of determining their value and the corresponding rents owed by PPL. The Montana Supreme Court, relying upon de- cided that the segment-by-segment approach is inapplicable here because it “does not apply to ‘short interruption[s] of navigability in a stream otherwise navigable.’ ” 355 Mont., at (quoting ). This was mistaken. In this Court noted in pass ing that the facts of the case concerned “long reaches with particular characteristics of navigability or non navigability” rather than “short interruption[s].” at 77. The Court in did not say the case would have a different outcome if a “short interruption” were concerned. Even if the law might find some nonnavigable segments so minimal that they merit treatment as part of a longer, navigable reach for purposes of title under the equal footing doctrine, it is doubtful that any of the segments in this case would meet that standard, and one—the Great Falls reach—certainly would not. As an initial matter, the kinds of considerations that would define a de minimis exception to the segment-by-segment approach would be those related to principles of ownership and title, such as inadministrability of parcels of exceedingly small size, or worthlessness of the parcels due to overdivision. See Heller, The Tragedy of the Anticommons, 111 Harv. L. Rev. 621, 682–684 (1998) (explaining that dividing prop- erty into square-inch parcels, could, absent countervail- ing legal mechanisms, “paralyze the alienability of scarce 18 PPL MONTANA, LLC v. MONTANA Opinion of the Court resources or diminish their value too drastically”). An analysis of segmentation must be sensibly applied. A comparison of the nonnavigable segment’s length to the overall length of the stream,
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nonnavigable segment’s length to the overall length of the stream, for instance, would be simply irrelevant to the issue at hand. A number of the segments at issue here are both dis crete, as defined by physical features characteristic of navigability or nonnavigability, and substantial, as a matter of administrability for title purposes. This is best illustrated by the Great Falls reach, which is 17 miles long and has distinct drops including five waterfalls and con tinuous rapids in between. There is plenty of reason to doubt that reach’s navigability based on the presence of the series of falls. There is also reason to think that title to that segment of bed would not be worthless or inadmin istrable. Indeed, the State sought and was awarded rent in the amount of $41 million for PPL’s various hydroelec tric facilities attached to the riverbeds, half of which are along the Great Falls reach. Applying its “short interruptions” approach, the Mon tana Supreme Court decided that the Great Falls reach was navigable because it could be managed by way of land route 449. The court noted in particular the portage of Lewis and Clark’s expedition. Yet that very portage re veals the problem with the Montana Supreme Court’s analysis. Leaving behind their larger boats, Lewis and Clark transported their supplies and some small canoes about 18 miles over land, which took at least 11 days and probably more. See Lewis and Clark Journals 126–152; 9 Journals of the Lewis & Clark Expedition 173; Dear Brother 109. Even if portage were to take travelers only one day, its significance is the same: it demonstrates the need to bypass the river segment, all because that part of the river is nonnavigable. Thus, the Montana Supreme Court was wrong to state, with respect to the Great Falls Cite as: 565 U. S. (2012) 19 Opinion of the Court reach and other stretches of the rivers in question, that portages “are not sufficient to defeat a finding of navigabil ity.” 355 Mont., In most cases, they are, because they require transportation over land rather than over the water. This is such a case, at least as to the Great Falls reach. In reaching its conclusion that the necessity of portage does not undermine navigability, the Montana Supreme Court misapplied this Court’s decision in The Montello, 20 Wall. 430. See 355 Mont., The consideration of portage in The Montello was for a differ ent purpose. The Court did not seek to determine whether the river in question was navigable for title purposes but instead whether it was
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was navigable for title purposes but instead whether it was navigable for purposes of deter mining whether boats upon it could be regulated by the Federal 20 Wall., 445. The primary focus in The Montello was not upon navigability in fact but upon whether the river was a “navigable water of the United States.” 443. The latter inquiry is doctrinally distinct. It turns upon whether the river “forms by itself, or by its connection with other waters, a continued highway over which commerce is, or may be, carried with other States or foreign countries in the cus tomary modes in which such commerce is conducted by water.” (citing The Daniel Ball, ). It is language similar to “continued highway” that Mon tana urges the Court to import into the title context in lieu of the Court’s established segmentation approach. Brief for Respondent 42–43, n. 16. The Montello reasonably concluded that the portages required in that case did not prevent the river from being part of a channel of interstate commerce. Portages con tinued that channel because goods could be successfully transported interstate, in part upon the waters in ques tion. This provided sufficient basis to regulate steamboats at places where those boats could and did, in fact, navigate 20 PPL MONTANA, LLC v. MONTANA Opinion of the Court portions of the Here, by contrast, the question regards ownership of the bed under river segments that the Montana Supreme Court, by calling them “interruptions in the navigation,” 355 Mont., at acknowledges were nonnavigable. The reasoning and the inquiry of The Montello does not control the outcome where the quite different concerns of the riverbed title context apply. Having clarified that portages may defeat navigability for title purposes, and do so with respect to the Great Falls reach, the Court sees no evidence in the record that could demonstrate that the Great Falls reach was navigable. Montana does not dispute that overland portage was necessary to traverse that reach. Indeed, the State admits “the falls themselves were not passable by boat at state hood.” Brief for Respondent 10. And the trial court noted the falls had never been navigated. App. to Pet. for Cert. 137. Based on these statements, this Court now con cludes, contrary to the Montana Supreme Court’s decision, that the 17-mile Great Falls reach, at least from the head of the first waterfall to the foot of the last, is not navigable for purposes of riverbed title under the equal-footing doctrine. This Court also determines, based on evidence in the record, that there is a significant likelihood that some
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the record, that there is a significant likelihood that some of the other river stretches in dispute also fail the federal test of navigability for the purpose of determining title. For example, as to the disputed segment of the Clark Fork River, the Montana Supreme Court incorrectly stated the sole evidence for nonnavigability “consists of conclusory statements without any specific factual support.” 355 Mont., at In fact, PPL introduced a report of the U. S. Army Corps of Engineers from 1891, two years after Montana’s date of statehood, documenting that the portion of the Clark Fork river between Missoula and Lake Pend Oreille (which includes the location of Cite as: 565 U. S. (2012) 21 Opinion of the Court PPL’s Thompson Falls facility) had a fall of about 1,100 feet in 250 miles and “is a mountain torrential stream, full of rocks, rapids, and falls, utterly unnavigable, and in- capable of being made navigable except at an enormous cost.” 2 H. R. Exec. Doc., pt. 5, at 3250; see App. 379–380 (Docket No. 169). The report based its conclusions on various failed attempts to navigate the It found the Thompson Falls “a complete obstruction to navigation” and the river around that area “exceedingly rapid, rough, and full of rocks.” 2 H. R. Exec. Doc., pt. 5, at 3251. This was consistent with a 1910 Federal District Court decree. The decree adjudicated a title dispute between two private parties over the riverbed near and under Thompson Falls and declared the river at that place “was and is a non navigable stream incapable of carrying the products of the country in the usual manner of water transportation.” Steele v. Donlan, Equity No. 950 (CC D Mont., July 19, 1910), p. 1; see App. 380–381 (Docket No. 169). While the ultimate decision as to this and the other disputed river stretches is to be determined, in the first instance, by the Montana courts upon remand, the relevant evidence should be assessed in light of the principles discussed in this opinion. B The Montana Supreme Court further erred as a matter of law in its reliance upon the evidence of present-day, primarily recreational use of the Madison River. Error is not inherent in a court’s consideration of such evidence, but the evidence must be confined to that which shows the river could sustain the kinds of commercial use that, as a realistic matter, might have occurred at the time of state hood. Navigability must be assessed as of the time of statehood, and it concerns the river’s usefulness for “ ‘trade and travel,’ ”
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concerns the river’s usefulness for “ ‘trade and travel,’ ” rather than for other purposes. See 283 U.S., –76. Mere use by initial explorers or trap 22 PPL MONTANA, LLC v. MONTANA Opinion of the Court pers, who may have dragged their boats in or alongside the river despite its nonnavigability in order to avoid getting lost, or to provide water for their horses and them selves, is not itself enough. See 295 U.S., at 20–21 (evidence that “trappers appear to have waded or walked” through the river, dragging their boats rather than floating them, had “no bearing on navigability”). True, river segments are navigable not only if they “[were] used,” but also if they “[were] susceptible of being used,” as highways of commerce at the time of statehood. Evidence of recreational use, depending on its nature, may bear upon susceptibility of commercial use at the time of statehood. See Appalachian Elec. Power 311 U.S., at 416 (“[P]ersonal or private use by boats demonstrates the availability of the stream for the simpler types of commer cial navigation”); (fact that actual use has “been more of a private nature than of a public, commercial sort cannot be regarded as controlling”). Similarly, poststatehood evidence, depending on its na ture, may show susceptibility of use at the time of state hood. See at 82–83 (“[E]xtensive and continued [historical] use for commercial purposes” may be the “most persuasive” form of evidence, but the “crucial question” is the potential for such use at the time of statehood, rather than “the mere manner or extent of actual use”). Evidence of present-day use may be considered to the extent it informs the historical determination whether the river segment was susceptible of use for commercial navi gation at the time of statehood. For the susceptibility analysis, it must be determined whether trade and travel could have been conducted “in the customary modes of trade and travel on water,” over the relevant river seg ment “in [its] natural and ordinary condition.” At a minimum, there fore, the party seeking to use present-day evidence for title Cite as: 565 U. S. (2012) 23 Opinion of the Court purposes must show: (1) the watercraft are meaningfully similar to those in customary use for trade and travel at the time of statehood; and (2) the river’s poststatehood condition is not materially different from its physical con- dition at statehood. See also (find- ing that scientific and historical evidence showed that the physical condition of particular water bodies had not varied substantially since statehood in a way that might affect navigation). If modern
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statehood in a way that might affect navigation). If modern watercraft permit navigabil ity where the historical watercraft would not, or if the river has changed in ways that substantially improve its navigability, then the evidence of present-day use has little or no bearing on navigability at statehood. The Montana Supreme Court opinion offered no indica tion that it made these necessary findings. The court concluded the evidence of present-day use of the Madison was probative of its susceptibility of use at statehood, but there is no apparent basis for its conclusion. 355 Mont., at –443, –, 446–447. The court did not find the watercraft similar to those used at the time of statehood, and the State’s evidence of present-day use for recreational fishing did not indicate what types of boats are now used. App. 46–48. Modern recreational fishing boats, including inflatable rafts and lightweight canoes or kayaks, may be able to navigate waters much more shallow or with rockier beds than the boats custom arily used for trade and travel at statehood. As to the river’s physical condition, the Montana Su preme Court did not assess with care PPL’s evidence about changes to the river’s flow and the location and pattern of its channel since statehood. The affidavit of PPL’s expert in fluvial geomorphology—the study of river related landforms—at least suggests that as a result of PPL’s dams, the river has become “less torrential” in high flow periods and less shallow in low flow periods. App. 575–577 (Docket No. 170). Thus, the river may well be 24 PPL MONTANA, LLC v. MONTANA Opinion of the Court easier to navigate now than at statehood. The Montana Supreme Court altogether ignored the expert’s reasoning about the past condition of the river’s channels and the significance of that information for navigability. Further, contrary to the Montana Supreme Court’s suggestion, the expert’s affidavit was not mere evidence of change in “seasonal variations” of water depth. It provided meaning ful evidence that the river’s conditions had changed since statehood in ways that made present-day navigation of the river easier in all seasons than it was at the relevant time. While the Montana court was correct that a river need not be susceptible of navigation at every point during the year, neither can that susceptibility be so brief that it is not a commercial reality. Against this background, the present day recreational use of the river did not bear on navigabil ity for purposes of title under the equal-footing doctrine. The Montana Supreme Court’s reliance upon the State’s evidence of present-day, recreational use, at least
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Justice Kennedy
| 2,012 | 4 |
majority
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Ppl Montana, LLC v. Montana
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https://www.courtlistener.com/opinion/623241/ppl-montana-llc-v-montana/
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upon the State’s evidence of present-day, recreational use, at least without further inquiry, was wrong as a matter of law. C The above analysis is sufficient to require reversal of the grant of summary judgment to Montana. Therefore, the Court declines to decide whether the Montana Supreme Court further erred as to the burden of proof regarding navigability. D As a final contention, the State of Montana suggests that denying the State title to the riverbeds here in dis pute will undermine the public trust doctrine, which con cerns public access to the waters above those beds for purposes of navigation, fishing, and other recreational uses. Brief for Respondent 20, 24–26. This suggestion underscores the State’s misapprehension of the equal Cite as: 565 U. S. (2012) 25 Opinion of the Court footing and public trust doctrines. The public trust doctrine is of ancient origin. Its roots trace to Roman civil law and its principles can be found in the English common law on public navigation and fishing rights over tidal lands and in the state laws of this coun try. See Coeur d’, –286; Illinois Central R. v. Illinois, 6 U.S. 387, ; D. Slade, Putting the Public Trust Doctrine to Work 3–8, 15–24 (1990); see, e.g., National Audubon 33 C 3d 419, 433–441, 658 P.2d 709, 718–724 (1983); Arnold v. Mundy, 6 N. J. L. 1, 9–10 (1821). Unlike the equal-footing doctrine, however, which is the constitutional foundation for the navigability rule of riverbed title, the public trust doctrine remains a matter of state law, see Coeur d’, at (Illinois Central, a Supreme Court public trust case, was “ ‘neces sarily a statement of Illinois law’ ”); subject as well to the federal power to regulate vessels and navigation under the Commerce Clause and admiralty power. While equal footing cases have noted that the State takes title to the navigable waters and their beds in trust for the public, see 15–17, 24, 46, the contours of that public trust do not depend upon the Constitution. Under accepted principles of federalism, the States retain residual power to determine the scope of the public trust over waters within their borders, while federal law deter mines riverbed title under the equal-footing doctrine. V As the litigation history of this case shows, Montana filed its claim for riverbed rent over a century after the first of the dams was built upon the Montana had not sought compensation before then, despite its full awareness of PPL’s hydroelectric projects and despite the State’s own participation in the projects’ federal licensing 26 PPL MONTANA, LLC v.
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Justice Kennedy
| 2,012 | 4 |
majority
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Ppl Montana, LLC v. Montana
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https://www.courtlistener.com/opinion/623241/ppl-montana-llc-v-montana/
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in the projects’ federal licensing 26 PPL MONTANA, LLC v. MONTANA Opinion of the Court process. While this Court does not reach the question, it may be that by virtue of the State’s sovereignty, neither laches nor estoppel could apply in a strict sense to bar the State’s much belated claim. Still, the reliance by PPL and its predecessors in title upon the State’s long failure to assert title is some evidence to support the conclusion that the river segments were nonnavigable for purposes of the equal-footing doctrine. The Montana Supreme Court’s ruling that Montana owns and may charge for use of riverbeds across the State was based upon an infirm legal understanding of this Court’s rules of navigability for title under the equal footing doctrine. As the Court said in Brewer-Elliott, “It is not for a State by courts or legislature, in dealing with the general subject of beds or streams, to adopt a retroactive rule for determining navigability which would enlarge what actually passed to the State, at the time of her ad mission, under the constitutional rule of equality here invoked.” * * * The judgment of the Montana Supreme Court is re versed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered
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Justice Breyer
| 2,018 | 2 |
dissenting
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Husted v. A. Philip Randolph Institute
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https://www.courtlistener.com/opinion/4506000/husted-v-a-philip-randolph-institute/
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Section of the National Voter Registration Act of 1993 requires States to “conduct a general program that makes a reasonable effort to remove the names of ineligible vot- ers from the official lists of eligible voters by reason of a change in the residence of the registrant.” 107 Stat. 2–3, 52 U.S. C. This case concerns the State of Ohio’s change-of-residence removal program (called the “Supplemental Process”), under which a regis- tered voter’s failure to vote in a single federal election begins a process that may well result in the removal of that voter’s name from the federal voter rolls. See infra, The question is whether the Supplemental Process violates which prohibits a State from removing regis- trants from the federal voter roll “by reason of the person’s failure to vote.” In my view, Ohio’s program does just that. And I shall explain why and how that is so. I This case concerns the manner in which States maintain federal voter registration lists. In the late 19th and early 20th centuries, a number of “[r]estrictive registration laws and administrative procedures” came into use across the 2 HUSTED v. A. PHILIP RANDOLPH INSTITUTE BREYER, J., dissenting United States—from literacy tests to the poll tax and from strict residency requirements to “selective purges.” H. R. Rep. No. 103–9, p. 2 (1993). Each was designed “to keep certain groups of citizens from voting” and “discourage participation.” By 1965, the Voting Rights Act abolished some of the “more obvious impediments to regis- tration,” but still, in 1993, Congress concluded that it had “unfinished business” to attend to in this domain. at 3. That year, Congress enacted the National Voter Regis- tration Act “to protect the integrity of the electoral pro- cess,” “increase the number of eligible citizens who regis- ter to vote in elections for Federal office,” and “ensure that accurate and current voter registration rolls are main- tained.” It did so mindful that “the purpose of our election process is not to test the fortitude and deter- mination of the voter, but to discern the will of the majority.” S. Rep. No. 103–6, p. 3 (1993). In accordance with these aims, of the Registration Act sets forth a series of requirements that States must satisfy in their “administration of voter registration for elections for Federal office.” Ohio’s Supplemental Process fails to comport with these requirements; it erects needless hurdles to voting of the kind Congress sought to eliminate by enacting the Registration Act. Four of ’s provisions are critical to this case: subsections (a), (b), (c), and (d). The text of each subsection
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Justice Breyer
| 2,018 | 2 |
dissenting
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Husted v. A. Philip Randolph Institute
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https://www.courtlistener.com/opinion/4506000/husted-v-a-philip-randolph-institute/
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(a), (b), (c), and (d). The text of each subsection is detailed and con- tains multiple parts. Given the complexity of the statute, readers should consult these provisions themselves (see Appendix A, infra, at 21–24) and try to keep the thrust of those provisions in mind while reading this opinion. At the outset, I shall address each of them. A 1 We begin with subsection (a)’s “Reasonable Program” requirement. That provision says that “each State shall”: Cite as: 54 U. S. (201) 3 BREYER, J., dissenting “conduct a general program that makes a reasonable effort to remove the names of ineligible voters from the official lists of eligible voters by reason of a change in the residence of the registrant, in accord- ance with subsections (b), (c), and (d).” This provision tells each State that it must try to remove ineligible voters from the rolls, that it must act reasonably in doing so, and that, when it does so, it must follow the rules contained in the next three subsections of — namely, subsections (b), (c), and (d). 2 Subsection (b)’s “Failure-to-Vote” Clause generally forbids state change-of-residence removal programs that rely upon a registrant’s failure to vote as a basis for re- moving the registrant’s name from the federal voter roll. Before 1993, when Congress enacted this prohibition, many States would assume a registered voter had changed his address, and consequently remove that voter from the rolls, simply because the registrant had failed to vote. Recognizing that many registered voters who do not vote “may not have moved,” S. Rep. No. 103–6, at 17, Congress consequently prohibited States from using the failure to vote as a proxy for moving and thus a basis for purging the voter’s name from the rolls. The Failure-to-Vote Clause, as originally enacted, said: “Any State program or activity to protect the integrity of the electoral process by ensuring the maintenance of an accurate and current voter registration roll for elections for Federal office shall not result in the removal of the name of any person from the official list of voters registered to vote in an election for Fed- eral office by reason of the person’s failure to vote.” ; see As I shall discuss, Congress later clarified that “using 4 HUSTED v. A. PHILIP RANDOLPH INSTITUTE BREYER, J., dissenting the procedures described in subsections (c) and (d) to remove an individual” from the federal voter roll is per- missible and does not violate the Failure-to-Vote Clause. See (b)(2) of the National Voter Registration Act, 107 Stat. 3, and as amended, 52 U.S. C. 3
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Justice Breyer
| 2,018 | 2 |
dissenting
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Husted v. A. Philip Randolph Institute
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https://www.courtlistener.com/opinion/4506000/husted-v-a-philip-randolph-institute/
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107 Stat. 3, and as amended, 52 U.S. C. 3 Subsection (c), which is entitled “Voter Removal Pro- grams,” explains how “[a] State may meet the requirement of subsection (a)(4).” Because subsection (a)(4) itself incorporates all of the relevant requirements of subsections (b), (c), and (d) within it, see subsection (c) sets forth one way a State can comply with the basic requirements of at issue in this case (includ- ing subsection (b)). A State’s removal program qualifies under subsection (c) if the following two things are true about the program: “(A) change-of-address information supplied by the Postal Service through its licensees is used to identify registrants whose addresses may have changed; and “(B) if it appears [that] the registrant has moved to a different residence address not in the same regis- trar’s jurisdiction, the registrar uses the notice proce- dure described in subsection (d)(2) to confirm the change of address.” The upshot is that subsection (c) explains one way a State may comply with subsection (a)’s Reasonable Program requirement without violating subsection (b)’s Failure-to- Vote prohibition. It is a roadmap that points to a two-step removal process. At step 1, States first identify registered voters whose addresses may have changed; here, subsec- tion (c) points to one (but not the only) method a State may use to do so. At step 2, subsection (c) explains, States must “confirm the change of address” by using a special notice procedure, which is further described in Cite as: 54 U. S. (201) 5 BREYER, J., dissenting subsection (d). 4 Subsection (d) sets forth the final procedure, which Ohio refers to as the “Confirmation Procedure.” Brief for Peti- tioner 7. The statute makes clear that a State must use the Confirmation Procedure to “confirm” a change of ad- dress in respect to any registered voter it initially identi- fies as someone who has likely changed addresses. It works as follows: the State must send the registrant iden- tified as having likely moved a special kind of notice by forwardable mail. That notice must warn the registrant that his or her name will be removed from the voter roll unless the registrant either returns an attached card and confirms his or her current address in writing or votes in an election during the period covering the next two federal elections. In a sense, the notice a State is required to send as part of the Confirmation Procedure gives registered voters whom the State has identified as likely ineligible a “last chance” to correct the record before being removed from the federal registration list. The
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Justice Breyer
| 2,018 | 2 |
dissenting
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Husted v. A. Philip Randolph Institute
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https://www.courtlistener.com/opinion/4506000/husted-v-a-philip-randolph-institute/
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record before being removed from the federal registration list. The Confirmation Procedure is mandatory for all change-of-residence removals, regard- less of the method the State uses to make its initial identi- fication of registrants whose addresses may have changed. In particular, subsection (d) says: “A State shall not remove the name of a registrant from the official list of eligible voters on the ground that the registrant has changed residence un- less the registrant [either]— “(A) confirms in writing that the registrant has changed residence to a place outside the registrar’s ju- risdiction in which the registrant is registered; or “(B)(i) has failed to respond to a notice described in [subsection (d)(2)]; and (ii) has not voted [in two sub- sequent federal elections].” 6 HUSTED v. A. PHILIP RANDOLPH INSTITUTE BREYER, J., dissenting Subsection (d)(2) then goes on to describe (in consider- able detail) the “last chance” notice the State must send to the registrant. In particular, the notice must be sent by forwardable mail so that the notice will reach the regis- trant even if the registrant has changed addresses. It must include a postage-prepaid, preaddressed “return card” that the registrant may send back to the State to confirm or correct the State’s record of his or her current address. And, the notice must warn the registrant that unless the card is returned, if the registrant does not vote in the next two federal elections, then his or her name will be removed from the list of eligible voters. * * * In sum, tells States the following: • In general, establish a removal-from-registration program that “makes a reasonable effort” to remove voters who become ineligible because they change residences. • Do not target registered voters for removal from the registration roll because they have failed to vote. However, “using the procedures described in subsections (c) and (d) to remove an individual” from the federal voter roll is permissible and does not violate the Failure-to-Vote prohibition. • The procedures described in subsections (c) and (d) consist of a two-step removal process in which at step 1, the State uses change-of-address infor- mation (which the State may obtain, for instance, from the Postal Service) to identify registrants whose addresses may have changed; and then at step 2, the State must use the mandatory “last chance” notice procedure described in subsection (d) to confirm the change of address. • The “last chance” confirmation notice must be sent by forwardable mail. It must also include a postage- Cite as: 54 U. S. (201) 7 BREYER, J., dissenting prepaid, preaddressed “return card” that
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Justice Breyer
| 2,018 | 2 |
dissenting
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Husted v. A. Philip Randolph Institute
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https://www.courtlistener.com/opinion/4506000/husted-v-a-philip-randolph-institute/
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(201) 7 BREYER, J., dissenting prepaid, preaddressed “return card” that the regis- trant may send back to the State verifying his or her current address. And it must warn the regis- trant that unless the card is returned, if the regis- trant does not vote in the next two federal elec- tions, then his or her name will be removed from the list of eligible voters. B The Supplemental Process, Ohio’s program for removing registrants from the federal rolls on the ground that the voter has changed his address, is much simpler. Each of Ohio’s boards of elections sends its version of subsec- tion (d)’s “last chance” notice to those on a list “of individ- uals who, according to the board’s records, have not en- gaged in certain kinds of voter activity”—including “casting a ballot”—for a period of “generally two years.” Record 1507. Accordingly, each board’s list can include registered voters who failed to vote in a single federal election. And anyone on the list who “continues to be inactive” by failing to vote for the next “four consecutive years, including two federal elections,” and fails to respond to the notice is removed from the federal voter roll. at 1509. Under the Supplemental Process, a person’s failure to vote is the sole basis on which the State identifies a registrant as a person whose address may have changed and the sole reason Ohio initiates a registered voter’s removal using subsection (d)’s Confirmation Procedure. Section requires that Ohio’s program “mak[e] a rea- sonable effort to remove” ineligible registrants from the rolls because of “a change in the residence of the regis- trant,” and it must do so “in accordance with subsections (b), (c), and (d).” In my view, Ohio’s program is unlawful under in two respects. It first HUSTED v. A. PHILIP RANDOLPH INSTITUTE BREYER, J., dissenting violates subsection (b)’s Failure-to-Vote prohibition be- cause Ohio uses nonvoting in a manner that is expressly prohibited and not otherwise authorized under In addition, even if that were not so, the Supplemental Pro- cess also fails to satisfy subsection (a)’s Reasonable Pro- gram requirement, since using a registrant’s failure to vote is not a reasonable method for identifying voters whose registrations are likely invalid (because they have changed their addresses). First, as to subsection (b)’s Failure-to-Vote Clause, recall that Ohio targets for removal registrants who fail to vote. In identifying registered voters who have likely changed residences by looking to see if those registrants failed to vote, Ohio’s program violates subsection (b)’s express prohibition on “[a]ny State program or activity [that] result[s] in the
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Justice Breyer
| 2,018 | 2 |
dissenting
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Husted v. A. Philip Randolph Institute
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https://www.courtlistener.com/opinion/4506000/husted-v-a-philip-randolph-institute/
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on “[a]ny State program or activity [that] result[s] in the removal” of a registered voter “by reason of the person’s failure to vote.” (em- phasis added). In my view, these words are most naturally read to prohibit a State from considering a registrant’s failure to vote as part of any process “that is used to start, or has the effect of starting, a purge of the voter rolls.” H. R. Rep. No. 103–9, at 15. In addition, Congress enacted the Failure-to-Vote Clause to prohibit “the elimination of names of voters from the rolls solely due to [a registrant’s] failure to respond to a mailing.” But that is precisely what Ohio’s Supplemental Process does. The program violates subsection (b)’s prohibition because under it, a registrant who fails to vote in a single federal election, fails to respond to a forwardable notice, and fails to vote for another four years may well be purged. Record 150. If the registrant had voted at any point, the registrant would not have been removed. See ; infra, at 11–14. Ohio does use subsection (d)’s Confirmation Procedure, but that procedure alone does not satisfy ’s require- ments. How do we know that Ohio’s use of the Confirma- Cite as: 54 U. S. (201) 9 BREYER, J., dissenting tion Procedure alone cannot count as statutorily signifi- cant? The statute’s basic structure along with its lan- guage makes clear that this is so. In respect to language, says that the function of subsection (d)’s Confirmation Procedure is “to confirm the change of address” whenever the State has already “iden- tif[ied] registrants whose addresses may have changed.” (d)(2). The function of the Confirmation Procedure is not to make the initial identification of regis- trants whose addresses may have changed. As a matter of English usage, you cannot confirm that an event happened without already having some reason to believe at least that it might have happened. Black’s Law Dictionary 29 (6th ed. 1990) (defining “confirm” as meaning “[t]o com- plete or establish that which was imperfect or uncertain”). Ohio, of course, says that it has a ground for believing that those persons they remove from the rolls have, in fact, changed their address, but the ground is the fact that the person did not vote—the very thing that the Failure- to-Vote Clause forbids Ohio to use as a basis for removing a registered voter from the registration roll. In respect to structure, two statutory illustrations make clear what the word “confirm” already suggests, namely, that the Confirmation Procedure is a necessary but not a sufficient procedure for removing a
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Justice Breyer
| 2,018 | 2 |
dissenting
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Husted v. A. Philip Randolph Institute
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https://www.courtlistener.com/opinion/4506000/husted-v-a-philip-randolph-institute/
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a necessary but not a sufficient procedure for removing a registered voter from the voter roll. The first illustration of how the Confirma- tion Procedure is supposed to function appears in subsec- tion (c), which describes a removal process under which the State first identifies registrants who have likely changed addresses and then “confirm[s]” that change of residence using the Confirmation Procedure and sending the required “last chance” notice. (emphasis added). The identification method subsection (c) says a State may use is “change-of-address information supplied by the Postal Service.” (A). A person does not notify the Postal Service that he is moving unless he is 10 HUSTED v. A. PHILIP RANDOLPH INSTITUTE BREYER, J., dissenting likely to move or has already moved. And, as the Regis- tration Act says, “if it appears from change-of-address provided by the Postal Service that the registrant has moved to a different residence not in the same registrar’s jurisdiction,” the State has a reasonable (hence acceptable) basis for “us[ing] the notice procedure described in sub- section (d)(2) to confirm the change of address.” (B). The second illustration of how the Confirmation Proce- dure is supposed to function appears in a portion of the statute I have not yet discussed—namely, of the Na- tional Voter Registration Act, which sets out the rules for voter registration by mail. See 52 U.S. C. In particular, (d), entitled “Undeliv- ered Notices,” says that, “[i]f a notice of the disposition of a mail voter registration application is sent by nonfor- wardable mail and is returned undelivered,” at that point the State “may proceed in accordance with section (d),” namely, the Confirmation Procedure, and send the same “last chance” notice that I have just discussed. Note that (d) specifies a nonforwardable mailing—and not a forwardable mailing, like one specified in (d). This distinction matters. Why? If a person moves, a forward- able mailing will be sent along (i.e., “forwarded”) to that person’s new address; in contrast, a nonforwardable mail- ing will not be forwarded to the person’s new address but instead will be returned to the sender and marked “unde- liverable.” And so a nonforwardable mailing that is re- turned to the sender marked “undeliverable” indicates that the intended recipient may have moved. After all, the Postal Service, as the majority points out, returns mail marked “undeliverable” if the intended recipient has moved—not if the person still lives at his old address. Ante, at 6, and n. 3. Under (d), the Registration Act expressly endorses Cite as: 54 U. S. (201) 11 BREYER, J., dissenting nonforwardable mailings as a reasonable method
|
Justice Breyer
| 2,018 | 2 |
dissenting
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Husted v. A. Philip Randolph Institute
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https://www.courtlistener.com/opinion/4506000/husted-v-a-philip-randolph-institute/
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11 BREYER, J., dissenting nonforwardable mailings as a reasonable method for States to use at step 1 to identify registrants whose ad- dresses may have changed before the State proceeds to step 2 and sends the forwardable notice required under subsection (d)’s Confirmation Procedure. Specifically, (d) explains that, if a State sends its registrants a mail- ing by nonforwardable mail (which States often do), and if “[that mailing] is returned undelivered,” the State has a fairly good reason for believing that the person has moved and therefore “may proceed in accordance with” (d) by sending the “last chance” forwardable notice that the Confirmation Procedure requires. In contrast to a nonforwardable notice that is returned undeliverable, which tells the State that a registrant has likely moved, a forwardable notice that elicits no response whatsoever tells the State close to nothing at all. That is because, as I shall discuss, most people who receive confirmation notices from the State simply do not send back the “return card” attached to that mailing—whether they have moved or not. In sum, (d), just like §(a) and (c), indicates that the State, as an initial matter, must use a reasonable method to identify a person who has likely moved and then must send that person a confirmatory notice that will in effect give him a “last chance” to remain on the rolls. And these provisions thus tend to deny, not to support, the majority’s suggestion that somehow sending a “last chance” notice is itself a way (other than nonvoting) to identify someone who has likely moved. I concede that some individuals who have, in fact, moved do, in fact, send a return card back to the State making clear that they have moved. And some registrants do send back a card saying that they have not moved. Thus, the Confirmation Procedure will sometimes help provide confirmation of what the initial identification procedure is supposed to accomplish: finding registrants 12 HUSTED v. A. PHILIP RANDOLPH INSTITUTE BREYER, J., dissenting who have probably moved. But more often than not, the State fails to receive anything back from the registrant, and the fact that the State hears nothing from the regis- trant essentially proves nothing at all. Anyone who doubts this last statement need simply consult figures in the record along with a few generally available statistics. As a general matter, the problem these numbers reveal is as follows: Very few registered voters move outside of their county of registration. But many registered voters fail to vote. Most registered voters who fail to vote also fail to respond to
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Justice Breyer
| 2,018 | 2 |
dissenting
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Husted v. A. Philip Randolph Institute
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https://www.courtlistener.com/opinion/4506000/husted-v-a-philip-randolph-institute/
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voters who fail to vote also fail to respond to the State’s “last chance” notice. And the number of registered voters who both fail to vote and fail to respond to the “last chance” notice exceeds the number of registered voters who move outside of their county each year. Consider the following facts. First, Ohio tells us that a small number of Americans—about 4% of all Americans— move outside of their county each year. Record 376. (The majority suggests the relevant number is 10%, ante, at 2, but that includes people who move within their county.) At the same time, a large number of American voters fail to vote, and Ohio voters are no exception. In 2014, around 59% of Ohio’s registered voters failed to vote. See Brief for League of Women Voters et al. as Amici Curiae 16, and n. 12 (citing Ohio Secretary of State, 2014 Official Election Results). Although many registrants fail to vote and only a small number move, under the Supplemental Process, Ohio uses a registrant’s failure to vote to identify that registrant as a person whose address has likely changed. The record shows that in 2012 Ohio identified about 1.5 million regis- tered voters—nearly 20% of its million registered vot- ers—as likely ineligible to remain on the federal voter roll because they changed their residences. Record 475. Ohio then sent those 1.5 million registered voters subsubsection (d) “last chance” confirmation notices. In response to Cite as: 54 U. S. (201) 13 BREYER, J., dissenting those 1.5 million notices, Ohio only received back about 60,000 return cards (or 4%) which said, in effect, “You are right, Ohio. I have, in fact, moved.” In addition, Ohio received back about 235,000 return cards which said, in effect, “You are wrong, Ohio, I have not moved.” In the end, however, there were more than 1,000,000 notices—the vast majority of notices sent—to which Ohio received back no return card at all. What about those registered voters—more than 1 mil- lion strong—who did not send back their return cards? Is there any reason at all (other than their failure to vote) to think they moved? The answer to this question must be no. There is no reason at all. First, those 1 million or so voters accounted for about 13% of Ohio’s voting popula- tion. So if those 1 million or so registered voters (or even half of them) had, in fact, moved, then vastly more people must move each year in Ohio than is generally true of the roughly 4% of all Americans who move to a different county
|
Justice Breyer
| 2,018 | 2 |
dissenting
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Husted v. A. Philip Randolph Institute
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https://www.courtlistener.com/opinion/4506000/husted-v-a-philip-randolph-institute/
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4% of all Americans who move to a different county nationwide (not all of whom are registered voters). See But there is no reason to think this. Ohio offers no such reason. And the streets of Ohio’s cities are not filled with moving vans; nor has Cleveland become the Nation’s residential moving companies’ headquarters. Thus, I think it fair to assume (because of the human tendency not to send back cards received in the mail, confirmed strongly by the actual numbers in this record) the following: In respect to change of residence, the failure of more than 1 million Ohio voters to respond to forward- able notices (the vast majority of those sent) shows nothing at all that is statutorily significant. To put the matter in the present statutory context: When a State relies upon a registrant’s failure to vote to initiate the Confirmation Procedure, it violates the Failure- to-Vote Clause, and a State’s subsequent use of the Con- firmation Procedure cannot save the State’s program from that defect. Even if that were not so, a nonreturned con- 14 HUSTED v. A. PHILIP RANDOLPH INSTITUTE BREYER, J., dissenting firmation notice adds nothing to the State’s understanding of whether the voter has moved or not. And that, I repeat, is because a nonreturned confirmation notice (as the num- bers show) cannot reasonably indicate a change of address. Finally, let us return to ’s basic mandate and purpose. Ohio’s program must “mak[e] a reasonable effort to remove the names of ineligible voters” from its federal rolls on change-of-residence grounds. (emphasis added). Reasonableness under (a) is primarily meas- ured in terms of the program’s compliance with “subsec- tions (b), (c), and (d).” That includes the broad prohibition on removing registrants because of their failure to vote. More generally, the statute seeks to “pro- tect the integrity of the electoral process” and “ensure that accurate and current voter registration rolls are main- tained.” (4). Ohio’s system adds to its non- voting-based identification system a factor that has no tendency to reveal accurately whether the registered voter has changed residences. Nothing plus one is still one. And, if that “one” consists of a failure to vote, then Ohio’s program also fails to make the requisite “reasonable ef- fort” to comply with subsection (a)’s statutory mandate. It must violate the statute. I The majority tries to find support in two provisions of a different statute, namely, the Help America Vote Act of 2002, the pertinent part of which is re- printed in Appendix B, infra, at 25–26. The first is enti- tled “Clarification of Ability of
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Justice Breyer
| 2,018 | 2 |
dissenting
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Husted v. A. Philip Randolph Institute
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https://www.courtlistener.com/opinion/4506000/husted-v-a-philip-randolph-institute/
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25–26. The first is enti- tled “Clarification of Ability of Election Officials To Re- move Registrants From Official List of Voters on Grounds of Change of Residence.” That provi- sion was added to the National Voter Registration Act’s Failure-to-Vote Clause, subsection (b)(2), which says that a State’s registrant removal program “shall not result in the removal of the name of any person from the official list Cite as: 54 U. S. (201) 15 BREYER, J., dissenting by reason of the person’s failure to vote.” ; see The “Clarification” adds: “except that nothing in this paragraph may be con- strued to prohibit a State from using the procedures described in subsections (c) and (d) to remove an indi- vidual from the official list of eligible voters if the in- dividual—(A) has not either notified the applicable registrar (in person or in writing) or responded to the [confirmation] notice sent by the applicable regis- trar; and then (B) has not voted or appeared to vote in 2 or more consecutive general elections for Federal of- fice.” This amendment simply clarified that the use of nonvot- ing specified in subsections (c) and (d) does not violate the Failure-to-Vote Clause. The majority asks why, if the matter is so simple, Congress added the new language at all. The answer to this question is just what the title attached to the new language says, namely, Congress added the new language for purposes of clarification. And the new language clarified any confusion States may have had about the relationship between, on the one hand, subsection (b)’s broad prohibition on any use of a person’s failure to vote in removal programs and, on the other hand, the requirement in subsections (c) and (d) that a State consider whether a registrant has failed to vote at the end of the Confirmation Procedure. This reading finds support in several other provisions in both the National Voter Registration Act and the Help America Vote Act, which make similar clarifications. See, e.g., (clarifying that a particular prohibition “shall not be construed to preclude” States from comply- ing with separate statutory obligations); see also (similar rule of construction), 2101(c)(1), 2103(a)(1)(B), (a)(2)(A)(iii), (b)(5), (d)(1)(A)–(B); 2104. The majority also points out that another provision of 16 HUSTED v. A. PHILIP RANDOLPH INSTITUTE BREYER, J., dissenting the Help America Vote Act, See 116 Stat. 170, 52 U.S. C. That provision once again reaffirms that a State’s registration list-maintenance program must “mak[e] a reasonable effort to remove regis- trants who are ineligible to vote” and adds that “consistent with the National Voter Registration Act of 1993
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Justice Breyer
| 2,018 | 2 |
dissenting
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Husted v. A. Philip Randolph Institute
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https://www.courtlistener.com/opinion/4506000/husted-v-a-philip-randolph-institute/
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that “consistent with the National Voter Registration Act of 1993 regis- trants who have not responded to a notice and who have not voted in 2 consecutive general elections for Federal office shall be removed from the official list of eligible voters, except that no registrant may be removed solely by reason of a failure to vote.” (emphasis added). The majority tries to make much of the word “solely.” But the majority makes too much of too little. For one thing, the Registration Act’s Failure-to-Vote Clause under subsection (b) does not use the word “solely.” And of the Help America Vote Act tells us to interpret its lan- guage (which includes the word “solely”) “consistent with the” Registration Act. For another, the Help America Vote Act says that “nothing in this [Act] may be construed to authorize or require conduct prohib- ited under [the National Voter Registration Act], or to su- persede, restrict or limit the application of [t]he Na- tional Voter Registration Act.” The majority’s view of the statute leaves the Registra- tion Act’s Failure-to-Vote Clause with nothing to do in respect to change-of-address programs. Let anyone who doubts this read subsection (d) (while remaining aware of the fact that it requires the sending of a confirmation notice) and ask himself or herself: What else is there for the Failure-to-Vote Clause to do? The answer is nothing. Section (d) requires States to send a confirmation notice for all change-of-address removals, and, in the majority’s view, failing to respond to that forwardable notice is al- ways a valid cause for removal, even if that notice was sent by reason of the registrant’s initial failure to vote. Cite as: 54 U. S. (201) 17 BREYER, J., dissenting Thus the Failure-to-Vote Clause is left with no independ- ent weight since complying with subsection (d) shields a State from violating subsection (b). To repeat the point, under the majority’s view, the Failure-to-Vote Clause is superfluous in respect to change-of-address programs: subsection (d) already accomplishes everything the major- ity says is required of a State’s removal program—namely, the sending of a notice. Finally, even if we were to accept the majority’s premise that the question here is whether Ohio’s system removes registered voters from the registration list “solely by rea- son of a failure to vote,” that would not change anything. As I have argued, Part the failure to respond to a forwardable notice is an irrelevant factor in terms of what it shows about whether that registrant changed his or her residence. To add an irrelevant factor to a failure to vote, say,
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Justice Breyer
| 2,018 | 2 |
dissenting
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Husted v. A. Philip Randolph Institute
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https://www.courtlistener.com/opinion/4506000/husted-v-a-philip-randolph-institute/
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add an irrelevant factor to a failure to vote, say, a factor like having gone on vacation or having eaten too large a meal, cannot change Ohio’s sole use of “failure to vote” into something it is not. IV JUSTICE THOMAS, concurring, suggests that my reading of the statute “ ‘raises serious constitutional doubts.’ ” Ante, at 1 (quoting Jennings v. Rodriguez, 53 U. S. (201) (slip op., at 2)). He believes that it “would seriously interfere with the States’ constitutional authority to set and enforce voter qualifications.” Ante, at 2. At the same time, the majority “assume[s]” that “Congress has the constitutional authority to limit voting eligibility requirements in the way respondents suggest.” Ante, at 16, n. 5. But it suggests possible agreement with JUSTICE THOMAS, for it makes this assumption only “for the sake of argument.” Our cases indicate, however, that neither exceeds Congress’ authority under the Elections Clause, Art. I, nor interferes with the State’s authority under the Voter 1 HUSTED v. A. PHILIP RANDOLPH INSTITUTE BREYER, J., dissenting Qualification Clause, Art. 1, Indeed, this Court’s precedents interpreting the scope of congressional authority under the Elections Clause make clear that Congress has the constitutional power to adopt the statute before us. The Elections Clause states: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Con- gress may at any time by Law make or alter such Regulations, except as to the Places of chusing Sena- tors.” U. S. Const., Art. I, cl. 1. The Court has frequently said that “[t]he Clause’s sub- stantive scope is broad,” and that it “empowers Congress to pre-empt state regulations governing the ‘Times, Places and Manner’ of holding congressional elections.” Arizona v. Inter Tribal of Ariz., Inc., We have long held that “[t]he power of Congress over the ‘Times, Places and Manner’ of congressional elections ‘is paramount, and may be exercised at any time, and to any extent which it deems expedient; and so far as it is exer- cised, and no farther, the regulations effected supersede those of the State which are inconsistent therewith.’ ” at 9 (quoting Ex parte Siebold, (10)). The words “ ‘Times, Places, and Manner,’ ” we have said, are “ ‘comprehensive words’ ” that “ ‘embrace authority to provide a complete code for congressional elections.’ ” Tribal at –9 (quoting Smiley v. Holm, 25 U.S. 355, 366 (1932)). That “complete code” includes the constitutional authority to enact “regulations relating to ‘registration.’ ” ; see also Cook v. Gralike, 531 U.S. 510,
|
Justice Breyer
| 2,018 | 2 |
dissenting
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Husted v. A. Philip Randolph Institute
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https://www.courtlistener.com/opinion/4506000/husted-v-a-philip-randolph-institute/
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” ; see also Cook v. Gralike, 531 U.S. 510, 524 (2001) (same); 24–25 (1972). That is precisely what does. Neither does tell the States “who may vote in” federal elections. Tribal Instead, considers the manner of registering those whom the State Cite as: 54 U. S. (201) 19 BREYER, J., dissenting itself considers qualified. Unlike the concurrence, I do not read our precedent as holding to the contrary. But see at 26 (THOMAS, J., dissenting). And, our precedent strongly suggests that, given the importance of voting in a democ- racy, a State’s effort (because of failure to vote) to remove from a federal election roll those it considers otherwise qualified is unreasonable. Cf. Carrington v. Rash, 30 U.S. 9, 91–93, 96 (1965) (State can impose “reasonable residence restrictions on the availability of the ballot” but cannot forbid otherwise qualified members of military to vote); see also (“States have the power to im- pose reasonable citizenship, age, and residency require- ments on the availability of the ballot” ); 33 U.S. 663, 66 (1966) (“To introduce wealth or payment of a fee as a measure of a voter’s qualifications is to introduce a capri- cious or irrelevant factor”). For these reasons, with respect, I dissent. 20 HUSTED v. A. PHILIP RANDOLPH INSTITUTE BREYER Appendix A toopinion J., dissenting of BREYER, J. APPENDIXES A The National Voter Registration Act of 1993 “SEC. 2. FINDINGS AND PURPOSES. “(a) FINDINGS.—The Congress finds that— “(1) The right of citizens of the United States to vote is a fundamental right; “(2) it is the duty of the Federal, State, and local gov- ernments to promote the exercise of that right; and “(3) discriminatory and unfair registration laws and procedures can have a direct and damaging effect on voter participation in elections for Federal office and dispropor- tionately harm voter participation including racial minorities. “(b) PURPOSES.—The purposes of this Act are— “(1) to establish procedures that will increase the num- ber of eligible citizens who register to vote in elections for Federal office; “(2) to make it possible for Federal, State, and local governments to implement this Act in a manner that enhances the participation of eligible citizens as voters in elections for Federal office; “(3) to protect the integrity of the electoral process; and “(4) to ensure that accurate and current voter registra- tion rolls are maintained.” “SEC. 5. SIMULTANEOUS APPLICATION FOR VOTER REGISTRATION AND APPLICATION FOR MOTOR VEHICLE DRIVER’S LICENSE. “(d) CHANGE OF ADDRESS.—Any change of address form submitted in accordance with State law for purposes of a State motor vehicle driver's license shall serve
|
Justice Breyer
| 2,018 | 2 |
dissenting
|
Husted v. A. Philip Randolph Institute
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https://www.courtlistener.com/opinion/4506000/husted-v-a-philip-randolph-institute/
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purposes of a State motor vehicle driver's license shall serve as notifica- tion of change of address for voter registration with re- spect to elections for Federal office for the registrant in- Cite as: 54 U. S. (201) 21 BREYER Appendix A toopinion J., dissenting of BREYER, J. volved unless the registrant states on the form that the change of address is not for voter registration purposes.” 9. “SEC. 6. MAIL REGISTRATION. “(d) UNDELIVERED NOTICES. If a notice of the disposi- tion of a mail voter registration application under section (a)(2) is sent by nonforwardable mail and is returned undelivered, the registrar may proceed in accordance with section (d).” at 0. “SEC. REQUIREMENTS WITH RESPECT TO ADMINI- STRATION OF VOTER REGISTRATION. “(a) IN GENERAL—In the administration of voter regis- tration for elections for Federal office, each State shall— “(1) ensure that any eligible applicant is registered to vote in an election— “(2) require the appropriate State election official to send notice to each applicant of the disposition of the application; “(3) provide that the name of a registrant may not be removed from the official list of eligible voters except— “(A) at the request of the registrant; “(B) as provided by State law, by reason of criminal conviction or mental incapacity; or “(C) as provided under paragraph (4); “(4) conduct a general program that makes a reasonable effort to remove the names of ineligible voters from the official lists of eligible voters by reason of— “(A) the death of the registrant; or “(B) a change in the residence of the registrant, in ac- cordance with subsections (b), (c), and (d); “(b) CONFIRMATION OF VOTER REGISTRATION.—Any State program or activity to protect the integrity of the 22 HUSTED v. A. PHILIP RANDOLPH INSTITUTE BREYER Appendix A toopinion J., dissenting of BREYER, J. electoral process by ensuring the maintenance of an accu- rate and current voter registration roll for elections for Federal office— “(1) shall be uniform, nondiscriminatory, and in compli- ance with the Voting Rights Act of 1965 (42 U.S. C. 1973 et seq.); and “(2) shall not result in the removal of the name of any person from the official list of voters registered to vote in an election for Federal office by reason of the person’s failure to vote. “(c) VOTER REMOVAL PROGRAMS.—(1) A State may meet the requirement of subsection (a)(4) by establishing a program under which— “(A) change-of-address information supplied by the Postal Service through its licensees is used to identify registrants whose addresses may have changed; and “(B) if it appears from information provided by the
|
Justice Breyer
| 2,018 | 2 |
dissenting
|
Husted v. A. Philip Randolph Institute
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https://www.courtlistener.com/opinion/4506000/husted-v-a-philip-randolph-institute/
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and “(B) if it appears from information provided by the Postal Service that— “(i) a registrant has moved to a different residence ad- dress in the same registrar's jurisdiction in which the registrant is currently registered, the registrar changes the registration records to show the new address and sends the registrant a notice of the change by forwardable mail and a postage prepaid pre-addressed return form by which the registrant may verify or correct the address information; or “(ii) the registrant has moved to a different residence address not in the same registrar's jurisdiction, the regis- trar uses the notice procedure described in subsection (d)(2) to confirm the change of address. “(2)(A) A State shall complete, not later than 90 days prior to the date of a primary or general election for Fed- eral office, any program the purpose of which is to system- atically remove the names of ineligible voters from the official lists of eligible voters. “(B) Subparagraph (A) shall not be construed to pre- Cite as: 54 U. S. (201) 23 BREYER Appendix A toopinion J., dissenting of BREYER, J. clude— “(i) the removal of names from official lists of voters on a basis described in paragraph (3)(A) or (B) or (4)(A) of subsection (a); or “(ii) correction of registration records pursuant to this Act. “(d) REMOVAL OF NAMES FROM VOTING ROLLS.—“(1) A State shall not remove the name of a registrant from the official list of eligible voters in elections for Federal office on the ground that the registrant has changed residence unless the registrant— “(A) confirms in writing that the registrant has changed residence to a place outside the registrar’s jurisdiction in which the registrant is registered; or “(B)(i) has failed to respond to a notice described in paragraph (2); and “(ii) has not voted or appeared to vote (and, if necessary, correct the registrar's record of the registrant's address) in an election during the period beginning on the date of the notice and ending on the day after the date of the second general election for Federal office that occurs after the date of the notice. “(2) A notice is described in this paragraph if it is a postage prepaid and pre-addressed return card, sent by forwardable mail, on which the registrant may state his or her current address, together with a notice to the following effect: “(A) If the registrant did not change his or her residence, or changed residence but remained in the registrar’s juris- diction, the registrant should return the card not later than the time provided for mail registration under
|
Justice Breyer
| 2,018 | 2 |
dissenting
|
Husted v. A. Philip Randolph Institute
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https://www.courtlistener.com/opinion/4506000/husted-v-a-philip-randolph-institute/
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not later than the time provided for mail registration under subsec- tion (a)(1)(B). If the card is not returned, affirmation or confirmation of the registrant’s address may be required before the registrant is permitted to vote in a Federal election during the period beginning on the date of the notice and ending on the day after the date of the second 24 HUSTED v. A. PHILIP RANDOLPH INSTITUTE BREYER Appendix A toopinion J., dissenting of BREYER, J. general election for Federal office that occurs after the date of the notice, and if the registrant does not vote in an election during that period the registrant’s name will be removed from the list of eligible voters. “(B) If the registrant has changed residence to a place outside the registrar’s jurisdiction in which the registrant is registered, information concerning how the registrant can continue to be eligible to vote. “(3) A voting registrar shall correct an official list of eligible voters in elections for Federal office in accordance with change of residence information obtained in conform- ance with this subsection.” at 2–4. Cite as: 54 U. S. (201) 25 BREYER Appendix B toopinion J., dissenting of BREYER, J. B The Help America Vote Act of 2002 “SEC. 303. COMPUTERIZED STATEWIDE VOTER REGISTRATION LIST REQUIREMENTS AND REQUIRE- MENTS FOR VOTERS WHO REGISTER BY MAIL. “(a) COMPUTERIZED STATEWIDE VOTER REGISTRATION LIST REQUIREMENTS.— “(4) MINIMUM STANDARD FOR ACCURACY OF STATE VOTER REGISTRATION RECORDS.—The State election sys- tem shall include provisions to ensure that voter registra- tion records in the State are accurate and are updated regularly, including the following: “(A) A system of file maintenance that makes a reason- able effort to remove registrants who are ineligible to vote from the official list of eligible voters. Under such system, consistent with the National Voter Registration Act of 1993 (42 U.S.C. 1973gg et seq.), registrants who have not responded to a notice and who have not voted in 2 consec- utive general elections for Federal office shall be removed from the official list of eligible voters, except that no regis- trant may be removed solely by reason of a failure to vote. “(B) Safeguards to ensure that eligible voters are not removed in error from the official list of eligible voters.” 116 Stat. 170–1710. 26 HUSTED v. A. PHILIP RANDOLPH INSTITUTE BREYER Appendix B toopinion J., dissenting of BREYER, J. “SEC. 903. CLARIFICATION OF ABILITY OF ELECTION OFFICIALS TO REMOVE REGISTRANTS FROM OFFICIAL LIST OF VOTERS ON GROUNDS OF CHANGE OF RESIDENCE. “Section (b)(2) of the National Voter Registration Act of 1993 is amended by striking
|
Justice Breyer
| 2,018 | 2 |
dissenting
|
Husted v. A. Philip Randolph Institute
|
https://www.courtlistener.com/opinion/4506000/husted-v-a-philip-randolph-institute/
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National Voter Registration Act of 1993 is amended by striking the period at the end and inserting the following: ‘‘, except that nothing in this paragraph may be construed to prohibit a State from using the procedures described in subsections (c) and (d) to remove an individual from the official list of eligible voters if the individual— ‘‘(A) has not either notified the applicable registrar (in person or in writing) or responded during the period de- scribed in subparagraph (B) to the notice sent by the applicable registrar; and then ‘‘(B) has not voted or appeared to vote in 2 or more consecutive general elections for Federal office.’’ at 172. “SEC. 906. NO EFFECT ON OTHER LAWS. “(a) IN GENERAL.— [N]othing in this Act may be construed to authorize or require conduct prohibited under any of the following laws, or to supersede, restrict, or limit the application of such laws [including]: “(4) The National Voter Registration Act of 1993.” at 1729. Cite as: 54 U. S. (201) 1 SOTOMAYOR, J., dissenting SUPREME COURT OF THE UNITED STATES No. 16–90 JON HUSTED, OHIO SECRETARY OF STATE, PETITIONER v. A. PHILIP RANDOLPH INSTITUTE, ET AL.
|
Justice Stevens
| 2,008 | 16 |
concurring
|
United States v. Williams
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https://www.courtlistener.com/opinion/145810/united-states-v-williams/
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My conclusion that this statutory provision is not facially unconstitutional is buttressed by two interrelated considerations on which Justice SCALIA finds it unnecessary to rely. First, I believe the result to be compelled by the principle that "every reasonable construction must be resorted to, in order to save a statute from unconstitutionality," ; see also Edward J. DeBartolo Second, to the extent the statutory text alone is unclear, our duty to avoid constitutional objections makes it especially appropriate to look beyond the text in order to ascertain the intent of its drafters. It is abundantly clear from the provision's legislative history that Congress' aim was to target materials advertised, promoted, presented, distributed, or solicited with a lascivious purposethat is, with the intention of inciting sexual arousal. The provision was described throughout the deliberations in both Houses of Congress as the "pandering," or "pandering and solicitation" provision, despite the fact that the term "pandering" appears nowhere in the statute. See, e.g., 149 Cong. Rec. 4227 (2003) ]" (statement of Sen. Leahy, bill's cosponsor)); H.R. Conf. Rep. No. 108-66, p. 61 (2003) ("[The bill] includes a new pandering provision that prohibits advertising, promoting, presenting, distributing, or soliciting child pornography" (internal quotation marks omitted)); S.Rep. No. 108-2, p. 10 (2003) ("S. 151 creates three new offenses One prohibits the pandering or solicitation of child pornography"); The Oxford English Dictionary defines the verb "pander," as "to minister to the gratification of (another's lust)," 11 Oxford English Dictionary 129 (2d ed.1989). And Black's Law Dictionary provides, as relevant, this definition of "pandering": "The act or offense of selling or distributing textual or visual material (such as magazines or videotapes) openly advertised to appeal to the recipient's sexual interest." Black's Law Dictionary 1142 (8th ed.2004) (hereinafter Black's).[1] Consistent with these dictionary definitions, our cases have explained that "pandering" is "`the business of purveying textual or graphic matter openly advertised to appeal to the erotic interest,'"[2] *1848 It was against this backdrop that Congress crafted the provision we uphold today. Both this context and the statements surrounding the provision's enactment convince me that in addition to the other limitations the Court properly concludes constrain the reach of the statute, the heightened scienter requirements described ante, at 1840-1841, contain an element of lasciviousness. The dissent argues that the statute impermissibly undermines our First Amendment precedents insofar as it covers proposals to transact in constitutionally protected material. It is true that proof that a pornographic but not obscene representation did not depict real children would place that representation on the protected side of the line. But any constitutional concerns
|
Justice Burger
| 1,978 | 12 |
majority
|
TVA v. Hill
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https://www.courtlistener.com/opinion/109897/tva-v-hill/
|
The questions presented in this case are (a) whether the Endangered Species Act of requires a court to enjoin the operation of a virtually completed federal damwhich had been authorized prior to when, pursuant to authority vested in him by Congress, the Secretary of the Interior has determined that operation of the dam would eradicate an endangered species; and whether continued congressional appropriations for the dam after constituted an implied repeal of the Endangered Species Act, at least as to the particular dam. I The Little Tennessee River originates in the mountains of northern Georgia and flows through the national forest lands of North Carolina into Tennessee, where it converges with the Big Tennessee River near Knoxville. The lower 33 miles of the Little Tennessee takes the river's clear, free-flowing waters through an area of great natural beauty. Among other environmental amenities, this stretch of river is said to contain abundant trout. Considerable historical importance attaches to the areas immediately adjacent to this portion of the Little Tennessee's banks. To the south of the river's edge lies Fort Loudon, established in 1756 as England's southwestern outpost in the French and Indian War. Nearby are also the ancient sites of several native American villages, the archeological stores of which are to a large extent unexplored.[1] These include the Cherokee towns of Echota and Tennase, the former *157 being the sacred capital of the Cherokee Nation as early as the 16th century and the latter providing the linguistic basis from which the State of Tennessee derives its name.[2] In this area of the Little Tennessee River the Tennessee Valley Authority, a wholly owned public corporation of the United States, began constructing the Tellico Dam and Reservoir Project in 1967, shortly after Congress appropriated initial funds for its development.[3] Tellico is a multipurpose regional development project designed principally to stimulate shoreline development, generate sufficient electric current to heat 20,000 homes,[4] and provide flatwater recreation and flood control, as well as improve economic conditions in "an area characterized by underutilization of human resources and outmigration of young people." Hearings on Public Works for Power and Energy Research Appropriation Bill, before a Subcommittee of the House Committee on Appropriations, 94th Cong., 2d Sess., pt. 5, p. 261 (1976). Of particular relevance to this case is one aspect of the project, a dam which TVA determined to place on the Little Tennessee, a short distance from where the river's waters meet with the Big Tennessee. When fully operational, the dam would impound water covering some 16,500 acresmuch of which represents valuable and productive farmlandthereby converting the
|
Justice Burger
| 1,978 | 12 |
majority
|
TVA v. Hill
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https://www.courtlistener.com/opinion/109897/tva-v-hill/
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acresmuch of which represents valuable and productive farmlandthereby converting the river's shallow, fast-flowing waters into a deep reservoir over 30 miles in length. The Tellico Dam has never opened, however, despite the fact that construction has been virtually completed and the *158 dam is essentially ready for operation. Although Congress has appropriated monies for Tellico every year since 1967, progress was delayed, and ultimately stopped, by a tangle of lawsuits and administrative proceedings. After unsuccessfully urging TVA to consider alternatives to damming the Little Tennessee, local citizens and national conservation groups brought suit in the District Court, claiming that the project did not conform to the requirements of the National Environmental Policy Act of 1969 (NEPA), 42 U.S. C. 4321 et seq. After finding TVA to be in violation of NEPA, the District Court enjoined the dam's completion pending the filing of an appropriate environmental impact statement. Environmental Defense (ED Tenn.), aff'd, The injunction remained in effect until late when the District Court concluded that TVA's final environmental impact statement for Tellico was in compliance with the law. Environmental Defense aff'd,[5] A few months prior to the District Court's decision dissolving the NEPA injunction, a discovery was made in the waters of the Little Tennessee which would profoundly affect the Tellico Project. Exploring the area around Coytee Springs, which is about seven miles from the mouth of the river, a University of Tennessee ichthyologist, Dr. David A. Etnier, found a previously unknown species of perch, the snail darter, or Percina (Imostoma) tanasi.[6] This three-inch, tannish-colored fish, *159 whose numbers are estimated to be in the range of 10,000 to 15,000, would soon engage the attention of environmentalists, the TVA, the Department of the Interior, the Congress of the United States, and ultimately the federal courts, as a new and additional basis to halt construction of the dam. Until recently the finding of a new species of animal life would hardly generate a cause celebre. This is particularly so in the case of darters, of which there are approximately 130 known species, 8 to 10 of these having been identified only in the last five years.[7] The moving force behind the snail darter's sudden fame came some four months after its discovery, when the Congress passed the Endangered Species Act of (Act), 16 U.S. C. 1531 et seq. (1976 ed.). This legislation, among other things, authorizes the Secretary of the Interior to declare species of animal life "endangered"[8] and to *160 identify the "critical habitat"[9] of these creatures. When a species or its habitat is so listed, the following portion of
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Justice Burger
| 1,978 | 12 |
majority
|
TVA v. Hill
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or its habitat is so listed, the following portion of the Actrelevant herebecomes effective: "The Secretary [of the Interior] shall review other programs administered by him and utilize such programs in furtherance of the purposes of this chapter. All other Federal departments and agencies shall, in consultation with and with the assistance of the Secretary, utilize their authorities in furtherance of the purposes of this chapter by carrying out programs for the conservation of endangered species and threatened species listed pursuant to section 1533 of this title and by taking such action necessary to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence of such endangered species and threatened species or result in the destruction or modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with the affected States, to be critical." 16 U.S. C. 1536 (1976 ed.) *161 In January 1975, the respondents in this case[10] and others petitioned the Secretary of the Interior[] to list the snail darter as an endangered species. After receiving comments from various interested parties, including TVA and the State of Tennessee, the Secretary formally listed the snail darter as an endangered species on October 8, 1975. -47506; see 50 CFR 17. (1976). In so acting, it was noted that "the snail darter is a living entity which is genetically distinct and reproductively isolated from other fishes." More important for the purposes of this case, the Secretary determined that the snail darter apparently lives only in that portion of the Little Tennessee River which would be completely inundated by the reservoir created as a consequence of the Tellico Dam's completion.[12]*162 The Secretary went on to explain the significance of the dam to the habitat of the snail darter: "[T]he snail darter occurs only in the swifter portions of shoals over clean gravel substrate in cool, low-turbidity water. Food of the snail darter is almost exclusively snails which require a clean gravel substrate for their survival. The proposed impoundment of water behind the proposed Tellico Dam would result in total destruction of the snail darter's habitat." Subsequent to this determination, the Secretary declared the area of the Little Tennessee which would be affected by the Tellico Dam to be the "critical habitat" of the snail darter. -13928 (1976) (to be codified as 50 CFR 17.81). Using these determinations as a predicate, and notwithstanding the near completion of the dam, the Secretary declared that pursuant to 7 of the Act, "all Federal agencies must take such action as is necessary to insure
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agencies must take such action as is necessary to insure that actions authorized, funded, or carried out by them do not result in the destruction or modification of this critical habitat area." (1976) (to be codified as 50 CFR 17.81 ). This notice, of course, was pointedly directed at TVA and clearly aimed at halting completion or operation of the dam. During the pendency of these administrative actions, other developments of relevance to the snail darter issue were transpiring. Communication was occurring between the Department of the Interior's Fish and Wildlife Service and TVA with a view toward settling the issue informally. These negotiations were to no avail, however, since TVA consistently took the position that the only available alternative was to attempt relocating the snail darter population to another suitable location. To this end, TVA conducted a search of alternative sites which might sustain the fish, culminating in the experimental transplantation of a number of snail darters to the nearby Hiwassee River. However, the Secretary of the Interior was *163 not satisfied with the results of these efforts, finding that TVA had presented "little evidence that they have carefully studied the Hiwassee to determine whether or not" there were "biological and other factors in this river that [would] negate a successful transplant."[13] (1975). Meanwhile, Congress had also become involved in the fate of the snail darter. Appearing before a Subcommittee of the House Committee on Appropriations in April 1975some seven months before the snail darter was listed as endangered TVA representatives described the discovery of the fish and the relevance of the Endangered Species Act to the Tellico Project. Hearings on Public Works for Water and Power Development and Energy Research Appropriation Bill, 1976, before a Subcommittee of the House Committee on Appropriations, 94th Cong., 1st Sess., pt. 7, pp. 466-467 (1975); Hearings on H. R. 8122, Public Works for Water and Power Development and Energy Research Appropriations for Fiscal Year 1976, before a Subcommittee of the Senate Committee on Appropriations, 94th Cong., 1st Sess., pt. 4, pp. 3775-3777 (1975). At that time TVA presented a position which it would advance in successive forums thereafter, namely, that the Act did not prohibit the completion of a project authorized, funded, and substantially constructed before the Act was passed. TVA also described its efforts to transplant the snail darter, but contended that the dam should be finished regardless of the *164 experiment's success. Thereafter, the House Committee on Appropriations, in its June 20, 1975, Report, stated the following in the course of recommending that an additional $29 million be appropriated for
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of recommending that an additional $29 million be appropriated for Tellico: "The Committee directs that the project, for which an environmental impact statement has been completed and provided the Committee, should be completed as promptly as possible" H. R. Rep. No. 94-319, p. 76 (1975). Congress then approved the TVA general budget, which contained funds for continued construction of the Tellico Project.[14] In December 1975, one month after the snail darter was declared an endangered species, the President signed the bill into law. Public Works for Water and Power Development and Energy Research Appropriation Act, 1976, 1047. In February 1976, pursuant to (g) of the Endangered Species Act, 16 U.S. C. 1540 (g) (1976 ed.),[15] respondents filed the case now under review, seeking to enjoin completion of the dam and impoundment of the reservoir on the ground that those actions would violate the Act by directly causing the extinction of the species Percina (Imostoma) tanasi. The District Court denied respondents' request for a preliminary injunction and set the matter for trial. Shortly thereafter the House and Senate held appropriations hearings which would include discussions of the Tellico budget. *165 At these hearings, TVA Chairman Wagner reiterated the agency's position that the Act did not apply to a project which was over 50% finished by the time the Act became effective and some 70% to 80% complete when the snail darter was officially listed as endangered. It also notified the Committees of the recently filed lawsuit's status and reported that TVA's efforts to transplant the snail darter had "been very encouraging." Hearings on Public Works for Water and Power Development and Energy Research Appropriation Bill, before a Subcommittee of the House Committee on Appropriations, 94th Cong., 2d Sess., pt. 5, pp. 261-262 (1976); Hearings on Public Works for Water and Power Development and Energy Research Appropriations for Fiscal Year before a Subcommittee of the Senate Committee on Appropriations, 94th Cong., 2d Sess., pt. 4, pp. 3096-3099 (1976). Trial was held in the District Court on April 29 and 30, 1976, and on May 25, 1976, the court entered its memorandum opinion and order denying respondents their requested relief and dismissing the complaint. The District Court found that closure of the dam and the consequent impoundment of the reservoir would "result in the adverse modification, if not complete destruction, of the snail darter's critical habitat,"[16]*166 making it "highly probable" that "the continued existence of the snail darter" would be "jeopardize[d]." (ED Tenn.). Despite these findings, the District Court declined to embrace the plaintiffs' position on the merits: that once a federal project
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plaintiffs' position on the merits: that once a federal project was shown to jeopardize an endangered species, a court of equity is compelled to issue an injunction restraining violation of the Endangered Species Act. In reaching this result, the District Court stressed that the entire project was then about 80% complete and, based on available evidence, "there [were] no alternatives to impoundment of the reservoir, short of scrapping the entire project." The District Court also found that if the Tellico Project was permanently enjoined, "some $53 million would be lost in nonrecoverable obligations," meaning that a large portion of the $78 million already expended would be wasted. The court also noted that the Endangered Species Act of was passed some seven years after construction on the dam commenced and that Congress had continued appropriations for Tellico, with full awareness of the snail darter problem. Assessing these various factors, the District Court concluded: "At some point in time a federal project becomes so near completion and so incapable of modification that a court of equity should not apply a statute enacted long after inception of the project to produce an unreasonable result. Where there has been an irreversible and irretrievable commitment of resources by Congress to a project over a span of almost a decade, the Court should proceed with a great deal of circumspection." To accept the plaintiffs' position, the District Court argued, would inexorably lead to what it characterized as the absurd result of requiring "a court to halt impoundment of water *167 behind a fully completed dam if an endangered species were discovered in the river on the day before such impoundment was scheduled to take place. We cannot conceive that Congress intended such a result." Less than a month after the District Court decision, the Senate and House Appropriations Committees recommended the full budget request of $9 million for continued work on Tellico. See S. Rep. No. 94-960, p. 96 (1976); H. R. Rep. No. 94-1223, p. 83 (1976). In its Report accompanying the appropriations bill, the Senate Committee stated: "During subcommittee hearings, TVA was questioned about the relationship between the Tellico project's completion and the November 1975 listing of the snail darter as an endangered species under the Endangered Species Act. TVA informed the Committee that it was continuing its efforts to preserve the darter, while working towards the scheduled completion date. TVA repeated its view that the Endangered Species Act did not prevent the completion of the Tellico project, which has been under construction for nearly a decade. The subcommittee brought this matter, as well
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nearly a decade. The subcommittee brought this matter, as well as the recent U. S. District Court's decision upholding TVA's decision to complete the project, to the attention of the full Committee. The Committee does not view the Endangered Species Act as prohibiting the completion of the Tellico project at its advanced stage and directs that this project be completed as promptly as possible in the public interest." S. Rep. No. 94-960, On June 29, 1976, both Houses of Congress passed TVA's general budget, which included funds for Tellico; the President signed the bill on July 12, 1976. Public Works for Water and Power Development and Energy Research Appropriation Act, 899. *168 Thereafter, in the Court of Appeals, respondents argued that the District Court had abused its discretion by not issuing an injunction in the face of "a blatant statutory violation." The Court of Appeals agreed, and on January 31, it reversed, remanding "with instructions that a permanent injunction issue halting all activities incident to the Tellico Project which may destroy or modify the critical habitat of the snail darter." The Court of Appeals directed that the injunction "remain in effect until Congress, by appropriate legislation, exempts Tellico from compliance with the Act or the snail darter has been deleted from the list of endangered species or its critical habitat materially redefined." The Court of Appeals accepted the District Court's finding that closure of the dam would result in the known population of snail darters being "significantly reduced if not completely extirpated." at TVA, in fact, had conceded as much in the Court of Appeals, but argued that "closure of the Tellico Dam, as the last stage of a ten-year project, falls outside the legitimate purview of the Act if it is rationally construed." Disagreeing, the Court of Appeals held that the record revealed a prima facie violation of 7 of the Act, namely that TVA had failed to take "such action necessary to insure" that its "actions" did not jeopardize the snail darter or its critical habitat. The reviewing court thus rejected TVA's contention that the word "actions" in 7 of the Act was not intended by Congress to encompass the terminal phases of ongoing projects. Not only could the court find no "positive reinforcement" for TVA's argument in the Act's legislative history, but also such an interpretation was seen as being "inimical to its objectives." F.2d, By way of illustration, that court pointed out that "the detrimental impact of a project upon an endangered species may not always be clearly perceived before construction is well underway." Given such
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be clearly perceived before construction is well underway." Given such a *169 likelihood, the Court of Appeals was of the opinion that TVA's position would require the District Court, sitting as a chancellor, to balance the worth of an endangered species against the value of an ongoing public works measure, a result which the appellate court was not willing to accept. Emphasizing the limits on judicial power in this setting, the court stated: "Current project status cannot be translated into a workable standard of judicial review. Whether a dam is 50% or 90% completed is irrelevant in calculating the social and scientific costs attributable to the disappearance of a unique form of life. Courts are ill-equipped to calculate how many dollars must be invested before the value of a dam exceeds that of the endangered species. Our responsibility under 1540 (g) (1) (A) is merely to preserve the status quo where endangered species are threatened, thereby guaranteeing the legislative or executive branches sufficient opportunity to grapple with the alternatives." As far as the Court of Appeals was concerned, it made no difference that Congress had repeatedly approved appropriations for Tellico, referring to such legislative approval as an "advisory opinio[n]" concerning the proper application of an existing statute. In that court's view, the only relevant legislation was the Act itself, "[t]he meaning and spirit" of which was "clear on its face." Turning to the question of an appropriate remedy, the Court of Appeals ruled that the District Court had erred by not issuing an injunction. While recognizing the irretrievable loss of millions of dollars of public funds which would accompany injunctive relief, the court nonetheless decided that the Act explicitly commanded precisely that result: "It is conceivable that the welfare of an endangered species may weigh more heavily upon the public conscience, as expressed by the final will of Congress, than the writeoff of those millions of dollars already expended *170 for Tellico in excess of its present salvageable value." Following the issuance of the permanent injunction, members of TVA's Board of Directors appeared before Subcommittees of the House and Senate Appropriations Committees to testify in support of continued appropriations for Tellico. The Subcommittees were apprised of all aspects of Tellico's status, including the Court of Appeals' decision. TVA reported that the dam stood "ready for the gates to be closed and the reservoir filled," Hearings on Public Works for Water and Power Development and Energy Research Appropriation Bill, 1978, before a Subcommittee of the House Committee on Appropriations, 95th Cong., 1st Sess., pt. 4, p. 234 and requested funds for
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1st Sess., pt. 4, p. 234 and requested funds for completion of certain ancillary parts of the project, such as public use areas, roads, and bridges. As to the snail darter itself, TVA commented optimistically on its transplantation efforts, expressing the opinion that the relocated fish were "doing well and ha[d] reproduced." Both Appropriations Committees subsequently recommended the full amount requested for completion of the Tellico Project. In its June 2, Report, the House Appropriations Committee stated: "It is the Committee's view that the Endangered Species Act was not intended to halt projects such as these in their advanced stage of completion, and [the Committee] strongly recommends that these projects not be stopped because of misuse of the Act." H. R. Rep. No. 95-379, p. 104. As a solution to the problem, the House Committee advised that TVA should cooperate with the Department of the Interior "to relocate the endangered species to another suitable habitat so as to permit the project to proceed as rapidly as possible." Toward this end, the Committee recommended *171 a special appropriation of $2 million to facilitate relocation of the snail darter and other endangered species which threatened to delay or stop TVA projects. Much the same occurred on the Senate side, with its Appropriations Committee recommending both the amount requested to complete Tellico and the special appropriation for transplantation of endangered species. Reporting to the Senate on these measures, the Appropriations Committee took a particularly strong stand on the snail darter issue: "This committee has not viewed the Endangered Species Act as preventing the completion and use of these projects which were well under way at the time the affected species were listed as endangered. If the act has such an effect, which is contrary to the Committee's understanding of the intent of Congress in enacting the Endangered Species Act, funds should be appropriated to allow these projects to be completed and their benefits realized in the public interest, the Endangered Species Act notwithstanding." S. Rep. No. 95-301, p. 99 TVA's budget, including funds for completion of Tellico and relocation of the snail darter, passed both Houses of Congress and was signed into law on August 7, Public Works for Water and Power Development and Energy Research Appropriation Act, 1978, We granted certiorari, to review the judgment of the Court of Appeals. II We begin with the premise that operation of the Tellico Dam will either eradicate the known population of snail darters or destroy their critical habitat. Petitioner does not now seriously dispute this fact.[17] In any event, under 4 (a) (1) *172
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this fact.[17] In any event, under 4 (a) (1) *172 of the Act, 16 U.S. C. 1533 (a) (1) (1976 ed.), the Secretary of the Interior is vested with exclusive authority to determine whether a species such as the snail darter is "endangered" or "threatened" and to ascertain the factors which have led to such a precarious existence. By 4 (d) Congress has authorizedindeed commandedthe Secretary to "issue such regulations as he deems necessary and advisable to provide for the conservation of such species." 16 U.S. C. 1533 (d) (1976 ed.). As we have seen, the Secretary promulgated regulations which declared the snail darter an endangered species whose critical habitat would be destroyed by creation of the Tellico Reservoir. Doubtless petitioner would prefer not to have these regulations on the books, but there is no suggestion that the Secretary exceeded his authority or abused his discretion in issuing the regulations. Indeed, no judicial review of the Secretary's determinations has ever been sought and hence the validity of his actions are not open to review in this Court. Starting from the above premise, two questions are presented: (a) would TVA be in violation of the Act if it completed and operated the Tellico Dam as planned? if TVA's actions would offend the Act, is an injunction the appropriate remedy for the violation? For the reasons stated hereinafter, we hold that both questions must be answered in the affirmative. (A) It may seem curious to some that the survival of a relatively small number of three-inch fish among all the countless millions of species extant would require the permanent halting of a virtually completed dam for which Congress has expended more than $100 million. The paradox is not minimized by the fact that Congress continued to appropriate large sums of public money for the project, even after congressional Appropriations Committees were apprised of its apparent impact upon the survival of the snail darter. We conclude, *173 however, that the explicit provisions of the Endangered Species Act require precisely that result. One would be hard pressed to find a statutory provision whose terms were any plainer than those in 7 of the Endangered Species Act. Its very words affirmatively command all federal agencies "to insure that actions authorized, funded, or carried out by them do not jeopardize the continued existence" of an endangered species or "result in the destruction or modification of habitat of such species" 16 U.S. C. 1536 (1976 ed.). This language admits of no exception. Nonetheless, petitioner urges, as do the dissenters, that the Act cannot reasonably be interpreted as
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the dissenters, that the Act cannot reasonably be interpreted as applying to a federal project which was well under way when Congress passed the Endangered Species Act of To sustain that position, however, we would be forced to ignore the ordinary meaning of plain language. It has not been shown, for example, how TVA can close the gates of the Tellico Dam without "carrying out" an action that has been "authorized" and "funded" by a federal agency. Nor can we understand how such action will "insure" that the snail darter's habitat is not disrupted.[18] Accepting the Secretary's determinations, as *174 we must, it is clear that TVA's proposed operation of the dam will have precisely the opposite effect, namely the eradication of an endangered species. Concededly, this view of the Act will produce results requiring the sacrifice of the anticipated benefits of the project and of many millions of dollars in public funds.[19] But examination of the language, history, and structure of the legislation under review here indicates beyond doubt that Congress intended endangered species to be afforded the highest of priorities. When Congress passed the Act in it was not legislating on a clean slate. The first major congressional concern for the preservation of the endangered species had come with passage of the Endangered Species Act of 1966, repealed,[20] In that legislation Congress gave the *175 Secretary power to identify "the names of the species of native fish and wildlife found to be threatened with extinction," 1 (c), as well as authorization to purchase land for the conservation, protection, restoration, and propagation of "selected species" of "native fish and wildlife" threatened with extinction. 2 (a)-(c), -927. Declaring the preservation of endangered species a national policy, the 1966 Act directed all federal agencies both to protect these species and "insofar as is practicable and consistent with the[ir] primary purposes," 1 "preserve the habitats of such threatened species on lands under their jurisdiction." The 1966 statute was not a sweeping prohibition on the taking of endangered species, however, except on federal lands, 4 (c), and even in those federal areas the Secretary was authorized to allow the hunting and fishing of endangered species. 4 (d) (1), In 1969 Congress enacted the Endangered Species Conservation Act, repealed, which continued the provisions of the 1966 Act while at the same time broadening federal involvement in the preservation of endangered species. Under the 1969 legislation, the Secretary was empowered to list species "threatened with worldwide extinction," 3 (a), ; in addition, the importation of any species so recognized into the United States was prohibited.
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any species so recognized into the United States was prohibited. 2, An indirect approach to the taking of *176 endangered species was also adopted in the Conservation Act by way of a ban on the transportation and sale of wildlife taken in violation of any federal, state, or foreign law. 7 (a)-,[21] Despite the fact that the 1966 and 1969 legislation represented "the most comprehensive of its type to be enacted by any nation"[22] up to that time, Congress was soon persuaded that a more expansive approach was needed if the newly declared national policy of preserving endangered species was to be realized. By when Congress held hearings on what would later become the Endangered Species Act of it was informed that species were still being lost at the rate of about one per year, House Hearings 306 (statement of Stephen R. Seater, for Defenders of Wildlife), and "the pace of disappearance of species" appeared to be "accelerating." H. R. Rep. No. 93-412, p. 4 Moreover, Congress was also told that the primary cause of this trend was something other than the normal process of natural selection: "[M]an and his technology has [sic] continued at an ever-increasing rate to disrupt the natural ecosystem. This has resulted in a dramatic rise in the number and severity of the threats faced by the world's wildlife. The truth in this is apparent when one realizes that half of the recorded extinctions of mammals over the past 2,000 years have occurred in the most recent 50-year period." House Hearings 202 (statement of Assistant Secretary of the Interior). * That Congress did not view these developments lightly was stressed by one commentator: "The dominant theme pervading all Congressional discussion of the proposed [Endangered Species Act of ] was the overriding need to devote whatever effort and resources were necessary to avoid further diminution of national and worldwide wildlife resources. Much of the testimony at the hearings and much debate was devoted to the biological problem of extinction. Senators and Congressmen uniformly deplored the irreplaceable loss to aesthetics, science, ecology, and the national heritage should more species disappear." Coggins, Conserving Wildlife Resources: An Overview of the Endangered Species Act of 51 N. D. L. Rev. 315, 321 (1975). The legislative proceedings in are, in fact, replete with expressions of concern over the risk that might lie in the loss of any endangered species.[23] Typifying these sentiments is the Report of the House Committee on Merchant Marine and *178 Fisheries on H. R. 37, a bill which contained the essential features of the subsequently enacted Act of
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contained the essential features of the subsequently enacted Act of ; in explaining the need for the legislation, the Report stated: "As we homogenize the habitats in which these plants and animals evolved, and as we increase the pressure for products that they are in a position to supply (usually unwillingly) we threaten theirand our owngenetic heritage. "The value of this genetic heritage is, quite literally, incalculable. "From the most narrow possible point of view, it is in the best interests of mankind to minimize the losses of genetic variations. The reason is simple: they are potential resources. They are keys to puzzles which we cannot solve, and may provide answers to questions which we have not yet learned to ask. "To take a homely, but apt, example: one of the critical chemicals in the regulation of ovulations in humans was found in a common plant. Once discovered, and analyzed, humans could duplicate it synthetically, but had it never existedor had it been driven out of existence before we knew its potentialitieswe would never have tried to synthesize it in the first place. "Who knows, or can say, what potential cures for cancer or other scourges, present or future, may lie locked up in the structures of plants which may yet be undiscovered, much less analyzed? Sheer self-interest impels us to be cautious. "The institutionalization of that caution lies at the heart of H. R. 37" H. R. Rep. No. 93-412, pp. 4-5 As the examples cited here demonstrate, Congress was concerned about the unknown uses that endangered species might *179 have and about the unforeseeable place such creatures may have in the chain of life on this planet. In shaping legislation to deal with the problem thus presented, Congress started from the finding that "[t]he two major causes of extinction are hunting and destruction of natural habitat." S. Rep. No. 93-307, p. 2 Of these twin threats, Congress was informed that the greatest was destruction of natural habitats; see House Hearings 236 (statement of Associate Deputy Chief for National Forest System, Dept. of Agriculture); ; ; Lachenmeier, The Endangered Species Act of : Preservation or Pandemonium?, 5 Environ. Law 29, 31 Witnesses recommended, among other things, that Congress require all land-managing agencies "to avoid damaging critical habitat for endangered species and to take positive steps to improve such habitat." House Hearings 241 Virtually every bill introduced in Congress during the session responded to this concern by incorporating language similar, if not identical, to that found in the present 7 of the Act.[24] These provisions were designed, in the words
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of the Act.[24] These provisions were designed, in the words of an administration witness, "for the first time [to] prohibit [a] federal agency from taking action which does jeopardize the status of endangered species," Hearings on S. 1592 and S. 1983 before the Subcommittee on Environment of the Senate Committee on Commerce, 93d Cong., 1st Sess., 68 (statement of *180 Deputy Assistant Secretary of the Interior) ; furthermore, the proposed bills would "direc[t] all Federal agencies to utilize their authorities for carrying out programs for the protection of endangered animals." House Hearings 205 (statement of Assistant Secretary of the Interior). As it was finally passed, the Endangered Species Act of represented the most comprehensive legislation for the preservation of endangered species ever enacted by any nation. Its stated purposes were "to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved," and "to provide a program for the conservation of such species" 16 U.S. C. 1531 (1976 ed.). In furtherance of these goals, Congress expressly stated in 2 (c) that "all Federal departments and agencies shall seek to conserve endangered species and threatened species" 16 U.S. C. 1531 (c) (1976 ed.). Lest there be any ambiguity as to the meaning of this statutory directive, the Act specifically defined "conserve" as meaning "to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary." 1532 (2). Aside from 7, other provisions indicated the seriousness with which Congress viewed this issue: Virtually all dealings with endangered species, including taking, possession, transportation, and sale, were prohibited, 16 U.S. C. 1538 (1976 ed.), except in extremely narrow circumstances, see 1539 The Secretary was also given extensive power to develop regulations and programs for the preservation of endangered and threatened species.[25] 1533 (d). Citizen *181 involvement was encouraged by the Act, with provisions allowing interested persons to petition the Secretary to list a species as endangered or threatened, 1533 (c) (2), see n. and bring civil suits in United States district courts to force compliance with any provision of the Act, 1540 (c) and (g). Section 7 of the Act, which of course is relied upon by respondents in this case, provides a particularly good gauge of congressional intent. As we have seen, this provision had its genesis in the Endangered Species Act of 1966, but that legislation qualified the obligation of federal agencies by stating that they should seek to preserve endangered
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agencies by stating that they should seek to preserve endangered species only "insofar as is practicable and consistent with the[ir] primary purposes" Likewise, every bill introduced in contained a qualification similar to that found in the earlier statutes.[26] Exemplary of these was the administration bill, H. R. 4758, which in 2 would direct federal agencies to use their authorities to further the ends of the Act "insofar as is practicable and consistent with the[ir] primary purposes." Explaining the idea behind this language, an administration spokesman told Congress that it "would further signal to all agencies of the Government that this is the first priority, consistent with their primary objectives." House Hearings 213 (statement of Deputy Assistant Secretary of the Interior). This type of language did not go unnoticed by those advocating strong endangered species legislation. A representative of the *182 Sierra Club, for example, attacked the use of the phrase "consistent with the primary purpose" in proposed H. R. 4758, cautioning that the qualification "could be construed to be a declaration of congressional policy that other agency purposes are necessarily more important than protection of endangered species and would always prevail if conflict were to occur." House Hearings 335 (statement of the chairman of the Sierra Club's National Wildlife Committee); see What is very significant in this sequence is that the final version of the Act carefully omitted all of the reservations described above. In the bill which the Senate initially approved (S. 1983), however, the version of the current 7 merely required federal agencies to "carry out such programs as are practicable for the protection of species listed"[27] S. 1983, 7 (a). By way of contrast, the bill that originally passed the House, H. R. 37, contained a provision which was essentially a mirror image of the subsequently passed 7indeed all phrases which might have qualified an agency's responsibilities had been omitted from the bill.[28] In explaining the expected impact of this provision in H. R. 37 on federal agencies, the House Committee's Report states: "This subsection requires the Secretary and the heads of all other Federal departments and agencies to use their authorities in order to carry out programs for the protection *183 of endangered species, and it further requires that those agencies take the necessary action that will not jeopardize the continuing existence of endangered species or result in the destruction of critical habitat of those species." H. R. Rep. No. 93-412, p. 14 Resolution of this difference in statutory language, as well as other variations between the House and Senate bills, was the task of a
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