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Justice Kennedy
| 2,001 | 4 |
second_dissenting
|
Zadvydas v. Davis
|
https://www.courtlistener.com/opinion/1269289/zadvydas-v-davis/
|
however. See, e. g., No party to this proceeding contests the initial premise that the aliens have been determined to be removable after a fair hearing under lawful and proper procedures. Section 1229a sets forth the proceedings required for deciding the inadmissibility or removability of an alien, including a hearing before an immigration judge, at which the INS carries "the burden of establishing by clear and convincing evidence that the alien is deportable." 8 *719 U. S. C. 1229a(c)(3)(A); see also Aliens ordered removed pursuant to these procedures are given notice of their right to appeal the decision, 8 U. S. C. 1229a(c)(4), may move the immigration judge to reconsider, 1229a(c)(5), can seek discretionary cancellation of removal, 1229b, and can obtain habeas review of the Attorney General's decision not to consider waiver of deportation. See INS v. St. Cyr, ante, at 314. As a result, aliens like Zadvydas and Ma do not arrive at their removable status without thorough, substantial procedural safeguards. The majority likely is correct to say that the distinction between an alien who entered the United States, as these aliens did, and one who has not, "runs throughout immigration law." Ante, at 693. The distinction is not so clear as it might seem, however, and I doubt it will suffice to confine the rationale adopted by the majority. The case which often comes to mind when one tests the distinction is where the Court considered the situation of an alien denied entry and detained on Ellis Island. The detention had no foreseeable end, for though was inadmissible to the United States it seemed no other country would have him. The case presented a line-drawing problem, asking whether the alien was in our country; or whether his situation was the same as if he were still on foreign shores; or whether he fell in a legal category somewhere in between, though if this were true, it still would not be clear how to resolve the case. The Court held the alien had no right to a hearing to secure his release.) Here the majority says the earlier presence of these aliens in the United States distinguishes the cases from For reasons given here it is submitted the majority is incorrect in its major conclusions in all events, so even if it were assumed these aliens are in a class with more rights than it makes no difference. For purposes of this dissent it is not necessary to rely upon That said, it must be made clear these aliens are in a position far different from aliens with a
|
Justice Kennedy
| 2,001 | 4 |
second_dissenting
|
Zadvydas v. Davis
|
https://www.courtlistener.com/opinion/1269289/zadvydas-v-davis/
|
are in a position far different from aliens with a lawful right to remain here. They are removable, and their rights must be defined in accordance with that status. The due process analysis must begin with a "careful description of the asserted right." We have "long held that an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative." The same is true for those aliens like Zadvydas and Ma, who face a final order of removal. When an alien is removable, he or she has no right under the basic immigration laws to remain in this country. The removal orders reflect the determination that the aliens' ties to this community are insufficient to justify their continued presence in the United States. An alien's admission to this country is conditioned upon compliance with our laws, and removal is the consequence of a breach of that understanding. It is true the Court has accorded more procedural protections to those aliens admitted to the country than those stopped at the border, observing that "a continuously present alien is entitled to a fair hearing when threatened with *721 deportation." ; )). Removable and excludable aliens are situated differently before an order of removal is entered; the removable alien, by virtue of his continued presence here, possesses an interest in remaining, while the excludable alien seeks only the privilege of entry. Still, both removable and inadmissible aliens are entitled to be free from detention that is arbitrary or capricious. Where detention is incident to removal, the detention cannot be justified as punishment nor can the confinement or its conditions be designed in order to punish. See Wong This accords with international views on detention of refugees and asylum seekers. See Report of the United Nations Working Group on Arbitrary Detention, U. N. Doc. E/CN.4//4 ; United Nations High Commissioner for Refugees, Guidelines on Applicable Criteria and Standards Relating to the Detention on Asylum-Seekers It is neither arbitrary nor capricious to detain the aliens when necessary to avoid the risk of flight or danger to the community. Whether a due process right is denied when removable aliens who are flight risks or dangers to the community are detained turns, then, not on the substantive right to be free, but on whether there are adequate procedures to review their cases, allowing persons once subject to detention to show that through rehabilitation, new appreciation of their responsibilities, or under other standards, they no longer present special
|
Justice Kennedy
| 2,001 | 4 |
second_dissenting
|
Zadvydas v. Davis
|
https://www.courtlistener.com/opinion/1269289/zadvydas-v-davis/
|
responsibilities, or under other standards, they no longer present special risks or danger if put at large. The procedures *722 to determine and to review the status-required detention go far toward this objective. By regulations, promulgated after notice and comment, the Attorney General has given structure to the discretion delegated by the INA in order to ensure fairness and regularity in INS detention decisions. First, the INS provides for an initial post custody review, before the expiration of the 90-day removal period, at which a district director conducts a record review. 8 CFR 241.4 The alien is entitled to present any relevant information in support of release, and the district director has the discretion to interview the alien for a personal evaluation. 241.4(h)(1). At the end of the 90-day period, the alien, if held in custody, is transferred to a post order detention unit at INS headquarters, which in the ordinary course will conduct an initial custody review within three months of the transfer. 241.4(k)(2)(ii). If the INS determines the alien should remain in detention, a twomember panel of INS officers interviews the alien and makes a recommendation to INS headquarters. 241.4(i)(1)(3). The regulations provide an extensive, nonexhaustive list of factors that should be considered in the recommendation to release or further detain. Those include: "[t]he nature and number of disciplinary infractions"; "the detainee's criminal conduct and criminal convictions, including consideration of the nature and severity of the alien's convictions, sentences imposed and time actually served, probation and criminal parole history, evidence of recidivism, and other criminal history"; "psychiatric and psychological reports pertaining to the detainee's mental health"; "[e]vidence of rehabilitation"; "[f]avorable factors, including ties to the United States such as the number of close relatives"; "[p]rior immigration violations and history"; "[t]he likelihood that the alien is a significant flight risk or may abscond to avoid removal, including history of escapes"; and any other probative information. 241.4(f). Another review must occur within one year, with mandatory evaluations each year thereafter; if the alien requests, *723 the INS has the discretion to grant more frequent reviews. 241.4(k)(2)(iii). The INS must provide the alien 30-days advance, written notice of custody reviews; and it must afford the alien an opportunity to submit any relevant materials for consideration. 241.4(i)(3)(ii). The alien may be assisted by a representative of his choice during the review, 241.4(i)(3)(i), (ii), and the INS must provide the alien with a copy of its decision, including a brief statement of the reasons for any continued detention, 241.4(d). In this context the proper analysis can be informed by our cases involving parole-eligibility
|
Justice Kennedy
| 2,001 | 4 |
second_dissenting
|
Zadvydas v. Davis
|
https://www.courtlistener.com/opinion/1269289/zadvydas-v-davis/
|
proper analysis can be informed by our cases involving parole-eligibility or parole-revocation determinations. In for example, we held some amount of process was due an individual whose parole was revoked, for "the liberty of a parolee, although indeterminate, includes many of the core values of unqualified liberty." ; see also Board of We rejected in Morrissey the suggestion that the State could justify parole revocation "without some informal procedural guarantees," but "[g]iven the previous conviction and the proper imposition of conditions," we recognized that "the State has an overwhelming interest in being able to return the individual to imprisonment without the burden of a new adversary criminal trial," We held the review process need not include a judicial officer or formal court proceeding, but could be conducted by a neutral administrative official. While the majority expresses some concern that the regulations place the burden on the alien to show he is no longer dangerous, that question could be adjudicated in a later case raising the issue. It should be noted the procedural protection here is real, not illusory; and the criteria for obtaining release are far from insurmountable. Statistics show that between February 1999 and mid-November some 6,200 aliens were provided custody reviews before expiration of the 90-day removal period, and of those aliens about 3,380 *724 were released. ; Reply Brief for Petitioners in No. 00-38, p. 15. As a result, although the alien carries the burden to prove detention is no longer justified, there is no showing this is an unreasonable burden. Like the parolee in Morrissey, who was aware of the conditions of his release, the aliens in the instant cases have notice, constructive or actual, that the INA imposes as a consequence of the commission of certain crimes not only deportation but also the possibility of continued detention in cases where deportation is not immediately feasible. And like the prisoner in Board of who sought federalcourt review of the discretionary decision denying him parole eligibility, removable aliens held pending deportation have a due process liberty right to have the INS conduct the review procedures in place. See Were the INS, in an arbitrary or categorical manner, to deny an alien access to the administrative processes in place to review continued detention, habeas jurisdiction would lie to redress the due process violation caused by the denial of the mandated procedures under 8 CFR 241.4 This is not the posture of the instant cases, however. Neither Zadvydas nor Ma argues that the Attorney General has applied the procedures in an improper manner; they challenge only the Attorney General's
|
Justice Kennedy
| 2,001 | 4 |
second_dissenting
|
Zadvydas v. Davis
|
https://www.courtlistener.com/opinion/1269289/zadvydas-v-davis/
|
in an improper manner; they challenge only the Attorney General's authority to detain at all where removal is no longer foreseeable. The Government has conceded that habeas jurisdiction is available under 28 U. S. C. 2241 to review an alien's challenge to detention following entry of a final order of deportation, Brief for Respondents in No. 99-7791, at 9-10, n. 7; Tr. of Oral Arg. 59, although it does not detail what the nature of the habeas review would be. As a result, we need not decide today whether, and to what extent, a habeas court could review the Attorney General's determination that a detained alien continues to be dangerous or a flight risk. Given the undeniable deprivation of liberty caused by the detention, there might be substantial questions concerning the severity necessary * for there to be a community risk; the adequacy of judicial review in specific cases where it is alleged there is no justification for concluding an alien is dangerous or a flight risk; and other issues. These matters are not presented to us here. In all events, if judicial review is to be available, the inquiry required by the majority focuses on the wrong factors. Concepts of flight risk or future dangerousness are manageable legal categories. See, e. g., ; The majority instead would have the Judiciary review the status of repatriation negotiations, which, one would have thought, are the paradigmatic examples of nonjusticiable inquiry. See 526 U. S., at The inquiry would require the Executive Branch to surrender its primacy in foreign affairs and submit reports to the courts respecting its ongoing negotiations in the international sphere. High officials of the Department of State could be called on to testify as to the status of these negotiations. The Court finds this to be a more manageable, more appropriate role for the Judiciary than to review a single, discrete case deciding whether there were fair procedures and adequate judicial safeguards to determine whether an alien is dangerous to the community so that long-term detention is justified. The Court's rule is a serious misconception of the proper judicial function, and it is not what Congress enacted. For these reasons, the Court should reverse the judgment of the Court of Appeals for the Ninth Circuit and affirm the judgment of the Court of Appeals for the Fifth Circuit. I dissent.
|
Justice Alito
| 2,008 | 8 |
majority
|
Gomez-Perez v. Potter
|
https://www.courtlistener.com/opinion/145805/gomez-perez-v-potter/
|
The question before us is whether a federal employee who is a victim of retaliation due to the filing of a complaint of age discrimination may assert a claim under the federal-sector provision of the Age Discrimination in Employment Act of 1967 (ADEA), as added, and amended, 29 U.S.C. 633a(a) (2000 ed., Supp. V). We hold that such a claim is authorized. I Petitioner Myrna Gómez-Pérez was a window distribution clerk for the United States Postal Service. In October 2002, petitioner, then 45 years of age, was working full time at the Post Office in Dorado, Puerto Rico. She requested a transfer to the Post Office in Moca, Puerto Rico, in order to be closer to her mother, who was ill. The transfer was approved, and in November 2002, petitioner began working at the Moca Post Office in a part-time position. Later that month, petitioner requested a transfer back to her old job at the Dorado Post Office, but her supervisor converted the Dorado position to part-time, filled it with another employee, and denied petitioner's application. After first filing an unsuccessful union grievance seeking a transfer back to her old job, petitioner filed a Postal Service equal employment opportunity age discrimination complaint. According to petitioner, she was then subjected to various forms of Specifically, petitioner alleges that her supervisor called her into meetings during which groundless complaints were leveled at her, that her name was written on antisexual harassment posters, that she was falsely accused of sexual harassment, that her co-workers told her to "`go back'" to where she "`belong[ed],'" and that her work hours were drastically reduced. Petitioner responded by filing this action in the United States District Court for the District of Puerto Rico, claiming, among other things, that respondent had violated the federal-sector provision of the ADEA, 29 U.S.C. 633a(a) (2000 ed., Supp. V), by retaliating against her for filing her equal employment opportunity age discrimination complaint. Respondent moved for summary judgment, arguing that the United States has not waived sovereign immunity for ADEA retaliation claims and that the ADEA federal-sector provision does not reach The District Court granted summary judgment in favor of respondent on the basis of sovereign immunity. On appeal, the United States Court of Appeals for the First Circuit held that the Postal Reorganization Act, 39 U.S.C. 401(1), unequivocally waived the Postal Service's sovereign immunity, see 57, but the Court affirmed the decision of the District Court on the alternative ground that the federal-sector provision's prohibition of "discrimination based on age," 633a(a) (2000 ed., Supp. *1936 V), does not cover retaliation, creating a
|
Justice Alito
| 2,008 | 8 |
majority
|
Gomez-Perez v. Potter
|
https://www.courtlistener.com/opinion/145805/gomez-perez-v-potter/
|
ed., Supp. *1936 V), does not cover retaliation, creating a split among the Courts of Appeals. Compare (C.A.D.C.2001) (ADEA federal-sector provision covers retaliation). We granted certiorari. 552 U.S. II The federal-sector provision of the ADEA provides that "[a]ll personnel actions affecting employees or applicants for employment who are at least 40 years of age shall be made free from any discrimination based on age." 633a(a) (2000 ed., Supp. V). The key question in this case is whether the statutory phrase "discrimination based on age" includes retaliation based on the filing of an age discrimination complaint. We hold that it does. In reaching this conclusion, we are guided by our prior decisions interpreting similar language in other antidiscrimination statutes. In we considered whether a claim of retaliation could be brought under Rev. Stat. 1978, 42 U.S.C. 1982, which provides that "[a]ll citizens of the United States shall have the same right as is enjoyed by white citizens. to inherit, purchase, lease, sell, hold, and convey real and personal property." While 1982 does not use the phrase "discrimination based on race," that is its plain meaning. See 1, (describing 1982 as "banning public or private racial discrimination in the sale and rental of property"); In Sullivan, a white man (Sullivan) held membership shares in a nonstock corporation that operated a park and playground for residents of the area in which he owned a home. Under the bylaws of the corporation, a member who leased a home in the area could assign a membership share in the corporation. But when Sullivan rented his house and attempted to assign a membership share to an African-American (Freeman), the corporation disallowed the assignment because of Freeman's race and subsequently expelled Sullivan from the corporation for protesting that decision. Sullivan sued the corporation, and we held that his claim that he had been expelled "for the advocacy of Freeman's cause" was cognizable under A contrary holding, we reasoned, would have allowed Sullivan to be "punished for trying to vindicate the rights of minorities" and would have given "impetus to the perpetuation of racial restrictions on property." More recently, in we relied on Sullivan in interpreting Title IX of the Education Amendments of 1972, as amended, 20 U.S.C. 1681 et seq. (2000 ed. and Supp. V). a public school teacher, sued his school board under Title IX, "alleging that the Board retaliated against him because he had complained about sex discrimination in the high school's athletic program." Title IX provides in relevant part that "[n]o person in the United States shall, on the basis of sex, be subjected
|
Justice Alito
| 2,008 | 8 |
majority
|
Gomez-Perez v. Potter
|
https://www.courtlistener.com/opinion/145805/gomez-perez-v-potter/
|
United States shall, on the basis of sex, be subjected to discrimination under any education program or activity receiving Federal financial assistance." 1681(a) (2000 ed.) (emphasis added). Holding that this provision prohibits retaliation, we wrote: "Retaliation against a person because that person has complained of sex discrimination is another form of intentional sex discrimination Retaliation is, *1937 by definition, an intentional act. It is a form of `discrimination' because the complainant is being subjected to differential treatment. Moreover, retaliation is discrimination `on the basis of sex' because it is an intentional response to the nature of the complaint: an allegation of sex discrimination. We conclude that when a funding recipient retaliates against a person because he complains of sex discrimination, this constitutes intentional `discrimination' `on the basis of sex,' in violation of Title IX." (citations omitted). This interpretation, we found, flowed naturally from Sullivan: "Retaliation for 's advocacy of the rights of the girls' basketball team in this case is `discrimination' `on the basis of sex,' just as retaliation for advocacy on behalf of a black lessee in Sullivan was discrimination on the basis of race." -177, Following the reasoning of Sullivan and we interpret the ADEA federal-sector provision's prohibition of "discrimination based on age" as likewise proscribing The statutory language at issue here ("discrimination based on age") is not materially different from the language at issue in ("`discrimination'" "`on the basis of sex'") and is the functional equivalent of the language at issue in Sullivan, see (describing Sullivan as involving "discrimination on the basis of race"). And the context in which the statutory language appears is the same in all three cases; that is, all three cases involve remedial provisions aimed at prohibiting discrimination. The dissent strenuously argued that a claim of retaliation is conceptually different from a claim of discrimination, see -185, (opinion of THOMAS, J.), but that view did not prevail.[1] And respondent in this case does not ask us to overrule Sullivan or Nor does respondent question the reasoning of those decisions. Indeed, in the Government contended that "[t]he text of Title IX demonstrate[s] that it encompasses protection against retaliation" since "retaliation against a person because that person has filed a sex discrimination complaint is a form of intentional sex discrimination." Brief for United States as Amicus Curiae 8, in O.T., No. 02-1672. Similarly, in another case this Term, the Government has urged us to follow the reasoning of Sullivan and to hold that a claim of retaliation may be brought under Rev. Stat. 1977, 42 U.S.C. In that case, the Government argues that 's prohibition
|
Justice Alito
| 2,008 | 8 |
majority
|
Gomez-Perez v. Potter
|
https://www.courtlistener.com/opinion/145805/gomez-perez-v-potter/
|
U.S.C. In that case, the Government argues that 's prohibition of "`discrimination' quite naturally includes discrimination on account of having complained about discrimination." Brief for United States as Amicus Curiae 10, in CBOCS West, Inc. v. Humphries, O.T. No. 06-1431. *1938 III The decision of the Court of Appeals, which respondent defends, perceived a "clear difference between a cause of action for discrimination and a cause of action for retaliation" and sought to distinguish on three -59. We are not persuaded, however, by any of these attempted distinctions. A The Court of Appeals first relied on the fact that the ADEA expressly creates a private right of action whereas Title IX, the statute at issue in does not. See The Court of Appeals appears to have reasoned that, because the private right of action under Title IX is implied and not express, see 60 L. Ed. 2d 0 the Court had greater leeway to adopt an expansive interpretation of Title IX's prohibition of discrimination on the basis of sex. This reasoning improperly conflates the question whether a statute confers a private right of action with the question whether the statute's substantive prohibition reaches a particular form of conduct. These questions are analytically distinct, and confusing them would lead to exceedingly strange results. For example, under the Court of Appeals' reasoning, Title IX's prohibition of "discrimination" "on the basis of sex," in 20 U.S.C. 1681(a), might have a narrower scope and might not reach retaliation if Title IX contained a provision expressly authorizing an aggrieved private party to bring suit to remedy a violation of 1681(a). We do not see how such a conclusion could be defended. Section 1681(a)'s prohibition of "discrimination" either does or does not reach retaliation, and the presence or absence of another statutory provision expressly creating a private right of action cannot alter 1681(a)'s scope. In addition, it would be perverse if the enactment of a provision explicitly creating a private right of actiona provision that, if anything, would tend to suggest that Congress perceived a need for a strong remedywere taken as a justification for narrowing the scope of the underlying prohibition. The Court of Appeals' reasoning seems to lead to the strange conclusion that, despite 's holding that a private party may assert a retaliation claim under Title IX, the Federal Government might not be authorized to impose upon an entity that engages in retaliation the administrative remedies, including the termination of funding, that are expressly sanctioned under 1682. It would be extremely odd, however, if 1681(a) had a broader scope when enforced by a
|
Justice Alito
| 2,008 | 8 |
majority
|
Gomez-Perez v. Potter
|
https://www.courtlistener.com/opinion/145805/gomez-perez-v-potter/
|
if 1681(a) had a broader scope when enforced by a means not expressly sanctioned by statute than it does when enforced by the means that the statute explicitly provides. For these reasons, we reject the proposition that may be distinguished from the present case on the ground that Title IX's private right of action is implied. B The Court of Appeals next attempted to distinguish on the ground that retaliation claims play a more important role under Title IX than they do under the ADEA. The Court of Appeals pointed to our statement in that "`teachers and coaches are often in the best position to vindicate the rights of their students because they are better able to identify discrimination and bring it to the attention of administrators.'" (quoting ). The Court of Appeals suggested that third parties are not needed to "identify instances of age discrimination *1939 and bring it to the attention of supervisors" and that, consequently, there is no need to extend 633a(a) (2000 ed., Supp. V) to reach This argument ignores the basis for the decision in did not hold that Title IX prohibits retaliation because the Court concluded as a policy matter that such claims are important. Instead, the holding in was based on an interpretation of the "text of Title IX." 178, Moreover, the statements in on which the Court of Appeals relied did not address the question whether the statutory term "discrimination" encompasses Instead, those statements addressed the school board's argument that, even if Title IX was held to permit some retaliation claims, only a "victim of the discrimination" and not third partiesshould be allowed to assert such a claim. It was in response to this argument that the Court noted the particular importance of reports of Title IX violations by third parties such as teachers and coaches. C Finally, the Court of Appeals attempted to distinguish on the ground that "Title IX was adopted in response to the Court's holding in Sullivan," whereas "there is no evidence in the legislative history that the ADEA's federal sector provisions were adopted in a similar context." -59. 's reliance on Sullivan, however, did not stem from "evidence in the legislative history" of Title IX. did not identify any such evidence but merely observed that "Congress enacted Title IX just three years after Sullivan was decided." Due to this chronology, the Court concluded, it was "`not only appropriate but realistic to presume that Congress was thoroughly familiar with [Sullivan] and that it expected its enactment [of Title IX] to be interpreted in conformity with [it]." (quoting ).
|
Justice Alito
| 2,008 | 8 |
majority
|
Gomez-Perez v. Potter
|
https://www.courtlistener.com/opinion/145805/gomez-perez-v-potter/
|
IX] to be interpreted in conformity with [it]." (quoting ). See ("Title IX was enacted in 1972, three years after [Sullivan]"); ("Sullivan formed an important part of the backdrop against which Congress enacted Title IX"). What said about the relationship between Sullivan and the enactment of Title IX can be said as well about the relationship between Sullivan and the enactment of the ADEA's federal-sector provision, 29 U.S.C. 633a (2000 ed. and Supp. V). Sullivan was decided in and 633a was enacted in 1974five years after the decision in Sullivan and two years after the enactment of Title IX. We see no reason to think that Congress forgot about Sullivan during the two years that passed between the enactment of Title IX in 1972 and the enactment of 633a in 1974. And if, as presumed, Congress had Sullivan in mind when it enacted Title IX in 1972, it is "appropriate" and "realistic" to presume that Congress expected its prohibition of "discrimination based on age" in 633a(a) "`to be interpreted in conformity with'" its similarly worded prohibition of "discrimination" "on the basis of sex" in 20 U.S.C. 1681(a), which it had enacted just two years (quoting ). IV A In arguing that 633a(a) (2000 ed., Supp. V) does not encompass retaliation claims, respondent relies principally on the presence of a provision in the ADEA specifically *1940 prohibiting retaliation against individuals who complain about age discrimination in the private sector, 623(d), and the absence of a similar provision specifically prohibiting retaliation against individuals who complain about age discrimination in federal employment. According to respondent, "the strong presumption is that [the] omission reflects that Congress acted intentionally and purposely in including such language in Section 623 of the Act and excluding it from Section 633a." Brief for Respondent 17 (internal quotation marks omitted). "[N]egative implications raised by disparate provisions are strongest" in those instances in which the relevant statutory provisions were "considered simultaneously when the language raising the implication was inserted." Here, the two relevant provisions were not considered or enacted together. Section 623(d), which specifically prohibits private sector retaliation, was enacted in 1967, see 4(d), but the federal-sector provision, 633a, was not added until 1974, see 28(b)(2),[2] Respondent's argument is undermined by the fact that the prohibitory language in the ADEA's federal-sector provision differs sharply from that in the corresponding ADEA provision relating to private-sector employment. In the private-sector provision, Congress set out a specific list of forbidden employer practices. See 29 U.S.C. 623(a).[3] The omission from such a list of a specific prohibition of retaliation might have been interpreted as suggesting
|
Justice Alito
| 2,008 | 8 |
majority
|
Gomez-Perez v. Potter
|
https://www.courtlistener.com/opinion/145805/gomez-perez-v-potter/
|
specific prohibition of retaliation might have been interpreted as suggesting that Congress did not want to reach retaliation, and therefore Congress had reason to include a specific prohibition of retaliation, 623(d), in order to dispel any such inference. The ADEA federal-sector provision, however, was not modeled after 623(d) and is couched in very different terms. The ADEA federal-sector provision was patterned "directly after" Title VII's federal-sector discrimination ban. 453 U.S. 1, Like the ADEA's federal-sector provision, Title VII's federal-sector provision, contains a broad prohibition of "discrimination," rather than a list of specific prohibited practices. Compare as amended, 42 U.S.C. 2000e-16(a) (2000 ed., Supp. V) (personnel actions affecting federal employees "shall be made free from any discrimination based on race, color, religion, sex, or national origin") with 29 U.S.C. 633a(a) (2000 ed., Supp. V) (personnel actions affecting federal employees *1941 who are at least 40 years of age "shall be made free from any discrimination based on age"). And like the ADEA's federal-sector provision, Title VII's federal-sector provision incorporates certain private-sector provisions but does not incorporate the provision prohibiting retaliation in the private sector. See 42 U.S.C. 2000e-16(d) (incorporating 2000e-5(f) to (k) but not 2000e-3(a), which forbids private-sector retaliation).[4] When Congress decided not to pattern 29 U.S.C. 633a(a) after 623(a) but instead to enact a broad, general ban on "discrimination based on age," Congress was presumably familiar with Sullivan and had reason to expect that this ban would be interpreted "in conformity" with that precedent. Under the reasoning of Sullivan, retaliation for complaining about age discrimination, is "discrimination based on age," "just as retaliation for advocacy on behalf of [the] black lessee in Sullivan was discrimination on the basis of race." Thus, because 623(d) and 633a were enacted separately and are couched in very different terms, the absence of a federal-sector provision similar to 623(d) does not provide a sufficient reason to depart from the reasoning of Sullivan and[5] B We see even less merit in respondent's reliance on 29 U.S.C. 633a(f), which provides that personnel actions by a federal department, agency, or other entity covered by 633a "shall not be subject to, or affected by, any provision of this chapter" other than 633a and 631(b), the provision that restricts the coverage of the ADEA to persons who are at least 40 years of age. Respondent contends that recognizing federal-sector retaliation claims would be tantamount to making 623(d) applicable to federal-sector employers and would thus contravene 633a(f). This argument is unsound because our holding that the ADEA prohibits retaliation against federal-sector employees is not in any way based on 623(d). Our
|
Justice Alito
| 2,008 | 8 |
majority
|
Gomez-Perez v. Potter
|
https://www.courtlistener.com/opinion/145805/gomez-perez-v-potter/
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employees is not in any way based on 623(d). Our conclusion, instead, is based squarely on 633a(a) (2000 ed., Supp. V) itself, "unaffected by other sections" of the Act. C Respondent next advances a complicated argument concerning "[t]he history of congressional and executive branch responses to the problem of discrimination in federal employment." Brief for Respondent 27. After Title VII was made *1942 applicable to federal employment in 1972, see Equal Employment Act, 11, the Civil Service Commission issued new regulations that prohibited discrimination in federal employment based on race, color, religion, sex, and national origin (but not age), see 5 CFR 713.211 (1973), as well as "reprisal[s]" prompted by complaints about such discrimination, 713.262(a). When Congress enacted the ADEA's federal-sector provisions in 1974, respondent argues, Congress anticipated that the enactment of 633a would prompt the Civil Service Commission to "extend its existing reprisal regulations" to cover age discrimination complaints and that Congress intended for the civil service process to provide the exclusive avenue for asserting retaliation claims. Brief for Respondent 27, 33, and n. 7. Respondent suggests that Congress took this approach because it believed that the Civil Service regulations "reflect[ed] a distinct set of public policy concerns in the civil service sector." Respondent cites no direct evidence that Congress actually took this approach;[6] respondent's argument rests on nothing more than unsupported speculation. And, in any event, respondent's argument contradicts itself. If, as respondent maintains, "[s]ection 633a(a) does not confer an anti-retaliation right," then there is no reason to assume that Congress expected the Civil Service Commission to respond to the enactment of 633a(a) by issuing new regulations prohibiting On the contrary, if, as respondent maintains, Congress had declined to provide an antiretaliation right, then Congress presumably would have expected the Civil Service Commission to abide by that policy choice. D Respondent's final argument is that principles of sovereign immunity "require that Section 633a(a) be read narrowly as prohibiting substantive age discrimination, but not " Respondent contends that the broad waiver of sovereign immunity in the Postal Reorganization Act, 39 U.S.C. 401(1), is beside the point for present purposes because, for many federal agencies, the only provision that waives sovereign immunity for ADEA claims is contained in 633a, and therefore this waiver provision "must be construed strictly in favor of the sovereign." Brief for Respondent 44 ; internal quotation marks omitted). Respondent is of course correct that "[a] waiver of the Federal Government's sovereign immunity must be unequivocally expressed in statutory text" and "will be strictly construed, in terms of its scope, in favor of the sovereign." But this
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Rumsfeld v. Padilla
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https://www.courtlistener.com/opinion/136999/rumsfeld-v-padilla/
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Respondent Jose Padilla is a United States citizen detained by the Department of Defense pursuant to the President's determination that he is an "enemy combatant" who conspired with al Qaeda to carry out terrorist attacks in the United States. We confront two questions: First, did Padilla properly file his habeas petition in the Southern District of New York; and second, did the President possess authority to detain Padilla militarily. We answer the threshold question in the negative and thus do not reach the second question presented. Because we do not decide the merits, we only briefly recount the relevant facts. On May 8, 02, Padilla flew from Pakistan to Chicago's O'Hare International Airport. As he stepped off the plane, Padilla was apprehended by federal agents executing a material witness warrant issued by the United States District Court for the Southern District of *41 New York (Southern District) in connection with its grand jury investigation into the September 11th terrorist attacks. Padilla was then transported to New York, where he was held in federal criminal On May 22, acting through appointed counsel, Padilla moved to vacate the material witness warrant. Padilla's motion was still pending when, on June 9, the President issued an order to Secretary of Defense Donald H. Rumsfeld designating Padilla an "enemy combatant" and directing the Secretary to detain him in military App. D to Brief for Petitioner 5a (June 9 Order). In support of this action, the President invoked his authority as "Commander in Chief of the U. S. armed forces" and the Authorization for Use of Military Force Joint Resolution, Stat. 224 (AUMF),[1] enacted by Congress on September 18, 01. June 9 Order 5a. The President also made several factual findings explaining his decision to designate Padilla an enemy combatant.[2] Based on these findings, the President concluded that it is "consistent with U. S. law and the laws of war for the Secretary of Defense to detain Mr. Padilla as an enemy combatant." at 6a. *42 That same day, Padilla was taken into custody by Department of Defense officials and transported to the Consolidated Naval Brig in Charleston, South Carolina.[] He has been held there ever since. On June 11, Padilla's counsel, claiming to act as his next friend, filed in the Southern District a habeas corpus petition under 28 U.S. C. 2241. The petition, as amended, alleged that Padilla's military detention violates the Fourth, Fifth, and Sixth Amendments and the Suspension Clause, Art. I, 9, cl. 2, of the United States Constitution. The amended petition named as respondents President Bush, Secretary Rumsfeld, and Melanie A.
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Rumsfeld v. Padilla
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https://www.courtlistener.com/opinion/136999/rumsfeld-v-padilla/
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named as respondents President Bush, Secretary Rumsfeld, and Melanie A. Marr, Commander of the Consolidated Naval Brig. The Government moved to dismiss, arguing that Commander Marr, as Padilla's immediate custodian, is the only proper respondent to his habeas petition, and that the District Court lacks jurisdiction over Commander Marr because she is located outside the Southern District. On the merits, the Government contended that the President has authority to detain Padilla militarily pursuant to the Commander in Chief Clause of the Constitution, Art. II, 2, cl. 1, the congressional AUMF, and this Court's decision in Ex parte Quirin, The District Court issued its decision in December 02. Padilla ex rel. The court held that the Secretary's "personal involvement" in Padilla's military custody renders him a proper respondent to Padilla's habeas petition, and that it can assert jurisdiction over the Secretary under New York's long-arm statute, notwithstanding *4 his absence from the Southern District.[4] at 581-587. On the merits, however, the court accepted the Government's contention that the President has authority to detain as enemy combatants citizens captured on American soil during a time of war.[5] The Court of Appeals for the Second Circuit reversed. The court agreed with the District Court that Secretary Rumsfeld is a proper respondent, reasoning that in cases where the habeas petitioner is detained for "other than federal criminal violations, the Supreme Court has recognized exceptions to the general practice of naming the immediate physical custodian as respondent." The Court of Appeals concluded that on these "unique" facts Secretary Rumsfeld is Padilla's custodian because he exercises "the legal reality of control" over Padilla and because he was personally involved in Padilla's military detention. The Court of Appeals also affirmed the District Court's holding that it has jurisdiction over the Secretary under New York's long-arm statute. Reaching the merits, the Court of Appeals held that the President lacks authority to detain Padilla militarily. The court concluded that neither the President's *44 Commander in Chief power nor the AUMF authorizes military detentions of American citizens captured on American soil. To the contrary, the Court of Appeals found in both our case law and in the Non-Detention Act, 18 U.S.C. 4001(a),[6] a strong presumption against domestic military detention of citizens absent explicit congressional -722. Accordingly, the court granted the writ of habeas corpus and directed the Secretary to release Padilla from military custody within 0 days. We granted the Government's petition for certiorari to review the Court of Appeals' rulings with respect to the jurisdictional and the merits issues, both of which raise important questions of federal law.[7] The
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Rumsfeld v. Padilla
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both of which raise important questions of federal law.[7] The question whether the Southern District has jurisdiction over Padilla's habeas petition breaks down into two related subquestions. First, who is the proper respondent to that petition? And second, does the Southern District have jurisdiction over him or her? We address these questions in turn. I The federal habeas statute straightforwardly provides that the proper respondent to a habeas petition is "the person who has custody over [the petitioner]." 28 U.S. C. 2242; see also 224 ("The writ, or order to show cause shall be directed to the person having custody of the person detained"). The consistent use of the definite article in reference to the custodian indicates that there is generally only one proper respondent to a given prisoner's habeas petition. *45 This custodian, moreover, is "the person" with the ability to produce the prisoner's body before the habeas court. We summed up the plain language of the habeas statute over 100 years ago in this way: "[T]hese provisions contemplate a proceeding against some person who has the immediate custody of the party detained, with the power to produce the body of such party before the court or judge, that he may be liberated if no sufficient reason is shown to the contrary." ; see also ("The writ of habeas corpus" acts upon "the person who holds [the detainee] in what is alleged to be unlawful custody," citing at ); ). In accord with the statutory language and ' immediate custodian rule, longstanding practice confirms that in habeas challenges to present physical confinement "core challenges" the default rule is that the proper respondent is the warden of the facility where the prisoner is being held, not the Attorney General or some other remote supervisory official. See, e.g., ; ; ; ; ; ; ;[8] No exceptions to this rule, either recognized *46 [9] or proposed, see post, at 454 (KENNEDY, J., concurring), apply here. If the immediate custodian rule applies in this case, Commander Marr the equivalent of the warden at the military brig is the proper respondent, not Secretary Rumsfeld. See ; ; cf. 10 U.S. C. 951(c) (providing that the commanding officer of a military correctional facility "shall have custody and control" of the prisoners confined therein). Neither Padilla, nor the courts below, nor JUSTICE STEVENS' dissent deny the general applicability of the immediate custodian rule to habeas petitions challenging physical Post, at 458. They argue instead that the rule is flexible and should not apply on the "unique facts" of this case. Brief
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Rumsfeld v. Padilla
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not apply on the "unique facts" of this case. Brief for Respondents 44. We disagree. *47 First, Padilla notes that the substantive holding of that a person released on his own recognizance is not "in custody" for habeas purposes was disapproved in as part of this Court's expanding definition of "custody" under the habeas statute.[10] Padilla seems to contend, and the dissent agrees, post, at 461-462, that because we no longer require physical detention as a prerequisite to habeas relief, the immediate custodian rule, too, must no longer bind us, even in challenges to physical That argument, as the Seventh Circuit aptly concluded, is a "non sequitur." That our understanding of custody has broadened to include restraints short of physical confinement does nothing to undermine the rationale or statutory foundation of ' immediate custodian rule where physical custody is at issue. Indeed, as the cases cited above attest, it has consistently been applied in this core habeas context within the United States.[11] The Court of Appeals' view that we have relaxed the immediate custodian rule in cases involving prisoners detained for "other than federal criminal violations," and that in such cases the proper respondent is the person exercising the "legal reality of control" over the petitioner, suffers from the same flaw. 707. Certainly the statute itself makes no such distinction based on the source of the physical detention. Nor does our case law support a deviation from the immediate custodian rule here. Rather, *48 the cases cited by Padilla stand for the simple proposition that the immediate physical custodian rule, by its terms, does not apply when a habeas petitioner challenges something other than his present physical confinement. In for example, an Alabama prisoner filed a habeas petition in the Western District of Kentucky. He did not contest the validity of the Alabama conviction for which he was confined, but instead challenged a detainer lodged against him in Kentucky state court. Noting that petitioner sought to challenge a "confinement that would be imposed in the future," we held that petitioner was "in custody" in Kentucky by virtue of the -489. In these circumstances, the Court held that the proper respondent was not the prisoner's immediate physical custodian (the Alabama warden), but was instead the Kentucky court in which the detainer was lodged. This made sense because the Alabama warden was not "the person who [held] him in what [was] alleged to be unlawful " at (citing 114 U. S., at ); (observing that the petitioner in "was in the custody of Kentucky officials for purposes of his habeas
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Rumsfeld v. Padilla
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the custody of Kentucky officials for purposes of his habeas corpus action"). Under then, a habeas petitioner who challenges a form of "custody" other than present physical confinement may name as respondent the entity or person who exercises legal control with respect to the challenged "" But nothing in supports departing from the immediate custodian rule in the traditional context of challenges to present physical confinement. See -7; at To the contrary, cited favorably and reiterated the traditional rule that a prisoner seeking release from confinement must sue his "jailer." 410 U.S., For the same reason, does not aid Padilla. Strait involved an inactive reservist domiciled in California who filed a 2241 petition seeking *49 relief from his military obligations. We noted that the reservist's "nominal" custodian was a commanding officer in Indiana who had charge of petitioner's Army records. As in the immediate custodian rule had no application because petitioner was not challenging any present physical confinement. In and Strait, the immediate custodian rule did not apply because there was no immediate physical custodian with respect to the "custody" being challenged. That is not the case here: Commander Marr exercises day-to-day control over Padilla's physical We have never intimated that a habeas petitioner could name someone other than his immediate physical custodian as respondent simply because the challenged physical custody does not arise out of a criminal conviction. Nor can we do so here just because Padilla's physical confinement stems from a military order by the President. It follows that neither nor Strait supports the Court of Appeals' conclusion that Secretary Rumsfeld is the proper respondent because he exercises the "legal reality of control" over Padilla.[] As we have explained, identification of the party exercising legal control only comes into play when there is no immediate physical custodian with respect to the challenged "" In challenges to present physical confinement, we reaffirm that the immediate custodian, not a supervisory official who exercises legal control, is the proper respondent. If the "legal control" test applied to physical-custody challenges, a convicted prisoner would be able to name the State or the Attorney General as a respondent to a 2241 petition. As the statutory language, *440 established practice, and our precedent demonstrate, that is not the case.[1] At first blush Ex parte might seem to lend support to Padilla's "legal control" argument. There, a Japanese-American citizen interned in California by the War Relocation Authority (WRA) sought relief by filing a 2241 petition in the Northern District of California, naming as a respondent her immediate custodian. After she filed the petition, however, the
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her immediate custodian. After she filed the petition, however, the Government moved her to Utah. Thus, the prisoner's immediate physical custodian was no longer within the jurisdiction of the District Court. We held, nonetheless, that the Northern District "acquired jurisdiction in this case and that ['s] removal did not cause it to lose jurisdiction where a person in whose custody she is remains within the district." We held that, under these circumstances, the assistant director of the WRA, who resided in the Northern District, would be an "appropriate respondent" to whom the District Court could direct the writ. While did involve a petitioner challenging her present physical confinement, it did not, as Padilla and JUSTICE STEVENS contend, hold that such a petitioner may properly name as respondent someone other than the immediate physical custodian. Post, at 461-462 (citing as supporting a "more functional approach" that allows habeas petitioners *441 to name as respondent an individual with "control" over the petitioner). Rather, the Court's holding that the writ could be directed to a supervisory official came not in our holding that the District Court initially acquired jurisdiction it did so because properly named her immediate custodian and filed in the district of confinement but in our holding that the District Court could effectively grant habeas relief despite the Government-procured absence of petitioner from the Northern District.[14] Thus, stands for the important but limited proposition that when the Government moves a habeas petitioner after she properly files a petition naming her immediate custodian, the District Court retains jurisdiction and may direct the writ to any respondent within its jurisdiction who has legal authority to effectuate the prisoner's release. 's holding does not help respondents here. Padilla was moved from New York to South Carolina before his lawyer filed a habeas petition on his behalf. Unlike the District Court in therefore, the Southern District never acquired jurisdiction over Padilla's petition. Padilla's argument reduces to a request for a new exception to the immediate custodian rule based upon the "unique facts" of this case. While Padilla's detention is undeniably unique in many respects, it is at bottom a simple challenge to physical custody imposed by the Executive the traditional core of the Great Writ. There is no indication that there was any attempt to manipulate behind Padilla's transfer he was taken to the same facility where other al Qaeda members were already being held, and the Government did not attempt to hide from Padilla's lawyer where it had taken him. Infra, at 449-450, and n. 17; post, at 454 (KENNEDY,
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Rumsfeld v. Padilla
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https://www.courtlistener.com/opinion/136999/rumsfeld-v-padilla/
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Infra, at 449-450, and n. 17; post, at 454 (KENNEDY, *442 J., concurring). His detention is thus not unique in any way that would provide arguable basis for a departure from the immediate custodian rule. Accordingly, we hold that Commander Marr, not Secretary Rumsfeld, is Padilla's custodian and the proper respondent to his habeas petition. II We turn now to the second subquestion. District courts are limited to granting habeas relief "within their respective jurisdictions." 28 U.S. C. 2241(a). We have interpreted this language to require "nothing more than that the court issuing the writ have jurisdiction over the custodian." 410 U. S., Thus, jurisdiction over Padilla's habeas petition lies in the Southern District only if it has jurisdiction over Commander Marr. We conclude it does not. Congress added the limiting clause "within their respective jurisdictions" to the habeas statute in to avert the "inconvenient [and] potentially embarrassing" possibility that "every judge anywhere [could] issue the Great Writ on behalf of applicants far distantly removed from the courts whereon they sat." Accordingly, with respect to habeas petitions "designed to relieve an individual from oppressive confinement," the traditional rule has always been that the Great Writ is "issuable only in the district of confinement." Other portions of the habeas statute support this commonsense reading of 2241(a). For example, if a petitioner seeks habeas relief in the court of appeals, or from this Court or a Justice thereof, the petition must "state the reasons for not making application to the district court of the district in which the applicant is held." 28 U.S. C. 2242 (emphases added). Moreover, the court of appeals, this Court, or a Justice thereof "may decline to entertain an application for a writ of habeas corpus and may transfer the application to the district court having jurisdiction to entertain it." *44 2241(b) The Federal Rules similarly provide that an "application for a writ of habeas corpus must be made to the appropriate district court." Fed. Rule App. Proc. 22(a) Congress has also legislated against the background of the "district of confinement" rule by fashioning explicit exceptions to the rule in certain circumstances. For instance, 2241(d) provides that when a petitioner is serving a state criminal sentence in a State that contains more than one federal district, he may file a habeas petition not only "in the district court for the district wherein [he] is in custody," but also "in the district court for the district within which the State court was held which convicted and sentenced him"; and "each of such district courts shall have concurrent
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Rumsfeld v. Padilla
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https://www.courtlistener.com/opinion/136999/rumsfeld-v-padilla/
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him"; and "each of such district courts shall have concurrent jurisdiction to entertain the application." Similarly, until Congress directed federal criminal prisoners to file certain post-conviction petitions in the sentencing courts by adding 2255 to the habeas statute, federal prisoners could litigate such collateral attacks only in the district of confinement. See United 42 U.S. 5, 2-219 Both of these provisions would have been unnecessary if, as the Court of Appeals believed, 2241's general habeas provisions permit a prisoner to file outside the district of confinement. The plain language of the habeas statute thus confirms the general rule that for core habeas petitions challenging present physical confinement, jurisdiction lies in only one district: the district of confinement. Despite this ample statutory and historical pedigree, Padilla contends, and the Court of Appeals held, that the district of confinement rule no longer applies to core habeas challenges. Rather, Padilla, as well as today's dissenters, post, at 462-464, urge that our decisions in and Strait stand for the proposition that jurisdiction will lie in any district in which the respondent is amenable to service of process. We disagree. *444 Prior to we had held that habeas jurisdiction depended on the presence of both the petitioner and his custodian within the territorial confines of the district court. See -192 (1). By allowing an Alabama prisoner to challenge a Kentucky detainer in the Western District of Kentucky, changed course and held that habeas jurisdiction requires only "that the court issuing the writ have jurisdiction over the custodian." 410 U.S., But we fail to see how 's requirement of jurisdiction over the respondent alters the district of confinement rule for challenges to present physical itself did not involve such a challenge; rather, challenged his future confinement in Kentucky by suing his Kentucky custodian. We reasoned that "[u]nder these circumstances it would serve no useful purpose to apply the Ahrens rule and require that the action be brought in Alabama." In habeas challenges to present physical confinement, by contrast, the district of confinement is synonymous with the district court that has territorial jurisdiction over the proper respondent. This is because, as we have held, the immediate custodian rule applies to core habeas challenges to present physical By definition, the immediate custodian and the prisoner reside in the same district. Rather than focusing on the holding and historical context of JUSTICE STEVENS, post, at 462, like the Court of Appeals, seizes on dicta in which we referred to "service of process" to contend that the Southern District could assert jurisdiction over Secretary Rumsfeld under New York's long-arm statute.
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Rumsfeld v. Padilla
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https://www.courtlistener.com/opinion/136999/rumsfeld-v-padilla/
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assert jurisdiction over Secretary Rumsfeld under New York's long-arm statute. See 410 U. S., But that dicta did not indicate that a custodian may be served with process outside of the district court's territorial To the contrary, the facts and holding *445 of dictate the opposite inference. served his Kentucky custodian in Kentucky. Accordingly, we concluded that the Western District of Kentucky had jurisdiction over the petition "since the respondent was properly served in that district." ; see also 2 U. S., Thus, in no way authorizes district courts to employ long-arm statutes to gain jurisdiction over custodians who are outside of their territorial See 60 F. d, ; Guerra, 786 F. 2d, at 417. Indeed, in stating its holding, favorably cites a case squarely holding that the custodian's absence from the territorial jurisdiction of the district court is fatal to habeas 410 U.S., Thus, does not derogate from the traditional district of confinement rule for core habeas petitions challenging present physical The Court of Appeals also thought Strait supported its long-arm approach to habeas But Strait offers even less help than In Strait, we held that the Northern District of California had jurisdiction over Strait's "nominal" custodian the commanding officer of the Army records center even though he was physically located in Indiana. We reasoned that the custodian was "present" in California "through the officers in the hierarchy of the command who processed [Strait's] application for discharge." The Strait Court contrasted its broad view of "presence" in the case of a nominal custodian with a "`commanding officer who is responsible for the day to day control of his subordinates,'" who would be subject to habeas jurisdiction only in the district where he physically resides. ). The Court of Appeals, much like JUSTICE STEVENS' dissent, reasoned that Secretary Rumsfeld, in the same way as *446 Strait's commanding officer, was "present" in the Southern District through his subordinates who took Padilla into military -710; post, at 462. We think not. Strait simply has no application to the present case. Strait predated so the then-applicable Ahrens rule required that both the petitioner and his custodian be present in California. Thus, the only question was whether Strait's commanding officer was present in California notwithstanding his physical absence from the district. Distinguishing Schlanger, we held that it would "exalt fiction over reality" to require Strait to sue his "nominal custodian" in Indiana when Strait had always resided in California and had his only meaningful contacts with the Army 406 U.S., -46. Only under these limited circumstances did we invoke concepts of personal
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Rumsfeld v. Padilla
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under these limited circumstances did we invoke concepts of personal jurisdiction to hold that the custodian was "present" in California through the actions of his agents. Here, by contrast, Padilla seeks to challenge his present physical custody in South Carolina. Because the immediate-custodian rule applies to such habeas challenges, the proper respondent is Commander Marr, who is also present in South Carolina. There is thus no occasion to designate a "nominal" custodian and determine whether he or she is "present" in the same district as petitioner.[15] Under and the district of confinement rule, as we have explained, Padilla must file his habeas action in South Carolina. Were we to extend Strait's limited exception to the territorial nature of habeas jurisdiction to the context of physical-custody challenges, we would undermine, if not negate, the purpose of Congress in amending the habeas statute in The proviso that district courts may issue the writ only "within their respective jurisdictions" forms an important *447 corollary to the immediate custodian rule in challenges to present physical custody under 2241. Together they compose a simple rule that has been consistently applied in the lower courts, including in the context of military detentions: Whenever a 2241 habeas petitioner seeks to challenge his present physical custody within the United States, he should name his warden as respondent and file the petition in the district of confinement. See at 710, 7 (alleged enemy combatant detained at Consolidated Naval Brig must file petition in the District of South Carolina; collecting cases dismissing 2241 petitions filed outside the district of confinement); 79 F. 2d, at (court-martial convict must file in district of confinement).[16] This rule, derived from the terms of the habeas statute, serves the important purpose of preventing forum shopping by habeas petitioners. Without it, a prisoner could name a high-level supervisory official as respondent and then sue that person wherever he is amenable to long-arm The result would be rampant forum shopping, district courts with overlapping jurisdiction, and the very inconvenience, expense, and embarrassment Congress sought to avoid when it added the jurisdictional limitation 17 years ago. III JUSTICE STEVENS' dissent, not unlike the Court of Appeals' decision, rests on the mistaken belief that we have *448 made various exceptions to the immediate custodian and district of confinement rules whenever "exceptional," "`special,'" or "unusual" cases have arisen. Post, at 455, 458, 462, n. 5. We have addressed most of his contentions in the foregoing discussion, but we briefly touch on a few additional points. Apparently drawing a loose analogy to JUSTICE STEVENS asks us to pretend that Padilla and
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Rumsfeld v. Padilla
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to JUSTICE STEVENS asks us to pretend that Padilla and his immediate custodian were present in the Southern District at the time counsel filed the instant habeas petition, thus rendering jurisdiction proper. Post, at 458-459. The dissent asserts that the Government "depart[ed] from the time-honored practice of giving one's adversary fair notice of an intent to present an important motion to the court," when on June 9 it moved ex parte to vacate the material witness warrant and allegedly failed to immediately inform counsel of its intent to transfer Padilla to military custody in South Carolina. Post, at 459; cf. n. Constructing a hypothetical "scenario," the dissent contends that if counsel had been immediately informed, she "would have filed the habeas application then and there," while Padilla remained in the Southern District, "rather than waiting two days." Post, at 458. Therefore, JUSTICE STEVENS concludes, the Government's alleged misconduct "justifies treating the habeas application as the functional equivalent of one filed two days earlier." Post, at 459 ("[W]e should not permit the Government to obtain a tactical advantage as a consequence of an ex parte proceeding"). The dissent cites no authority whatsoever for its extraordinary proposition that a district court can exercise statutory jurisdiction based on a series of events that did not occur, or that jurisdiction might be premised on "punishing" alleged Government misconduct. The lower courts unlike the dissent did not perceive any hint of Government misconduct or bad faith that would warrant extending to a case where both the petitioner and his immediate custodian were *449 outside of the district at the time of filing. Not surprisingly, then, neither Padilla nor the lower courts relied on the dissent's counterfactual theory to argue that habeas jurisdiction was proper. Finding it contrary to our well-established precedent, we are not persuaded either.[17] The dissent contends that even if we do not indulge its hypothetical scenario, the Court has made "numerous exceptions" to the immediate custodian and district of confinement rules, rendering our bright-line rule "far from bright." Post, at 460. Yet the dissent cannot cite a single case in which we have deviated from the longstanding rule we reaffirm today that is, a case in which we allowed a habeas petitioner challenging his present physical custody within the United States to name as respondent someone other than *450 the immediate custodian and to file somewhere other than the district of confinement.[18] If JUSTICE STEVENS' view were accepted, district courts would be consigned to making ad hoc determinations as to whether the circumstances of a given case are "exceptional,"
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United States v. Euge
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https://www.courtlistener.com/opinion/110191/united-states-v-euge/
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The United States sued in the District Court seeking enforcement of an Internal Revenue Service summons requiring respondent to appear and provide handwriting exemplars Enforcement was denied by the Court of Appeals for the Eighth Circuit, and we granted certiorari[1] We now hold that Congress *709 has empowered the IRS to compel handwriting exemplars under its summons authority conferred by 26 US C 7602 I The facts are not in dispute In October 1977, an agent in the Intelligence Division of the Internal Revenue Service was assigned to investigate respondent's income tax liability for the years 1973 through 1976 Respondent had not filed any tax returns for those years The Service sought to employ the "bank deposits method" of reconstructing respondent's income for those years, as a means of calculating his tax liability Under this method of proof, the sums deposited in the taxpayer's bank accounts are scrutinized to determine whether they represent taxable income During the course of the investigation, the agent found only two bank accounts registered in respondent's name Twenty other bank accounts were discovered, however, which the agent had reason to believe were being maintained by respondent under aliases to conceal taxable income The statements for these accounts were sent to post office boxes held in respondent's name; the signature cards for the accounts listed addresses of properties owned by respondent; and the agent had dresses of properties owned by respondent; and the agent had documented frequent transfers of funds between the accounts In an effort to determine whether the sums deposited in these accounts represented income attributable to respondent, the agent issued a summons on October 7, 1977, requiring respondent to appear and execute handwriting exemplars of the various signatures appearing on the bank signature cards Respondent declined to comply with the summons The United States commenced this action under 26 US C 7604 (a) The District Court held that the summons should be enforced, ordering respondent to provide 10 handwriting exemplars of 8 different signatures The Court of Appeals reversed, ruling that the summons authority vested in the Internal Revenue Service under 26 US C 7602 does not *710 authorize the IRS to compel the execution of handwriting exemplars[2] II The structure and history of the statutory authority of the Internal Revenue Service to summon witnesses to produce evidence necessary for tax investigations has been repeatedly reviewed by this Court in recent years See ; United ; ; United ; ; United Under 7602 the Secretary of the Treasury, and therefore the IRS as his designate,[3] is authorized to summon individuals to "appear before
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United States v. Euge
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his designate,[3] is authorized to summon individuals to "appear before the Secretary and to produce such books, papers, records, or other data, and to give such testimony, under oath, as may be relevant or material to such inquiry "[4] The question *711 presented here is whether this power to compel a witness to "appear," to produce "other data," and to "give testimony," includes the power to compel the execution of handwriting exemplars We conclude that it does, for several reasons While the language may not be explicit in its authorization of handwriting exemplars, the duty to appear and give testimony, a duty imposed by 7602, has traditionally encompassed a duty to provide some forms of nontestimonial, physical evidence, including handwriting exemplars Further, this Court has consistently construed congressional intent to require that if the summons authority claimed is necessary for the effective performance of congressionally imposed responsibilities to enforce the tax Code, that authority should be upheld absent express statutory prohibition or substantial countervailing policies The authority claimed here is necessary for the effective exercise of the Service's enforcement responsibilities; it is entirely consistent with the statutory language; and it is not in derogation of any constitutional rights or countervailing policies enunciated by Congress *712 A Through 7602, Congress has imposed a duty on persons possessing information "relevant or material" to an investigation of federal tax liability to produce that information at the request of the Secretary or his delegate That duty to provide relevant information expressly obligates the person summoned to produce documentary evidence and to "appear" and "give testimony" Imposition of such an evidentiary obligation is, of course, not a novel innovation attributable to 7602 The common law has been the source of a comparable evidentiary obligation for centuries In determining the scope of the obligation Congress intended to impose by use of this language, we have previously analogized, as an interpretive guide, to the common-law duties attaching to the issuance of a testimonial summons See United ; United Congress, through legislation, may expand or contract the duty imposed,[5] but absent some contrary expression, there is a wealth of history helpful in defining the duties imposed by the issuance of a summons The scope of the "testimonial"[6] or evidentiary duty imposed by common law or statute has traditionally been interpreted as an expansive duty limited principally by relevance and privilege As this Court described the contours of the duty in United : "[P]ersons summoned as witnesses by competent authority have certain minimum duties and obligations which are necessary concessions to the public interest in the orderly operation of
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Justice Rehnquist
| 1,980 | 19 |
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United States v. Euge
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https://www.courtlistener.com/opinion/110191/united-states-v-euge/
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concessions to the public interest in the orderly operation of legislative and judicial machinery We have often iterated the importance of this public duty, which every person within *713 the jurisdiction of the Government is bound to perform when properly summoned" While the Court recognized that certain exemptions would be upheld, the "primary assumption" was that a summoned party must "give what testimony one is capable of giving" absent an exemption "grounded in a substantial individual interest which has been found, through centuries of experience, to outweigh the public interest in the search for truth" One application of this broad duty to provide relevant evidence has been the recognition, since early times, of an obligation to provide certain forms of nontestimonial physical evidence[7] In the Court found that the common-law evidentiary duty permitted the compulsion of various forms of physical evidence In this Court observed that traditionally witnesses could be compelled, in both state and federal courts, to submit to "fingerprinting, photographing, or measurements, to write or speak for identification, to appear in court, to stand, to assume a stance, to walk, or to make a particular gesture" See also United In handwriting was held, "like the body itself" to be an "identifying physical characteristic," subject to production In United and United 9 this Court again confirmed that handwriting is in the nature of physical evidence which can be compelled by a grand jury in the exercise of its subpoena power See also United *714 This broad duty to provide most relevant, nonprivileged evidence has not been considered to exist only in the common law The Court has recognized that by statute "Congress may provide for the performance of this duty" By imposing an obligation to produce documents as well as to appear and give testimony, we believe the language of 7602 suggests an intention to codify a broad testimonial obligation, including an obligation to provide some physical evidence relevant and material to a tax investigation, subject to the traditional privileges and limitations This conclusion seems inherent in the imposition of an obligation to "appear," since an obligation to appear necessarily entails an obligation to display physical features to the summoning authority Congress thereby authorized the Service to compel the production of some physical evidence, and it is certainly possible to conclude that this authorization extended to the execution of handwriting exemplars, one variety of relevant physical evidence This construction of the language conforms with the historical notions of the testimonial duty attaching to the issuance of a summons[8] B Congress certainly could have narrowed the common-law testimonial duty in
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Justice Rehnquist
| 1,980 | 19 |
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United States v. Euge
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Congress certainly could have narrowed the common-law testimonial duty in enacting 7602, and thus we do not rely solely on the common-law meaning of the statutory language Section 7602 does not, by its terms, compel the production of handwriting exemplars, and therefore, a narrower interpretation of the duty imposed is not precluded by the actual language of the statute A narrower interpretation is precluded, however, by the precedents of this Court construing that statute As early as 1911, this Court established the benchmarks for interpreting the authority of the Internal Revenue Service *715 to enforce tax obligations in holding that "the administration of the statute may well be taken to embrace all appropriate measures for its enforcement, [unless] there is substantial reason for assigning to the phrase[s] a narrower interpretation" United This precise mode of construction has consistently been applied by this Court in construing the breadth of the summons authority Congress intended to confer in 7602 In United the Court declined to construe 7605 (b), prohibiting the Secretary from conducting "unnecessary examination[s]," to require probable cause for the issuance of a 7602 summons The Court found that "[a]lthough a more stringent interpretation is possible, one which would require some showing of cause for suspecting fraud, we reject such an interpretation because it might seriously hamper the Commissioner in carrying out investigations he thinks warranted " -54 In the Court refused to hold that the summons authority could not be used whenever there was a potential that the civil investigation might later lead to criminal prosecution In construing the scope of the summons authority, the Court emphasized that it refused to draw the line in a manner that would "stultify enforcement of federal law" Id, Finally, in United the Court upheld the Service's authority to issue a John Doe summons to a bank in order to discover the identity of an individual unknown to the Service The Court reasoned that absent that construction, "no meaningful investigation of such events could be conducted" and thus "[s]ettled principles of statutory interpretation require that we avoid such a result absent unambiguous directions from Congress" Id, There is thus a formidable line of precedent construing congressional intent to uphold the claimed enforcement authority of the Service if authority is necessary for the effective enforcement of the *716 revenue laws and is not undercut by contrary legislative purposes[9] Applying these principles, we conclude that Congress empowered the Service to seek, and obliged the witness to provide, handwriting exemplars relevant to the investigation First, there is no question that handwriting exemplars will often be an important
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| 1,980 | 19 |
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no question that handwriting exemplars will often be an important evidentiary component in establishing tax liability The statutory framework, as reviewed in the numerous precedents recited imposes on the Secretary of the Treasury, and the IRS as his designate, a broad duty to enforce the tax laws 26 US C 7601 (a) Congress has legislated that the Secretary is "required to make the inquiries, determinations, and assessments of all taxes imposed by this title " 26 US C 6201 (a) Under 6301 the Secretary "shall collect the taxes imposed by the internal revenue laws" In order to fulfill these duties, the Service will often need to determine whether a particular name is an alias of a taxpayer One effective method for resolving that issue is through the use of handwriting exemplars[10] As we recognized in the IRS does have a need for investigative devices which assist them in ascertaining the identity of tax *717 evaders In we held, in language relevant to this case: "[I]f criminal activity is afoot the persons involved may well have used aliases or taken other measures to cover their tracks Thus, if the Internal Revenue Service is unable to issue a summons to determine the identity of such persons, the broad inquiry authorized by 7601 will be frustrated in this class of cases Settled principles of statutory interpretation require that we avoid such a result absent unambiguous directions from Congress" 420 US, There is certainly nothing in the statutory language,[11] or in the legislative history,[12] precluding the interpretation *718 asserted by the Service Nor is there any constitutional privilege of the taxpayer or other parties that is violated by this construction Compulsion of handwriting exemplars is neither a search or seizure subject to Fourth Amendment protections United 9 nor testimonial evidence protected by the Fifth Amendment privilege against self-incrimination The compulsion of handwriting exemplars has been the subject of far less protection than the compulsion of testimony and documents[13] Since Congress has explicitly established an obligation to provide the more protected forms of evidence, it would seem curious had it chosen not to impose an obligation to produce a form of evidence tradition has found it less important to protect[14] *719 As we have emphasized in other cases dealing with 7602 proceedings, the summoned party is entitled to challenge the issuance of the summons in an adversary proceeding in federal court prior to enforcement, and may assert appropriate defenses See 420 U S, at 151 The Service must also establish compliance with the good-faith requirements recognized by this Court, United 437 U S, at 318,
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Justice Blackmun
| 1,985 | 11 |
majority
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United States v. Maine
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https://www.courtlistener.com/opinion/111307/united-states-v-maine/
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These supplemental proceedings in this wide-ranging litigation are to determine the legal coastline of the United States in the area of Block Island Sound and the eastern portion of Long Island Sound. That determination turns on whether Long Island Sound and Block Island Sound constitute, in whole or in part, a juridical bay under the provisions of the Convention on the Territorial Sea and the Contiguous Zone (the Convention).[1] To the extent the Sounds constitute a juridical bay, the waters of that bay, under the Convention, *506 are then internal waters subject to the jurisdiction of the adjacent States, and the line that closes the bay is coastline for the purpose of fixing the seaward boundaries of the States. The Special Master concluded (a) that the Sounds in part do constitute a juridical bay, and (b) that the bay closes at the line drawn from Montauk Point, at the eastern tip of Long Island, to Watch Hill Point on the Rhode Island shore. We have independently reviewed the voluminous record, as we must, see ; and find ourselves in agreement with the Special Master. We therefore adopt the Master's findings, confirm his conclusions, and overrule the respective exceptions filed by the United States, the State of New York, and the State of Rhode Island and Providence Plantations. I This action, invoking the Court's original jurisdiction under U. S. Const., Art. III, 2, and 28 U.S. C. 1251(b)(2), was instituted in 1969, see with the filing of a complaint by the United States against the 13 States that border the Atlantic Ocean.[2] The purpose of the suit was to determine whether the United States had exclusive rights to the seabed and subsoil underlying the ocean beyond three geographical miles from each State's coastline. See Submerged Lands Act of 1953, 3 U.S. C. 1301 et seq. In due course, after the filing of answers, the appointment of a Special Master, the submission of the Master's Report, the filing of exceptions thereto, and oral argument,[3] this Court delivered its opinion, *507 and entered a general decree, The Court there determined that the States held interests in the seabeds only to a distance of three geographical miles from their respective coastlines. The Court did not then fix the precise coastline of any of the defendant States; instead, jurisdiction was reserved "to entertain such further proceedings, including proceedings to determine the coastline of any defendant State, to enter such orders, and to issue such writs as may from time to time be deemed necessary or advisable to give proper force and effect to this decree."[]
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United States v. Maine
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advisable to give proper force and effect to this decree."[] Meanwhile, in an unrelated federal action, pilots licensed by Connecticut challenged a Rhode Island statute which requires every foreign vessel and every American vessel under register for foreign trade that traverses Block Island Sound to take on a pilot licensed by the Rhode Island Pilotage Commission. The District Court in that suit ruled that Rhode Island possessed the authority so to regulate pilotage in the Sound. Its theory was that the State had that authority under 6 U.S. C. 211, a statute which gives the States power to regulate pilots in "bays, inlets, rivers, harbors, and ports of the United States." In so ruling, the court determined that Block Island Sound was a bay under the Convention and therefore qualified as internal waters within Rhode Island's coastline. The United States Court of Appeals for the First Circuit affirmed that judgment. cert. pending sub nom. Ball v. Dunlap, No. 75-6990. In December obviously in response to the ruling in the Rhode Island Pilotage Commission suit, and apparently *508 in the thought that coastline determinations would best be made in this then-existing original action, the United States filed a motion for supplemental proceedings to determine the exact legal coastlines of Massachusetts and Rhode Island. This Court entered an order appointing the Honorable Walter E. Hoffman as Special Master, with the customary authority to request further pleadings, to summon witnesses, to take evidence, and to submit such reports as he might deem appropriate. The Massachusetts component of the litigation was separated from the Rhode Island component when it became clear that each concerned different issues. See n. Subsequently, the Master granted New York's motion to participate in the Rhode Island proceedings. The basic position of the United States is set forth in the following allegations of its second amended complaint: "The coastline of Rhode Island is the line of ordinary low water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters. ". [T]he coast of the the State of Rhode Island, except as to Block Island, is the ordinary low water line along the mainland beginning at the Massachusetts border to a point off Sakonnet Point, then a straight closing line across Narragansett Bay to Point Judith, then the ordinary low water line along the mainland to the Connecticut border. As to Block Island, the coast of the State of Rhode Island is the ordinary low water line around Block Island." Rhode Island's basic position is asserted
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Justice Blackmun
| 1,985 | 11 |
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United States v. Maine
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line around Block Island." Rhode Island's basic position is asserted in its counterclaim: "[T]he Rhode Island coast is the ordinary low water line along the mainland beginning at the Massachusetts border to a point off Sakonnet Point, then a straight closing *509 line from Sakonnet Point west to Point Judith, then a straight closing line south to Sandy Point on Block Island, then the ordinary low water line along the Block Island shore clockwise, to a point along a straight closing line to Montauk Point on Long Island, State of New York." The status of Long Island Sound as internal waters over which the States have jurisdiction is no longer at issue, for the parties agree, as the Master had found, that Long Island Sound is a historic bay under Article 7(6) of the Convention. We, too, agree with that determination. Its waters therefore are internal waters regardless of whether it also is in part a juridical bay.[5] In his Report, the Special Master concluded that Long Island Sound and Block Island Sound constitute a juridical bay under the Convention, especially as interpreted by this Court's decision in United 39 U.S. 11 The Master so found after concluding that Long Island is to be viewed as an extension of the mainland and as constituting the southern headland of the bay. The Master went on to conclude, as noted above, that the bay closes at the line drawn from Montauk Point, at the eastern tip of Long Island, to Watch Hill Point on the Rhode Island shore. The Special Master's Report, when received here, was ordered filed, and exceptions thereto, and replies, were authorized. 65 U.S. 1018 In response, the United States, the State of Rhode Island, and the State of New York each filed exceptions. These were set for oral argument. 68 U.S. 1213 The case is now before us on the *510 Report, the exceptions, and the briefs and arguments of the parties. II In this Court, the United States argues that it "quarrel[s] only with the Special Master's recommendation that Long Island be deemed a part of the mainland and the consequences that necessarily flow from that ruling." Exception of United States 5. It states that if Long Island is considered an island, rather than an extension of the mainland, it cannot form a juridical bay. It expresses concern about "the principle involved and the precedent created," if its not-part-of-the-mainland argument is rejected, because of the effect of that decision on other States and its international implications. The United States argues that current social and economic ties between
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Justice Blackmun
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United States v. Maine
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United States argues that current social and economic ties between Long Island and the mainland cannot overcome the geographical separateness of the Island. It states that any emphasis on the "bay-like" appearance and usage of the waters sheltered by Long Island is "reasoning backwards." The Court should affirm, or really reaffirm, that a "geographical island is an island in the eye of the law except only in very rare and truly unusual circumstances." It finds support in and in the Louisiana Boundary and it points out that Long Island Sound indeed has been referred to, even by this Court, as "an insular formation." See 39 U.S., at 72, n. 95. Before this Court, Rhode Island has directed its exceptions to the fixing of a line that closes what it claims is a juridical bay consisting of Long Island Sound and Block Island Sound. Although it agrees with the other parties that Montauk Point is the bay's southern headland, Rhode Island argues that Watch Hill Point cannot be the northern headland, if for no other reason than that a point east of Watch Hill Point (near Quonochontaug Pond) is a preferred choice, for it, too, would satisfy all required conditions and would enclose more water area. But Rhode Island further notes that Block Island lies *511 at the opening of the long and deep indentation formed by the two Sounds. It is said that although Block Island lies seaward of a direct line from Montauk Point to Point Judith, it nevertheless influences Block Island Sound in a number of significant ways: coastal traffic routinely passes outside Block Island; commercial vessels rarely go between Montauk Point and Block Island because of the hazardous underwater conditions there; Block Island provides shelter in rough weather; the salinity of the water in Block Island Sound is less than that of water of the open sea; the island has an effect upon the currents of Block Island Sound; and these factors together link Block Island to the indentation rather than to the open sea. New York, in its turn, argues here that the applicable criteria for determining the existence of a bay apply also to the portion of Block Island Sound east of the line between Montauk Point and Watch Hill Point. The passage between Block Island and Point Judith is the primary entrance to the indentation formed by the two Sounds. This places the northern headland at Point Judith. The shallow depth and underwater obstacles between Montauk Point and Block Island have an effect on the surface of the water in storm conditions, for they
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Justice Blackmun
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United States v. Maine
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the surface of the water in storm conditions, for they are part of the terminal moraine that formed Long Island. The waters of the Sound are sheltered by Block Island and the underwater obstructions. Commercial ships use the entrance to Block Island Sound which lies between Block Island and Point Judith. Thus, the artificial line between Montauk Point and Watch Hill Point in reality would not divide waters having the characteristics of a bay from those having the characteristics of the open sea. The waters of Block Island Sound do not constitute a route of international passage. They are closely related to the mainland by the intensity of their use for fishing and recreational boating. It is clear from the evidence, it is said, that the purposes and characteristics of a bay that are found in Long Island Sound are present, too, in Block Island Sound. Those *512 waters are also landlocked, for they satisfy the objective test described by Rhode Island's witness Jeremy C. E. White (land visible for at least 180 degrees upon entrance to a bay). The Rhode Island coast to the north provides closure and protection, and Block Island provides additional closure and protection sufficient for the waters of the Sound to be landlocked. Thus, New York says, the Master should have utilized Block Island in closing the Bay. In its reply brief, the United States notes that if it prevails against the mainland-extension argument, the case is at an end. In the light of the possibility that it might not prevail in that argument, the United States turns to the closing line issue. Accepting, arguendo, "that Long Island, juridically, is a peninsula," Reply Brief for United States 2, the Government endorses the Special Master's resolution, namely, that the bay is closed by the line from Montauk Point to Watch Hill Point. Satisfaction of the semicircle and the 2-mile tests is not enough. Under the Convention, a well-marked indentation which is more than a mere curvature of the coast and the presence of landlocked waters are requirements that also must be satisfied. The natural companion for Montauk Point is Watch Hill Point, almost due north, and not Point Judith, 18 miles to the east. Watch Hill Point is the nearest point on the opposite shore. It was recognized and approved as a closing point by at least two expert witnesses. It is the first prominent point on the Rhode Island coast. The bay thus closed is surrounded by land on all sides but one, and it provides useful shelter and isolation from the sea. The enclosed
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Justice Blackmun
| 1,985 | 11 |
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United States v. Maine
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provides useful shelter and isolation from the sea. The enclosed waters clearly are landlocked. This cannot be said of the waters east of the line, which are open on two sides, unless one assumes a closure because of underwater conditions between Montauk Point and Block Island. III Under of the Submerged Lands Act, 3 U.S. C. 1312, a coastal State's boundary is measured from its legal coastline. The coastline is defined as "the line of ordinary low *513 water along that portion of the coast which is in direct contact with the open sea and the line marking the seaward limit of inland waters." 1301(c). A State's seaward boundary generally is set as a line three geographical miles distant from its coastline. 1312. Waters landward of the coastline therefore are internal waters of the State, while waters up to three miles seaward of the coastline are also within a State's boundary as part of the 3-mile ring referred to as the marginal sea.[6] This Court previously has observed that Congress by the Submerged Lands Act left to the Court the task of defining the boundaries of the States' internal waters, and the Court under that Act has adopted the definitions contained in the Convention in determining the line marking the seaward limit of inland waters of the States. See Louisiana Boundary 39 U. S., at 16, 35; United[7] Article 7 of the Convention establishes special criteria for drawing the baseline of a juridical bay. Article 7(2) defines a juridical bay: *51 "For the purposes of these articles, a bay is a wellmarked indentation whose penetration is in such proportion to the width of its mouth as to contain landlocked waters and constitute more than a mere curvature of the coast. An indentation shall not, however, be regarded as a bay unless its area is as large as, or larger than, that of the semi-circle whose diameter is a line drawn across the mouth of that indentation." Article 7() states that waters in a bay with a mouth that does not exceed 2 miles are internal waters. As has been indicated, in the United States such waters are within the jurisdiction of the adjacent States pursuant to the Submerged Lands Act. If a body of water is found to be a juridical bay, then, the closing line of the bay becomes part of the coastline, and a State's boundary generally extends three miles beyond that closing line. IV Addressing first the question whether Long Island Sound and Block Island Sound together constitute a juridical bay, we repeat the Convention's criteria for
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Justice Blackmun
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United States v. Maine
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constitute a juridical bay, we repeat the Convention's criteria for determining whether such a bay exists: There must be a "well-marked indentation" into the coast and it must "constitute more than a mere curvature of the coast." The indentation must enclose an area "as large as, or larger than, that of the semi-circle whose diameter is a line drawn across the mouth of the indentation." The indentation must "contain landlocked waters." And the mouth of a bay must not exceed 2 miles. A mere glance at a map of the region under consideration reveals that unless Long Island is considered to be part of the mainland and provides one of the headlands, neither Long Island Sound nor Block Island Sound satisfies Article 7's requirements for a bay. Though the coast to the north of Long Island curves somewhat, it was the nearly unanimous conclusion of the testifying experts that, in the absence of *515 Long Island, the curvature of the coast is no more than a "mere curvature" and is not an "indentation." And, absent Long Island, the waters of the Sounds would not be sufficiently surrounded by land so as to be landlocked; neither would they satisfy the semicircle test. On the other hand, if Long Island is to be viewed as a continuation or part of the mainland, it is evident that a bay is formed and that the requirements of Article 7 are satisfied. All the expert witnesses reached this conclusion. The surface area of the water enclosed by the deep indentation is substantially larger than the area of a semicircle whose diameter is that of the line across the mouth of the indentation, regardless of where that mouth is located. The question whether Long Island Sound and Block Island Sound constitute a juridical bay therefore depends entirely upon whether Long Island may be treated as an extension of the mainland for the application of Article 7. There is nothing in the Convention or in the Submerged Lands Act that indicates whether islands may or may not be treated as extensions of the mainland for the purpose of forming a headland of a juridical bay.[8] This Court, however, previously has held that in some circumstances islands under Article 7 may be treated as headlands of a juridical bay. In the Louisiana Boundary 39 U. S., 0-66, the Court held that small islands off the coast of Louisiana in the River Delta constitute headlands of bays on that coast, because the shoreline there consists of a number of small deltaic islands. On the other hand, the Court determined
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Justice Blackmun
| 1,985 | 11 |
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small deltaic islands. On the other hand, the Court determined that "Article 7 does not encompass bays formed in part by islands which cannot realistically be considered part of the mainland." 7. The Court reasoned as follows: *516 "No language in Article 7 or elsewhere positively excludes all islands from the meaning of the `natural entrance points' to a bay. Waters within an indentation which are `landlocked' despite the bay's wide entrance surely would not lose that characteristic on account of an additional narrow opening to the sea. That the area of a bay is delimited by the `low-water mark around the shore' does not necessarily mean that the low-water mark must be continuous. "Moreover, there is nothing in the history of the Convention or of the international law of bays which establishes that a piece of land which is technically an island can never be the headland of a bay. Of course, the general understanding has been and under the Convention certainly remains that bays are indentions in the mainland, and that islands off the shore are not headlands but at the most create multiple mouths to the bay. In most instances and on most coasts it is no doubt true that islands would play only that restricted role in the delimitation of bays. ". While there is little objective guidance on this question to be found in international law, the question whether a particular island is to be treated as part of the mainland would depend on such factors as its size, its distance from the mainland, the depth and utility of the intervening waters, the shape of the island, and its relationship to the configuration or curvature of the coast." 1-63, 66 The Court also stated that an island's "origin and resultant connection with the shore" is another factor to be considered. 5, n. 8. The Court reached this conclusion after surveying such case law as there was and the scholarly discussion of the question. See -66, nn. 8 and 85. That survey *517 suggested that there was a consensus that islands may be assimilated to the mainland, and that a common-sense approach was to be used to determine when islands may be so treated. See ; 1 A. Shalowitz, Shore and Sea Boundaries 162 (1962) (hereinafter Shalowitz). We see no reason to depart from those principles, and we conclude, once again, that an island or group of islands may be considered part of the mainland if they "are so integrally related to the mainland that they are realistically parts of the `coast' within the
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Justice Blackmun
| 1,985 | 11 |
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United States v. Maine
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that they are realistically parts of the `coast' within the meaning of the Convention." Louisiana Boundary 39 U. S., 6. See also 202 U. S., at 5-6. We continue to find the illustrative list of factors quoted above to be useful in determining when an island or group of islands may be so assimilated. The United States argues, however, that the language in the Louisiana Boundary should be restrictedly interpreted so as to allow islands to be treated as headlands only in a few narrow situations: when the island is separated from the mainland by a genuine "river"; when the island is connected to the mainland by a causeway; when the island is connected to the mainland by a low-tide elevation; or when, as in the Louisiana Boundary the shoreline is deltaic in nature. We discern no such limits. Given the variety of possible geographic configurations, we feel that the proper approach is to consider each case individually in determining whether an island should be assimilated to the mainland.[9] Applying the "realistic approach," see the Louisiana Boundary 39 U. S., 3, we agree with the Special Master that Long Island, which indeed is unusual, presents the exceptional case of an island which should be treated as an extension of the mainland. In particular, its shape and its *518 relation to the corresponding coast leads us to this conclusion. The island's north shore roughly follows the south shore of the opposite mainland, with the island's shore, however, curving slightly seaward and then back, while the mainland has a concave shape. As a result, the large pocket of water in Long Island Sound is almost completely enclosed by surrounding land. The western end of Long Island helps form an integral part of the familiar outline of New York Harbor. It would be just as unrealistic to exclude Brooklyn on Long Island from New York's coastline as it would be to exclude the islands of the Delta from Louisiana's. There is no acceptable sense in which, for example, the East Side of Manhattan Island, or Hunt's Point in the Bronx, could be said to be locations on the Atlantic coast.[10] At Throgs Neck, Long Island is about one-half mile from the mainland. The East River, which separates Long Island from the mainland and from Manhattan Island, at one time was as shallow as 15-to-18 feet, with a rapid current that made navigation from Long Island Sound extremely hazardous.[11] When we contrast this narrow and shallow opening to *519 the 118-mile length of Long Island and to the extensive surface area of the bay
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United States v. Maine
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Island and to the extensive surface area of the bay it helps to form, we reach the conclusion that the existence of one narrow opening to the sea does not make Long Island Sound or Block Island Sound any less a bay than it otherwise would be. Both the proximity of Long Island to the mainland, the shallowness and inutility of the intervening waters as they were constituted originally, and the fact that the East River is not an opening to the sea, suggest that Long Island be treated as an extension of the mainland. Long Island and the adjacent shore also share a common geological history, formed by deposits of sediment and rocks brought from the mainland by ice sheets that retreated approximately 25,000 years ago. Our conclusion that this area should be considered a bay is buttressed by the fact that as a result of the geographic configuration of Long Island, the enclosed water is used as one would expect a bay to be used. Ships do not pass through Block Island Sound and then Long Island Sound unless they are bound for points on Long Island or on the opposite coast or for New York Harbor. Long Island Sound is not a route of international passage, and ships headed for points south of New York do not use Long Island Sound. They pass, instead, seaward of Long Island. The ultimate justification for treating a bay as internal waters, under the Convention and under international law, is that, due to its geographic configuration, its waters implicate the interests of the territorial sovereign to a more intimate and important extent than do the waters beyond an open coast. See generally M. McDougal & W. Burke, The Public Order of the Oceans 6, 305-309, 330-332 (1962). Our realistic approach to the question whether Long Island and Block Island Sounds constitute a bay does no more than recognize that, due to its geographic configuration, such interests are implicated here. We reaffirm our understanding that the general rule is that islands may not normally be considered extensions of the mainland for purposes of creating the headlands of juridical *520 bays. Consideration of the relevant factors in this factually specific inquiry, however, leads us to agree with the Special Master that in this case Long Island functions as an extension of the mainland forming the southern headland of a juridical bay. V Having concluded that Long Island Sound and Block Island Sound constitute a juridical bay, there remains the question as to where the bay ends or closes. The sections of Article 7
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United States v. Maine
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https://www.courtlistener.com/opinion/111307/united-states-v-maine/
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the bay ends or closes. The sections of Article 7 of the Convention having to do with the closing lines of bays, and pertinent here, are the following: "3. For the purpose of measurement, the area of an indentation is that lying between the low-water mark around the shore of the indentation and a line joining the low-water marks of its natural entrance points. Where, because of the presence of islands, an indentation has more than one mouth, the semi-circle shall be drawn on a line as long as the sum total of the lengths of the lines across the different mouths. Islands within an indentation shall be included as if they were part of the water areas of the indentation. ". If the distance between the low-water marks of the natural entrance points of a bay does not exceed twenty-four miles, a closing line may be drawn between these two low-water marks, and the waters enclosed thereby shall be considered as internal waters. "5. Where the distance between the low-water marks of the natural entrance points of a bay exceeds twenty-four miles, a straight baseline of twenty-four miles shall be drawn within the bay in such a manner as to enclose the maximum area of water that is possible with a line of that length." Article 7(2) specifies other less mathematical restrictions to be considered when determining the closing line. As previously noted, the waters in a bay must be "landlocked," and a bay must be a "well-marked indentation," which is more *521 than a "mere curvature of the coast." The Convention, thus, directs that the closing line be a line no more than 2 miles long connecting the natural entrance points to a well-marked indentation, and the line must enclose within the indentation landlocked waters. The closing lines may include islands if the islands cause the bay to have multiple mouths. The Special Master agreed with the United States' present secondary position that the bay should close at the line from Montauk Point north to Watch Hill Point. The States assert that all of Block Island Sound should be within the juridical bay. They propose that the closing line be drawn from Montauk Point to a point near Southwest Point on Block Island, and from Sandy Point on Block Island to Point Judith in Rhode Island. Either proposed closing line satisfies both the 2-mile rule of Article 7 and the Article 7(2) requirement that the area enclosed be greater than that of a semicircle whose diameter is the closing line.[12] The issue therefore comes down to the proper
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Justice Blackmun
| 1,985 | 11 |
majority
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United States v. Maine
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https://www.courtlistener.com/opinion/111307/united-states-v-maine/
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closing line.[12] The issue therefore comes down to the proper application of the more subjective requirements of Article 7. Were it not for the presence of Block Island, the 1-mile line from Montauk Point to Watch Hill Point clearly would be the closing line of the bay. All the parties agree that Montauk Point is one of the natural entrance points, and thus one of the end points of the bay's closing line. Watch Hill Point is nearly due north of Montauk Point. The waters west of this line are within a well-marked indentation and are landlocked under any definition of that word. They are surrounded by land on all but one side and are sheltered and isolated from the sea. The coast from Watch Hill Point eastward to Point Judith lacks any pronounced feature that might qualify as a headland. Point Judith itself is more than 2 *522 miles from Montauk Point, so a straight line between those two Points cannot be considered a closing line.[13] The Montauk-Watch Hill closing line also satisfies the relevant objective tests that have been adopted to determine the natural entrance points to a bay.[1] It is for that reason that the Law of the Sea Task Force Committee on the Delineation of the Coastline determined that if Long Island Sound were considered a juridical bay, the Montauk-Watch Hill line would be its closing line.[15] *523 The States insist, however, that the presence of Block Island gives the indentation more than one mouth as allowed by Article 7(3) of the Convention, and therefore alters the outward limits of the bay. They note that the International Law Commission's commentary on Article 7(2) of the Convention states that "the presence of islands at the mouth of an indentation tends to link it more closely to the mainland." 2 Yearbook of the International Law Commission, 1956, p. 269. The States say that this implies that where a choice of lines exists due to the presence of islands near the mouth of a bay, the line that encloses the greater area of inland water should be selected. There is support for this proposition in Article 7(5) of the Convention, which calls for a 2-mile closing line to be drawn that encloses the maximum area of water whenever the natural closing line exceeds 2 miles. There is also support for this position among the text writers.[16] *52 It is the view of the United States that no island like Block Island lying outside an indentation can form multiple mouths of a bay. It claims that unless Block Island is
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Justice Blackmun
| 1,985 | 11 |
majority
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United States v. Maine
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https://www.courtlistener.com/opinion/111307/united-states-v-maine/
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of a bay. It claims that unless Block Island is intersected by a line which would otherwise close the bay, it cannot be used to form multiple mouths.[17] This case presents no opportunity to resolve that dispute, for under any reasonable interpretation of the Convention, Block Island is too removed from what would otherwise be the closing line of the bay to affect that line. Block Island is nearly 12 miles from Montauk Point and 6 miles from the nearest land. At no point is it closer than 11 miles from the 1-mile line between Montauk Point and Watch Hill Point. It is an island far removed from the headlands of the juridical bay formed by Long Island. The States appear to be arguing not that an island near the mouth of a bay creates multiple mouths, but that an island well beyond what would otherwise be the mouth of the bay can cause the bay to have an entirely different mouth. Because of the presence of Block Island, it is said, the waters landward of the island take on the appearance and uses of a bay's waters. To support their argument they note that ships entering Block Island Sound come between Block Island and Point Judith. The presence of Block Island, therefore, has the effect of making Point Judith one of the natural entrance points of the bay. And once the closing line is drawn from Montauk Point to Point Judith, Block Island is near enough to that closing line that it ought to be included as an island creating multiple mouths to the bay. Such a treatment of islands beyond the natural entrance points of an indentation finds no support in the Convention *525 or in any of the scholarly treatises. Nowhere has it been suggested that because ocean traffic headed into a bay happens to pass landward of an island in open sea in order to enter that bay, the island therefore marks an entrance point to the bay. Nor is such a theory a fair extrapolation of Articles 7(2) and (5) of the Convention. There are also a number of substantial difficulties with that approach, not the least of which is that the line from Montauk Point to Point Judith exceeds the 2-mile limit imposed by the Convention. And, most significantly, some of the waters enclosed by the suggested closing line are not landlocked, as required by the Convention. The Convention does not define "landlocked," and this Court has not yet felt it appropriate to offer a comprehensive definition of the term.[18] Scholars interpreting the Convention
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Justice Blackmun
| 1,985 | 11 |
majority
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United States v. Maine
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https://www.courtlistener.com/opinion/111307/united-states-v-maine/
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a comprehensive definition of the term.[18] Scholars interpreting the Convention have given the term a subjective and common-sense meaning. We agree with the general proposition that the term "landlocked" "implies both that there shall be land in all but one direction and also that it should be close enough at all points to provide [a seaman] with shelter from all but that one direction." P. Beasley, Maritime Limits and Baselines: A Guide to Their Delineation, The Hydrographic Society, Special Publication No. 2, p. 13 (1978).[19] *526 As the Special Master and the members of the Baseline Committee concluded, the waters in the outer reaches of Block Island Sound in any practical sense are not usefully sheltered and isolated from the sea so as to constitute a bay or bay-like formation. It was the credited testimony of witnesses that ships passing landward of Block Island, as a result, are not in the sheltered confines of what the Convention is willing to recognize as a bay. The waters eastward of the Montauk-Watch Hill line are exposed to the open sea on two sides and are not predominantly surrounded by land or sheltered from the sea. At the very least, therefore, the States' proposed closing line is defective because it includes open sea in the indentation in violation of the mandates of the Convention. Such is the nearly inevitable result, it seems to us, of a theory that would treat islands well beyond the natural entrance points of an indentation as creating multiple mouths to that indentation. VI In summary, we agree with the Special Master and hold that Long Island Sound and Block Island Sound west of the line between Montauk Point on Long Island and Watch Hill Point in Rhode Island are a juridical bay under Article 7 of the Convention on the Territorial Sea and the Contiguous Zone. This juridical bay is closed by that line connecting Montauk Point and Watch Hill Point. The waters of the bay west of the closing line are internal state waters, and the waters of Block Island Sound east of that line are territorial waters and high seas. The respective exceptions filed by the United States, the State of Rhode Island, and the State of New York are overruled. The recommendations of the Special Master are adopted and his Report is confirmed. The parties are directed promptly to submit to the Special Master a proposed appropriate decree for this Court's consideration; if the parties are unable to agree upon the form of the decree, each shall submit its proposal to the Master for his
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Justice Thomas
| 2,016 | 1 |
majority
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Kingdomware Technologies, Inc. v. United States
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https://www.courtlistener.com/opinion/3213979/kingdomware-technologies-inc-v-united-states/
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Petitioner Kingdomware Technologies, Inc., a veteran- owned small business, unsuccessfully vied for a federal contract from the Department of Veterans Affairs to pro vide emergency-notification services. Kingdomware sued, arguing that the Department violated a federal law providing that it “shall award” contracts to veteran-owned small businesses when there is a “reasonable expectation” that two or more such businesses will bid for the contract at “a fair and reasonable price that offers best value to the United States.” 38 U.S. C. This provision is known as the Rule of Two. In this case, we consider whether the Department must use the Rule of Two every time it awards contracts or whether it must use the Rule of Two only to the extent necessary to meet annual minimum goals for contracting with veteran-owned small businesses. We conclude that the Department must use the Rule of Two when awarding contracts, even when the Department will otherwise meet its annual minimum contracting goals. 2 KINGDOMWARE TECHNOLOGIES, INC. v. UNITED STATES Opinion of the Court I This case concerns the interplay between several federal statutes governing federal procurement. A In an effort to encourage small businesses, Congress has mandated that federal agencies restrict competition for some federal contracts. The Small Business Act thus requires many federal agencies, including the Department of Veterans Affairs, to set aside contracts to be awarded to small businesses. The Act requires each agency to set “an annual goal that presents, for that agency, the maximum practicable opportunity” for contracting with small busi nesses, including those “small business concerns owned and controlled by service-disabled veterans.” 15 U.S. C. And federal regulations set forth proce dures for most agencies to “set aside” contracts for small businesses. See, e.g., –2(b) (2015). In 1999, Congress expanded small-business opportuni ties for veterans by passing the Veterans Entrepreneur ship and Small Business Development Act, That Act established a 3% governmentwide contracting goal for contracting with service-disabled veteran-owned small businesses. 15 U.S. C. When the Federal Government continually fell behind in achieving these goals, Congress tried to correct the situa tion. Relevant here, Congress enacted the Veterans Bene fits, Health Care, and Information Technology Act of 2006, 503, –3436 (codified, as amended, at 38 U.S. C. 8128). That Act requires the Secretary of Veterans Affairs to set more specific annual goals that encourage contracting with veteran-owned and service- disabled veteran-owned small businesses. The Act’s “Rule of Two,” at issue here, provides that the De partment “shall award” contracts by restricting competi tion for the contract to service-disabled or other veteran Cite as: 579 U. S. (2016) 3
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Justice Thomas
| 2,016 | 1 |
majority
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Kingdomware Technologies, Inc. v. United States
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https://www.courtlistener.com/opinion/3213979/kingdomware-technologies-inc-v-united-states/
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or other veteran Cite as: 579 U. S. (2016) 3 Opinion of the Court owned small businesses. To restrict competition under the Act, the contracting officer must reasonably expect that at least two of these businesses will submit offers and that “the award can be made at a fair and reasonable price that offers best value to the United States.” 1 Congress provided two exceptions to the Rule. Under those exceptions, the Department may use noncompetitive and sole-source contracts when the contracts are below specific dollar amounts. Under a contracting officer “may use procedures other than competitive proce dures” to award contracts to veteran-owned small busi nesses when the goods or services that are the subject of such contracts are worth less than the simplified acquisi tion threshold. 38 U.S. C. 41 U.S. C. (establishing a “ ‘simplified acquisition threshold’ ” of $100,000); see also (authorizing adjustments for inflation); (codified at (2010)) (raising the amount to $150,000). And under 38 U.S. C. a contracting officer “may award a con tract to a [veteran-owned small business] using procedures other than competitive procedures” if the contract is worth more than the simplified acquisition threshold but less than $5 million, the contracting officer determines that the business is “a responsible source with respect to per formance of such contract opportunity,” and the award can be made at “a fair and reasonable price.” 38 U.S. C. —————— 1 This provision reads in full: “Except as provided in subsections (b) and (c), for purposes of meeting the goals under subsection (a), and in accordance with this section, a contracting officer of the Department shall award contracts on the basis of competition restricted to small business concerns owned and con trolled by veterans if the contracting officer has a reasonable expecta tion that two or more small business concerns owned and controlled by veterans will submit offers and that the award can be made at a fair and reasonable price that offers best value to the United States.” 38 U.S. C. 4 KINGDOMWARE TECHNOLOGIES, INC. v. UNITED STATES Opinion of the Court In finalizing its regulations meant to implement the Act, the Department stated in a preamble that proce dures “do not apply to [Federal Supply Schedule] task or delivery orders.” VA Acquisition Regulation, 74 Fed. Reg. 64624 (2009). The Federal Supply Schedule (FSS) gener ally is a streamlined method for Government agencies to acquire certain supplies and services in bulk, such as office supplies or food equipment. (a) (2015). Instead of the normal bidding process for each individual order, FSS contracts are ordinarily pre negotiated
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Justice Thomas
| 2,016 | 1 |
majority
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Kingdomware Technologies, Inc. v. United States
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https://www.courtlistener.com/opinion/3213979/kingdomware-technologies-inc-v-united-states/
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for each individual order, FSS contracts are ordinarily pre negotiated between outside vendors and the General Services Administration, which negotiates on behalf of various Government agencies. See Sharp Elec- tronics (CA Fed 2013). Under FSS contracts, businesses agree to provide “[i]ndefinite delivery” of particular goods or services “at stated prices for given periods of time.” Agen cies receive a list of goods and services available through the FSS. Because the terms of purchasing these goods and services have already been negotiated, contracting officers can acquire these items and services simply by issuing purchase orders. B Kingdomware Technologies, Inc., is a service-disabled veteran-owned small business. Around January the Department decided to procure an Emergency Notification Service for four medical centers.2 In an emergency, this service sends important information to Department per sonnel. The Department sent a request for a price quota tion to a non-veteran-owned company through the FSS system. That company responded with a favorable price, which the Department accepted around February 22, —————— 2 We use “Department” when referring to the Government as a party in this litigation. Cite as: 579 U. S. (2016) 5 Opinion of the Court The agreement was for one year, with an option to extend the agreement for two more. The Department exercised the one option to extend the time, and perfor mance was completed in May 2013. Decl. of Corydon Ford Heard III ¶8. Kingdomware challenged the Department’s decision to award the contract to a non-veteran-owned company by filing a bid protest with the Government Accountability Office (GAO). See 31 U.S. C. Kingdomware alleged that the Department procured multiple contracts through the FSS without restricting competition using the Rule of Two, as required by Kingdomware con tended that the Department could not award the contracts at issue here without first checking to see whether at least two veteran-owned small businesses could perform the work at a fair and reasonable price. The GAO issued a nonbinding determination that the Department’s failure to employ the Rule of Two was unlawful and recommended that the Department conduct market research to deter mine whether there were two veteran-owned businesses that could fulfill the procurement. The Department dis- agreed with the recommendation. Petitioner then filed suit in the Court of Federal Claims and sought declaratory and injunctive relief.3 The Court of Federal Claims granted summary judgment to the Department. A divided panel of the Federal Circuit affirmed. 754 F.3d 923 (2014). In the majority’s view, did not require the Department to use the Rule of Two in all contracting. at 933–934. Instead, the court concluded, —————— 3 Petitioner’s
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Justice Thomas
| 2,016 | 1 |
majority
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Kingdomware Technologies, Inc. v. United States
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https://www.courtlistener.com/opinion/3213979/kingdomware-technologies-inc-v-united-states/
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contracting. at 933–934. Instead, the court concluded, —————— 3 Petitioner’s complaint additionally stated claims for two other bid protests. To simplify the proceedings, the parties entered into a joint stipulation of facts concerning only the one bid protest described above. The details concerning the two other disputed bids are relevant only for mootness analysis since the work related to both bids has been per formed. See Part II, infra. 6 KINGDOMWARE TECHNOLOGIES, INC. v. UNITED STATES Opinion of the Court mandatory application of the Rule of Two was limited to contracts necessary to fulfill its statutory purpose—to provide a means of satisfying the Department’s annual contracting goals described in Thus, so long as those goals were satisfied, the Court of Appeals concluded, the Department need not apply the Rule of Two any further. Judge Reyna dissented, arguing that employs mandatory language that “could not be clearer” in requiring the Department to apply the Rule of Two in every instance of contracting. We granted certiorari to decide whether (d) re quires the Department to apply the Rule of Two in all contracting, or whether the statute gives the Department some discretion in applying the rule. 576 U. S. (2015). II Before we reach the merits, we must assess our jurisdic tion. Article III of the Constitution limits federal courts to deciding “Cases” and “Controversies,” and “an actual controversy must exist not only at the time the complaint is filed, but through all stages of the litigation.” Already, LLC v. Nike, Inc., 568 U. S. (2013) (slip op., at 3–4) (internal quotation marks omitted). Here, no live controversy in the ordinary sense remains because no court is now capable of granting the relief petitioner seeks. When Kingdomware filed this suit four years ago, it sought a permanent injunction and declara tory relief with respect to a particular procurement. The services at issue in that procurement were completed in May 2013. And the two earlier procurements, which Kingdomware had also protested, were complete in Sep tember See Decl. of Corydon Ford Heard III ¶¶6–8. As a result, no court can enjoin further performance of those services or solicit new bids for the performance of those services. And declaratory relief would have no effect here with respect to the present procurements because the Cite as: 579 U. S. (2016) 7 Opinion of the Court services have already been rendered. Although a case would generally be moot in such cir cumstances, this Court’s precedents recognize an excep tion to the mootness doctrine for a controversy that is “ ‘capable of repetition, yet evading review.’ ”
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Justice Thomas
| 2,016 | 1 |
majority
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Kingdomware Technologies, Inc. v. United States
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https://www.courtlistener.com/opinion/3213979/kingdomware-technologies-inc-v-united-states/
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that is “ ‘capable of repetition, yet evading review.’ ” Spencer v. Kemna, That exception applies “only in exceptional situations,” where (1) “the challenged action [is] in its duration too short to be fully litigated prior to cessation or expiration,” and (2) “there [is] a rea sonable expectation that the same complaining party [will] be subject to the same action again.” (internal quota tion marks omitted; brackets in original). That exception applies to these short-term contracts. First, the procurements were fully performed in less than two years after they were awarded. We have previously held that a period of two years is too short to complete judicial review of the lawfulness of the procurement. See Southern Pacific Terminal 514– 516 (1911). Second, it is reasonable to expect that the Department will refuse to apply the Rule of Two in a future procurement for the kind of services provided by Kingdomware. If Kingdomware’s interpretation of (d) is correct, then the Department must use re stricted competition rather than procure on the open market. And Kingdomware, which has been awarded many previous contracts, has shown a reasonable likeli hood that it would be awarded a future contract if its interpretation of (d) prevails. See Decl. of Corydon Ford Heard III ¶¶11–15 (explaining that the company continues to bid on similar contracts). Thus, we have jurisdiction because the same legal issue in this case is likely to recur in future controversies between the same parties in circumstances where the period of contract performance is too short to allow full judicial review before performance is complete. Our interpretation of (d)’s requirements in this case will govern the Department’s 8 KINGDOMWARE TECHNOLOGIES, INC. v. UNITED STATES Opinion of the Court future contracting. III On the merits, we hold that is mandatory, not discretionary. Its text requires the Department to apply the Rule of Two to all contracting determinations and to award contracts to veteran-owned small businesses. The Act does not allow the Department to evade the Rule of Two on the ground that it has already met its contracting goals or on the ground that the Department has placed an order through the FSS. A In statutory construction, we begin “with the language of the statute.” Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (2002). If the statutory language is unambiguous and “the statutory scheme is coherent and consistent”—as is the case here—“[t]he inquiry ceases.” We hold that (d) unambiguously requires the Department to use the Rule of Two before contracting under the competitive procedures. Section 8127(d) re quires that “a contracting officer of
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Justice Thomas
| 2,016 | 1 |
majority
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Kingdomware Technologies, Inc. v. United States
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https://www.courtlistener.com/opinion/3213979/kingdomware-technologies-inc-v-united-states/
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procedures. Section 8127(d) re quires that “a contracting officer of the Department shall award contracts” to veteran-owned small businesses using restricted competition whenever the Rule of Two is satis fied, “[e]xcept as provided in subsections (b) and (c).” (Emphasis added.) Subsections (b) and (c) provide, in turn, that the Department “may” use noncompetitive procedures and sole-source contracts for lower value ac quisitions. § (c). Except when the Department uses the noncompetitive and sole-source contracting pro cedures in subsections (b) and (c), (d) requires the Department to use the Rule of Two before awarding a contract to another supplier. The text also has no excep tions for orders from the FSS system. Congress’ use of the word “shall” demonstrates that (d) mandates the use of the Rule of Two in all con Cite as: 579 U. S. (2016) 9 Opinion of the Court tracting before using competitive procedures. Unlike the word “may,” which implies discretion, the word “shall” usually connotes a requirement. Compare Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, (recognizing that “shall” is “mandatory” and “nor mally creates an obligation impervious to judicial discre tion”), with United (1983) (explaining that “[t]he word ‘may,’ when used in a statute, usually implies some degree of discretion”). Ac cordingly, the Department shall (or must) prefer veteran- owned small businesses when the Rule of Two is satisfied. The surrounding subsections of confirm that Congress used the word “shall” in (d) as a command. Like (d), both (b) and (c) provide special procedures “[f]or purposes of meeting the goals under [(a)].” § (c). But, in contrast to (d), those latter two provisions state that “a contracting officer of the Department may use” (or, for “may award”) such contracts. § (c) (emphasis added). When a statute distinguishes between “may” and “shall,” it is generally clear that “shall” imposes a mandatory duty. See United States ex rel. Siegel v. Thoman, 156 U.S. 3, 9–360 (1895). We see no reason to depart from the usual inference here. We therefore hold that, before contracting with a non veteran owned business, the Department must first apply the Rule of Two.4 B The Federal Circuit and the Department offered several —————— 4 We need not decide today precisely what sort of search for veteran- owned small businesses the Department must conduct to comply with the Rule of Two. We do not decide, for example, whether the Depart ment may satisfy its obligations by searching for eligible veteran-owned small businesses within the FSS, or whether it must conduct a broader search for such businesses. 10 KINGDOMWARE TECHNOLOGIES, INC. v. UNITED
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Justice Thomas
| 2,016 | 1 |
majority
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Kingdomware Technologies, Inc. v. United States
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https://www.courtlistener.com/opinion/3213979/kingdomware-technologies-inc-v-united-states/
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search for such businesses. 10 KINGDOMWARE TECHNOLOGIES, INC. v. UNITED STATES Opinion of the Court reasons for their alternative reading of (d) as a discretionary provision that the Department can disregard for at least some contracting decisions. We disagree with them. To hold that (d) is discretionary, the Federal Circuit relied on (d)’s prefatory clause. 754 F.3d, at 933. That clause declares that the Rule of Two is designed “for the purposes of ” meeting the annual contracting goals that the Department is required to set under The Department originally made a similar argument before changing arguments in its briefing on the merits. Compare Brief in Opposition 13–15 with Brief for United States 24–25. But the prefatory clause has no bearing on whether (d)’s requirement is mandatory or discretionary. The clause announces an objective that Congress hoped that the Department would achieve and charges the Sec retary with setting annual benchmarks, but it does not change the plain meaning of the operative clause, See Yazoo & Mississippi Valley R. 132 U.S. 4, (explaining that prefatory clauses or preambles cannot change the scope of the oper ative clause). The Federal Circuit’s interpretation also would produce an anomaly. If the Federal Circuit’s understanding of (d)’s prefatory clause were correct, then §(b) and (c), which also contain “[f]or purposes of meeting the goals” clauses, would cease to apply once the Department meets the Secretary’s goal, and the Department would be required to return to competitive bidding. If we interpreted the “purposes” clause of (d) to mean that its mandate no longer applies if the goals are met, then the identical “purposes” clauses of §(b) and (c) would also render those clauses’ permissive mandates inapplic- able. This would require the Department, once the goals are met, to award bids using the default contracting pro Cite as: 579 U. S. (2016) 11 Opinion of the Court cedures rather than to use the noncompetitive and single- source provisions in §(b) and (c). Second, the Department argues that the mandatory provision does not apply to “orders” under “pre-existing FSS contracts.” Brief for United States 25. The Depart ment failed to raise this argument in the courts below, and we normally decline to entertain such forfeited arguments. See OBB Personenverkehr AG v. Sachs, 577 U. S. (2015) (slip op., at 10). But the Department’s forfeited argument fails in any event. Section 8127(d) applies when the Department “award[s] contracts.” When the Depart ment places an FSS order, that order creates contractual obligations for each party and is a “contract” within the ordinary meaning of that term. See, e.g., Black’s
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Justice Thomas
| 2,016 | 1 |
majority
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Kingdomware Technologies, Inc. v. United States
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https://www.courtlistener.com/opinion/3213979/kingdomware-technologies-inc-v-united-states/
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within the ordinary meaning of that term. See, e.g., Black’s Law Dictionary 389 (10th ed. 2014) (“[a]n agreement between two or more parties creating obligations that are enforce- able or otherwise recognizable at law”). It also creates a “contract” as defined by federal regulations, namely, a “mutually binding legal relationship obligating the seller to furnish the supplies or services and the buyer to pay for them,” including “all types of commitments that obli gate the Government to an expenditure of appropriated funds and” (as a general matter) “are in writing.” 48 CFR (2015). An FSS order creates mutually binding obligations: for the contractor, to supply certain goods or services, and for the Government, to pay. The placement of the order creates a new contract; the underlying FSS contract gives the Government the option to buy, but it does not require the Government to make a purchase or expend funds. Further confirming that FSS orders are contracts, the Government is not completely bound by the FSS contract’s terms; to the contrary, when placing orders, agencies may sometimes seek different terms than are listed in the FSS. See (permitting agencies to negotiate some new terms, such as requesting “a price reduction,” when ordering from the FSS). 12 KINGDOMWARE TECHNOLOGIES, INC. v. UNITED STATES Opinion of the Court Third, the Department contends that our interpretation fails to appreciate the distinction between FSS orders and contracts. The Department maintains that FSS orders are only for simplified acquisitions, and that using the Rule of Two for these purchases will hamper mundane purchases like “griddles or food slicers.” Brief for United States 21. But this argument understates current practices under the FSS. The Department has expanded use of the FSS well beyond simple procurement. See Brief for Iraq and Afghanistan Veterans of America as Amicus Curiae 14–16. This case proves the point: the contract at issue here concerned complex information technology services over a multiyear period. Moreover, the Department may con- tinue to purchase items that cost less than the simplified acquisition threshold (currently $150,000) through the FSS, if the Department procures them from a veteran- owned small business. See 38 U.S. C. (b). Finally and relatedly, the Department asks us to defer to its interpretation that FSS “orders” are not “contracts.” See Chevron U. S. A. (establishing deference to an agency’s interpretation of an ambiguous statute). Even assuming, arguendo, that the preamble to the agency’s rulemaking could be owed Chevron deference, we do not defer to the agency when the statute is unam biguous. See at 842–843. For the reasons already given, the text of
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Justice Blackmun
| 1,989 | 11 |
dissenting
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Dugger v. Adams
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https://www.courtlistener.com/opinion/112210/dugger-v-adams/
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Although this Court repeatedly has ruled that the Eighth Amendment prohibits the arbitrary or capricious imposition of the death penalty,[1] the Court today itself arbitrarily imposes *413 procedural obstacles to thwart the vindication of what apparently is a meritorious Eighth Amendment claim. In this case, the Eleventh Circuit determined that respondent Aubrey Dennis Adams was sentenced to death in violation of the Eighth Amendment, as interpreted in[2] This Court now reverses that determination, not because it finds the death sentence valid, but because respondent was late in presenting his claim to the Florida courts. In other words, this Court is sending a man to a presumptively unlawful execution because he or his lawyers did not raise his objection at what is felt to be the appropriate time for doing so. I would understand, and accept, the Court's decision if the federal courts lacked authority to remedy the unconstitutional death sentence. But, manifestly, that is not the case. In reversing the judgment of the Court of Appeals, the majority relegates to a footnote its discussion of established doctrines that, upon full consideration, might entitle respondent to an affirmance, not a reversal, of that judgment. Thus, the majority not only capriciously casts aside precedent to reinstate an unconstitutionally "unreliable"[3] death sentence *414 purely for procedural reasons, but also compounds that capriciousness by issuing an opinion in which decisive issues receive only dismissive consideration. Given this treatment of the case, it is worth reflecting for a moment on the special inappropriateness and cruelty of the impending execution. I There is no need to dwell upon the history of the Court's decisions on whether a criminal defendant's failure to comply with a rule of state procedure precludes review of his conviction or sentence in a subsequent federal habeas corpus proceeding. By now it is settled that an adequate and independent state procedural ground, which would have precluded direct review in this Court, bars habeas review unless the habeas petitioner can demonstrate "cause" for the procedural default and "prejudice" resulting from the alleged constitutional violation. Since Sykes, the Court has refined the "cause" and "prejudice" standard, see, e. g., ; and also has held that habeas review of a defaulted claim is available, even absent "cause" for the default, if the failure to consider the claim would result in a "fundamental miscarriage of justice." ; In this Court applied the "fundamental miscarriage of justice" principle to an alleged sentencing error in a capital case. In an effort to equate review of convictions and sentences under this principle, the Court apparently settled upon the following standard:
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Justice Blackmun
| 1,989 | 11 |
dissenting
|
Dugger v. Adams
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https://www.courtlistener.com/opinion/112210/dugger-v-adams/
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this principle, the Court apparently settled upon the following standard: the habeas petitioner must make a "substantial" showing "that the alleged error undermined the accuracy of the guilt or sentencing determination." Even this narrow standard makes clear that the "fundamental miscarriage *415 of justice" principle is applicable to allegations of capital sentencing errors.[4] Thus, under our precedents, the Court of Appeals was correct to review respondent's procedurally defaulted claim if any one of three conditions is met: (1) the Florida Supreme Court's finding of procedural default was not an adequate and independent ground for its decision; (2) respondent can show cause for and prejudice from his default; or (3) the failure to review respondent's claim would result in a fundamental miscarriage of justice. Yet the Court devotes but a single footnote at the end of its opinion to the first and third of these principles. Ante, at 410-412, n. 6. The Court acknowledges, as it must, that it granted certiorari to consider whether respondent had established "cause" for his procedural default. Ante, at 406. But this interest in the "cause" inquiry does not permit the Court to consign to second-class status the rest of the analysis necessary for determining whether the Court of Appeals properly considered the merits of respondent's claim. Indeed, once the other two principles receive the attention they deserve, it becomes evident that each provides an alternative basis for affirming the Court of Appeals' judgment. *416 II The majority recognizes that a state court's reliance on a procedural bar rule is inadequate if that rule "has not been `consistently or regularly applied.' " Ante, at 410, n. 6, quoting The majority, however, asserts that in respondent's case the Florida Supreme Court's reliance on procedural bar grounds was adequate under this standard. I must disagree. When respondent raised his claim for the first time in his second postconviction motion under Rule 3.850 of the Florida Rules of Criminal Procedure, the Florida Supreme Court held this claim, among others, procedurally barred because respondent did not raise the claim in his direct appeal. See The court further found that presenting the claim in a successive Rule 3.850 proceeding was an abuse of the 484 So. 2d, at[5] This decision issued on March 3, Prior to that date, however, the Florida Supreme Court, in two Rule 3.850 cases, did not foreclose review of claims, notwithstanding the existence of similar procedural defaults. First, in which also involved a second Rule 3.850 motion, the Florida *417 Supreme Court considered the merits of the claim even though the prisoner there, like respondent here, failed
|
Justice Blackmun
| 1,989 | 11 |
dissenting
|
Dugger v. Adams
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https://www.courtlistener.com/opinion/112210/dugger-v-adams/
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claim even though the prisoner there, like respondent here, failed to argue either on direct appeal or in his first Rule 3.850 motion that the jury was misled about its role in the capital sentencing process. See cert. dism'd, ;[6] Indeed, in "choos[ing] to address" the merits of the defaulted claim in Darden, the Florida Supreme Court explicitly rebuffed the State's efforts to have the court reject the claim on the ground that its presentation constituted an abuse of the Rule 3.850 process. See Second, in the Florida Supreme Court considered the merits of a claim (among others), even though the claim was not raised on direct appeal. As the Eleventh Circuit noted, the Florida Supreme Court in Mann simply "chose not to enforce its own procedural default rule." cert. pending, No. 87-2073. Thus, by the time that it decided Adams, the Florida Supreme Court had failed to apply the State's procedural bar rules to at least two defaulted claims. Furthermore, in no case prior to Adams did the Florida Supreme Court plainly hold a claim procedurally barred. Petitioners cite but it surely is questionable whether the reference to a procedural default in that case would satisfy the "plain statement" standard of Harris v. Reed, ante, p. 255. *418 In any event, even counting Middleton as a case in which the Florida Supreme Court invoked a procedural bar rule to preclude review of a claim, it is impossible to say, in light of Darden and Mann, that the decision in Adams was an application of "strictly or regularly followed" state procedural requirements. Consequently, the state-law ground in Adams would not have foreclosed this Court's consideration of the claim had we chosen to exercise our certiorari jurisdiction on direct review, and, a fortiori, it does not preclude review of the claim in this habeas proceeding. See The majority's reasons for discounting Darden and Mann are not persuasive. As to Darden, the majority observes that the Florida Supreme Court did not discuss the prisoner's failure to raise his claim on direct appeal, but rather mentioned only the failure to raise the claim in a prior Rule 3.850 proceeding. But this observation misses the point. The fact remains that Darden on direct appeal did not raise his claim that the jury was misled about its role in sentencing him. See -291. Accordingly, Darden is a case in which the Florida Supreme Court did not bar review of a claim, even though the claim was raised neither on direct appeal nor in the first Rule 3.850 proceeding. The treatment of the claim in Darden
|
Justice Blackmun
| 1,989 | 11 |
dissenting
|
Dugger v. Adams
|
https://www.courtlistener.com/opinion/112210/dugger-v-adams/
|
Rule 3.850 proceeding. The treatment of the claim in Darden is thus starkly inconsistent with the treatment of the claim in Adams, despite the identical procedural posture of the two cases. For this reason alone, Darden demonstrates the inadequacy of the procedural bar ruling in Adams. As to Mann, the majority notes that the court did not specifically mention the prisoner's claim. But again, the majority misses the point. In respondent's case, too, the Florida Supreme Court did not expressly mention the claim. See 484 So. 2d, at -1218. The issue here, however, is not whether the Florida Supreme Court in each case identified the claim by name, but whether it held the *419 claim procedurally barred. In Mann, it did not; in Adams, it did. Thus, the inconsistent treatment of the claims in Mann and Adams supports a finding of inadequacy here. In my view, then, the majority's attempts to distinguish Darden and Mann are clearly unavailing, and these two cases suffice to show that respondent's procedural default does not constitute an adequate state ground barring review of his claim. Moreover, decisions of the Florida Supreme Court handed down after Adams reinforce the conclusion that that court has been inconsistent in applying its procedural bar rules to claims. In the court did not invoke procedural default as a basis for decision, notwithstanding the prisoner's failure to present his claim on direct appeal. See cert. denied, Rather, the court affirmatively chose to address the merits of the claim, largely because it wanted to announce its view that is inapplicable to Florida capital cases.[7] The Florida Supreme Court also did not rely on procedural bar grounds in even though that case involved a second Rule 3.850 motion and the convict there, like respondent here, did not raise his claim either on direct review or in his first Rule 3.850 motion. See cert. denied, ; cert. denied, Rather, in Daugherty, the court rested its rejection of the *420 claim solely on the ground that in Combs the court had "determined that is inapplicable in Florida." Most recently, in the Florida Supreme Court did not hold a claim procedurally barred, even though the claim was not raised on direct appeal.[8] In sum, Combs, Daugherty, and Glock convincingly demonstrate that the Florida Supreme Court still does not strictly apply its procedural bar rules to claims. Contrasting all five cases (Darden, Mann, Combs, Daugherty, and Glock) with Adams, one cannot seriously contend that the Florida Court has applied its procedural bar rules "evenhandedly to all similar claims."[9]*421 Thus, once the adequacy issue is fully considered,
|
Justice Blackmun
| 1,989 | 11 |
dissenting
|
Dugger v. Adams
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https://www.courtlistener.com/opinion/112210/dugger-v-adams/
|
similar claims."[9]*421 Thus, once the adequacy issue is fully considered, there is no escaping the conclusion that the Florida Supreme Court's rejection of respondent's claim did not rest on an adequate state ground. Yet, in unseemly haste to reverse the Court of Appeals on the issue of "cause," the majority treats the adequacy issue as an afterthought, although it is an analytically antecedent issue.[10] III Even if, somehow, I could be convinced that the Florida Supreme Court's reliance on respondent's procedural default was "adequate," within the meaning of this Court's precedents, I would still conclude that the Court of Appeals properly reached the merits of respondent's claim. I have no quarrel with the majority's determination that respondent cannot show "cause" for his procedural default.[11]*422 "That determination, however, does not end our inquiry." Rather, as the majority apparently recognizes, we must consider whether the failure to examine the merits of the claim in this habeas action would result in a fundamental miscarriage of justice. The majority believes that no such injustice would occur. Again, I disagree. Respondent's claim, see generally Brief for Respondent 25-49, rests on the following premises: Under Florida law, the judge at his trial was permitted to overturn the jury's judgment on whether he should receive a life or a death sentence only upon a clear and convincing showing that the jury's choice was erroneous.[12] Notwithstanding this rule of Florida law, the trial judge repeatedly and insistently told the jurors that their sentencing vote was "strictly a recommendation and nothing more," that he was "not bound to follow that recommendation," and that he was "the sole determiner on whether or not [respondent] receives life or is put into the electric chair." App. 28, 69, 78, 79. Furthermore, the judge drummed this misinformation into the jurors' heads by repeatedly telling them that "the most important thing. to remember" was the nonbinding nature of their recommendation and that the capital sentencing decision was not on their "conscience" but on his. If (as the Court of Appeals held and we must assume) these repeated and insistent comments mischaracterized the jury's role under state law, then the sentencing process in respondent's case was so distorted as to render the sentence inherently suspect. The alleged error in this case was severe: the incorrect instructions may well have caused the jury to vote for a death sentence that it would not have returned had it been accurately instructed. See * -333. Jurors who erroneously believe that responsibility for the defendant's death lies on someone else's conscience may be more willing to vote for death
|
Justice Blackmun
| 1,989 | 11 |
dissenting
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Dugger v. Adams
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https://www.courtlistener.com/opinion/112210/dugger-v-adams/
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else's conscience may be more willing to vote for death "to `send a message' of extreme disapproval for the defendant's acts." Thus, it is plain that respondent has presented a "substantial claim that the alleged error undermined the accuracy of the sentencing determination" at his trial. Indeed, the very essence of a claim is that the accuracy of the sentencing determination has been unconstitutionally undermined. In this respect, the alleged sentencing error here is entirely unlike the one at issue in itself. There, admission of particular testimony allegedly violated the Fifth and Eighth Amendments,[13] and the question was whether its admission "pervert[ed] the jury's deliberations" on issues relevant to its capital sentencing determination. This case, in contrast, does not concern the inclusion or exclusion of particular evidence, but does concern a detailed and repeated explanation of the jury's responsibility, or lack of it, in the sentencing process. The alleged error thus is global in scope: it necessarily pervades the entire sentencing process. Indeed, the alleged error in this case, if true, could not help but pervert the sentencing decision.[14] Consequently, *424 respondent's claim must fall within the scope of the "fundamental miscarriage of justice" exception to the Sykes "cause" and "prejudice" test, unless the Court today means to repudiate sub silentio its opinion in In other words, respondent's claim is precisely the kind of claim that remains reviewable in a federal habeas action even though respondent cannot establish cause for his procedural default. See -539. In holding otherwise, the Court sends respondent to an execution that not only is presumptively unlawful, but is presumptively inaccurate as well. See Nothing in the habeas corpus precedents of this Court calls for this consummately capricious result.[15] *425 IV Contrary to the result reached by the majority today, our precedents amply support the Court of Appeals' decision to consider whether respondent's death sentence was unconstitutionally unreliable despite respondent's failure to raise this constitutional issue in accordance with state procedures. It is not surprising, I suppose, that the Court misses the force of these precedents, since it confines two-thirds of the relevant inquiry to a single footnote at the end of its opinion. If the Court can reach the question of "cause," on which certiorari was granted, only by making a mockery of the requirement that state procedural bar rules be "appl[ied] evenhandedly to all similar claims," 457 U. S., at then the Court should dismiss the writ of certiorari as improvidently granted. Similarly, if the Court does not wish to undertake the task of applying the "fundamental miscarriage of justice" inquiry, then it should
|
Justice Scalia
| 2,014 | 9 |
dissenting
|
Dart Cherokee Basin Operating Co. v. Owens
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https://www.courtlistener.com/opinion/2760669/dart-cherokee-basin-operating-co-v-owens/
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When Dart removed this class action to federal court, it was required to file a “notice of removal” containing “a short and plain statement of the grounds for removal.” 28 U.S. C. In accordance with what it thought to be Tenth Circuit jurisprudence, the District Court inter- preted this to require evidence (as opposed to mere allega- tions) supporting federal jurisdiction. After finding that Dart’s notice of removal did not include evidence of the jurisdictionally required amount in controversy, the Dis- trict Court remanded the case to state court. App. to Pet. for Cert. 25a–28a. Dart sought permission to appeal this order under which provides that “a court of appeals may accept an appeal from an order of a district court granting or denying a motion to remand a class action to the State court from which it was removed” (emphasis added). Without stating its reasons, the Tenth Circuit issued an order denying Dart’s request. App. to Pet. for Cert. 13a. Eager to correct what we suspected was the District Court’s (and the Tenth Circuit’s) erroneous interpretation of we granted certiorari to decide whether no- 2 DART CHEROKEE BASIN OPERATING CO. v. OWENS SCALIA, J., dissenting tices of removal must contain evidence supporting federal jurisdiction. After briefing we discovered a little snag: This case does not present that question. Because we are reviewing the Tenth Circuit’s judgment, the only question before us is whether the Tenth Circuit abused its discre- tion in denying Dart permission to appeal the District Court’s remand order. Once we found out that the issue presented differed from the issue we granted certiorari to review, the responsible course would have been to confess error and to dismiss the case as improvidently granted. The Court, however, insists on deciding whether the District Court erred in remanding this case to state court. How can it do that, one might ask, when the only issue in this case concerns the propriety of the Tenth Circuit’s rejection of Dart’s appeal? The Court hits upon a solution: It concludes that the Tenth Circuit decided not to hear the appeal because it agreed with the District Court’s analysis. Attributing the District Court’s reasoning to the Tenth Circuit allows the Court to pretend to review the appellate court’s exercise of discretion while actually reviewing the trial court’s legal analysis. There are problems with this approach that are, in a rational world, insuperable. To begin with, the Tenth Circuit’s short order does not tell us why it decided not to hear Dart’s appeal. It might have done so for an imper- missible reason—for example,
|
Justice Scalia
| 2,014 | 9 |
dissenting
|
Dart Cherokee Basin Operating Co. v. Owens
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https://www.courtlistener.com/opinion/2760669/dart-cherokee-basin-operating-co-v-owens/
|
might have done so for an imper- missible reason—for example, agreement with the District Court’s legal reasoning. But it might instead have done so for countless other, permissible, reasons—for example, a concern that this would be a poor vehicle for deciding the issue presented by Dart’s appeal, or a concern regarding the court’s ability to quickly resolve the issue, see (providing that appeals accepted under must be decided within 60 days, absent con- sent of the parties, with a 10-day extension for “good cause shown and in the interests of justice”). Not long ago we held, unanimously, that “[a]n appellate Cite as: 574 U. S. (2014) 3 SCALIA, J., dissenting court should not presume that a district court intended an incorrect legal result when the order is equally susceptible of a correct reading, particularly when the applicable standard of review is deferential.” Sprint/United Man- agement There, we corrected the Tenth Circuit for doing precisely what the Court itself does today in reviewing (deferen- tially) the Tenth Circuit’s denial of permission to appeal: presuming that the lower court adopted a legally errone- ous argument advanced by one party. at 384–385. We explained to the Tenth Circuit that “it would be inappro- priate for the reviewing court to assume, absent indication in the District Court’s opinion, that the lower court adopted a party’s incorrect argument.” (empha- sis added). Today, however, this Court blatantly violates that rule. The only “indication in the opinion” that the Court relies on is the following language from the order denying per- mission to appeal: “Upon careful consideration of [1] the parties’ submissions, as well as [2] the applicable law, the Petition [for permission to appeal the remand order] is denied.” App. to Pet. for Cert. 13a–14a. This, the Court tells us, means the Tenth Circuit must have denied Dart’s petition because it agreed with the District Court’s legal conclusion. Of course it means no such thing. As for point [1], considering a submission is not the same thing as agreeing with that submission. Worse still, correctness of the District Court’s opinion was not the only ground that Owens’ brief in the Tenth Circuit urged to support denial of the petition for review. It noted, for example, that the case addressed the general removal statute, and so did not involve a question unique to the Class Action Fairness Act of 2005 (CAFA). Re- sponse to Petition for Permission to Appeal in No. 13–603, p. 3. (internal quotation marks omitted).) As for point [2], there is no reason whatever to believe that the only “applicable law” the Tenth Circuit
|
Justice Scalia
| 2,014 | 9 |
dissenting
|
Dart Cherokee Basin Operating Co. v. Owens
|
https://www.courtlistener.com/opinion/2760669/dart-cherokee-basin-operating-co-v-owens/
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to believe that the only “applicable law” the Tenth Circuit considered and relied on was the law relating to the correctness of the District Court’s decision—i.e., the law interpreting After all, the “applicable law” surely includes the law applicable to the disposition of petitions to appeal, and that body of law includes countless rea- sons to deny permission to appeal that are unrelated to the merits of the underlying district court judgment. “Applicable law” would allow the Tenth Circuit, for exam- ple, to deny permission to appeal for reasons not men- tioned in the parties’ briefing. It would allow it to deny permission because it would be unable to resolve the issue within 60 days, as required by CAFA (absent an exten- sion). and (c)(3); see also (Hartz, J., dissenting from denial of rehearing en banc) (“It will always be tempting for very busy judges to deny review of a knotty matter that requires a decision in short order”). And “applicable law” would permit numerous other grounds for denial, including those applied by this Court in denying petitions for certiorari. There is, to tell the truth, absolutely nothing in the Tenth Circuit’s order to suggest that it relied on the unlawful ground that the Court eagerly attributes to it, rather than one of many possible lawful grounds. Thus, as we said in Mendelsohn, “it would be inappropriate for the reviewing court [us] to assume that the lower court adopted a party’s incorrect argument.” 552 U.S., Besides relying on the utterly uninformative language of the order, the Court makes one other attempt to demon- strate that the Tenth Circuit’s order was based upon its agreement with the holding of the District Court. It as- serts that denying Dart permission to appeal “froz[e] in Cite as: 574 U. S. (2014) 5 SCALIA, J., dissenting place” the District Court’s rule. Ante, at 10. In light of that denial, the Court says, any “responsible attorney” will include evidence supporting jurisdiction in his notice of removal, thereby eliminating the risk of having that notice held improper for the reason given by the District Court in this case. As a result, the Tenth Circuit will likely never again be presented with the question whether evidence of jurisdiction must be included with a notice of removal. The Court then notes that, among the many factors the Tenth Circuit considers in deciding whether to accept an appeal under is whether the case presents an issue which, if not resolved in that appeal, will “leave the ambit of the federal courts for good.” BP America, One would have thought
|
Justice Scalia
| 2,014 | 9 |
dissenting
|
Dart Cherokee Basin Operating Co. v. Owens
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https://www.courtlistener.com/opinion/2760669/dart-cherokee-basin-operating-co-v-owens/
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federal courts for good.” BP America, One would have thought that this factor, if it controlled the Tenth Circuit’s denial, means that the Tenth Circuit did not agree with the Court’s perception that this issue will not likely reappear. The Court, how- ever, says (quite illogically) that it means the Tenth Circuit must have agreed with the District Court’s incorrect legal analysis. It is hard to imagine a more obvious non sequitur. And the argument not only tortures logic, it also distorts reality, resting as it does on the premise that henceforth no “responsible attorney” will fail to include evidence supporting federal jurisdiction in a notice of removal. Even discounting the existence of irresponsible attorneys, but see, e.g., Maples v. Thomas, 565 U. S. (2012), responsible attorneys, and even responsible judges, some- times make mistakes, see, e.g., 572 U. S. (2014) (order granting certiorari in this case). Indeed, Dart’s own (seemingly responsible) lawyers failed to include evidence supporting federal jurisdiction, despite what they argue is Circuit precedent supporting the District Court’s holding. See Tr. of Oral Arg. 12 (counsel for Dart, explaining that the District Court’s ruling was supported by Tenth Circuit precedent). 6 DART CHEROKEE BASIN OPERATING CO. v. OWENS SCALIA, J., dissenting Even in the legal utopia imagined by the Court—a world in which all lawyers are responsible and no lawyers make mistakes—it is easy to imagine ways in which the issue could come back to the circuit court. If, for example, a party appealed a district court decision addressing the sufficiency of the jurisdictional evidence, the Tenth Circuit could accept the appeal and hold (en banc, if necessary) that no evidence is required at all. In short, it is impos- sible to credit the suggestion (irrelevant in any case) that the chances of this issue arising again were “slim.” Ante, at 10. The Court attempts to bolster its conclusion with an unprincipled and unequal application of the waiver doc- trine. Owens, it says, by failing to brief the argument that the Tenth Circuit denied Dart’s petition for reasons other than its agreement with the District Court’s decision, waived that argument. Ante, at 12 (citing this Court’s Rule 15.2). Dart, however, never made an argument that would have called for such a response. It never argued that the Tenth Circuit abused its discretion in denying permission to appeal. Aside from one stray assertion on the final page of its reply brief, its briefing focused entirely on whether the District Court erred in remanding the case to state court. See, e.g., Brief for Petitioners 9 (“This Court should reverse
|
Justice Scalia
| 2,014 | 9 |
dissenting
|
Dart Cherokee Basin Operating Co. v. Owens
|
https://www.courtlistener.com/opinion/2760669/dart-cherokee-basin-operating-co-v-owens/
|
See, e.g., Brief for Petitioners 9 (“This Court should reverse the district court’s order remanding the case to state court”). Rather than hold Dart responsi- ble for failing to argue that the Tenth Circuit abused its discretion, see Republic of Argentina v. NML Capital, Ltd., 573 U. S. n. 2 (2014) (slip op., at 5, n. 2) (“We will not revive a forfeited argument simply because the petitioner gestures toward it in its reply brief ”), the Court makes the argument on Dart’s behalf and then takes Owens to task for failing to refute it. This Court ought not embrace such an oddhanded application of waiver principles. The Court answers that Dart “had no cause to address” Cite as: 574 U. S. (2014) 7 SCALIA, J., dissenting whether the Tenth Circuit abused its discretion until the issue was raised in Public Citizen’s amicus brief. Ante, at 9, n. 3. Not good enough. First, parties always have “cause to address” issues on which their entitlement to relief depends. Second, and more important, Public Citi- zen filed its amicus brief after both sides had already filed their merits briefs. So if the timing of that brief excuses Dart’s failure to address whether the Tenth Circuit abused its discretion, it should excuse Owens’ failure as well. I come, finally, to the Court’s stinging observation that I joined the majority opinion in Standard Fire Ins. Co. v. Knowles, 568 U. S. (2013)—a case that arose in the same posture as this one, but that was resolved without reference to the question whether the appellate court abused its discretion. Ante, at 8, n. 2. Of course Knowles did not address whether denials of permission to appeal under are to be reviewed for abuse of discre- tion—which is why today’s majority cannot cite it as prec- edent. See 630–631 (1993). As for my own culpability in overlooking the issue, I must accept that and will take it with me to the grave. But its irrelevance to my vote in the present case has been well expressed by Justice Jackson, in a passage quoted by the author of today’s opinion: “I see no reason why I should be consciously wrong today because I was uncon- sciously wrong yesterday.” quoted in Burwell v. Hobby Lobby Stores, Inc., 573 U. S. n. 11 (2014) (slip op., at 12, n. 11) (GINSBURG J., dissenting). * * * Instead of correcting an erroneous district court opinion at the expense of an erroneous Supreme Court opinion, I would have dismissed this case as improvidently granted. Failing that, my vote is to affirm
|
Justice Thomas
| 2,019 | 1 |
majority
|
Stokeling v. United States
|
https://www.courtlistener.com/opinion/4581524/stokeling-v-united-states/
|
This case requires us to decide whether a robbery of- fense that has as an element the use of force sufficient to overcome a victim’s resistance necessitates the use of “physical force” within the meaning of the Armed Career Criminal Act (ACCA), 18 U.S. C. We conclude that it does. I In the early hours of July 27, 2015, two people burgled the Tongue & Cheek restaurant in Miami Beach, Florida. Petitioner Denard Stokeling was an employee of the res- taurant, and the Miami Beach Police identified him as a suspect based on surveillance video from the burglary and witness statements. After conducting a criminal back- ground check, police learned that Stokeling had previously been convicted of three felonies—home invasion, kidnap- ing, and robbery. When confronted, Stokeling admitted that he had a gun in his backpack. The detectives opened the backpack and discovered a 9-mm semiautomatic fire- arm, a magazine, and 12 rounds of ammunition. 2 STOKELING v. UNITED STATES Opinion of the Court Stokeling pleaded guilty in federal court to possessing a firearm and ammunition after having been convicted of a felony, in violation of 18 U.S. C. The probation office recommended that Stokeling be sentenced as an armed career criminal under ACCA, which provides that a person who violates and who has three previous convictions for a “violent felony” shall be imprisoned for a minimum of 15 years. ACCA defines “violent felony” as “any crime punishable by imprisonment for a term exceeding one year” that “(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or “(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that pre- sents a serious potential risk of physical injury to an- other.” As relevant here, Stokeling objected that his Florida robbery conviction was not a predicate offense under This conviction, he argued, did not qualify under the first clause—the “elements clause”—because Florida robbery does not have “as an element the use, attempted use, or threatened use of physical force.” * Under Florida law, robbery is defined as “the taking of money or other property from the person or custody of another, when in the course of the taking there is the use of force, violence, assault, or putting in fear.” Fla. Stat. (1995). The Florida Supreme Court has explained that the “use of force” necessary to commit robbery requires “resistance by the victim that is overcome by the physical force of the offender.” Rob, —————— * The Government did not argue that Florida robbery should qualify under
|
Justice Thomas
| 2,019 | 1 |
majority
|
Stokeling v. United States
|
https://www.courtlistener.com/opinion/4581524/stokeling-v-united-states/
|
Government did not argue that Florida robbery should qualify under presumably because robbery is not among the enumerated offenses and the Court held the “residual clause” unconsti- tutionally vague in 576 U. S. (2015). Cite as: 586 U. S. (2019) 3 Opinion of the Court Instead of applying a categorical approach to the ele- ments clause, the District Court evaluated whether the facts of Stokeling’s robbery conviction were serious enough to warrant an enhancement. The court concluded that, although Stokeling “ ‘grabbed [the victim] by the neck and tried to remove her necklaces’ ” as she “ ‘held onto’ ” them, his actions did not “justify an enhancement.” Sentencing Hearing in 15–cv–20815 (SD Fla.), Doc. 45, pp. 10–11. The court then sentenced Stokeling to less than half of the mandatory minimum 15-year term of imprisonment pro- vided by The Eleventh Circuit reversed. (2017). It held that the District Court erred in making its own factual determination about the level of violence involved in Stokeling’s particular robbery offense. at 871. The court also rejected Stokeling’s argument that Florida robbery does not categorically require sufficient force to constitute a violent felony under ACCA’s elements clause. at 871–872. We granted certiorari to address whether the “force” required to commit robbery under Florida law qualifies as “physical force” for purposes of the elements clause. 584 U. S. (2018). We now affirm. II Construing the language of the elements clause in light of the history of ACCA and our opinion in v. United States, we conclude that the elements clause encompasses robbery offenses that re- quire the criminal to overcome the victim’s resistance. A As originally enacted, ACCA prescribed a 15-year mini- mum sentence for any person who received, possessed, or transported a firearm following three prior convictions “for 4 STOKELING v. UNITED STATES Opinion of the Court robbery or burglary.” 18 U.S. C. App. (1982 ed., Supp. II). Robbery was defined in relevant part as “any felony consisting of the taking of the property of another from the person or presence of another by force or vio- lence.” (1982 ed., Supp. II) (emphasis added). The statute’s definition mirrored the elements of the common-law crime of robbery, which has long required force or violence. At common law, an unlawful taking was merely larceny unless the crime involved “violence.” 2 J. Bishop, Criminal Law p. 860 (J. Zane & C. Zollman eds., 9th ed. 1923). And “violence” was “committed if sufficient force [was] exerted to overcome the resistance encountered.” A few examples illustrate the point. Under the common law, it was robbery “to seize another’s watch
|
Justice Thomas
| 2,019 | 1 |
majority
|
Stokeling v. United States
|
https://www.courtlistener.com/opinion/4581524/stokeling-v-united-states/
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the common law, it was robbery “to seize another’s watch or purse, and use sufficient force to break a chain or guard by which it is attached to his person, or to run against another, or rudely push him about, for the purpose of diverting his attention and robbing him.” W. Clark & W. Marshall, Law of Crimes 554 (H. Lazell ed., 2d ed. 1905) (Clark & Marshall) (foot- notes omitted). Similarly, it was robbery to pull a dia- mond pin out of a woman’s hair when doing so tore away hair attached to the pin. See 2 W. Russell, Crimes and Indictable Misdemeanors 68 (2d ed. 1828). But the crime was larceny, not robbery, if the thief did not have to over- come such resistance. In fact, common-law authorities frequently used the terms “violence” and “force” interchangeably. See (concluding that “if any injury be done to the person, or there be any struggle by the party to keep possession of the property before it be taken from him, there will be a sufficient actual ‘violence’ ” to establish robbery); Clark & Marshall 553 (“Sufficient force must be used to overcome resistance. If there is any injury to the person of the owner, or if he resists the attempt to rob him, and his resistance is overcome, there is sufficient violence to make Cite as: 586 U. S. (2019) 5 Opinion of the Court the taking robbery, however slight the resistance” (em- phasis added)). The common law also did not distinguish between gradations of “violence.” If an act physically overcame a victim’s resistance, “however slight” that resistance might be, it necessarily constituted violence. ; 4 W. Blackstone, Commentaries on the Laws of England 242 (1769) (distinguishing “taking by force” from “privately stealing,” and stating that the use of this “violence” differentiates robbery from other larcenies); see also 3 (explaining, in the battery context, that “the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it”). The overlap between “force” and “violence” at common law is reflected in modern legal and colloquial usage of these terms. “Force” means “[p]ower, violence, or pressure directed against a person or thing,” Black’s Law Diction- ary 656 (7th ed. 1999), or “unlawful violence threatened or committed against persons or property,” Random House Dictionary of the English Language 748 (2d ed. 1987). Likewise, “violence” implies force, including an “unjust or unwarranted use of force.” Black’s Law Dictionary, at 1564; accord, Random House Dictionary, at 2124 (“rough or injurious physical force, action, or treatment,” or “an
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Justice Thomas
| 2,019 | 1 |
majority
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Stokeling v. United States
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https://www.courtlistener.com/opinion/4581524/stokeling-v-united-states/
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(“rough or injurious physical force, action, or treatment,” or “an unjust or unwarranted exertion of force or power, as against rights or laws”). Against this background, Congress, in the original ACCA, defined robbery as requiring the use of “force or violence”—a clear reference to the common law of robbery. See (“Congress ‘is understood to legislate against a back- ground of common-law principles’ ”). And the level of “force” or “violence” needed at common law was by this time well established: “Sufficient force must be used to overcome resistance however slight the resistance.” Clark & Marshall 553. 6 STOKELING v. UNITED STATES Opinion of the Court In 1986, Congress amended the relevant provisions of ACCA to their current form. The amendment was titled Expansion of Predicate Offenses for Armed Career Crimi- nal Penalties. See Career Criminals Amendment Act of 1986, –39. This amendment re- placed the two enumerated crimes of “robbery or burglary” with the current elements clause, a new enumerated- offenses list, and a (now-defunct) residual clause. See 576 U. S. (2015). In the new statute, robbery was no longer enumerated as a predicate offense. But the newly created elements clause extended ACCA to cover any offense that has as an element “the use, attempted use, or threatened use of physical force.” 18 U.S. C. (2012 ed.) (emphasis added). “ ‘[I]f a word is obviously transplanted from another legal source, whether the common law or other legislation, it brings the old soil with it.’ ” Hall v. Hall, 584 U. S. (2018) (slip op., at 13) (quoting Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 537 (1947)). That principle supports our interpreta- tion of the term “force” here. By retaining the term “force” in the 1986 version of ACCA and otherwise “[e]xpan[ding]” the predicate offenses under ACCA, Congress made clear that the “force” required for common-law robbery would be sufficient to justify an enhanced sentence under the new elements clause. We can think of no reason to read “force” in the revised statute to require anything more than the degree of “force” required in the 1984 statute. And it would be anomalous to read “force” as excluding the quin- tessential ACCA-predicate crime of robbery, despite the amendment’s retention of the term “force” and its stated intent to expand the number of qualifying offenses. The symmetry between the 1984 definition of robbery (requiring the use of “force or violence”) and the 1986 elements clause (requiring the use of “physical force”) is striking. By replacing robbery as an enumerated offense Cite as: 586 U. S. (2019) 7
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Justice Thomas
| 2,019 | 1 |
majority
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Stokeling v. United States
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https://www.courtlistener.com/opinion/4581524/stokeling-v-united-states/
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an enumerated offense Cite as: 586 U. S. (2019) 7 Opinion of the Court with a clause that has “force” as its touchstone, Congress made clear that “force” retained the same common-law definition that undergirded the original definition of rob- bery adopted a mere two years earlier. That conclusion is reinforced by the fact that the original 1984 statute de- fined “robbery” using terms with well-established common- law meanings. Our understanding of “physical force” is further but- tressed by the then widely accepted definitions of robbery in the States. In 1986, a significant majority of the States defined nonaggravated robbery as requiring force that overcomes a victim’s resistance. The Government counts 43 States that measured force by this degree, 5 States that required “force” to cause bodily injury, and 2 States and the District of Columbia that permitted force to encompass something less, such as purse snatching. App. B to Brief for United States. Stokeling counters that, at most, 31 States defined force as overcoming victim resistance. Reply Brief 21. We need not declare a winner in this numbers game because, either way, it is clear that many States’ robbery statutes would not qualify as ACCA predi- cates under Stokeling’s reading. His reading would disqualify more than just basic- robbery statutes. Departing from the common-law under- standing of “force” would also exclude other crimes that have as an element the force required to commit basic robbery. For instance, Florida requires the same element of “force” for both armed robbery and basic robbery. See (2)(a) (distinguishing armed robbery from robbery by requiring the additional element of “carr[ying] a firearm or other deadly weapon” during the robbery). Thus, as Stokeling’s counsel admitted at oral argument, “armed robbery in Florida” would not qualify under ACCA if his view were adopted. Tr. of Oral Arg. 3– 4; see United F.3d 1161, (CA11 2018) (treating “Florida strong-arm robbery [i.e., 8 STOKELING v. UNITED STATES Opinion of the Court basic robbery], armed robbery, and attempted robbery the same for purposes of analyzing the ACCA’s elements clause”). Where, as here, the applicability of a federal criminal statute requires a state conviction, we have repeatedly declined to construe the statute in a way that would ren- der it inapplicable in many States. See, e.g., United States v. (reading “physical force” to include common-law force, in part because a different reading would render 18 U.S. C. (9) “ineffectual in at least 10 States”); Voisine v. United States, 579 U. S. (2016) (slip op., at 9) (declining to interpret in a way that would “risk render- ing (9) broadly inoperative”
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Justice Thomas
| 2,019 | 1 |
majority
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Stokeling v. United States
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https://www.courtlistener.com/opinion/4581524/stokeling-v-united-states/
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a way that would “risk render- ing (9) broadly inoperative” in 34 States and the District of Columbia). That approach is appropriate here as well. B Our understanding of “physical force” comports with There, the Court held that “ ‘actua[l] and intentiona[l] touching’ ”— the level of force necessary to commit common-law misde- meanor battery—did not require the “degree of force” necessary to qualify as a “violent felony” under ACCA’s elements clause. To reach this conclu- sion, the Court parsed the meaning of the phrase “physical force.” First, it explained that the modifier “physical” “plainly refers to force exerted by and through concrete bodies—distinguishing physical force, from, for example, intellectual force or emotional force.” The Court then considered “whether the term ‘force’ in [the elements clause] has the specialized meaning that it bore in the common-law definition of battery.” After reviewing the context of the statute, the Court re- jected the Government’s suggestion that “force” encom- passed even the “slightest offensive touching.” Cite as: 586 U. S. (2019) 9 Opinion of the Court Instead, it held that “physical force” means “violent force— that is, force capable of causing physical pain or injury to another person.” Applying that standard to a Florida battery law criminalizing “any intentional physical contact,” the Court concluded that the law did not require the use of “physical force” within the meaning of Stokeling argues that rejected as insufficient the degree of “force” required to commit robbery under Florida law because it is not “substantial force.” We dis- agree. The nominal contact that addressed in- volved physical force that is different in kind from the violent force necessary to overcome resistance by a victim. The force necessary for misdemeanor battery does not require resistance or even physical aversion on the part of the victim; the “unwanted” nature of the physical contact itself suffices to render it unlawful. See By contrast, the force necessary to overcome a victim’s physical resistance is inherently “violent” in the sense contemplated by and “suggest[s] a degree of power that would not be satisfied by the merest touching.” 559 U.S., This is true because robbery that must overpower a victim’s will—even a feeble or weak-willed victim—necessarily involves a physical confrontation and struggle. The altercation need not cause pain or injury or even be prolonged; it is the physical contest between the criminal and the victim that is itself “capable of causing physical pain or injury.” Indeed, itself relied on a definition of “physical force” that specifi- cally encompassed robbery: “ ‘[f]orce consisting in a physi- cal act, esp. a violent act directed against
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Justice Thomas
| 2,019 | 1 |
majority
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Stokeling v. United States
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https://www.courtlistener.com/opinion/4581524/stokeling-v-united-states/
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a physi- cal act, esp. a violent act directed against a robbery vic- tim.’ ” (quoting Black’s Law Dictionary 717 (9th ed. 2009); emphasis added). Robbery thus has always been within the “ ‘category of violent, active crimes’ ” that Congress included in 559 U.S., 10 STOKELING v. UNITED STATES Opinion of the Court To get around Stokeling cherry picks adjec- tives from parenthetical definitions in the opinion, insist- ing that the level of force must be “severe,” “extreme,” “furious,” or “vehement.” These adjectives cannot bear the weight Stokeling would place on them. They merely sup- ported ’s actual holding: that common-law battery does not require “force capable of causing physical pain or injury.” did not purport to establish a force threshold so high as to exclude even robbery from ACCA’s scope. Moreover, Stokeling ignores that the Court also defined “violence” as “ ‘unjust or improper force.’ ” (emphasis added). As explained above, the common law similarly linked the terms “violence” and “force.” Over- coming a victim’s resistance was per se violence against the victim, even if it ultimately caused minimal pain or injury. See Russell, Crimes and Indictable Misdemeanors, at 68. C In the wake of the Court has repeated its holding that “physical force” means “ ‘force capable of causing physical pain or injury.’ ” Sessions v. Dimaya, 584 U. S. (2018) (slip op., at 19–20) (quoting ); see also at 173–174 (Scalia, J., concurring in part and concurring in judgment). Finding this definition difficult to square with his posi- tion, Stokeling urges us to adopt a new, heightened read- ing of physical force: force that is “reasonably expected to cause pain or injury.” For the reasons already explained, that definition is inconsistent with the degree of force necessary to commit robbery at common law. Moreover, the Court declined to adopt that standard in even after considering similar language employed in a nearby statutory provision, 18 U.S. C. (8)(C)(ii). The Court instead settled on “force Cite as: 586 U. S. (2019) 11 Opinion of the Court capable of causing physical pain or injury.” (emphasis added). “Capable” means “susceptible” or “hav- ing attributes required for performance or accom- plishment” or “having traits conducive to or features per- mitting.” Webster’s Ninth New Collegiate Dictionary 203 (1983); see also Oxford American Dictionary and Thesau- rus 180 (2d ed. 2009) (“having the ability or quality neces- sary to do”). thus does not require any particular degree of likelihood or probability that the force used will cause physical pain or injury; only potentiality. Stokeling’s proposed standard would also prove exceed- ingly difficult to
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Justice Thomas
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majority
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Stokeling v. United States
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Stokeling’s proposed standard would also prove exceed- ingly difficult to apply. Evaluating the statistical proba- bility that harm will befall a victim is not an administra- ble standard under our categorical approach. Crimes can be committed in many different ways, and it would be difficult to assess whether a crime is categorically likely to harm the victim, especially when the statute at issue lacks fine-tuned gradations of “force.” We decline to impose yet another indeterminable line-drawing exercise on the lower courts. Stokeling next contends that held that minor uses of force do not constitute “violent force,” but he mis- reads that opinion. In the Court noted that for purposes of a statute focused on domestic-violence misde- meanors, crimes involving relatively “minor uses of force” that might not “constitute ‘violence’ in the generic sense” could nevertheless qualify as predicate offenses. 572 U.S., at 165. The Court thus had no need to decide more generally whether, under conduct that leads to relatively minor forms of injury—such as “a cut, abrasion, [or] bruise”—“necessitate[s]” the use of “violent force.” 572 U.S., at 170. Only Justice Scalia’s separate opinion ad- dressed that question, and he concluded that force as small as “hitting, slapping, shoving, grabbing, pinching, biting, and hair pulling,” satis- fied ’s definition. He reasoned that “[n]one of 12 STOKELING v. UNITED STATES Opinion of the Court those actions bears any real resemblance to mere offensive touching, and all of them are capable of causing physical pain or injury.” 572 U.S., This understanding of “physical force” is consistent with our holding today that force is “capable of causing physical injury” within the meaning of when it is sufficient to overcome a victim’s resistance. Such force satisfies ACCA’s elements clause. III We now apply these principles to Florida’s robbery statute to determine whether it “has as an element the use, attempted use, or threatened use of physical force against the person of another.” 18 U.S. C. We conclude that it does. As explained, Florida law defines robbery as “the taking of money or other property from the person or custody of another, when in the course of the taking there is the use of force, violence, assault, or putting in fear.” Fla. Stat. The Florida Supreme Court has made clear that this statute requires “resistance by the victim that is overcome by the physical force of the offender.” Rob- Mere “snatch- ing of property from another” will not suffice. Several cases cited by the parties illustrate the applica- tion of the standard articulated in Robinson. For example, a defendant who grabs the victim’s fingers and
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Justice Thomas
| 2,019 | 1 |
majority
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Stokeling v. United States
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https://www.courtlistener.com/opinion/4581524/stokeling-v-united-states/
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For example, a defendant who grabs the victim’s fingers and peels them back to steal money commits robbery in Florida. Sanders v. State, But a defendant who merely snatches money from the victim’s hand and runs away has not committed robbery. Gold- Similarly, a defendant who steals a gold chain does not use “ ‘force,’ within the meaning of the robbery statute,” simply be- cause the victim “fe[els] his fingers on the back of her neck.” 1166–1 (Fla. Cite as: 586 U. S. (2019) 13 Opinion of the Court App. 1989). It is worth noting that, in 1999, Florida en- acted a separate “sudden snatching” statute that pro- scribes this latter category of conduct; under that statute, it is unnecessary to show either that the defendant “used any amount of force beyond that effort necessary to obtain possession of the money or other property” or that “[t]here was any resistance by the victim to the offender.” Fla. Stat. (1999). Thus, the application of the categorical approach to the Florida robbery statute is straightforward. Because the term “physical force” in ACCA encompasses the degree of force necessary to commit common-law robbery, and be- cause Florida robbery requires that same degree of “force,” Florida robbery qualifies as an ACCA-predicate offense under the elements clause. Cf. (“If the relevant statute has the same elemen[t],” “then the prior conviction can serve as an ACCA predicate”). IV In sum, “physical force,” or “force capable of causing physical pain or injury,” 559 U.S., in- cludes the amount of force necessary to overcome a vic- tim’s resistance. Robbery under Florida law corresponds to that level of force and therefore qualifies as a “violent felony” under ACCA’s elements clause. For these reasons, we affirm the judgment of the Eleventh Circuit. It is so ordered. Cite as: 586 U. S. (2019) 1 S OTOMAYOR, J., dissenting SUPREME COURT OF THE UNITED STATES No. 17–5554 DENARD STOKELING, PETITIONER v.
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Justice Stevens
| 1,992 | 16 |
majority
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Church of Scientology of Cal. v. United States
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https://www.courtlistener.com/opinion/112792/church-of-scientology-of-cal-v-united-states/
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Two tapes recording conversations between officials of the Church of Scientology (Church) and their attorneys in July 1980 have been the principal bone of contention in this, and two earlier, legal proceedings. In an action filed in the Los Angeles County Superior Court,[1] the Church contended that the defendant had unlawfully acquired possession of the tapes. Pending resolution of that action, the state court ordered its Clerk to take custody of the tapes and certain other documents. In 198, in connection with an investigation of the tax returns of L. Ron Hubbard, founder of the Church of Scientology, the Internal Revenue Service (IRS) sought access to the Church documents in the state-court Clerk's possession.[2]*11 After the Clerk was served with an IRS summons, he permitted IRS agents to examine and make copies of the tapes. Thereafter, in a federal action initiated by the Church in the Central District of California, the District Court entered a temporary restraining order directing the IRS to file its copies of the tapes, and all related notes, with the federal court.[3] Those copies were subsequently returned to the Clerk of the state court. On January 18, 1985, the IRS commenced this proceeding by filing a petition to enforce the summons that had previously been served on the state-court Clerk.[] The Church intervened and opposed production of the tapes on the ground that they were protected by the attorney-client privilege. After protracted proceedings, including review in this Court, see United on April 15, 1991, the District Court entered an order enforcing compliance with the summons. The Church filed a timely notice of appeal and unsuccessfully sought a stay of that order. While the appeal was pending, copies of the tapes were delivered to the IRS. Thereafter, the Court of Appeals ordered the Church to show cause why it sappeal *12 should not be dismissed as moot. After briefing on the mootness issue, the court dismissed the appeal. It explained: "Because it is undisputed that the tapes have been turned over to the IRS in compliance with the summons enforcement order, no controversy exists presently and this appeal is moot." United No. 91 55506 (CA9, Sept. 10, 1991). We granted the Church's petition for certiorari to consider the narrow question whether the appeal was properly dismissed as moot. I It has long been settled that a federal court has no authority "to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it." See also ; North For that reason,
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Justice Stevens
| 1,992 | 16 |
majority
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Church of Scientology of Cal. v. United States
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https://www.courtlistener.com/opinion/112792/church-of-scientology-of-cal-v-united-states/
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case before it." See also ; North For that reason, if an event occurs while a case is pending on appeal that makes it impossible for the court to grant "any effectual relief whatever" to a prevailing party, the appeal must be dismissed. 159 U. S., at In this case, after the Church took its appeal from the April 15 order, in compliance with that order copies of the tapes were delivered to the IRS. The Government contends that it was thereafter impossible for the Court of Appeals to grant the Church any effectual relief. We disagree. While a court may not be able to return the parties to the status quo ante there is nothing a court can do to withdraw all knowledge or information that IRS agents may have acquired by examination of the tapesa court can fashion some form of meaningful relief in circumstances such as *13 these. Taxpayers have an obvious possessory interest in their records. When the Government has obtained such materials as a result of an unlawful summons, that interest is violated and a court can effectuate relief by ordering the Government to return the records. Moreover, even if the Government retains only copies of the disputed materials, a taxpayer still suffers injury by the Government's continued possession of those materials, namely, the affront to the taxpayer's privacy. A person's interest in maintaining the privacy of his "papers and effects" is of sufficient importance to merit constitutional protection.[5] Indeed, that the Church considers the information contained on the disputed tapes important is demonstrated by the long, contentious history of this litigation. Even though it is now too late to prevent, or to provide a fully satisfactory remedy for, the invasion of privacy that occurred when the IRS obtained the information on the tapes, a court does have power to effectuate a partial remedy by ordering the Government to destroy or return any and all copies it may have in its possession. The availability of this possible remedy is sufficient to prevent this case from being moot.[6] *1 The Government argues, however, that these basic principles are inapplicable in IRS summons enforcement proceedings because of the particular nature of the statute governing such proceedings. Reasoning from the premise that federal courts are empowered to consider only those matters within their jurisdiction, the Government argues that in IRS summons enforcement proceedings the subject-matter jurisdiction of the district court is limited to determining only whether the court should "compel production of" the information requested by the summons. 26 U.S. C. 702(b), 760(a). See n. Once the
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Justice Stevens
| 1,992 | 16 |
majority
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Church of Scientology of Cal. v. United States
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https://www.courtlistener.com/opinion/112792/church-of-scientology-of-cal-v-united-states/
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summons. 26 U.S. C. 702(b), 760(a). See n. Once the court has answered that question and compliance has occurred, there is nothing more for the district court to decide and the jurisdiction of the district court evaporates. We think the Government misconceives the inquiry in this case. The Government may or may not be right that under 702(b) and 760(a) the jurisdiction of the district court is limited to those matters directly related to whether or not the summons should be enforced. Indeed, the scope of the district court's jurisdiction under those provisions was the issue over which this Court deadlocked in United[7] The question presented in the *15 current incarnation of this case is whether there was jurisdiction in the appellate court to review the allegedly unlawful summons enforcement order. On that question, the Government's elaborate statutory argument is largely irrelevant. There is nothing in the statute to suggest that Congress sought to preclude appellate review of district court enforcement orders. To the contrary, we have expressly held that IRS summons enforcement orders are subject to appellate review. See 375 U.S. 0, 9 (196). Thus, whether or not there is jurisdiction in the appellate court to review the District Court's order turns not on the subject matter of Congress' jurisdictional grant to the district courts, but on traditional principles of justiciability, namely, whether an intervening event has rendered the controversy moot. And, as we have already explained, this case is not moot because if the summons were improperly issued or enforced a court could order that the IRS' copies of the tapes be either returned or destroyed. II We recognize that several Courts of Appeals have accepted the Government's argument in IRS enforcement proceedings,[8] but the force of that line of authority is matched *16 by a similar array of decisions reaching a contrary conclusion in proceedings enforcing Federal Trade Commission (FTC) discovery requests.[9] There is no significant difference between the governing statutes that can explain the divergent interpretations.[10] Nor is there any reason to conclude that *17 production of records relevant to a tax investigation should have mootness consequences that production of other business records does not have. Moreover, in construing these provisions of the Internal Revenue Code, the Court has considered it appropriate to rely on its earlier cases involving other statutes, including the Federal Trade Commission Act. See United 379 U.S. 8, (196) ). We therefore conclude that the appeal was improperly dismissed as moot. In so concluding we express no opinion on the merits of the Church's argument that the Government did not establish an
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Justice Scalia
| 2,011 | 9 |
dissenting
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Brown v. Plata
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https://www.courtlistener.com/opinion/2959734/brown-v-plata/
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Today the Court affirms what is perhaps the most radi cal injunction issued by a court in our Nation’s history: an order requiring California to release the staggering num ber of 46,000 convicted criminals. There comes before us, now and then, a case whose proper outcome is so clearly indicated by tradition and common sense, that its decision ought to shape the law, rather than vice versa. One would think that, before allowing the decree of a federal district court to release 46,000 convicted felons, this Court would bend every effort to read the law in such a way as to avoid that outrageous result. Today, quite to the contrary, the Court disregards stringently drawn provisions of the governing statute, and traditional constitutional limitations upon the power of a federal judge, in order to uphold the absurd. The proceedings that led to this result were a judicial travesty. I dissent because the institutional reform the District Court has undertaken violates the terms of the gov erning statute, ignores bedrock limitations on the power of Article III judges, and takes federal courts wildly beyond their institutional capacity. 2 BROWN v. PLATA SCALIA, J., dissenting I A The Prison Litigation Reform Act (PLRA) states that “[p]rospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs”; that such relief must be “narrowly drawn, [and] exten[d] no further than necessary to correct the violation of the Federal right”; and that it must be “the least intrusive means necessary to correct the violation of the Federal right.” 18 U.S. C. In deciding whether these multiple limitations have been complied with, it is necessary to identify with precision what is the “violation of the Federal right of a particular plaintiff or plaintiffs” that has been alleged. What has been alleged here, and what the injunction issued by the Court is tailored (narrowly or not) to remedy is the running of a prison system with inadequate medical facilities. That may result in the denial of needed medical treatment to “a particular [prisoner] or [prisoners],” thereby violating (ac cording to our cases) his or their Eighth Amendment rights. But the mere existence of the inadequate system does not subject to cruel and unusual punishment the entire prison population in need of medical care, including those who receive it. The Court acknowledges that the plaintiffs “do not base their case on deficiencies in care provided on any one occasion”; rather, “[p]laintiffs rely on systemwide deficien cies in the
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Justice Scalia
| 2,011 | 9 |
dissenting
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Brown v. Plata
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https://www.courtlistener.com/opinion/2959734/brown-v-plata/
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occasion”; rather, “[p]laintiffs rely on systemwide deficien cies in the provision of medical and mental health care that, taken as a whole, subject sick and mentally ill pris oners in California to ‘substantial risk of serious harm’ and cause the delivery of care in the prisons to fall below the evolving standards of decency that mark the progress of a maturing society.” Ante, at 7, n. 3. But our judge empowering “evolving standards of decency” jurisprudence (with which, by the way, I heartily disagree, see, e.g., Cite as: 563 U. S. (2011) 3 SCALIA, J., dissenting (SCALIA, J., dissenting)) does not prescribe (or at least has not until today prescribed) rules for the “decent” running of schools, prisons, and other government institutions. It forbids “indecent” treatment of individuals—in the context of this case, the denial of medical care to those who need it. And the persons who have a constitutional claim for denial of medical care are those who are denied medical care—not all who face a “substantial risk” (whatever that is) of being denied medical care. The Coleman litigation involves “the class of seriously mentally ill persons in California prisons,” ante, at 8, and the Plata litigation involves “the class of state prisoners with serious medical conditions,” ante, at 9. The plaintiffs do not appear to claim—and it would absurd to suggest— that every single one of those prisoners has personally experienced “torture or a lingering death,” ante, at 13 (internal quotation marks omitted), as a consequence of that bad medical system. Indeed, it is inconceivable that anything more than a small proportion of prisoners in the plaintiff classes have personally received sufficiently atrocious treatment that their Eighth Amendment right was violated—which, as the Court recognizes, is why the plaintiffs do not premise their claim on “deficiencies in care provided on any one occasion.” Ante, at 7, n. 3. Rather, the plaintiffs’ claim is that they are all part of a medical system so defective that some number of prisoners will inevitably be injured by incompetent medical care, and that this number is sufficiently high so as to render the system, as a whole, unconstitutional. But what procedural principle justifies certifying a class of plaintiffs so they may assert a claim of systemic uncon stitutionality? I can think of two possibilities, both of which are untenable. The first is that although some or most plaintiffs in the class do not individually have viable Eighth Amendment claims, the class as a whole has collec 4 BROWN v. PLATA SCALIA, J., dissenting tively suffered an Eighth Amendment violation. That theory is
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Justice Scalia
| 2,011 | 9 |
dissenting
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Brown v. Plata
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https://www.courtlistener.com/opinion/2959734/brown-v-plata/
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dissenting tively suffered an Eighth Amendment violation. That theory is contrary to the bedrock rule that the sole purpose of classwide adjudication is to aggregate claims that are individually viable. “A class action, no less than tradi tional joinder (of which it is a species), merely enables a federal court to adjudicate claims of multiple parties at once, instead of in separate suits. And like traditional joinder, it leaves the parties’ legal rights and duties intact and the rules of decision unchanged.” Shady Grove Or thopedic Associates, P. A. v. Allstate Ins. Co., 559 U. S. (2010) (plurality opinion) (slip op., at 14). The second possibility is that every member of the plain tiff class has suffered an Eighth Amendment violation merely by virtue of being a patient in a poorly-run prison system, and the purpose of the class is merely to aggregate all those individually viable claims. This theory has the virtue of being consistent with procedural principles, but at the cost of a gross substantive departure from our case law. Under this theory, each and every prisoner who happens to be a patient in a system that has systemic weaknesses—such as “hir[ing] any doctor who had a li cense, a pulse and a pair of shoes,” ante, at 10 (internal quotation marks omitted)—has suffered cruel or unusual punishment, even if that person cannot make an individu alized showing of mistreatment. Such a theory of the Eighth Amendment is preposterous. And we have said as much in the past: “If a healthy inmate who had suf fered no deprivation of needed medical treatment were able to claim violation of his constitutional right to medi cal care simply on the ground that the prison medical facilities were inadequate, the essential distinction be tween judge and executive would have disappeared: it would have become the function of the courts to assure adequate medical care in prisons.” Lewis v. Casey, 518 U.S. 343, 350 (1996). Whether procedurally wrong or substantively wrong, Cite as: 563 U. S. (2011) 5 SCALIA, J., dissenting the notion that the plaintiff class can allege an Eighth Amendment violation based on “systemwide deficiencies” is assuredly wrong. It follows that the remedy decreed here is also contrary to law, since the theory of systemic unconstitutionality is central to the plaintiffs’ case. The PLRA requires plaintiffs to establish that the systemwide injunction entered by the District Court was “narrowly drawn” and “extends no further than necessary” to correct “the violation of the Federal right of a particular plaintiff or plaintiffs.” If (as is the case) the only viable constitu tional
|
Justice Scalia
| 2,011 | 9 |
dissenting
|
Brown v. Plata
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https://www.courtlistener.com/opinion/2959734/brown-v-plata/
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If (as is the case) the only viable constitu tional claims consist of individual instances of mistreat ment, then a remedy reforming the system as a whole goes far beyond what the statute allows. It is also worth noting the peculiarity that the vast majority of inmates most generously rewarded by the re lease order—the 46,000 whose incarceration will be ended— do not form part of any aggrieved class even under the Court’s expansive notion of constitutional violation. Most of them will not be prisoners with medical conditions or severe mental illness; and many will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym. B Even if I accepted the implausible premise that the plaintiffs have established a systemwide violation of the Eighth Amendment, I would dissent from the Court’s endorsement of a decrowding order. That order is an example of what has become known as a “structural in junction.” As I have previously explained, structural injunctions are radically different from the injunctions traditionally issued by courts of equity, and presumably part of “the judicial Power” conferred on federal courts by Article III: “The mandatory injunctions issued upon termination of litigation usually required ‘a single simple act.’ H. 6 BROWN v. PLATA SCALIA, J., dissenting McClintock, Principles of Equity pp. 32–33 (2d ed. 1948). Indeed, there was a ‘historical prejudice of the court of chancery against rendering decrees which called for more than a single affirmative act.’ at 160. And where specific performance of contracts was sought, it was the categorical rule that no decree would issue that required ongoing supervision. Compliance with these ‘single act’ mandates could, in addition to being simple, be quick; and once it was achieved the contemnor’s relationship with the court came to an end, at least insofar as the subject of the order was concerned. Once the document was turned over or the land conveyed, the litigant’s obligation to the court, and the court’s coercive power over the liti gant, ceased. The court did not engage in any on going supervision of the litigant’s conduct, nor did its order continue to regulate its behavior.” Mine Work (SCALIA, J., concurring). Structural injunctions depart from that historical prac tice, turning judges into long-term administrators of complex social institutions such as schools, prisons, and police departments. Indeed, they require judges to play a role essentially indistinguishable from the role ordinarily played by executive officials. Today’s decision not only affirms the structural injunction but vastly expands its use, by holding that an entire system is unconstitutional because it may produce constitutional
|
Justice Scalia
| 2,011 | 9 |
dissenting
|
Brown v. Plata
|
https://www.courtlistener.com/opinion/2959734/brown-v-plata/
|
an entire system is unconstitutional because it may produce constitutional violations. The drawbacks of structural injunctions have been described at great length elsewhere. See, e.g., Lewis, at 385–393 (1996) (THOMAS, J., concurring); Mis (THOMAS, J., concurring); Horowitz, Decreeing Organizational Change: Judicial Supervision of Public Institutions, 1983 Duke L. J. 1265. This case illustrates one of their most Cite as: 563 U. S. (2011) 7 SCALIA, J., dissenting pernicious aspects: that they force judges to engage in a form of factfinding-as-policymaking that is outside the traditional judicial role. The factfinding judges tradition ally engage in involves the determination of past or pre sent facts based (except for a limited set of materials of which courts may take “judicial notice”) exclusively upon a closed trial record. That is one reason why a district judge’s factual findings are entitled to clear-error review: because having viewed the trial first hand he is in a better position to evaluate the evidence than a judge reviewing a cold record. In a very limited category of cases, judges have also traditionally been called upon to make some predictive judgments: which custody will best serve the interests of the child, for example, or whether a particular one-shot injunction will remedy the plaintiff’s grievance. When a judge manages a structural injunction, however, he will inevitably be required to make very broad empiri cal predictions necessarily based in large part upon policy views—the sort of predictions regularly made by legis lators and executive officials, but inappropriate for the Third Branch. This feature of structural injunctions is superbly illus trated by the District Court’s proceeding concerning the decrowding order’s effect on public safety. The PLRA requires that, before granting “[p]rospective relief in [a] civil action with respect to prison conditions,” a court must “give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.” 18 U.S. C. Here, the Dis trict Court discharged that requirement by making the “factual finding” that “the state has available methods by which it could readily reduce the prison population to 137.5% design capacity or less without an adverse impact on public safety or the operation of the criminal justice system.” Juris. Statement App., O. T. 2009, No. 09-416, p. 253a. It found the evidence “clear” that prison overcrowd 8 BROWN v. PLATA SCALIA, J., dissenting ing would “perpetuate a criminogenic prison system that itself threatens public safety,” at 186a, and volun teered its opinion that “[t]he population could be reduced even further with the reform of California’s antiquated sentencing policies and other related changes
|
Justice Scalia
| 2,011 | 9 |
dissenting
|
Brown v. Plata
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https://www.courtlistener.com/opinion/2959734/brown-v-plata/
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reform of California’s antiquated sentencing policies and other related changes to the laws.” at 253a. It “reject[ed] the testimony that inmates released early from prison would commit additional new crimes,” at 200a, finding that “shortening the length of stay through earned credits would give inmates incentives to participate in programming designed to lower recidi vism,” at 204a, and that “slowing the flow of technical parole violators to prison, thereby substantially reducing the churning of parolees, would by itself improve both the prison and parole systems, and public safety.” at 209a. It found that “the diversion of offenders to commu nity correctional programs has significant beneficial ef fects on public safety,” at 214a, and that “additional rehabilitative programming would result in a significant population reduction while improving public safety,” at 216a. The District Court cast these predictions (and the Court today accepts them) as “factual findings,” made in reliance on the procession of expert witnesses that testified at trial. Because these “findings” have support in the record, it is difficult to reverse them under a plain-error standard of review. Ante, at 38. And given that the District Court devoted nearly 10 days of trial and 70 pages of its opinion to this issue, it is difficult to dispute that the District Court has discharged its statutory obligation to give “sub stantial weight to any adverse impact on public safety.” But the idea that the three District Judges in this case relied solely on the credibility of the testifying expert witnesses is fanciful. Of course they were relying largely on their own beliefs about penology and recidivism. And of course different district judges, of different policy views, would have “found” that rehabilitation would not work Cite as: 563 U. S. (2011) 9 SCALIA, J., dissenting and that releasing prisoners would increase the crime rate. I am not saying that the District Judges rendered their factual findings in bad faith. I am saying that it is impossible for judges to make “factual findings” without inserting their own policy judgments, when the factual findings are policy judgments. What occurred here is no more judicial factfinding in the ordinary sense than would be the factual findings that deficit spending will not lower the unemployment rate, or that the continued occupation of Iraq will decrease the risk of terrorism. Yet, because they have been branded “factual findings” entitled to deferential review, the policy preferences of three District Judges now govern the operation of California’s penal system. It is important to recognize that the dressing-up of pol icy judgments as factual findings is not an error pecu-
|
Justice Scalia
| 2,011 | 9 |
dissenting
|
Brown v. Plata
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https://www.courtlistener.com/opinion/2959734/brown-v-plata/
|
icy judgments as factual findings is not an error pecu- liar to this case. It is an unavoidable concomitant of insti tutional-reform litigation. When a district court issues an injunction, it must make a factual assessment of the an ticipated consequences of the injunction. And when the injunction undertakes to restructure a social institution, assessing the factual consequences of the injunction is necessarily the sort of predictive judgment that our sys tem of government allocates to other government officials. But structural injunctions do not simply invite judges to indulge policy preferences. They invite judges to indulge incompetent policy preferences. Three years of law school and familiarity with pertinent Supreme Court precedents give no insight whatsoever into the management of social institutions. Thus, in the proceeding below the District Court determined that constitutionally adequate medical services could be provided if the prison population was 137.5% of design capacity. This was an empirical finding it was utterly unqualified to make. Admittedly, the court did not generate that number entirely on its own; it heard the numbers 130% and 145% bandied about by various 10 BROWN v. PLATA SCALIA, J., dissenting witnesses and decided to split the difference. But the ability of judges to spit back or even average-out numbers spoon-fed to them by expert witnesses does not render them competent decisionmakers in areas in which they are otherwise unqualified. The District Court also relied heavily on the views of the Receiver and Special Master, and those reports play a starring role in the Court’s opinion today. The Court notes that “the Receiver and the Special Master filed reports stating that overcrowding posed a significant barrier to their efforts” and deems those reports “persuasive evi dence that, absent a reduction in overcrowding, any rem edy might prove unattainable and would at the very least require vast expenditures of resources by the State.” Ante, at 31–32. The use of these reports is even less consonant with the traditional judicial role than the District Court’s reliance on the expert testimony at trial. The latter, even when, as here, it is largely the expression of policy judg ments, is at least subject to cross-examination. Relying on the un-cross-examined findings of an investigator, sent into the field to prepare a factual report and give sugges tions on how to improve the prison system, bears no re semblance to ordinary judicial decisionmaking. It is true that the PLRA contemplates the appointment of Special Masters (although not Receivers), but Special Masters are authorized only to “conduct hearings and prepare pro posed findings of fact” and “assist in the development
|
Justice Scalia
| 2,011 | 9 |
dissenting
|
Brown v. Plata
|
https://www.courtlistener.com/opinion/2959734/brown-v-plata/
|
pro posed findings of fact” and “assist in the development of remedial plans,” 18 U.S. C. This does not authorize them to make factual findings (unconnected to hearings) that are given seemingly wholesale deference. Neither the Receiver nor the Special Master was selected by California to run its prisons, and the fact that they may be experts in the field of prison reform does not justify the judicial imposition of their perspectives on the state. Cite as: 563 U. S. (2011) 11 SCALIA, J., dissenting C My general concerns associated with judges’ running social institutions are magnified when they run prison systems, and doubly magnified when they force prison officials to release convicted criminals. As we have previ ously recognized: “[C]ourts are ill equipped to deal with the increasingly urgent problems of prison administration and re- form. [T]he problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree. Running a prison is an inordinately difficult under taking that requires expertise, planning, and the com mitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. Prison is, moreover, a task that has been committed to the responsibility of those branches, and separation of powers concerns counsel a policy of judicial restraint. Where a state penal sys tem is involved, federal courts have additional reason to accord deference to the appropriate prison authorities.” 84–85 (1987) (internal quotation marks omitted). These principles apply doubly to a prisoner-release order. As the author of today’s opinion explained earlier this Term, granting a writ of habeas corpus “ ‘disturbs the State’s significant interest in repose for concluded litiga tion, denies society the right to punish some admitted offenders, and intrudes on state sovereignty to a degree matched by few exercises of federal judicial authority.’ ” v. Richter, 562 U. S. (2011) (slip op., at 13) (KENNEDY, J., dissenting)). Recognizing that habeas relief must be granted sparingly, we have reversed the Ninth Circuit’s erroneous grant of habeas relief to individual 12 BROWN v. PLATA SCALIA, J., dissenting California prisoners four times this Term alone. Cullen v. Pinholster, 563 U. S. (2011); Felkner v. Jackson, 562 U. S. (2011) (per curiam); Swarthout v. U. S. (2011) (per curiam); And yet here, the Court affirms an order granting the functional equivalent of 46,000 writs of habeas corpus, based on its paean to courts’ “substantial flexibility when making these judgments.” Ante, at 41. It seems that the Court’s respect for state sovereignty has vanished in the case where
|
Justice Scalia
| 2,011 | 9 |
dissenting
|
Brown v. Plata
|
https://www.courtlistener.com/opinion/2959734/brown-v-plata/
|
respect for state sovereignty has vanished in the case where it most matters. II The Court’s opinion includes a bizarre coda noting that “[t]he State may wish to move for modification of the three-judge court’s order to extend the deadline for the required reduction to five years.” Ante, at 46–47. The Dis trict Court, it says, “may grant such a request provided that the State satisfies necessary and appropriate precon ditions designed to ensure the measures are taken to implement the plan without undue delay”; and it gives vague suggestions of what these preconditions “may in clude,” such as “interim benchmarks.” Ante, at 47. It also invites the District Court to “consider whether it is appro priate to order the State to begin without delay to develop a system to identify prisoners who are unlikely to reof fend,” and informs the State that it “should devise systems to select those prisoners least likely to jeopardize public safety.” The legal effect of this passage is unclear—I suspect intentionally so. If it is nothing but a polite reminder to the State and to the District Court that the injunction is subject to modification, then it is entirely unnecessary. As both the State and the District Court are undoubtedly aware, a party is always entitled to move to modify an equitable decree, and the PLRA contains an express provi sion authorizing District Courts to modify or terminate Cite as: 563 U. S. (2011) 13 SCALIA, J., dissenting prison injunctions. See 18 U.S. C. I suspect, however, that this passage is a warning shot across the bow, telling the District Court that it had better modify the injunction if the State requests what we invite it to request. Such a warning, if successful, would achieve the benefit of a marginal reduction in the inevitable mur ders, robberies, and rapes to be committed by the released inmates. But it would achieve that at the expense of in tellectual bankruptcy, as the Court’s “warning” is en- tirely alien to ordinary principles of appellate review of injunctions. When a party moves for modification of an injunction, the district court is entitled to rule on that motion first, subject to review for abuse of discretion if it declines to modify the order. Horne v. Flores, 557 U. S. (2009) (slip op., at 10, 20). Moreover, when a district court enters a new decree with new benchmarks, the selection of those benchmarks is also reviewed under a deferential, abuse-of-discretion standard of review—a point the Court appears to recognize. Ante, at 45. Appel late courts are not supposed to “affirm”
|
Justice Scalia
| 2,011 | 9 |
dissenting
|
Brown v. Plata
|
https://www.courtlistener.com/opinion/2959734/brown-v-plata/
|
at 45. Appel late courts are not supposed to “affirm” injunctions while preemptively noting that the State “may” request, and the District Court “may” grant, a request to extend the State’s deadline to release prisoners by three years based on some suggestions on what appropriate preconditions for such a modification “may” include. Of course what is really happening here is that the Court, overcome by common sense, disapproves of the results reached by the District Court, but cannot remedy them (it thinks) by applying ordinary standards of appel late review. It has therefore selected a solution unknown in our legal system: A deliberately ambiguous set of sug gestions on how to modify the injunction, just deferential enough so that it can say with a straight face that it is “affirming,” just stern enough to put the District Court on notice that it will likely get reversed if it does not follow them. In doing this, the Court has aggrandized itself, 14 BROWN v. PLATA SCALIA, J., dissenting grasping authority that appellate courts are not supposed to have, and using it to enact a compromise solution with no legal basis other than the Court’s say-so. That we are driven to engage in these extralegal activities should be a sign that the entire project of permitting district courts to run prison systems is misbegotten. But perhaps I am being too unkind. The Court, or at least a majority of the Court’s majority, must be aware that the judges of the District Court are likely to call its bluff, since they know full well it cannot possibly be an abuse of discretion to refuse to accept the State’s proposed modifications in an injunction that has just been approved (affirmed) in its present form. An injunction, after all, does not have to be perfect; only good enough for govern ment work, which the Court today says this is. So perhaps the coda is nothing more than a ceremonial washing of the hands—making it clear for all to see, that if the terrible things sure to happen as a consequence of this outrageous order do happen, they will be none of this Court’s respon sibility. After all, did we not want, and indeed even sug gest, something better? III In view of the incoherence of the Eighth Amendment claim at the core of this case, the nonjudicial features of institutional reform litigation that this case exemplifies, and the unique concerns associated with mass prisoner releases, I do not believe this Court can affirm this injunc tion. I will state my approach briefly: In my view,
|
Justice Scalia
| 2,011 | 9 |
dissenting
|
Brown v. Plata
|
https://www.courtlistener.com/opinion/2959734/brown-v-plata/
|
tion. I will state my approach briefly: In my view, a court may not order a prisoner’s release unless it determines that the prisoner is suffering from a violation of his consti tutional rights, and that his release, and no other relief, will remedy that violation. Thus, if the court determines that a particular prisoner is being denied constitutionally required medical treatment, and the release of that pris oner (and no other remedy) would enable him to obtain Cite as: 563 U. S. (2011) 15 SCALIA, J., dissenting medical treatment, then the court can order his release; but a court may not order the release of prisoners who have suffered no violations of their constitutional rights, merely to make it less likely that that will happen to them in the future. This view follows from the PLRA’s text that I discussed at the outset, 18 U.S. C. “[N]arrowly drawn” means that the relief applies only to the “particu lar [prisoner] or [prisoners]” whose constitutional rights are violated; “extends no further than necessary” means that prisoners whose rights are not violated will not obtain relief; and “least intrusive means necessary to correct the violation of the Federal right” means that no other relief is available.* I acknowledge that this reading of the PLRA would se verely limit the circumstances under which a court could issue structural injunctions to remedy allegedly unconsti tutional prison conditions, although it would not eliminate them entirely. If, for instance, a class representing all prisoners in a particular institution alleged that the tem perature in their cells was so cold as to violate the Eighth Amendment, or that they were deprived of all exercise time, a court could enter a prisonwide injunction ordering that the temperature be raised or exercise time be pro vided. Still, my approach may invite the objection that the PLRA appears to contemplate structural injunctions in general and mass prisoner-release orders in particular. The statute requires courts to “give substantial weight to —————— * Any doubt on this last score, at least as far as prisoner-release or ders are concerned, is eliminated by of the statute, which provides that to enter a prisoner-release order the court must find “by clear and convincing evidence that— (i) crowding is the primary cause of the violation of a Federal right; and (ii) no other relief will remedy the violation of the Federal right.” 16 BROWN v. PLATA SCALIA, J., dissenting any adverse impact on public safety or the operation of a criminal justice system caused by the relief” and author izes them to appoint Special Masters,
|
Justice Scalia
| 2,011 | 9 |
dissenting
|
Brown v. Plata
|
https://www.courtlistener.com/opinion/2959734/brown-v-plata/
|
the relief” and author izes them to appoint Special Masters, (a)(1)(A), (f), provisions that seem to presuppose the possibility of a structural remedy. It also sets forth criteria under which courts may issue orders that have “the purpose or effect of reducing or limiting the prisoner population,” (g)(4). I do not believe that objection carries the day. In addi tion to imposing numerous limitations on the ability of district courts to order injunctive relief with respect to prison conditions, the PLRA states that “[n]othing in this section shall be construed to repeal or detract from otherwise applicable limitations on the remedial powers of the courts.” (a)(1)(C). The PLRA is therefore best understood as an attempt to constrain the discretion of courts issuing structural injunctions—not as a mandate for their use. For the reasons I have outlined, structural injunctions, especially prisoner-release orders, raise grave separation-of-powers concerns and veer significantly from the historical role and institutional capability of courts. It is appropriate to construe the PLRA so as to constrain courts from entering injunctive relief that would exceed that role and capability. * * * The District Court’s order that California release 46,000 prisoners extends “further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs” who have been denied needed medical care. 18 U.S. C. It is accordingly forbidden by the PLRA—besides defying all sound conception of the proper role of judges. Cite as: 563 U. S. (2011) 1 ALITO, J., dissenting SUPREME COURT OF THE UNITED STATES No. 09–1233 EDMUND G. BROWN, JR., GOVERNOR OF CAL- IFORNIA, ET AL., APPELLANTS v. MARCIANO PLATA ET AL.
|
Justice Alito
| 2,016 | 8 |
second_dissenting
|
Campbell-Ewald v. Gomez
|
https://www.courtlistener.com/opinion/3170730/campbell-ewald-v-gomez/
|
I join THE CHIEF JUSTICE’s dissent. I agree that a de- fendant may extinguish a plaintiff ’s personal stake in pursuing a claim by offering complete relief on the claim, even if the plaintiff spurns the offer. Our Article III prec- edents make clear that, for mootness purposes, there is nothing talismanic about the plaintiff ’s acceptance. E.g., LLC v. Nike, Inc., 568 U. S. (2013) (holding that Nike’s unilateral covenant not to sue mooted Al- ready’s trademark invalidity claim). I write separately to emphasize what I see as the linchpin for finding mootness in this case: There is no real dispute that Campbell would “make good on [its] promise” to pay Gomez the money it offered him if the case were dismissed. Ante, at 5 (opinion of ROBERTS, C. J.). Absent this fact, I would be compelled to find that the case is not moot. Our “voluntary cessation” cases provide useful guidance. Those cases hold that, when a plaintiff seeks to enjoin a defendant’s conduct, a defendant’s “voluntary cessation of challenged conduct does not ordinarily render a case moot because a dismissal for mootness would permit a resump- tion of the challenged conduct as soon as the case is dis- missed.” v. Service Employees, 567 U. S. – (2012) (slip op., at 6–7). To obtain dismissal in such circumstances, the defendant must “ ‘bea[r] the formidable 2 CAMPBELL-EWALD CO. v. GOMEZ ALITO, J., dissenting burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.’ ” at (slip op., at 4) (quoting Friends of the Earth, ). We have typically applied that rule in cases involving claims for prospective relief, see at (slip op., at 7), but the basic principle easily translates to cases, like this one, involving claims for damages: When a defendant offers a plaintiff complete relief on a damages claim, the case will be dismissed as moot if—but only if—it is “abso- lutely clear” that the plaintiff will be able to receive the offered relief. at (slip op., at 8).1 Consider an offer of complete relief from a defendant that has no intention of actually paying the promised sums, or from a defendant whose finances are so shaky that it cannot produce the necessary funds. In both in- stances, there is a question whether the defendant will back up its offer to pay with an actual payment. If those cases were dismissed as moot, the defendant’s failure to follow through on its promise to pay would leave the plain- tiff forever emptyhanded. In the language of our mootness
|
Justice Alito
| 2,016 | 8 |
second_dissenting
|
Campbell-Ewald v. Gomez
|
https://www.courtlistener.com/opinion/3170730/campbell-ewald-v-gomez/
|
plain- tiff forever emptyhanded. In the language of our mootness cases, those cases would not be moot because a court could still grant the plaintiff “effectual relief,” at (slip op., at 7) (internal quotation marks omitted)— namely, the relief sought in the first place. The plaintiff retains a “personal stake” in continuing the litigation. Genesis HealthCare Corp. v. Symczyk, 569 U. S. (2013) (slip op., at 4) (internal quotation marks omitted). An offer of complete relief thus will not always warrant dismissal. —————— 1 I say it must be clear that the plaintiff “will be able to receive” the relief, rather than that the plaintiff “will receive” the relief, to account for the possibility of an obstinate plaintiff who refuses to take any relief even if the case is dismissed. A plaintiff cannot thwart mootness by refusing complete relief presented on a silver platter. Cite as: 577 U. S. (2016) 3 ALITO, J., dissenting Campbell urges that a plaintiff could simply move to reopen a dismissed case if a defendant fails to make good on its offer. Reply Brief 10. I assume that is true. But the prospect of having to reopen litigation is precisely why our voluntary cessation cases require defendants to prove, before dismissal, that the plaintiff ’s injury cannot reason- ably be expected to recur. I see no reason not to impose a similar burden when a defendant asserts that it has ren- dered a damages claim moot. How, then, can a defendant make “absolutely clear” that it will pay the relief it has offered? The most straightfor- ward way is simply to pay over the money. The defendant might hand the plaintiff a certified check or deposit the requisite funds in a bank account in the plaintiff ’s name. See California v. San Pablo & Tulare R. Co., 149 U.S. 308, 313–314 (1893). Alternatively, a defendant might deposit the money with the district court (or another trusted intermediary) on the condition that the money be released to the plaintiff when the court dismisses the case as moot. See Fed. Rule Civ. Proc. 67; 28 U.S. C. 2042. In these situations, there will rarely be any serious doubt that the plaintiff can obtain the offered money.2 —————— 2 Depositing funds with the district court or another intermediary may be particularly attractive to defendants because it would ensure that the plaintiff can obtain the money, yet allow the defendant to reclaim the funds if the court refuses to dismiss the case (for example, because it determines the offer is for less than full relief ). Contrary to the
|
Justice Alito
| 2,016 | 8 |
second_dissenting
|
Campbell-Ewald v. Gomez
|
https://www.courtlistener.com/opinion/3170730/campbell-ewald-v-gomez/
|
is for less than full relief ). Contrary to the views of Gomez’s amicus, there is no reason to force a defendant to effect an “ ‘irrevocable transfer of title’ ” to the funds without regard to whether doing so succeeds in mooting the case. Brief for American Federation of Labor and Congress of Industrial Organizations 10. Likewise, because I believe our precedents “provide sufficiently specific principles to resolve this case,” I would not apply the “rigid formalities” of common-law tender in this context. Ante, at 1, 2 (THOMAS, J., concur- ring in judgment). Article III demands that a plaintiff always have a personal stake in continuing the litigation, and that stake is extin- guished if the plaintiff is freely able to obtain full relief in the event the case is dismissed as moot. 4 CAMPBELL-EWALD CO. v. GOMEZ ALITO, J., dissenting While outright payment is the surest way for a defend- ant to make the requisite mootness showing, I would not foreclose other means of doing so. The question is whether it is certain the defendant will pay, not whether the de- fendant has already paid. I believe Campbell clears the mark in this case. As THE CHIEF JUSTICE observes, there is no dispute Campbell has the means to pay the few thousand dollars it offered Gomez, and there is no basis “to argue that Campbell might not make good on that promise” if the case were dismissed. Ante, at 5. Thus, in the circumstances of this case, Campbell’s offer of com- plete relief should have rendered Gomez’s damages claim moot. But the same would not necessarily be true for other defendants, particularly those that face more sub- stantial claims, possess less secure finances, or extend offers of questionable sincerity. Cf. 568 U. S., at – (KENNEDY, J., concurring) (slip op., at 3–4) (em- phasizing the “formidable burden on the party asserting mootness” and noting possible “doubts that Nike’s showing [of mootness] would suffice in other circumstances”). The Court does not dispute Campbell’s ability or will- ingness to pay, but nonetheless concludes that its unac- cepted offer did not moot Gomez’s claim. While I disagree with that result on these facts, I am heartened that the Court appears to endorse the proposition that a plaintiff ’s claim is moot once he has “received full redress” from the defendant for the injuries he has asserted. Ante, at 10, n. 5 (discussing and Alvarez v. Smith, 558 U.S. 87 (2009)). Today’s decision thus does not prevent a defendant who actually pays complete relief—either di- rectly to the plaintiff or to a
|
Justice Brennan
| 1,987 | 13 |
dissenting
|
Pennsylvania v. Finley
|
https://www.courtlistener.com/opinion/111880/pennsylvania-v-finley/
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On respondent's appeal from denial of state collateral relief, the Pennsylvania Supreme Court held that state law required Dorothy Finley's counsel to review the record carefully, to amend her petition for relief, and to file a brief on her behalf. On remand, however, her counsel advised the *560 trial court (Court of Common Pleas) summarily to dismiss her petition. Today the Court reverses the subsequent determination of the appellate court (Superior Court) that the performance of Dorothy Finley's trial counsel was deficient for failure to comply with three different sets of requirements: those established by by and by the remand order issued originally by the Pennsylvania Supreme Court. In Pennsylvania, courts may comply with either the Anders or the McClendon procedures when appointed counsel wishes to withdraw from representation of a petitioner's collateral attack upon a judgment. The Anders procedures require counsel to perform a conscientious evaluation of the record, to write a brief referring to "arguable" support in the record, and to give notice to the client. The trial court may grant counsel's request to withdraw after a full examination of the The McClendon procedures require "an exhaustive examination of the record" by counsel and an "independent determination" by the court that the petition is wholly frivolous. No Anders brief or notice to client is 330 Pa. Super., at 479 A. 2d, at In addition to finding that trial counsel complied with neither of these two sets of requirements, the state appellate court found that the lower court failed to comply with the specific requirements of the remand order of the State Supreme Court. In that circumstance, the appellate court decision rested on this independent state ground, and the petition for certiorari should be dismissed as improvidently granted. Moreover, the controversy involving the application of the Anders procedures is not ripe for review. Finally, I believe that counsel's deficient performance violated Finley's federal rights to due process and equal protection. I therefore dissent. *561 I The failure of the trial court to ensure compliance with the State Supreme Court's instructions on remand is an independent state ground for the appellate court's decision. After exhausting direct appeals of her criminal convictions, Finley filed a pro se application for collateral relief pursuant to the Pennsylvania Post Conviction Hearing Act, et seq. (1982) The trial court summarily denied the petition. The Pennsylvania Supreme Court reversed and held that Finley was entitled to appointed counsel if indigent, since the PCHA required the appointment of counsel to assist her in a meaningful manner. The State Supreme Court did not rely on or refer to
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Justice Brennan
| 1,987 | 13 |
dissenting
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Pennsylvania v. Finley
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https://www.courtlistener.com/opinion/111880/pennsylvania-v-finley/
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State Supreme Court did not rely on or refer to federal statutory or constitutional law. It stated that the right to counsel guaranteed by the PCHA could be denied "only where a previous PCHA petition involving the same issues has been determined adversely to the petitioner in a proceeding on the PCHA petition." Finley had not previously filed a PCHA petition and therefore had a right to The State Supreme Court instructed that appointed counsel was not to limit his or her efforts to the claims raised by Finley, but should "explore legal grounds for complaint, investigate underlying facts" and "articulate claims for relief." The trial court was further instructed to allow counsel to amend the petition. 497 Pa., at 440 A. 2d, at -1185. On remand, Finley's counsel failed to meet these requirements. Appointed counsel read only the "Notes of Testimony" of the original trial and failed to indicate to the trial court how he had conducted an exhaustive research of the -573. Instead of filing a brief and amending the complaint, as the remand order required, he simply submitted a "no-merit" letter *562 describing his limited review, listing the identical issues that were previously presented to the Pennsylvania Supreme Court on both direct appeal and on collateral attack, and stating why he regarded those claims as meritless.[1] Finley did not receive advance notice from either the court or her counsel that the latter was filing a letter maintaining that all her claims were without merit. Tr. of Oral Arg. 17. Indeed, there is no evidence that Finley ever received a copy of the letter. The attorney also failed to inform Finley of her right to seek new counsel or to proceed pro se before the trial court. 330 Pa. Super., at 479 A.2d, at 573. After receiving the no-merit letter, the trial court dismissed Finley's petition without a hearing. New counsel was appointed to represent Finley in the appeal of the dismissal. The Superior Court reversed, noting that the trial court had failed to follow the required instructions of the State Supreme Court's remand, which were based on its interpretation of the PCHA. "The [Pennsylvania] Supreme Court remanded, not because it saw any particular merit to the [contentions raised at that time], which were identical to those disposed of earlier in appellant's direct appeal. The Supreme Court wished to afford appellant the opportunity to amass other issues with arguable merit." 479 A. 2d, at -572. The Superior Court cited to Rule 1504 of the Pennsylvania Rules of Criminal Procedure as a basis for the earlier remand order. That
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Justice Brennan
| 1,987 | 13 |
dissenting
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Pennsylvania v. Finley
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https://www.courtlistener.com/opinion/111880/pennsylvania-v-finley/
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Procedure as a basis for the earlier remand order. That Rule requires counsel to "act as an advocate in fulfilling his role." The Superior Court stated that Finley's appellant counsel was able to list several issues "which may have arguable merit" simply by reviewing the " `bare record available in the *563 Superior Court.' " at -573 (citing Brief for Appellant).[2] Thus, the trial court's failure to require a submitted brief and an amended complaint did not satisfy the mandate of the State Supreme Court that effective counsel be provided for Finley's first PCHA petition. Since trial counsel had failed to amend the petition or submit a brief, "the proceeding was in fact uncounselled" under Pennsylvania law. This reliance on state grounds independently and adequately justified the Superior Court's remand. There is no need for a plain statement indicating the independence of the state grounds since there was no federal law interwoven with this determination. See Indeed, the Superior Court referred to state law with the very purpose of basing the reversal of the trial court's decision on grounds independent of both Anders and 479 A.2d, at -572. As a result, the Court has no need to address the issue of what general requirements govern representation in collateral proceedings in Pennsylvania, much less whether Anders is applicable. II The Anders issue is not ripe for review for yet another reason. The Superior Court's decision leaves the trial court discretion on remand to impose the requirements of either Anders or McClendon, so long as it also complies with the requirements imposed by the original remand order by the Pennsylvania Supreme Court. See * 479 A. 2d, at[3] Because the trial court had satisfied neither the requirements of Anders nor McClendon,[4] the Superior Court remanded the case and did not specify which set of procedures the trial court was to follow.[5] It is more than conjecture that the Anders requirements may never be imposed in this case, given the alternative availability of McClendon as a source of duties in Pennsylvania. After the present case was decided, the Superior Court held that the McClendon procedures not the Anders requirements are required on collateral review. The Pennsylvania Supreme Court has never held that Anders procedures are required on collateral review. In the State Supreme Court was equally divided on this issue and therefore affirmed the lower court ruling that the Anders procedures are required *565 only on direct appeal from a criminal conviction, and not on collateral review. Because Pennsylvania does not require that Anders be followed on collateral review, there is
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Justice Brennan
| 1,987 | 13 |
dissenting
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Pennsylvania v. Finley
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https://www.courtlistener.com/opinion/111880/pennsylvania-v-finley/
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require that Anders be followed on collateral review, there is no occasion for today's decision. It is also unnecessary to decide in this case the adequacy of the McClendon procedures. The Commonwealth does not oppose the imposition of the McClendon requirements. Indeed, the Commonwealth approves of the McClendon requirements as a "flexible and enlightened approach." Brief for Petitioner 18, n. 11. Since it is not clear that the parties in this case have adversarial legal interests, there is no case or controversy regarding the adequacy of See[6] In order to avoid issuing an advisory opinion, we should await a final judgment by a Pennsylvania court that requires the imposition of the Anders procedures.[7] Since review of the trial court's eventual decision may be sought later in both the state appellate courts and this Court, we should *566 avoid prematurely reversing the decision of an inferior state court.[8] Thus, I would dismiss the petition as improvidently granted. III I also disagree with the Court's holding that trial counsel's abandonment of his client without notice and his advocacy against Finley's petition did not violate her federal rights to due process and equal protection. The Court denigrates Finley's right to effective assistance of counsel by noting that this case involves only postconviction review by a trial court. It argues that such review is similar to discretionary appellate review, for which appointment of counsel is not required by the Federal Constitution under See ante, at 555. This case, however, is readily distinguished from Ross. Under state law, Finley has a mandatory right to effective assistance of counsel, and the trial court is required to review the issues of arguable merit. In construing the PCHA legislation, the Pennsylvania Supreme Court concluded: "We pause to note that the mandatory appointment requirement is a salutary one and best comports with efficient judicial administration and serious consideration of a prisoner's claims. Counsel's ability to frame the issues in a legally meaningful fashion insures the trial court that all relevant considerations will be brought to its attention." A.2d 148, *567 The Pennsylvania Legislature recognized the importance of collateral review by adopting the PCHA, which requires effective assistance of An appointed counsel's determination that a petitioner's claims have no merit may completely preclude consideration of meritorious claims. Pennsylvania law allows summary dismissal, without appointment of counsel, of petitions which raise claims that were the subject of previous PCHA petitions. Pa. Rule Crim. Proc. 1504.[9] The Court justifies its holding on the ground that a State may refuse indigent prisoners any assistance of counsel and therefore has the lesser power to
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Justice Brennan
| 1,987 | 13 |
dissenting
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Pennsylvania v. Finley
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https://www.courtlistener.com/opinion/111880/pennsylvania-v-finley/
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assistance of counsel and therefore has the lesser power to deliver inadequate legal services. But it has long been settled that even if a right to counsel is not required by the Federal Constitution, when a State affords this right it must ensure that it is not withdrawn in a manner inconsistent with equal protection and due process. See ; ; " `Due process' emphasizes fairness between the State and the individual dealing with the State." "[F]undamental fairness entitles indigent defendants to `an adequate opportunity to present their claims fairly within the adversary system.' " In my view, the Federal Constitution requires that the Anders procedures must be followed when a State provides assistance of counsel in collateral proceedings. As the Court previously explained: "This requirement would not force appointed counsel to brief his case against his client but would merely afford the latter that advocacy which a nonindigent defendant *568 is able to obtain. It would also induce the court to pursue all the more vigorously its own review because of the ready references not only to the record, but also to the legal authorities as furnished it by The no merit letter, on the other hand, affords neither the client nor the court any aid. The former must shift entirely for himself while the court has only the cold record which it must review without the help of an advocate. Moreover, such handling would tend to protect counsel from the constantly increasing charge that he was ineffective and had not handled the case with that diligence to which an indigent defendant is entitled." Even if the Anders requirements were not mandated by due process, the performance of Finley's counsel clearly violated minimal standards of fundamental fairness. At a minimum, due process requires that counsel perform as an advocate. The "very premise of our adversarial system is that partisan advocacy on both sides of a case will best promote the ultimate objective that the guilty be convicted and the innocent go free." It is fundamentally unfair for appointed counsel to argue against his or her client's claims without providing notice or an opportunity for that client either to proceed pro se or to seek the advice of another attorney. "It is one thing for a prisoner to be told that appointed counsel sees no way to help him, and quite another for him to feel sandbagged when counsel appointed by one arm of the government seems to be helping another to seal his doom." Indeed, even the Commonwealth concedes that "due process requires that the attorney conduct a conscientious
|
Justice Brennan
| 1,987 | 13 |
dissenting
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Pennsylvania v. Finley
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https://www.courtlistener.com/opinion/111880/pennsylvania-v-finley/
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that "due process requires that the attorney conduct a conscientious and meaningful review of the case and the " Tr. of Oral Arg. 14. The Superior Court's criticism of the trial counsel's review of the record as insufficient was in those terms, since Finley's appellate counsel was able to list several issues of *569 arguable merit based on the "bare record available in the Superior Court." 330 Pa. Super., at The performance of Finley's counsel also violated the Equal Protection Clause. Equal protection demands that States eliminate unfair disparities between classes of individuals. There is no rational basis for assuming that petitions submitted by indigent for collateral review will be less meritorious than those of other defendants. It is hard to believe that retained counsel would file a letter that advocates dismissal of a client's case without notice to the client and without conducting a conscientious assessment of the Since an impoverished prisoner must take whatever a State affords, it is imperative that the efforts of court-appointed counsel be scrutinized so that the indigent receives adequate representation. Equal protection therefore requires the imposition of the Anders requirements. Otherwise, "[t]he indigent, where the record is unclear or the errors are hidden, has only the right to a meaningless ritual," while a person who can afford it obtains meaningful review. Douglas v. IV The Court transforms Finley's right to effective counsel into a right to a meaningless ritual.[10] In the face of the identification by the Superior Court of three possible means of ensuring adequate representation, the Court was without jurisdiction to render its decision. "Respect for the independence of state courts, as well as avoidance of rendering advisory opinions, have been the cornerstones of this Court's refusal to decide cases where there is an adequate and independent state ground." 463 U. S., at *570 1040. I would therefore dismiss the petition as improvidently granted. I respectfully dissent.
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Justice Stewart
| 1,981 | 18 |
dissenting
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American Textile Mfrs. Institute, Inc. v. Donovan
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https://www.courtlistener.com/opinion/110527/american-textile-mfrs-institute-inc-v-donovan/
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Section 6 (b) (5) of the Occupational Safety and Health Act provides: "The Secretary, in promulgating standards dealing with toxic materials or harmful physical agents under this subsection, shall set the standard which most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if such employee has regular exposure to the hazard dealt with by such standard for the period of his working life." 29 U.S. C. 655 (b) (5) (emphasis added). *542 Everybody agrees that under this statutory provision the Cotton Dust Standard must at least be economically feasible, and everybody would also agree, I suppose, that in order to determine whether or not something is economically feasible, one must have a fairly clear idea of how much it is going to cost. Because I believe that OSHA failed to justify its estimate of the cost of the Cotton Dust Standard on the basis of substantial evidence, I would reverse the judgment before us without reaching the question whether the Act requires that a standard, beyond being economically feasible, must meet the demands of a cost-benefit examination. The simple truth about OSHA's assessment of the cost of the Cotton Dust Standard is that the agency never relied on any study or report purporting to predict the cost to industry of the Standard finally adopted by the agency. OSHA did have before it one cost analysis, that of the Research Triangle Institute, which attempted to predict the cost of the final Standard. However, as recognized by the Court, ante, at 524-525, the agency flatly rejected that prediction as a gross overestimate. The only other estimate OSHA had, the Hocutt-Thomas estimate prepared by industry researchers, was not designed to predict the cost of the final OSHA Standard. Rather, it assumed a far less stringent and inevitably far less costly standard for all phases of cotton production except roving. Ante, at 527, n. 50. The agency examined the Hocutt-Thomas study, and concluded that it too was an overestimate of the costs of the less stringent standard it was addressing. I am willing to defer to OSHA's determination that the Hocutt-Thomas study was such an overestimate, conceding that such subtle financial and technical matters lie within the discretion and skill of the agency. But in a remarkable non sequitur, the agency decided that because the Hocutt-Thomas study was an overestimate of the cost of a less stringent standard, it could be treated as a reliable estimate for the more costly final Standard actually promulgated, never
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Justice Stewart
| 1,981 | 18 |
dissenting
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American Textile Mfrs. Institute, Inc. v. Donovan
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https://www.courtlistener.com/opinion/110527/american-textile-mfrs-institute-inc-v-donovan/
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estimate for the more costly final Standard actually promulgated, never rationally explaining how it came to this happy *543 conclusion. This is not substantial evidence. It is unsupported speculation. Of course, as the Court notes, this Court will re-examine a court of appeals' review of a question of substantial evidence "only in what ought to be the rare instance when the standard appears to have been misapprehended or grossly misapplied." Universal Camera But I think this is one of those rare instances where an agency has categorically misconceived the nature of the evidence necessary to support a regulation, and where the Court of Appeals has failed to correct the agency's error. Of course, broad generalizations about the meaning of "substantial evidence" have limited value in deciding particular cases. But within the confines of a single statute, where the agency and reviewing courts have identified certain specific factual matters to be proved, we can establish practical general criteria for comprehending "substantial evidence." Unlike the Court, I think it clear to the point of being obvious that, as a matter of law, OSHA's prediction of the cost of the Cotton Dust Standard lacks a basis in substantial evidence, since the agency did not rely on even a single estimate of the cost of the actual Standard it promulgated. Accordingly, I respectfully dissent.
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Justice Brennan
| 1,983 | 13 |
dissenting
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Jones v. Barnes
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https://www.courtlistener.com/opinion/111012/jones-v-barnes/
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The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to have the Assistance of Counsel for his defence" (emphasis added). I find myself in fundamental disagreement with the Court over what a right to "the assistance of counsel" means. The import of words like "assistance" and "counsel" seems inconsistent with a regime under which counsel appointed by the State to represent a criminal defendant can refuse to raise issues with arguable merit on appeal when his client, after hearing his assessment of the case and his advice, has directed *756 him to raise them. I would remand for a determination whether respondent did in fact insist that his lawyer brief the issues that the Court of Appeals found were not frivolous. It is clear that respondent had a right to the assistance of counsel in connection with his appeal. "As we have held again and again, an indigent defendant is entitled to the appointment of counsel to assist him on his first appeal"[1] In recognizing the right to counsel on appeal, we *757 have expressly relied not only on the Fourteenth Amendment's Equal Protection Clause, which in this context prohibits disadvantaging indigent defendants in comparison to those who can afford to hire counsel themselves, but also on its Due Process Clause and its incorporation of Sixth Amendment standards. See ; ; cf. ; The two theories converge in this case also. Cf. A State may not incarcerate a person, whether he is indigent or not, if he has not had (or waived) the assistance of counsel at all stages of the criminal process at which his substantial rights may be affected. ; In my view, that right to counsel extends to one appeal, provided the defendant decides to take an appeal and the appeal is not frivolous.[2] The Constitution does not on its face define the phrase "assistance of counsel," but surely those words are not empty of content. No one would doubt that counsel must be qualified to practice law in the courts of the State in question,[3] or that the representation afforded must meet minimum standards of effectiveness. See To satisfy the Constitution, counsel must function as an advocate for the defendant, as opposed to a friend of the court. at ; at Admittedly, the question in this case requires us to look beyond those clear guarantees. What is at issue here is the relationship between lawyer and client who has ultimate authority to decide which nonfrivolous issues should be presented on appeal? I believe the right to "the assistance of
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Justice Brennan
| 1,983 | 13 |
dissenting
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Jones v. Barnes
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https://www.courtlistener.com/opinion/111012/jones-v-barnes/
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on appeal? I believe the right to "the assistance of counsel" carries with it a right, personal to the defendant, to make that decision, against the advice of counsel if he chooses. If all the Sixth Amendment protected was the State's interest in substantial justice, it would not include such a right. However, in Faretta v. we decisively rejected that view of the Constitution, ably advanced by JUSTICE BLACKMUN in dissent. Holding that the Sixth Amendment requires that defendants be allowed to represent themselves, we observed: "It is undeniable that in most criminal prosecutions defendants could better defend with counsel's guidance than by their own unskilled efforts. But where the defendant will not voluntarily accept representation by counsel, the potential advantage of a lawyer's training and experience can be realized, if at all, only imperfectly. To force a lawyer on a defendant can only lead him to believe that the law contrives against him. Personal liberties are not rooted in the law of averages. The right to defend is personal. The defendant, and not his lawyer or the State, will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage. And although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of `that respect for the individual which is the lifeblood of the law.' (BRENNAN, J., concurring)." *759 Faretta establishes that the right to counsel is more than a right to have one's case presented competently and effectively. It is predicated on the view that the function of counsel under the Sixth Amendment is to protect the dignity and autonomy of a person on trial by assisting him in making choices that are his to make, not to make choices for him, although counsel may be better able to decide which tactics will be most effective for the defendant. also reflects that view. Even when appointed counsel believes an appeal has no merit, he must furnish his client a brief covering all arguable grounds for appeal so that the client may "raise any points that he chooses." 386 U.S., at The right to counsel as Faretta and Anders conceive it is not an all-or-nothing right, under which a defendant must choose between forgoing the assistance of counsel altogether or relinquishing control over every aspect of his case beyond its most basic structure (i. e., how to plead, whether to present a defense, whether to appeal). A defendant's interest in his case clearly extends
|
Justice Brennan
| 1,983 | 13 |
dissenting
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Jones v. Barnes
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https://www.courtlistener.com/opinion/111012/jones-v-barnes/
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to appeal). A defendant's interest in his case clearly extends to other matters. Absent exceptional circumstances, he is bound by the tactics used by his counsel at trial and on appeal. He may want to press the argument that he is innocent, even if other stratagems are more likely to result in the dismissal of charges or in a reduction of punishment. He may want to insist on certain arguments for political reasons. He may want to protect third parties. This is just as true on appeal as at trial, and the proper role of counsel is to assist him in these efforts, insofar as that is possible consistent with the lawyer's conscience, the law, and his duties to the court. I find further support for my position in the legal profession's own conception of its proper role. The American Bar Association has taken the position that "when, in the estimate of counsel, the decision of the client to take an appeal, or the client's decision to press a particular contention on appeal, is incorrect[, c]ounsel *760 has the professional duty to give to the client fully and forcefully an opinion concerning the case and its probable outcome. Counsel's role, however, is to advise. The decision is made by the client." ABA Standards for Criminal Justice 21-3.2, Comment, p. 21.42 (2 ed. 1980) (emphasis added).[4] The Court disregards this clear statement of how the profession defines the "assistance of counsel" at the appellate stage of a criminal defense by referring to standards governing the allocation of authority between attorney and client at trial. See ante, at 753, n. 6; ABA Standards for Criminal Justice 4-5.2 (2 ed. 1980).[5] In the course of a trial, however, decisions must often be made in a matter of hours, if not minutes or seconds. From the standpoint of effective administration of justice, the need to confer decisive authority on the attorney is paramount with regard to the hundreds of decisions that must be made quickly in the course of a trial. Decisions regarding which issues to press on appeal, in contrast, can and should be made more deliberately, in the course of deciding whether to appeal at all. *761 The Court's opinion seems to rest entirely on two propositions. First, the Court observes that we have not yet decided this case. This is true in the sense that there is no square holding on point, but as I have Anders and Faretta describe the right to counsel in terms inconsistent with today's holding. Moreover, the mere fact that a constitutional question is open is
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