author_name
stringclasses 26
values | year
int64 1.97k
2.02k
| label
int64 0
200
| category
stringclasses 5
values | case_name
stringlengths 9
127
| url
stringlengths 55
120
| text
stringlengths 1k
3.91k
|
|---|---|---|---|---|---|---|
Justice Kagan | 2,017 | 3 | majority | Fry v. Napoleon Community Schools | https://www.courtlistener.com/opinion/4374576/fry-v-napoleon-community-schools/ | the child’s “substantive right” to a FAPE. 68 U.S., at And that is all.7 For that reason, ’s exhaustion rule hinges on whether a lawsuit seeks relief for the denial of a free appropriate public education. If a lawsuit charges such a denial, the plaintiff cannot escape merely by bringing her suit under a statute other than the IDEA—as when, for example, the plaintiffs in claimed that a school’s failure to provide a FAPE also violated the Reha bilitation Act.8 Rather, that plaintiff must first submit her case to an IDEA hearing officer, experienced in addressing exactly the issues she raises. But if, in a suit brought under a different statute, the remedy sought is not for the denial of a FAPE, then exhaustion of the IDEA’s proce dures is not required. After all, the plaintiff could not get any relief from those procedures: A hearing officer, as just —————— 7 Similarly, a court in IDEA litigation may provide a substantive remedy only when it determines that a school has denied a FAPE. See School Comm. of Burlington v. Department of Ed. of Mass., 71 U.S. 359, 369 Without such a finding, that kind of relief is (once again) unavailable under the Act. 8 Once again, we do not address here (or anywhere else in this opin ion) a case in which a plaintiff, although charging the denial of a FAPE, seeks a form of remedy that an IDEA officer cannot give—for example, as in the Frys’ complaint, money damages for resulting emotional injury. See n. Cite as: 580 U. S. (2017) 13 Opinion of the Court explained, would have to send her away empty-handed. And that is true even when the suit arises directly from a school’s treatment of a child with a disability—and so could be said to relate in some way to her education. A school’s conduct toward such a child—say, some refusal to make an accommodation—might injure her in ways unre lated to a FAPE, which are addressed in statutes other than the IDEA. A complaint seeking redress for those other harms, independent of any FAPE denial, is not subject to ’s exhaustion rule because, once again, the only “relief ” the IDEA makes “available” is relief for the denial of a FAPE. B Still, an important question remains: How is a court to tell when a plaintiff “seeks” relief for the denial of a FAPE and when she does not? Here, too, the parties have found some common ground: By looking, they both say, to the “substance” of, rather than the labels used in, the |
Justice Kagan | 2,017 | 3 | majority | Fry v. Napoleon Community Schools | https://www.courtlistener.com/opinion/4374576/fry-v-napoleon-community-schools/ | the “substance” of, rather than the labels used in, the plaintiff ’s complaint. Brief for Respondents 20; Reply Brief 7–8. And here, too, we agree with that view: What matters is the crux—or, in legal-speak, the gravamen—of the plaintiff ’s complaint, setting aside any attempts at artful pleading. That inquiry makes central the plaintiff ’s own claims, as explicitly requires. The statutory language asks whether a lawsuit in fact “seeks” relief available under the IDEA—not, as a stricter exhaustion statute might, whether the suit “could have sought” relief avail- able under the IDEA (or, what is much the same, whether any remedies “are” available under that law). See Brief for United States as Amicus Curiae 20 A court decid ing whether applies must therefore examine whether a plaintiff ’s complaint—the principal instrument by which she describes her case—seeks relief for the de nial of an appropriate education. But that examination should consider substance, not surface. The use (or non-use) of particular labels and terms is not what matters. The inquiry, for example, does not ride on whether a complaint includes (or, alternatively, omits) the precise words(?) “FAPE” or “IEP.” After all, ’s premise is that the plaintiff is suing under a statute other than the IDEA, like the Rehabilitation Act; in such a suit, the plaintiff might see no need to use the IDEA’s distinctive language—even if she is in essence contesting the adequacy of a special education program. And still more critically, a “magic words” approach would make ’s exhaustion rule too easy to bypass. Just last Term, a similar worry led us to hold that a court’s jurisdiction under the Foreign Sovereign Immunities Act turns on the “gravamen,” or “essentials,” of the plaintiff ’s suit. OBB Personenverkehr AG v. Sachs, 577 U. S. (slip op., 8, 9). “[A]ny other ap proach,” we explained, “would allow plaintiffs to evade the Act’s restrictions through artful pleading.” at (slip op., ). So too here. Section 115(l) is not merely a pleading hurdle. It requires exhaustion when the grava men of a complaint seeks redress for a school’s failure to provide a FAPE, even if not phrased or framed in precisely that way. In addressing whether a complaint fits that description, a court should attend to the diverse means and ends of the statutes covering persons with disabilities—the IDEA on the one hand, the ADA and Rehabilitation Act (most nota bly) on the other. The IDEA, of course, protects only “children” (well, really, adolescents too) and concerns only Cite as: 580 U. S. (2017) 15 Opinion of the Court their schooling. And |
Justice Kagan | 2,017 | 3 | majority | Fry v. Napoleon Community Schools | https://www.courtlistener.com/opinion/4374576/fry-v-napoleon-community-schools/ | S. (2017) 15 Opinion of the Court their schooling. And as earlier noted, the statute’s goal is to provide each child with meaningful access to education by offering individualized instruction and related services appropriate to her “unique needs.” §101(29); see 198; By contrast, Title II of the ADA and of the Rehabili tation Act cover people with disabilities of all ages, and do so both inside and outside schools. And those statutes aim to root out disability-based discrimination, enabling each covered person (sometimes by means of reasonable ac commodations) to participate equally to all others in pub lic facilities and federally funded programs. See at 3–. In short, the IDEA guarantees individually tailored educational services, while Title II and promise non discriminatory access to public institutions. That is not to deny some overlap in coverage: The same conduct might violate all three statutes—which is why, as in a plaintiff might seek relief for the denial of a FAPE under Title II and as well as the IDEA. But still, the statu tory differences just discussed mean that a complaint brought under Title II and might instead seek relief for simple discrimination, irrespective of the IDEA’s FAPE obligation. One clue to whether the gravamen of a complaint against a school concerns the denial of a FAPE, or instead addresses disability-based discrimination, can come from asking a pair of hypothetical questions. First, could the plaintiff have brought essentially the same claim if the alleged conduct had occurred at a public facility that was not a school—say, a public theater or library? And second, could an adult at the school—say, an employee or visitor— have pressed essentially the same grievance? When the answer to those questions is yes, a complaint that does not expressly allege the denial of a FAPE is also unlikely to be truly about that subject; after all, in those other situations there is no FAPE obligation and yet the same basic suit 16 FRY v. NAPOLEON COMMUNITY SCHOOLS Opinion of the Court could go forward. But when the answer is no, then the complaint probably does concern a FAPE, even if it does not explicitly say so; for the FAPE requirement is all that explains why only a child in the school setting (not an adult in that setting or a child in some other) has a viable claim. Take two contrasting examples. Suppose first that a wheelchair-bound child sues his school for discrimination under Title II (again, without mentioning the denial of a FAPE) because the building lacks access ramps. In some sense, that architectural feature has educational |
Justice Kagan | 2,017 | 3 | majority | Fry v. Napoleon Community Schools | https://www.courtlistener.com/opinion/4374576/fry-v-napoleon-community-schools/ | access ramps. In some sense, that architectural feature has educational conse quences, and a different lawsuit might have alleged that it violates the IDEA: After all, if the child cannot get inside the school, he cannot receive instruction there; and if he must be carried inside, he may not achieve the sense of independence conducive to academic (or later to real- world) success. But is the denial of a FAPE really the gravamen of the plaintiff ’s Title II complaint? Consider that the child could file the same basic complaint if a municipal library or theater had no ramps. And similarly, an employee or visitor could bring a mostly identical com plaint against the school. That the claim can stay the same in those alternative scenarios suggests that its essence is equality of access to public facilities, not ade quacy of special education. See (describing OCR’s use of a similar example). And so does not require exhaustion.9 —————— 9 The school districts offer another example illustrating the point. They suppose that a teacher, acting out of animus or frustration, strikes a student with a disability, who then sues the school under a statute other than the IDEA. See Brief for Respondents 36–37. Here too, the suit could be said to relate, in both genesis and effect, to the child’s education. But the school districts opine, we think correctly, that the substance of the plaintiff’s claim is unlikely to involve the adequacy of special education—and thus is unlikely to require exhaus tion. See A telling indicator of that conclusion is that a child could file the same kind of suit against an official at another public Cite as: 580 U. S. (2017) 17 Opinion of the Court But suppose next that a student with a learning disabil ity sues his school under Title II for failing to provide remedial tutoring in mathematics. That suit, too, might be cast as one for disability-based discrimination, grounded on the school’s refusal to make a reasonable accommo dation; the complaint might make no reference at all to a FAPE or an IEP. But can anyone imagine the student making the same claim against a public theater or library? Or, similarly, imagine an adult visitor or employee suing the school to obtain a math tutorial? The difficulty of transplanting the complaint to those other contexts sug gests that its essence—even though not its wording—is the provision of a FAPE, thus bringing into play.10 A further sign that the gravamen of a suit is the denial of a FAPE can emerge from the history of the proceedings. |
Justice Kagan | 2,017 | 3 | majority | Fry v. Napoleon Community Schools | https://www.courtlistener.com/opinion/4374576/fry-v-napoleon-community-schools/ | a FAPE can emerge from the history of the proceedings. In particular, a court may consider that a plaintiff has previously invoked the IDEA’s formal procedures to han dle the dispute—thus starting to exhaust the Act’s reme dies before switching midstream. Recall that a parent —————— facility for inflicting such physical abuse—as could an adult subject to similar treatment by a school official. To be sure, the particular cir cumstances of such a suit (school or theater? student or employee?) might be pertinent in assessing the reasonableness of the challenged conduct. But even if that is so, the plausibility of bringing other vari ants of the suit indicates that the gravamen of the plaintiff’s complaint does not concern the appropriateness of an educational program. 10 According to JUSTICE ALITO, the hypothetical inquiries described above are useful only if the IDEA and other federal laws are mutually exclusive in scope. See post, at 1 (opinion concurring in part and concurring in judgment). That is incorrect. The point of the questions is not to show that a plaintiff faced with a particular set of circum stances could only have proceeded under Title II or —or, alterna tively, could only have proceeded under the IDEA. (Depending on the circumstances, she might well have been able to proceed under both.) Rather, these questions help determine whether a plaintiff who has chosen to bring a claim under Title II or instead of the IDEA—and whose complaint makes no mention of a FAPE—nevertheless raises a claim whose substance is the denial of an appropriate education. 18 FRY v. NAPOLEON COMMUNITY SCHOOLS Opinion of the Court dissatisfied with her child’s education initiates those administrative procedures by filing a complaint, which triggers a preliminary meeting (or possibly mediation) and then a due process hearing. See at 2–3. A plain- tiff ’s initial choice to pursue that process may suggest that she is indeed seeking relief for the denial of a FAPE—with the shift to judicial proceedings prior to full exhaustion reflecting only strategic calculations about how to maxim ize the prospects of such a remedy. Whether that is so depends on the facts; a court may conclude, for example, that the move to a courtroom came from a late-acquired awareness that the school had fulfilled its FAPE obliga tion and that the grievance involves something else entirely. But prior pursuit of the IDEA’s administrative reme- dies will often provide strong evidence that the substance of a plaintiff ’s claim concerns the denial of a FAPE, even if the complaint never explicitly uses that term.11 III The Court of |
Justice Kagan | 2,017 | 3 | majority | Fry v. Napoleon Community Schools | https://www.courtlistener.com/opinion/4374576/fry-v-napoleon-community-schools/ | complaint never explicitly uses that term.11 III The Court of Appeals did not undertake the analysis we have just set forward. As noted above, it asked whether E. F.’s injuries were, broadly speaking, “educational” in nature. See ; 788 F. 3d, 27 (reasoning that the “value of allowing Wonder to attend [school] with E. F. was educational” because it would foster “her sense of independence and social confidence,” which is “the sort of interest the IDEA protects”). That is not the same as asking whether the gravamen of E. F.’s complaint charges, and seeks relief for, the denial of a FAPE. And that differ ence in standard may have led to a difference in result in —————— 11 The point here is limited to commencement of the IDEA’s formal administrative procedures; it does not apply to more informal requests to IEP Team members or other school administrators for accommoda tions or changes to a special education program. After all, parents of a child with a disability are likely to bring all grievances first to those familiar officials, whether or not they involve the denial of a FAPE. Cite as: 580 U. S. (2017) 19 Opinion of the Court this case. Understood correctly, might not re quire exhaustion of the Frys’ claim. We lack some im portant information on that score, however, and so we remand the issue to the court below. The Frys’ complaint alleges only disability-based dis crimination, without making any reference to the ade- quacy of the special education services E. F.’s school provided. The school districts’ “refusal to allow Wonder to act as a service dog,” the complaint states, “discriminated against [E. F.] as a person with disabilities by denying her equal access” to public facilities. App. to Brief in Opposi tion 15, Complaint ¶68. The complaint contains no allega tion about the denial of a FAPE or about any deficiency in E. F.’s IEP. More, it does not accuse the school even in general terms of refusing to provide the educational in struction and services that E. F. needs. See 788 F.3d, at 631 (acknowledging that the Frys do not “state that Won der enhances E. F.’s educational opportunities”). As the Frys explained in this Court: The school districts “have said all along that because they gave [E. F.] a one-on-one [human] aide, that all of her educational needs were satisfied. And we have not challenged that, and it would be difficult for us to challenge that.” Tr. of Oral Arg. 16. The Frys instead maintained, just as OCR had earlier found, that the school districts |
Justice Kagan | 2,017 | 3 | majority | Fry v. Napoleon Community Schools | https://www.courtlistener.com/opinion/4374576/fry-v-napoleon-community-schools/ | just as OCR had earlier found, that the school districts infringed E. F.’s right to equal access—even if their actions complied in full with the IDEA’s requirements. See App. to Brief in Opposition 15, 18–19, Complaint ¶¶ 69, 85, 87; App. 3–37; at 7–8. And nothing in the nature of the Frys’ suit suggests any implicit focus on the adequacy of E. F.’s education. Con sider, as suggested above, that the Frys could have filed essentially the same complaint if a public library or thea ter had refused admittance to Wonder. See Or similarly, consider that an adult visitor to the school could have leveled much the same charges if prevented 20 FRY v. NAPOLEON COMMUNITY SCHOOLS Opinion of the Court from entering with his service dog. See In each case, the plaintiff would challenge a public facility’s policy of precluding service dogs (just as a blind person might challenge a policy of barring guide dogs, see ) as violating Title II’s and ’s equal access requirements. The suit would have nothing to do with the provision of educational services. From all that we know now, that is exactly the kind of action the Frys have brought. But we do not foreclose the possibility that the history of these proceedings might suggest something different. As earlier discussed, a plaintiff ’s initial pursuit of the IDEA’s administrative remedies can serve as evidence that the gravamen of her later suit is the denial of a FAPE, even though that does not appear on the face of her complaint. See at 17–18. The Frys may or may not have sought those remedies before filing this case: None of the parties here have addressed that issue, and the record is cloudy as to the relevant facts. Accordingly, on remand, the court below should establish whether (or to what extent) the Frys invoked the IDEA’s dispute resolution process before bringing this suit. And if the Frys started down that road, the court should decide whether their actions reveal that the gravamen of their complaint is indeed the denial of a FAPE, thus necessitating further exhaustion. With these instructions and for the reasons stated, we vacate the judgment of the Court of Appeals and re mand the case for further proceedings consistent with this opinion. It is so ordered. Cite as: 580 U. S. (2017) 1 Opinion of ALITO, J. SUPREME COURT OF THE UNITED STATES No. 15–97 STACY FRY, ET VIR, AS NEXT FRIENDS OF MINOR E. F., PETITIONERS v. NAPOLEON COMMUNITY SCHOOLS, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF |
Justice Stevens | 1,983 | 16 | majority | Bush v. Lucas | https://www.courtlistener.com/opinion/110965/bush-v-lucas/ | Petitioner asks us to authorize a new nonstatutory damages remedy for federal employees whose First Amendment rights are violated by their superiors. Because such claims arise out of an employment relationship that is governed by comprehensive procedural and substantive provisions givg meangful remedies agast the United States, we conclude that it would be appropriate for us to supplement that regulatory scheme with a new judicial remedy. *369 Petitioner Bush is an aerospace engeer employed at the George C. Marshall Space Flight Center, a major facility operated by the National Aeronautics and Space Admistration Alabama. Respondent Lucas is the Director of the Center. In 1974 the facility was reorganized and petitioner was twice reassigned to new positions. He objected to both reassignments and sought formal review by the Civil Service Commission.[1] In May and June 1975, while some of his admistrative appeals were pendg, he made a number of public statements, cludg two televised terviews, that were highly critical of the agency. The news media quoted him as sayg that he did not have enough meangful work to keep him busy, that his job was "a travesty and worthless," and that the taxpayers' money was beg spent fraudulently and wastefully at the Center. His statements were reported on local television, the local newspaper, and a national press release that appeared newspapers at least three other States.[2] In June 1975 respondent, response to a reporter's quiry, stated that he had conducted an vestigation and that petitioner's statements regardg his job had "no basis fact." App. 15. In August 1975 an adverse personnel action was itiated to remove petitioner from his position. Petitioner was charged with "publicly mak[g] temperate remarks which were misleadg and often false, evidencg a malicious attitude towards Management and generatg an environment of sensationalism demeang to the Government, the National Aeronautics and Space Admistration and the personnel of the George C. Marshall Space Flight Center, thereby impedg Government efficiency and economy *370 and adversely affectg public confidence the Government service." He was also formed that his conduct had undermed morale at the Center and caused disharmony and disaffection among his fellow employees.[3] Petitioner had the opportunity to file a written response and to make an oral presentation to agency officials. Respondent then determed that petitioner's statements were false and misleadg and that his conduct would justify removal, but that the lesser penalty of demotion was appropriate for a "first offense." He approved a reduction grade from GS-14 to GS-12, which decreased petitioner's annual salary by approximately $9,716. Petitioner exercised his right to appeal to the Federal Employee Appeals Authority. |
Justice Stevens | 1,983 | 16 | majority | Bush v. Lucas | https://www.courtlistener.com/opinion/110965/bush-v-lucas/ | his right to appeal to the Federal Employee Appeals Authority. After a 3-day public hearg, the Authority upheld some of the charges and concluded that the demotion was justified. It specifically determed that a number of petitioner's public statements were misleadg and that, for three reasons, they "exceeded the bounds of expression protected by the First Amendment." First, petitioner's statements did not stem from public terest, but from his desire to have his position abolished so that he could take early retirement and go to law school. Second, the statements conveyed the erroneous impression that the agency was deliberately wastg public funds, thus discreditg the agency and its employees. Third, there was no legitimate public terest to be served by abolishg petitioner's position.[4] Two years after the Appeals Authority's decision, petitioner requested the Civil Service Commission's Appeals Review Board to reopen the proceedg. The Board reexamed petitioner's First Amendment claim and, after makg a detailed review of the record and the applicable authorities, applied the balancg test articulated On the one hand, it acknowledged the evidence tendg to show that petitioner's motive might have been personal ga, and the evidence that his statements caused some disruption of the agency's day-to-day route. On the other hand, it noted that society as well as the dividual had an terest free speech, cludg "a right to disclosure of formation about how tax dollars are spent and about the functiong of government apparatus, an terest the promotion of the efficiency of the government, and the matenance of an atmosphere of freedom of expression by the scientists and engeers who are responsible for the planng and implementation of the nation's space program." Because petitioner's statements, though somewhat exaggerated, "were not wholly without truth, they properly stimulated public debate." Thus the nature and extent of proven disruption to the agency's operations did not "justify abrogation of the exercise of free speech."[5] The Board recommended that petitioner be restored to his former position, retroactively to November 30, 1975, and that he receive backpay. That recommendation was accepted. Petitioner received approximately $30,000 backpay. While his admistrative appeal was pendg, petitioner filed an action agast respondent state court Alabama seekg to recover damages for defamation and violation of his constitutional rights. Respondent removed the lawsuit to the United States District Court for the Northern District of Alabama, which granted respondent's motion for summary judgment. It held, first, that the defamation claim could not be mataed because, under respondent was absolutely immune from liability for damages for defamation; and second, that petitioner's demotion was not a constitutional deprivation for which |
Justice Stevens | 1,983 | 16 | majority | Bush v. Lucas | https://www.courtlistener.com/opinion/110965/bush-v-lucas/ | that petitioner's demotion was not a constitutional deprivation for which a damages action could be mataed.[6] The United States Court of Appeals for the Fifth Circuit affirmed. *372 We vacated that court's judgment, and directed that it reconsider the case the light of our terveng decision The Court of Appeals aga affirmed the judgment agast petitioner. It adhered to its previous conclusion that "platiff had no cause of action for damages under the First Amendment for retaliatory demotion view of the available remedies under the Civil Service Commission regulations." It explaed that the relationship between the Federal Government and its civil service employees was a special factor counsellg agast the judicial recognition of a damages remedy under the Constitution this context. We assume for purposes of decision that petitioner's First Amendment rights were violated by the adverse personnel action.[7] We also assume that, as petitioner asserts, civil service remedies were not as effective as an dividual damages remedy[8] and did not fully compensate him for the harm he suffered.[9] Two further propositions are undisputed. *373 Congress has not expressly authorized the damages remedy that petitioner asks us to provide. On the other hand, Congress has not expressly precluded the creation of such a remedy by declarg that existg statutes provide the exclusive mode of redress. Thus, we assume, a federal right has been violated and Congress has provided a less than complete remedy for the wrong. If we were writg on a clean slate, we might answer the question whether to supplement the statutory scheme either of two quite simple ways. We might adopt the common-law approach to the judicial recognition of new causes of action and hold that it is the provce of the judiciary to fashion an adequate remedy for every wrong that can be proved a case over which a court has jurisdiction.[10] Or we might start from the premise that federal courts are courts of limited jurisdiction whose remedial powers do not extend beyond the grantg of relief expressly authorized by Congress.[11] Under the former approach, petitioner would obviously prevail; under the latter, it would be equally clear that he would lose. Our prior cases, although sometimes emphasizg one approach and sometimes the other, have unequivocally rejected both extremes. They establish our power to grant relief that is not expressly authorized by statute, but they also remd us that such power is to be exercised the light of relevant policy determations made by the Congress. We *374 therefore first review some of the cases establishg our power to remedy violations of the Constitution and then consider |
Justice Stevens | 1,983 | 16 | majority | Bush v. Lucas | https://www.courtlistener.com/opinion/110965/bush-v-lucas/ | power to remedy violations of the Constitution and then consider the bearg of the existg statutory scheme on the precise issue presented by this case. I The federal courts' power to grant relief not expressly authorized by Congress is firmly established. Under 28 U.S. C. 1331, the federal courts have jurisdiction to decide all cases "aris[g] under the Constitution, laws, or treaties of the United States." This jurisdictional grant provides not only the authority to decide whether a cause of action is stated by a platiff's claim that he has been jured by a violation of the Constitution, but also the authority to choose among available judicial remedies order to vdicate constitutional rights. This Court has fashioned a wide variety of nonstatutory remedies for violations of the Constitution by federal and state officials.[12] The cases most relevant to the problem before us are those which the Court has held that the Constitution itself supports a private cause of action for damages agast a federal official. ; ; *375 In the platiff alleged that federal agents, without a warrant or probable cause, had arrested him and searched his home a manner causg him great humiliation, embarrassment, and mental sufferg. He claimed damages on the theory that the alleged violation of the Fourth Amendment provided an dependent basis for relief. The Court upheld the sufficiency of his complat, rejectg the argument that a state tort action trespass provided the only appropriate judicial remedy. The Court explaed why the absence of a federal statutory basis for the cause of action was not an obstacle to the award of damages: "That damages may be obtaed for juries consequent upon a violation of the Fourth Amendment by federal officials should hardly seem a surprisg proposition. Historically, damages have been regarded as the ordary remedy for an vasion of personal terests liberty. See ; ; ; ; J. Landynski, Search and Seizure and the Supreme Court 28 et seq. (1966); N. Lasson, History and Development of the Fourth Amendment to the United States Constitution 43 et seq. (1937); Katz, The Jurisprudence of Remedies: Constitutional Legality and the Law of Torts ; cf. ; Of course, the Fourth Amendment does not so many words provide for its enforcement by an award of money damages for the consequences of its violation. But `it is well settled that where legal rights have been vaded, and a federal statute provides for a general right to sue for such vasion, federal courts may use any available remedy to make good the wrong done.' 327 U. S., at The present case volves |
Justice Stevens | 1,983 | 16 | majority | Bush v. Lucas | https://www.courtlistener.com/opinion/110965/bush-v-lucas/ | wrong done.' 327 U. S., at The present case volves no special factors counsellg hesitation the absence of affirmative *376 action by Congress. We are not dealg with a question of `federal fiscal policy,' as United" -396. The Court further noted that there was "no explicit congressional declaration that persons jured by a federal officer's violation of the Fourth Amendment may not recover money damages from the agents, but must stead be remitted to another remedy, equally effective the view of Congress." In his separate opion concurrg the judgment, Justice Harlan also thought it clear that the power to authorize damages as a remedy for the vdication of a federal constitutional right had not been placed by the Constitution itself exclusively Congress' hands. Instead, he reasoned, the real question did not relate to "whether the federal courts have the power to afford one type of remedy as opposed to the other, but rather to the criteria which should govern the exercise of our power." In resolvg that question he suggested that "the range of policy considerations we may take to account is at least as broad as the range of those a legislature would consider with respect to an express[ed] statutory authorization of a traditional remedy." After weighg the relevant policies he agreed with the Court's conclusion that the Government had not advanced any substantial policy consideration agast recognizg a federal cause of action for violation of Fourth Amendment rights by federal officials. In the petitioner, former deputy admistrative assistant to a Member of Congress, alleged that she had been discharged because of her sex, violation of her constitutional right to the equal protection of the laws. We held that the Due Process Clause of the Fifth Amendment gave her a federal constitutional right to be free from official discrimation and that she had alleged a federal cause *377 of action. In reachg the conclusion that an award of damages would be an appropriate remedy, we emphasized the fact that no other alternative form of judicial relief was available.[13] The Court also was persuaded that the special concerns which would ordarily militate agast allowg recovery from a legislator were fully reflected respondent's affirmative defense based on the Speech or Debate Clause of the Constitution. We noted the absence of any explicit congressional declaration that persons petitioner's position may not recover damages from those responsible for their jury. -247. volved a claim that a federal prisoner's Eighth Amendment rights had been violated. The prisoner's mother brought suit on behalf of her son's estate, allegg that federal prison officials were responsible for |
Justice Stevens | 1,983 | 16 | majority | Bush v. Lucas | https://www.courtlistener.com/opinion/110965/bush-v-lucas/ | son's estate, allegg that federal prison officials were responsible for his death because they had violated their constitutional duty to provide him with proper medical care after he suffered a severe asthmatic attack. Unlike and the case was one which Congress had provided a remedy, under the Federal Tort Claims Act, agast the United States for the alleged wrong. 28 U.S. C. 2671 et seq. As is true this case, that remedy was not as completely effective as a -type action based directly on the Constitution. The Court acknowledged that a action could be defeated two situations, but found that neither was present. First, the Court could discern " `no special factors counsellg hesitation the absence of affirmative action by Congress.' " -19, citg and Second, there was no congressional *378 determation foreclosg the damages claim and makg the Federal Tort Claims Act and n. 5. No statute expressly declared the FTCA remedy to be a substitute for a action; deed, the legislative history of the 1974 amendments to the FTCA "made it crystal clear that Congress views FTCA and as parallel, complementary causes of action." -20. This much is established by our prior cases. The federal courts' statutory jurisdiction to decide federal questions confers adequate power to award damages to the victim of a constitutional violation. When Congress provides an alternative remedy, it may, of course, dicate its tent, by statutory language, by clear legislative history, or perhaps even by the statutory remedy itself, that the courts' power should not be exercised. In the absence of such a congressional directive, the federal courts must make the kd of remedial determation that is appropriate for a common-law tribunal, payg particular heed, however, to any special factors counsellg hesitation before authorizg a new kd of federal litigation. Congress has not resolved the question presented by this case by expressly denyg petitioner the judicial remedy he seeks or by providg him with an equally effective substitute.[14] There is, however, a good deal of history that is relevant to the question whether a federal employee's attempt to recover damages from his superior for violation of his First Amendment rights volves any "special factors counsellg hesitation." When those words were first used we illustrated our meang by referrg to *379 United 316 and United In the Standard Oil case the Court had been asked to authorize a new damages remedy for the Government agast a tortfeasor who had jured a soldier, imposg hospital expenses on the Government and deprivg it of his services. Although, as Justice Jackson properly noted dissent, the allowance of recovery |
Justice Stevens | 1,983 | 16 | majority | Bush v. Lucas | https://www.courtlistener.com/opinion/110965/bush-v-lucas/ | as Justice Jackson properly noted dissent, the allowance of recovery would not have volved any usurpation of legislative power, the Court nevertheless concluded that Congress as "the custodian of the national purse" should make the necessary determation of federal fiscal policy.[15] The Court refused to create a damages remedy, which would be "the strument for determg and establishg the federal fiscal and regulatory policies which the Government's executive arm thks should prevail a situation not covered by traditionally established liabilities." Similarly, Gilman, the Court applied the Standard Oil rationale to reject the Government's attempt to recover demnity from one of its employees after havg been held liable under the FTCA for the employee's negligence. As the Court noted: "The relations between the United States and its employees have presented a myriad of problems with which the Congress over the years has dealt. Government employment gives rise to policy questions of great import, *380 both to the employees and to the Executive and Legislative Branches." The decision regardg demnity volved questions of employee disciple and morale, fiscal policy, and the efficiency of the federal service. Hence, the Court wrote, the reasons for deferrg to congressional policy determations were even more compellg than Standard Oil. "Here a complex of relations between federal agencies and their staffs is volved. Moreover, the claim now asserted, though the product of a law Congress passed, is a matter on which Congress has not taken a position. It presents questions of policy on which Congress has not spoken. The selection of that policy which is most advantageous to the whole volves a host of considerations that must be weighed and appraised. That function is more appropriately for those who write the laws, rather than for those who terpret them." -513. The special factors counsellg hesitation the creation of a new remedy Standard Oil and Gilman did not concern the merits of the particular remedy that was sought. Rather, they related to the question of who should decide whether such a remedy should be provided. We should therefore beg by considerg whether there are reasons for allowg Congress to prescribe the scope of relief that is made available to federal employees whose First Amendment rights have been violated by their supervisors. II Unlike Standard Oil and Gilman, this case concerns a claim that a constitutional right has been violated. Nevertheless, just as those cases volved "federal fiscal policy" and the relations between the Government and its employees, the ultimate question on the merits this case may appropriately be characterized as one of "federal personnel *381 policy." When a |
Justice Stevens | 1,983 | 16 | majority | Bush v. Lucas | https://www.courtlistener.com/opinion/110965/bush-v-lucas/ | characterized as one of "federal personnel *381 policy." When a federal civil servant is the victim of a retaliatory demotion or discharge because he has exercised his First Amendment rights, what legal remedies are available to him? The answer to that question has changed dramatically over the years. Origally the answer was entirely a matter of Executive discretion. Durg the era of the patronage system that prevailed the Federal Government prior to the enactment of the Pendleton Act 1883, the federal employee had no legal protection agast political retaliation. Indeed, the exercise of the First Amendment right to support a political candidate opposg the party office would routely have provided an accepted basis for discharge.[16] Durg the past century, however, the job security of federal employees has steadily creased. In the Pendleton Act Congress created the Civil Service Commission and provided for the selection of federal civil servants on a merit basis by competitive examation. Although the statute did not address the question of removals general,[17] it provided that no employee the public service could be required to contribute to any political fund or fired *382 for refusg to do so, and it prohibited officers from attemptg to fluence or coerce the political actions of others.[18] Congressional attention to the problem of politically motivated removals was aga prompted by the issuance of Executive Orders by Presidents Roosevelt and Taft that forbade federal employees to communicate directly with Congress without the permission of their supervisors.[19] These "gag *383 orders," enforced by dismissal, were cited by several legislators as the reason for enactg the Lloyd-La Follette Act 1912, 555, 6.[20] That statute provided that "no person the classified civil service of the United States shall be removed therefrom except for such cause as will promote the efficiency of said service and for reasons given writg."[21] Moreover, it explicitly guaranteed that the right of civil servants "to furnish formation to either House of Congress, or to any committee or member thereof, shall not be denied or terfered with."[22] As the House Report explaed, *384 this legislation was tended "to protect employees agast oppression and the right of free speech and the right to consult their representatives."[23] In enactg the Lloyd-La Follette Act, Congress weighed the competg policy considerations and concluded that efficient management of Government operations did not preclude the extension of free speech rights to Government employees.[24] *385 In the ensug years, repeated consideration of the conflictg terests volved providg job security, protectg the right to speak freely, and matag disciple and efficiency the federal work force gave rise to additional legislation,[25] |
Justice Stevens | 1,983 | 16 | majority | Bush v. Lucas | https://www.courtlistener.com/opinion/110965/bush-v-lucas/ | efficiency the federal work force gave rise to additional legislation,[25] various Executive Orders,[26] and the promulgation of detailed regulations by the Civil Service Commission.[27] Federal civil servants are now protected by an elaborate, comprehensive scheme that encompasses substantive provisions forbiddg arbitrary action by supervisors and procedures admistrative and judicial by which improper action may be redressed. They apply to a multitude of personnel decisions that are made daily by federal agencies.[28]*386 Constitutional challenges to agency action, such as the First Amendment claims raised by petitioner, are fully cognizable with this system. As the record this case demonstrates, the Government's comprehensive scheme is costly to admister, but it provides meangful remedies for employees who may have been unfairly discipled for makg critical comments about their agencies.[29] A federal employee the competitive service may be removed or demoted "only for such cause as will promote the efficiency of the service."[30] The regulations applicable at the time of petitioner's demotion 1975,[31] which are substantially similar to those now effect, required that an employee be given 30 days' written notice of a proposed discharge, suspension, or demotion, accompanied by the agency's reasons and a copy of the charges. The employee then had the right to exame all disclosable materials that formed the basis of the proposed action, 5 CFR 752.202(a) (1975), *387 the right to answer the charges with a statement and supportg affidavits, and the right to make an oral nonevidentiary presentation to an agency official. 752.202(b).[32] The regulations required that the fal agency decision be made by an official higher rank than the official who proposed the adverse action, 752.202(f). The employee was entitled to notification writg statg which of the itial reasons had been sustaed. ; 5 U.S. C. 7501(b)(4). The next step was a right to appeal to the Civil Service Commission's Federal Employee Appeals Authority. 5 CFR 752.203, 772.101 (1975).[33] The Appeals Authority was required to hold a trial-type hearg at which the employee could present witnesses, cross-exame the agency's witnesses, and secure the attendance of agency officials, 772.307(c),[34] and then to render a written decision, 772.309(a). An adverse decision by the FEAA was judicially reviewable either federal district court or the Court of Claims.[35] In addition, the employee had the right to ask *388 the Commission's Appeals Review Board to reopen an adverse decision by the FEAA. 772.310. If the employee prevailed the admistrative process or upon judicial review, he was entitled to restatement with retroactive seniority. 752.402. He also had a right to full backpay, cludg credit for periodic with-grade or step creases and general |
Justice Stevens | 1,983 | 16 | majority | Bush v. Lucas | https://www.courtlistener.com/opinion/110965/bush-v-lucas/ | cludg credit for periodic with-grade or step creases and general pay raises durg the relevant period, allowances, differentials, and accumulated leave. 550.803. Congress tended that these remedies would put the employee " the same position he would have been had the unjustified or erroneous personnel action not taken place."[36] Given the history of the development of civil service remedies and the comprehensive nature of the remedies currently available, it is clear that the question we confront today is quite different from the typical remedial issue confronted by a common-law court. The question is not what remedy the court should provide for a wrong that would otherwise go unredressed. It is whether an elaborate remedial system that has been constructed step by step, with careful attention to conflictg policy considerations, should be augmented by the creation of a new judicial remedy for the constitutional violation at issue. That question obviously cannot be answered simply by notg that existg remedies do not provide complete relief for the platiff. The policy judgment should be formed by a thorough understandg of the existg regulatory structure and the respective costs and benefits that would result from the addition of another remedy for violations of employees' First Amendment rights. The costs associated with the review of disciplary decisions are already significant not only monetary terms, but also the time and energy of managerial personnel who must defend their decisions. Respondent argues that supervisory personnel are already more hesitant than they should be admisterg disciple, because the review that ensues *389 evitably makes the performance of their regular duties more difficult. Brief for Respondent 37-41. Whether or not this assessment is accurate, it is quite probable that if management personnel face the added risk of personal liability for decisions that they believe to be a correct response to improper criticism of the agency, they would be deterred from imposg disciple future cases. In all events, Congress is a far better position than a court to evaluate the impact of a new species of litigation between federal employees on the efficiency of the civil service. Not only has Congress developed considerable familiarity with balancg governmental efficiency and the rights of employees, but it also may form itself through factfdg procedures such as heargs that are not available to the courts. Nor is there any reason to discount Congress' ability to make an evenhanded assessment of the desirability of creatg a new remedy for federal employees who have been demoted or discharged for expressg controversial views. Congress has a special terest formg itself about the efficiency and morale |
Justice O'Connor | 1,994 | 14 | majority | PUD No. 1 of Jefferson Cty. v. Washington Dept. of Ecology | https://www.courtlistener.com/opinion/1087951/pud-no-1-of-jefferson-cty-v-washington-dept-of-ecology/ | Petitioners, a city and a local utility district, want to build a hydroelectric project on the Dosewallips River in Washington State. We must decide whether respondent state environmental agency (hereinafter respondent) properly conditioned a permit for the project on the maintenance of specific minimum stream flows to protect salmon and steelhead runs. *704 I This case involves the complex statutory and regulatory scheme that governs our Nation's waters, a scheme that implicates both federal and state administrative responsibilities. The Federal Water Pollution Control Act, commonly known as the Clean Water Act, as amended, 33 U.S. C. 1251 et seq. is a comprehensive water quality statute designed to "restore and maintain the chemical, physical, and biological integrity of the Nation's waters." 1251(a). The Act also seeks to attain "water quality which provides for the protection and propagation of fish, shellfish, and wildlife." 1251(a)(2). To achieve these ambitious goals, the Clean Water Act establishes distinct roles for the Federal and State Governments. Under the Act, the Administrator of the Environmental Protection Agency (EPA) is required, among other things, to establish and enforce technology-based limitations on individual discharges into the country's navigable waters from point sources. See 1311, 1314. Section 303 of the Act also requires each State, subject to federal approval, to institute comprehensive water quality standards establishing water quality goals for all intrastate waters. 1311(b) (1)(C), 1313. These state water quality standards provide "a supplementary basis so that numerous point sources, despite individual compliance with effluent limitations, may be further regulated to prevent water quality from falling below acceptable levels." A state water quality standard "shall consist of the designated uses of the navigable waters involved and the water quality criteria for such waters based upon such uses." 33 U.S. C. 1313(c)(2)(A). In setting standards, the State must comply with the following broad requirements: "Such standards shall be such as to protect the public health or welfare, enhance the quality of water and *705 serve the purposes of this chapter. Such standards shall be established taking into consideration their use and value for public water supplies, propagation of fish and wildlife, recreational [and other purposes.]" See also 1251(a)(2). A 1987 amendment to the Clean Water Act makes clear that 303 also contains an "antidegradation policy"that is, a policy requiring that state standards be sufficient to maintain existing beneficial uses of navigable waters, preventing their further degradation. Specifically, the Act permits the revision of certain effluent limitations or water quality standards "only if such revision is subject to and consistent with the antidegradation policy established under this section." 1313(d)(4)(B). Accordingly, EPA's regulations |
Justice O'Connor | 1,994 | 14 | majority | PUD No. 1 of Jefferson Cty. v. Washington Dept. of Ecology | https://www.courtlistener.com/opinion/1087951/pud-no-1-of-jefferson-cty-v-washington-dept-of-ecology/ | antidegradation policy established under this section." 1313(d)(4)(B). Accordingly, EPA's regulations implementing the Act require that state water quality standards include "a statewide antidegradation policy" to ensure that "[e]xisting in stream water uses and the level of water quality necessary to protect the existing uses shall be maintained and protected." 40 CFR 131.12 At a minimum, state water quality standards must satisfy these conditions. The Act also allows States to impose more stringent water quality controls. See 33 U.S. C. 1311(b)(1)(C), 1370. See also 40 CFR 131.4(a) ("As recognized by section 510 of the Clean Water Act[, 33 U.S. C. 1370], States may develop water quality standards more stringent than required by this regulation"). The State of Washington has adopted comprehensive water quality standards intended to regulate all of the State's navigable waters. See Washington Administrative Code (WAC) XXX-XXX-XXX to XXX-XXX-XXX (1986). The State created an inventory of all the State's waters, and divided the waters into five classes. XXX-XXX-XXX. Each individual fresh surface water of the State is placed into one of these classes. XXX-XXX-XXX. The Dosewallips River is classified AA, extraordinary. XXX-XXX-XXX(32). The water quality *706 standard for Class AA waters is set forth at XXX-XXX-XXX(1). The standard identifies the designated uses of Class AA waters as well as the criteria applicable to such waters.[1] *707 In addition to these specific standards applicable to Class AA waters, the State has adopted a statewide antidegradation policy. That policy provides: "(a) Existing beneficial uses shall be maintained and protected and no further degradation which would interfere with or become injurious to existing beneficial uses will be allowed. "(b) No degradation will be allowed of waters lying in national parks, national recreation areas, national wildlife refuges, national scenic rivers, and other areas of national ecological importance. "(f) In no case, will any degradation of water quality be allowed if this degradation interferes with or becomes injurious to existing water uses and causes long-term and irreparable harm to the environment." XXX-XXX-XXX(8). As required by the Act, EPA reviewed and approved the State's water quality standards. See 33 U.S. C. 1313(c)(3); Upon approval by EPA, the state standard became "the water quality standard for the applicable waters of that State." 33 U.S. C. 1313(c)(3). States are responsible for enforcing water quality standards on intrastate waters. 1319(a). In addition to these primary enforcement responsibilities, 401 of the Act requires States to provide a water quality certification before a federal license or permit can be issued for activities that may result in any discharge into intrastate navigable waters. 33 U.S. C. 1341. Specifically, 401 requires an |
Justice O'Connor | 1,994 | 14 | majority | PUD No. 1 of Jefferson Cty. v. Washington Dept. of Ecology | https://www.courtlistener.com/opinion/1087951/pud-no-1-of-jefferson-cty-v-washington-dept-of-ecology/ | navigable waters. 33 U.S. C. 1341. Specifically, 401 requires an applicant for a federal license or permit to conduct any activity "which may result in any discharge into the navigable waters" to obtain from the State a certification "that any such discharge will comply with the applicable provisions of sections [1311, 1312, 1313, 1316, and 1317 of this title]." 33 U.S. C. 1341(a). Section 401(d) further provides that "[a]ny certification *708 shall set forth any effluent limitations and other limitations, and monitoring requirements necessary to assure that any applicant will comply with any applicable effluent limitations and other limitations, under section [1311 or 1312 of this title] and with any other appropriate requirement of State law set forth in such certification." 33 U.S. C. 1341(d). The limitations included in the certification become a condition on any federal license. [2] II Petitioners propose to build the Elkhorn Hydroelectric Project on the Dosewallips River. If constructed as presently planned, the facility would be located just outside the Olympic National Park on federally owned land within the Olympic National Forest. The project would divert water from a 1.2-mile reach of the river (the bypass reach), run the *709 water through turbines to generate electricity and then return the water to the river below the bypass reach. Under the Federal Power Act (FPA), as amended, 16 U.S. C. 791a et seq., the Federal Energy Regulatory Commission () has authority to license new hydroelectric facilities. As a result, petitioners must get a license to build or operate the Elkhorn Project. Because a federal license is required, and because the project may result in discharges into the Dosewallips River, petitioners are also required to obtain state certification of the project pursuant to 401 of the Clean Water Act, 33 U.S. C. 1341. The water flow in the bypass reach, which is currently undiminished by appropriation, ranges seasonally between 149 and 738 cubic feet per second (cfs). The Dosewallips supports two species of salmon, coho and chinook, as well as steelhead trout. As originally proposed, the project was to include a diversion dam which would completely block the river and channel approximately 75% of the river's water into a tunnel alongside the streambed. About 25% of the water would remain in the bypass reach, but would be returned to the original riverbed through sluice gates or a fish ladder. Depending on the season, this would leave a residual minimum flow of between 65 and 155 cfs in the river. Respondent undertook a study to determine the minimum stream flows necessary to protect the salmon and steelhead fishery |
Justice O'Connor | 1,994 | 14 | majority | PUD No. 1 of Jefferson Cty. v. Washington Dept. of Ecology | https://www.courtlistener.com/opinion/1087951/pud-no-1-of-jefferson-cty-v-washington-dept-of-ecology/ | stream flows necessary to protect the salmon and steelhead fishery in the bypass reach. On June 11, 1986, respondent issued a 401 water quality certification imposing a variety of conditions on the project, including a minimum stream flow requirement of between 100 and 200 cfs depending on the season. A state administrative appeals board determined that the minimum flow requirement was intended to enhance, not merely maintain, the fishery, and that the certification condition therefore exceeded respondent's authority under state law. App. to Pet. for Cert. 55a57a. On appeal, the *710 State Superior Court concluded that respondent could require compliance with the minimum flow conditions. at 29a45a. The Superior Court also found that respondent had imposed the minimum flow requirement to protect and preserve the fishery, not to improve it, and that this requirement was authorized by state law. at 34a. The Washington Supreme Court held that the antidegradation provisions of the State's water quality standards require the imposition of minimum stream flows. The court also found that 401(d), which allows States to impose conditions based upon several enumerated sections of the Clean Water Act and "any other appropriate requirement of State law," 33 U.S. C. 1341(d), authorized the stream flow condition. Relying on this language and the broad purposes of the Clean Water Act, the court concluded that 401(d) confers on States power to "consider all state action related to water quality in imposing conditions on section 401 certificates." 849 P. 2d, at 652. We granted certiorari, to resolve a conflict among the state courts of last resort. See ; Georgia Pacific ; Power Authority of New We now affirm. III The principal dispute in this case concerns whether the minimum stream flow requirement that the State imposed on the Elkhorn Project is a permissible condition of a 401 certification under the Clean Water Act. To resolve this dispute we must first determine the scope of the State's authority under 401. We must then determine whether the limitation at issue here, the requirement that petitioners maintain minimum stream flows, falls within the scope of that authority. *711 A There is no dispute that petitioners were required to obtain a certification from the State pursuant to 401. Petitioners concede that, at a minimum, the project will result in two possible dischargesthe release of dredged and fill material during the construction of the project, and the discharge of water at the end of the tailrace after the water has been used to generate electricity. Brief for Petitioners 27-28. Petitioners contend, however, that the minimum stream flow requirement imposed by the State |
Justice O'Connor | 1,994 | 14 | majority | PUD No. 1 of Jefferson Cty. v. Washington Dept. of Ecology | https://www.courtlistener.com/opinion/1087951/pud-no-1-of-jefferson-cty-v-washington-dept-of-ecology/ | that the minimum stream flow requirement imposed by the State was unrelated to these specific discharges, and that as a consequence, the State lacked the authority under 401 to condition its certification on maintenance of stream flows sufficient to protect the Dosewallips fishery. If 401 consisted solely of subsection (a), which refers to a state certification that a "discharge" will comply with certain provisions of the Act, petitioners' assessment of the scope of the State's certification authority would have considerable force. Section 401, however, also contains subsection (d), which expands the State's authority to impose conditions on the certification of a project. Section 401(d) provides that any certification shall set forth "any effluent limitations and other limitations necessary to assure that any applicant " will comply with various provisions of the Act and appropriate state law requirements. 33 U.S. C. 1341(d) The language of this subsection contradicts petitioners' claim that the State may only impose water quality limitations specifically tied to a "discharge." The text refers to the compliance of the applicant, not the discharge. Section 401(d) thus allows the State to impose "other limitations" on the project in general to assure compliance with various provisions of the Clean Water Act and with "any other appropriate requirement of State law." Although the dissent asserts that this interpretation of 401(d) renders 401(a)(1) superfluous, post, at 726, we see no such anomaly. Section 401(a)(1) identifies the category of activities *712 subject to certificationnamely, those with discharges. And 401(d) is most reasonably read as authorizing additional conditions and limitations on the activity as a whole once the threshold condition, the existence of a discharge, is satisfied. Our view of the statute is consistent with EPA's regulations implementing 401. The regulations expressly interpret 401 as requiring the State to find that "there is a reasonable assurance that the activity will be conducted in a manner which will not violate applicable water quality standards." 40 CFR 121.2(a)(3) See also EPA, Wetlands and 401 23 (Apr. 1989) ("In 401(d), the Congress has given the States the authority to place any conditions on a water quality certification that are necessary to assure that the applicant will comply with effluent limitations, water quality standards, and with `any other appropriate requirement of State law' "). EPA's conclusion that activities not merely dischargesmust comply with state water quality standards is a reasonable interpretation of 401, and is entitled to deference. See, e. g., ; Chevron U. S. A. Although 401(d) authorizes the State to place restrictions on the activity as a whole, that authority is not unbounded. The State can |
Justice O'Connor | 1,994 | 14 | majority | PUD No. 1 of Jefferson Cty. v. Washington Dept. of Ecology | https://www.courtlistener.com/opinion/1087951/pud-no-1-of-jefferson-cty-v-washington-dept-of-ecology/ | a whole, that authority is not unbounded. The State can only ensure that the project complies with "any applicable effluent limitations and other limitations, under [33 U.S. C. 1311, 1312]" or certain other provisions of the Act, "and with any other appropriate requirement of State law." 33 U.S. C. 1341(d). The State asserts that the minimum stream flow requirement was imposed to ensure compliance with the state water quality standards adopted pursuant to 303 of the Clean Water Act, 33 U.S. C. 1313. We agree with the State that ensuring compliance with 303 is a proper function of the 401 certification. Although 303 is not one of the statutory provisions listed in 401(d), *713 the statute allows States to impose limitations to ensure compliance with 301 of the Act, 33 U.S. C. 1311. Section 301 in turn incorporates 303 by reference. See 33 U.S. C. 1311(b)(1)(C); see also H. R. Conf. Rep. No. 95-830, p. 96 ("Section 303 is always included by reference where section 301 is listed"). As a consequence, state water quality standards adopted pursuant to 303 are among the "other limitations" with which a State may ensure compliance through the 401 certification process. This interpretation is consistent with EPA's view of the statute. See 40 CFR 121.2(a)(3) ; EPA, Wetlands and 401 Moreover, limitations to assure compliance with state water quality standards are also permitted by 401(d)'s reference to "any other appropriate requirement of State law." We do not speculate on what additional state laws, if any, might be incorporated by this language.[3] But at a minimum, limitations imposed pursuant to state water quality standards adopted pursuant to 303 are "appropriate" requirements of state law. Indeed, petitioners appear to agree that the State's authority under 401 includes limitations designed to ensure compliance with state water quality standards. Brief for Petitioners 9, 21. B Having concluded that, pursuant to 401, States may condition certification upon any limitations necessary to ensure *714 compliance with state water quality standards or any other "appropriate requirement of State law," we consider whether the minimum flow condition is such a limitation. Under 303, state water quality standards must "consist of the designated uses of the navigable waters involved and the water quality criteria for such waters based upon such uses." 33 U.S. C. 1313(c)(2)(A). In imposing the minimum stream flow requirement, the State determined that construction and operation of the project as planned would be inconsistent with one of the designated uses of Class AA water, namely "[s]almonid [and other fish] migration, rearing, spawning, and harvesting." App. to Pet. for Cert. 83a84a. The |
Justice O'Connor | 1,994 | 14 | majority | PUD No. 1 of Jefferson Cty. v. Washington Dept. of Ecology | https://www.courtlistener.com/opinion/1087951/pud-no-1-of-jefferson-cty-v-washington-dept-of-ecology/ | spawning, and harvesting." App. to Pet. for Cert. 83a84a. The designated use of the river as a fish habitat directly reflects the Clean Water Act's goal of maintaining the "chemical, physical, and biological integrity of the Nation's waters." 33 U.S. C. 1251(a). Indeed, the Act defines pollution as "the man-made or man induced alteration of the chemical, physical, biological, and radiological integrity of water." 1362(19). Moreover, the Act expressly requires that, in adopting water quality standards, the State must take into consideration the use of waters for "propagation of fish and wildlife." 1313(c)(2)(A). Petitioners assert, however, that 303 requires the State to protect designated uses solely through implementation of specific "criteria." According to petitioners, the State may not require them to operate their dam in a manner consistent with a designated "use"; instead, say petitioners, under 303 the State may only require that the project comply with specific numerical "criteria." We disagree with petitioners' interpretation of the language of 303(c)(2)(A). Under the statute, a water quality standard must "consist of the designated uses of the navigable waters involved and the water quality criteria for such waters based upon such uses." 33 U.S. C. 1313(c)(2)(A) The text makes it plain that water quality standards contain two components. We think the language *715 of 303 is most naturally read to require that a project be consistent with both components, namely, the designated use and the water quality criteria. Accordingly, under the literal terms of the statute, a project that does not comply with a designated use of the water does not comply with the applicable water quality standards. Consequently, pursuant to 401(d) the State may require that a permit applicant comply with both the designated uses and the water quality criteria of the state standards. In granting certification pursuant to 401(d), the State "shall set forth any limitations necessary to assure that [the applicant] will comply with any limitations under [ 303]. and with any other appropriate requirement of State law." A certification requirement that an applicant operate the project consistently with state water quality standards i. e., consistently with the designated uses of the water body and the water quality criteriais both a "limitation" to assure "compl[iance] with limitations" imposed under 303, and an "appropriate" requirement of state law. EPA has not interpreted 303 to require the States to protect designated uses exclusively through enforcement of numerical criteria. In its regulations governing state water quality standards, EPA defines criteria as "elements of State water quality standards, expressed as constituent concentrations, levels, or narrative statements, representing a quality of water that supports |
Justice O'Connor | 1,994 | 14 | majority | PUD No. 1 of Jefferson Cty. v. Washington Dept. of Ecology | https://www.courtlistener.com/opinion/1087951/pud-no-1-of-jefferson-cty-v-washington-dept-of-ecology/ | or narrative statements, representing a quality of water that supports a particular use." 40 CFR 131.3(b) The regulations further provide that "[w]hen criteria are met, water quality will generally protect the designated use." Thus, the EPA regulations implicitly recognize that in some circumstances, criteria alone are insufficient to protect a designated use. Petitioners also appear to argue that use requirements are too open ended, and that the Act only contemplates enforcement of the more specific and objective "criteria." But this argument is belied by the open-ended nature of the criteria *716 themselves. As the Solicitor General points out, even "criteria" are often expressed in broad, narrative terms, such as "`there shall be no discharge of toxic pollutants in toxic amounts.' " Brief for United States as Amicus Curiae 18. See American Paper Institute, In fact, under the Clean Water Act, only one class of criteria, those governing "toxic pollutants listed pursuant to section 1317(a)(1)," need be rendered in numerical form. See 33 U.S. C. 1313(c)(2)(B); 40 CFR 131.11(b)(2) Washington's Class AA water quality standards are typical in that they contain several open-ended criteria which, like the use designation of the river as a fishery, must be translated into specific limitations for individual projects. For example, the standards state that "[t]oxic, radioactive, or deleterious material concentrations shall be less than those which may affect public health, the natural aquatic environment, or the desirability of the water for any use." WAC 173-201 045(1)(c)(vii) (1986). Similarly, the state standards specify that "[a]esthetic values shall not be impaired by the presence of materials or their effects, excluding those of natural origin, which offend the senses of sight, smell, touch, or taste." XXX-XXX-XXX(1)(c)(viii). We think petitioners' attempt to distinguish between uses and criteria loses much of its force in light of the fact that the Act permits enforcement of broad, narrative criteria based on, for example, "aesthetics." Petitioners further argue that enforcement of water quality standards through use designations renders the water quality criteria component of the standards irrelevant. We see no anomaly, however, in the State's reliance on both use designations and criteria to protect water quality. The specific numerical limitations embodied in the criteria are a convenient enforcement mechanism for identifying minimum water conditions which will generally achieve the requisite water quality. And, in most circumstances, satisfying the criteria will, as EPA recognizes, be sufficient to maintain the *717 designated use. See 40 CFR 131.3(b) Water quality standards, however, apply to an entire class of water, a class which contains numerous individual water bodies. For example, in the State of Washington, the Class |
Justice O'Connor | 1,994 | 14 | majority | PUD No. 1 of Jefferson Cty. v. Washington Dept. of Ecology | https://www.courtlistener.com/opinion/1087951/pud-no-1-of-jefferson-cty-v-washington-dept-of-ecology/ | bodies. For example, in the State of Washington, the Class AA water quality standard applies to 81 specified fresh surface waters, as well as to all "surface waters lying within the mountainous regions of the state assigned to national parks, national forests, and/or wilderness areas," all "lakes and their feeder streams within the state," and all "unclassified surface waters that are tributaries to Class AA waters." WAC 173-201-070 (1986). While enforcement of criteria will in general protect the uses of these diverse waters, a complementary requirement that activities also comport with designated uses enables the States to ensure that each activity even if not foreseen by the criteriawill be consistent with the specific uses and attributes of a particular body of water. Under petitioners' interpretation of the statute, however, if a particular criterion, such as turbidity, were missing from the list contained in an individual state water quality standard, or even if an existing turbidity criterion were insufficient to protect a particular species of fish in a particular river, the State would nonetheless be forced to allow activities inconsistent with the existing or designated uses. We think petitioners' reading leads to an unreasonable interpretation of the Act. The criteria components of state water quality standards attempt to identify, for all the water bodies in a given class, water quality requirements generally sufficient to protect designated uses. These criteria, however, cannot reasonably be expected to anticipate all the water quality issues arising from every activity that can affect the State's hundreds of individual water bodies. Requiring the States to enforce only the criteria component of their water quality standards would in essence require the States to study to a level of great specificity each individual surface water to ensure that the criteria applicable to that water are sufficiently detailed and individualized to fully protect the *718 water's designated uses. Given that there is no textual support for imposing this requirement, we are loath to attribute to Congress an intent to impose this heavy regulatory burden on the States. The State also justified its minimum stream flow as necessary to implement the "antidegradation policy" of 303, 33 U.S. C. 1313(d)(4)(B). When the Clean Water Act was enacted in 1972, the water quality standards of all 50 States had antidegradation provisions. These provisions were required by federal law. See U. S. Dept. of Interior, Federal Water Pollution Control Administration, Compendium of Department of Interior Statements on Non-degradation of Interstate Waters 1-2 (Aug. 1968); see also Hines, A Decade of Nondegradation Policy in Congress and the Courts: The Erratic Pursuit of Clean Air and |
Justice O'Connor | 1,994 | 14 | majority | PUD No. 1 of Jefferson Cty. v. Washington Dept. of Ecology | https://www.courtlistener.com/opinion/1087951/pud-no-1-of-jefferson-cty-v-washington-dept-of-ecology/ | and the Courts: The Erratic Pursuit of Clean Air and Clean Water, By providing in 1972 that existing state water quality standards would remain in force until revised, the Clean Water Act ensured that the States would continue their antidegradation programs. See 33 U.S. C. 1313(a). EPA has consistently required that revised state standards incorporate an antidegradation policy. And, in 1987, Congress explicitly recognized the existence of an "antidegradation policy established under [ 303]." 1313(d)(4)(B). EPA has promulgated regulations implementing 303's antidegradation policy, a phrase that is not defined elsewhere in the Act. These regulations require States to "develop and adopt a statewide antidegradation policy and identify the methods for implementing such policy." 40 CFR 131.12 These "implementation methods shall, at a minimum, be consistent with the [e]xisting in stream water uses and the level of water quality necessary to protect the existing uses shall be maintained and protected." EPA has explained that under its antidegradation regulation, "no activity is allowable which could partially or completely eliminate any existing use." EPA, Questions and *719 Answers on Antidegradation 3 (Aug. 1985). Thus, States must implement their antidegradation policy in a manner "consistent" with existing uses of the stream. The State of Washington's antidegradation policy in turn provides that "[e]xisting beneficial uses shall be maintained and protected and no further degradation which would interfere with or become injurious to existing beneficial uses will be allowed." WAC 173-201-035(8)(a) (1986). The State concluded that the reduced stream flows would have just the effect prohibited by this policy. The Solicitor General, representing EPA, asserts, Brief for United States as Amicus Curiae 18 21, and we agree, that the State's minimum stream flow condition is a proper application of the state and federal antidegradation regulations, as it ensures that an "[e]xisting in stream water us[e]" will be "maintained and protected." 40 CFR 131.12(a)(1) Petitioners also assert more generally that the Clean Water Act is only concerned with water "quality," and does not allow the regulation of water "quantity." This is an artificial distinction. In many cases, water quantity is closely related to water quality; a sufficient lowering of the water quantity in a body of water could destroy all of its designated uses, be it for drinking water, recreation, navigation or, as here, as a fishery. In any event, there is recognition in the Clean Water Act itself that reduced stream flow, i. e., diminishment of water quantity, can constitute water pollution. First, the Act's definition of pollution as "the man-made or man induced alteration of the chemical, physical, biological, and radiological integrity of water" encompasses |
Justice O'Connor | 1,994 | 14 | majority | PUD No. 1 of Jefferson Cty. v. Washington Dept. of Ecology | https://www.courtlistener.com/opinion/1087951/pud-no-1-of-jefferson-cty-v-washington-dept-of-ecology/ | the chemical, physical, biological, and radiological integrity of water" encompasses the effects of reduced water quantity. 33 U.S. C. 1362(19). This broad conception of pollutionone which expressly evinces Congress' concern with the physical and biological integrity of waterrefutes petitioners' assertion that the Act draws a sharp distinction between the regulation of water "quantity" and water "quality." Moreover, 304 of the Act expressly recognizes that water "pollution" may result from "changes *720 in the movement, flow, or circulation of any navigable waters. including changes caused by the construction of dams." 33 U.S. C. 1314(f). This concern with the flowage effects of dams and other diversions is also embodied in the EPA regulations, which expressly require existing dams to be operated to attain designated uses. 40 CFR 131.10(g)(4) Petitioners assert that two other provisions of the Clean Water Act, 101(g) and 510(2), 33 U.S. C. 1251(g) and 1370(2), exclude the regulation of water quantity from the coverage of the Act. Section 101(g) provides "that the authority of each State to allocate quantities of water within its jurisdiction shall not be superseded, abrogated or otherwise impaired by this chapter." 33 U.S. C. 1251(g). Similarly, 510(2) provides that nothing in the Act shall "be construed as impairing or in any manner affecting any right or jurisdiction of the States with respect to the waters of such States." 33 U.S. C. 1370. In petitioners' view, these provisions exclude "water quantity issues from direct regulation under the federally controlled water quality standards authorized in 303." Brief for Petitioners 39 (emphasis deleted). This language gives the States authority to allocate water rights; we therefore find it peculiar that petitioners argue that it prevents the State from regulating stream flow. In any event, we read these provisions more narrowly than petitioners. Sections 101(g) and 510(2) preserve the authority of each State to allocate water quantity as between users; they do not limit the scope of water pollution controls that may be imposed on users who have obtained, pursuant to state law, a water allocation. In construing an analogous provision of the Federal Power Act,[4] we explained that "minimum stream *721 flow requirements neither reflect nor establish `proprietary rights' " to water. Cf. First Iowa Hydro-Electric Moreover, the certification itself does not purport to determine petitioners' proprietary right to the water of the Dosewallips. In fact, the certification expressly states that a "State Water Right Permit (Chapters 90.03.250 RCW and 508-12 WAC) must be obtained prior to commencing construction of the project." App. to Pet. for Cert. 83a. The certification merely determines the nature of the use to which |
Justice O'Connor | 1,994 | 14 | majority | PUD No. 1 of Jefferson Cty. v. Washington Dept. of Ecology | https://www.courtlistener.com/opinion/1087951/pud-no-1-of-jefferson-cty-v-washington-dept-of-ecology/ | certification merely determines the nature of the use to which that proprietary right may be put under the Clean Water Act, if and when it is obtained from the State. Our view is reinforced by the legislative history of the 1977 amendment to the Clean Water Act adding 101(g). See 3 Legislative History of the Clean Water Act of 1977 (Committee Print compiled for the Committee on Environment and Public Works by the Library of Congress), Ser. No. 95-14, p. 532 (1978) ("The requirements [of the Act] may incidentally affect individual water rights. It is not the purpose of this amendment to prohibit those incidental effects. It is the purpose of this amendment to insure that State allocation systems are not subverted, and that effects on individual rights, if any, are prompted by legitimate and necessary water quality considerations"). IV Petitioners contend that we should limit the State's authority to impose minimum flow requirements because has comprehensive authority to license hydroelectric projects pursuant to the FPA, 16 U.S. C. 791a et seq. In petitioners' view, the minimum flow requirement imposed here interferes with 's authority under the FPA. *722 The FPA empowers to issue licenses for projects "necessary or convenient for the development, transmission, and utilization of power across, along, from, or in any of the streams over which Congress has jurisdiction." 797(e). The FPA also requires to consider a project's effect on fish and wildlife. 797(e), 803(a)(1). In we held that the California Water Resources Control Board, acting pursuant to state law, could not impose a minimum stream flow which conflicted with minimum stream flows contained in a license. We concluded that the FPA did not "save" to the States this authority. at No such conflict with any licensing activity is presented here. has not yet acted on petitioners' license application, and it is possible that will eventually deny petitioners' application altogether. Alternatively, it is quite possible, given that is required to give equal consideration to the protection of fish habitat when deciding whether to issue a license, that any license would contain the same conditions as the state 401 certification. Indeed, at oral argument the Deputy Solicitor General stated that both EPA and were represented in this proceeding, and that the Government has no objection to the stream flow condition contained in the 401 certification. Tr. of Oral Arg. 43-44. Finally, the requirement for a state certification applies not only to applications for licenses from but to all federal licenses and permits for activities which may result in a discharge into the Nation's navigable waters. For example, a |
Justice O'Connor | 1,994 | 14 | majority | PUD No. 1 of Jefferson Cty. v. Washington Dept. of Ecology | https://www.courtlistener.com/opinion/1087951/pud-no-1-of-jefferson-cty-v-washington-dept-of-ecology/ | a discharge into the Nation's navigable waters. For example, a permit from the Army Corps of Engineers is required for the installation of any structure in the navigable waters which may interfere with navigation, including piers, docks, and ramps. Rivers and Harbors Appropriation Act of 1899, 10, 33 U.S. C. 403. Similarly, a permit must be obtained from the Army Corps of Engineers *723 for the discharge of dredged or fill material, and from the Secretary of the Interior or Agriculture for the construction of reservoirs, canals, and other water storage systems on federal land. See 33 U.S. C. 1344(a), (e); 43 U.S. C. 1 (1988 ed. and Supp. IV). We assume that a 401 certification would also be required for some licenses obtained pursuant to these statutes. Because 401's certification requirement applies to other statutes and regulatory schemes, and because any conflict with 's authority under the FPA is hypothetical, we are unwilling to read implied limitations into 401. If issues a license containing a stream flow condition with which petitioners disagree, they may pursue judicial remedies at that time. Cf. Escondido Mut. Water In summary, we hold that the State may include minimum stream flow requirements in a certification issued pursuant to 401 of the Clean Water Act insofar as necessary to enforce a designated use contained in a state water quality standard. The judgment of the Supreme Court of Washington, accordingly, is affirmed. So ordered. |
Justice O'Connor | 2,000 | 14 | majority | FDA v. Brown & Williamson Tobacco Corp. | https://www.courtlistener.com/opinion/118347/fda-v-brown-williamson-tobacco-corp/ | This case involves one of the most troubling public health problems facing our Nation today: the thousands of premature deaths that occur each year because of tobacco use. In 1996, the Food and Drug Administration (FDA), after having expressly disavowed any such authority since its inception, asserted jurisdiction to regulate tobacco products. See -18. The FDA concluded that nicotine is a "drug" within the meaning of the Food, Drug, and Cosmetic Act (FDCA or Act), as amended, 21 U.S. C. 301 et seq., and that cigarettes and smokeless tobacco are "combination products" that deliver nicotine to the body. Pursuant to this authority, it promulgated regulations intended to reduce tobacco consumption among children and adolescents. The agency believed that, because most tobacco consumers begin their use before reaching the age of 18, curbing tobacco use by minors could substantially reduce the prevalence of addiction in future generations and thus the incidence of tobacco-related death and disease. Regardless of how serious the problem an administrative agency seeks to address, however, it may not exercise its authority "in a manner that is inconsistent with the administrative structure that Congress enacted into law." ETSI Pipeline And although agencies are generally entitled to deference in the interpretation of statutes that they administer, a reviewing "court, as well as the agency, must give effect to the unambiguously *126 expressed intent of Congress." U. S. A. In this case, we believe that Congress has clearly precluded the FDA from asserting jurisdiction to regulate tobacco products. Such authority is inconsistent with the intent that Congress has expressed in the FDCA's overall regulatory scheme and in the tobacco-specific legislation that it has enacted subsequent to the FDCA. In light of this clear intent, the FDA's assertion of jurisdiction is impermissible. I The FDCA grants the FDA, as the designee of the Secretary of Health and Human Services (HHS), the authority to regulate, among other items, "drugs" and "devices." See 21 U.S. C. 321(g)(h), 393 (1994 ed. and Supp. III). The Act defines "drug" to include "articles (other than food) intended to affect the structure or any function of the body." 21 U.S. C. 321(g)(1)(C). It defines "device," in part, as "an instrument, apparatus, implement, machine, contrivance, or other similar or related article, including any component, part, or accessory, which is intended to affect the structure or any function of the body." 321(h). The Act also grants the FDA the authority to regulate so-called "combination products," which "constitute a combination of a drug, device, or biological product." 353(g)(1). The FDA has construed this provision as giving it the discretion to |
Justice O'Connor | 2,000 | 14 | majority | FDA v. Brown & Williamson Tobacco Corp. | https://www.courtlistener.com/opinion/118347/fda-v-brown-williamson-tobacco-corp/ | has construed this provision as giving it the discretion to regulate combination products as drugs, as devices, or as both. See On August 11, 1995, the FDA published a proposed rule concerning the sale of cigarettes and smokeless tobacco to children and adolescents. -41787. The rule, which included several restrictions on the sale, distribution, and advertisement of tobacco products, was designed to reduce the availability and attractiveness of tobacco products to young people. A public comment period followed, during which the FDA received over 700,000 submissions, *127 more than "at any other time in its history on any other subject." On August 28, 1996, the FDA issued a final rule entitled "Regulations Restricting the Sale and Distribution of Cigarettes and Smokeless Tobacco to Protect Children and Adolescents." The FDA determined that nicotine is a "drug" and that cigarettes and smokeless tobacco are "drug delivery devices," and therefore it had jurisdiction under the FDCA to regulate tobacco products as customarily marketedthat is, without manufacturer claims of therapeutic benefit. First, the FDA found that tobacco products "`affect the structure or any function of the body' " because nicotine "has significant pharmacological effects." Specifically, nicotine "exerts psychoactive, or mood-altering, effects on the brain" that cause and sustain addiction, have both tranquilizing and stimulating effects, and control weight. -44632. Second, the FDA determined that these effects were "intended" under the FDCA because they "are so widely known and foreseeable that [they] may be deemed to have been intended by the manufacturers," ; consumers use tobacco products "predominantly or nearly exclusively" to obtain these effects, ; and the statements, research, and actions of manufacturers revealed that they "have `designed' cigarettes to provide pharmacologically active doses of nicotine to consumers," Finally, the agency concluded that cigarettes and smokeless tobacco are "combination products" because, in addition to containing nicotine, they include device components that deliver a controlled amount of nicotine to the body, Having resolved the jurisdictional question, the FDA next explained the policy justifications for its regulations, detailing the deleterious health effects associated with tobacco use. It found that tobacco consumption was "the single leading cause of preventable death in the United States." According to the FDA, "[m]ore than 400,000 *128 people die each year from tobacco-related illnesses, such as cancer, respiratory illnesses, and heart disease." The agency also determined that the only way to reduce the amount of tobacco-related illness and mortality was to reduce the level of addiction, a goal that could be accomplished only by preventing children and adolescents from starting to use tobacco. The FDA found that 82% of adult smokers had |
Justice O'Connor | 2,000 | 14 | majority | FDA v. Brown & Williamson Tobacco Corp. | https://www.courtlistener.com/opinion/118347/fda-v-brown-williamson-tobacco-corp/ | tobacco. The FDA found that 82% of adult smokers had their first cigarette before the age of 18, and more than half had already become regular smokers by that age. It also found that children were beginning to smoke at a younger age, that the prevalence of youth smoking had recently increased, and that similar problems existed with respect to smokeless tobacco. The FDA accordingly concluded that if "the number of children and adolescents who begin tobacco use can be substantially diminished, tobacco-related illness can be correspondingly reduced because data suggest that anyone who does not begin smoking in childhood or adolescence is unlikely ever to begin." Based on these findings, the FDA promulgated regulations concerning tobacco products' promotion, labeling, and accessibility to children and adolescents. See The access regulations prohibit the sale of cigarettes or smokeless tobacco to persons younger than 18; require retailers to verify through photo identification the age of all purchasers younger than 27; prohibit the sale of cigarettes in quantities smaller than 20; prohibit the distribution of free samples; and prohibit sales through self-service displays and vending machines except in adult-only locations. The promotion regulations require that any print advertising appear in a black-and-white, text-only format unless the publication in which it appears is read almost exclusively by adults; prohibit outdoor advertising within 1,000 feet of any public playground or school; prohibit the distribution of any promotional items, such as T-shirts or hats, bearing the manufacturer's brand name; and prohibit a *129 manufacturer from sponsoring any athletic, musical, artistic, or other social or cultural event using its brand name. The labeling regulation requires that the statement, "A Nicotine-Delivery Device for Persons 18 or Older," appear on all tobacco product packages. The FDA promulgated these regulations pursuant to its authority to regulate "restricted devices." See 21 U.S. C. 360j(e). The FDA construed 353(g)(1) as giving it the discretion to regulate "combination products" using the Act's drug authorities, device authorities, or both, depending on "how the public health goals of the act can be best accomplished." Given the greater flexibility in the FDCA for the regulation of devices, the FDA determined that "the device authorities provide the most appropriate basis for regulating cigarettes and smokeless tobacco." Under 21 U.S. C. 360j(e), the agency may "require that a device be restricted to sale, distribution, or use upon such other conditions as [the FDA] may prescribe in such regulation, if, because of its potentiality for harmful effect or the collateral measures necessary to its use, [the FDA] determines that there cannot otherwise be reasonable assurance of its safety and |
Justice O'Connor | 2,000 | 14 | majority | FDA v. Brown & Williamson Tobacco Corp. | https://www.courtlistener.com/opinion/118347/fda-v-brown-williamson-tobacco-corp/ | there cannot otherwise be reasonable assurance of its safety and effectiveness." The FDA reasoned that its regulations fell within the authority granted by 360j(e) because they related to the sale or distribution of tobacco products and were necessary for providing a reasonable assurance of safety. -44407 Respondents, a group of tobacco manufacturers, retailers, and advertisers, filed suit in United States District Court for the Middle District of North Carolina challenging the regulations. See Coyne Beahm, They moved for summary judgment on the grounds that the FDA lacked jurisdiction to regulate tobacco products as customarily marketed, the regulations exceeded the FDA's authority under 21 U.S. C. 360j(e), and the advertising *130 restrictions violated the First Amendment. Second Brief in Support of Plaintiffs' Motion for Summary Judgment in No. 2:95CV00591 (MDNC), in 3 Rec. in No. 97-1604 (CA4), Tab No. 40; Third Brief in Support of Plaintiffs' Motion for Summary Judgment in No. 2:95CV00591 (MDNC), in 3 Rec. in No. 97-1604 (CA4), Tab No. 42. The District Court granted respondents' motion in part and denied it in The court held that the FDCA authorizes the FDA to regulate tobacco products as customarily marketed and that the FDA's access and labeling regulations are permissible, but it also found that the agency's advertising and promotion restrictions exceed its authority under 360j(e). The court stayed implementation of the regulations it found valid (except the prohibition on the sale of tobacco products to minors) and certified its order for immediate interlocutory appeal. The Court of Appeals for the Fourth Circuit reversed, holding that Congress has not granted the FDA jurisdiction to regulate tobacco products. See Examining the FDCA as a whole, the court concluded that the FDA's regulation of tobacco products would create a number of internal inconsistencies. Various provisions of the Act require the agency to determine that any regulated product is "safe" before it can be sold or allowed to remain on the market, yet the FDA found in its rulemaking proceeding that tobacco products are "dangerous" and "unsafe." Thus, the FDA would apparently have to ban tobacco products, a result the court found clearly contrary to congressional intent. This apparent anomaly, the Court of Appeals concluded, demonstrates that Congress did not intend to give the FDA authority to regulate tobacco. The court also found that evidence external to the FDCA confirms this conclusion. Importantly, the FDA consistently stated before 1995 that it lacked jurisdiction over tobacco, and Congress has enacted *131 several tobacco-specific statutes fully cognizant of the FDA's position. See In fact, the court reasoned, Congress has considered and rejected many bills |
Justice O'Connor | 2,000 | 14 | majority | FDA v. Brown & Williamson Tobacco Corp. | https://www.courtlistener.com/opinion/118347/fda-v-brown-williamson-tobacco-corp/ | the court reasoned, Congress has considered and rejected many bills that would have given the agency such authority. See This, along with the absence of any intent by the enacting Congress in 1938 to subject tobacco products to regulation under the FDCA, demonstrates that Congress intended to withhold such authority from the FDA. -176. Having resolved the jurisdictional question against the agency, the Court of Appeals did not address whether the regulations exceed the FDA's authority under 21 U.S. C. 360j(e) or violate the First Amendment. See n. 29. We granted the federal parties' petition for certiorari, to determine whether the FDA has authority under the FDCA to regulate tobacco products as customarily marketed. II The FDA's assertion of jurisdiction to regulate tobacco products is founded on its conclusions that nicotine is a "drug" and that cigarettes and smokeless tobacco are "drug delivery devices." Again, the FDA found that tobacco products are "intended" to deliver the pharmacological effects of satisfying addiction, stimulation and tranquilization, and weight control because those effects are foreseeable to any reasonable manufacturer, consumers use tobacco products to obtain those effects, and tobacco manufacturers have designed their products to produce those effects. -44633 As an initial matter, respondents take issue with the FDA's reading of "intended," arguing that it is a term of art that refers exclusively to claims made by the manufacturer or vendor about the product. See Brief for Respondent Brown & Williamson Tobacco Corp. 6. That is, a product is not a drug or device under the FDCA unless the manufacturer or vendor makes some express claim concerning the product's therapeutic benefits. See We *132 need not resolve this question, however, because assuming, arguendo, that a product can be "intended to affect the structure or any function of the body" absent claims of therapeutic or medical benefit, the FDA's claim to jurisdiction contravenes the clear intent of Congress. A threshold issue is the appropriate framework for analyzing the FDA's assertion of authority to regulate tobacco products. Because this case involves an administrative agency's construction of a statute that it administers, our analysis is governed by U. S. A. Under a reviewing court must first ask "whether Congress has directly spoken to the precise question at issue." IfCongress has done so, the inquiry is at an end; the court "must give effect to the unambiguously expressed intent of Congress." ; see also United ; Holly Farms U.S. But if Congress has not specifically addressed the question, a reviewing court must respect the agency's construction of the statute so long as it is permissible. See ; |
Justice O'Connor | 2,000 | 14 | majority | FDA v. Brown & Williamson Tobacco Corp. | https://www.courtlistener.com/opinion/118347/fda-v-brown-williamson-tobacco-corp/ | the statute so long as it is permissible. See ; Such deference is justified because "[t]he responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones," and because of the agency's greater familiarity with the everchanging facts and circumstances surrounding the subjects regulated, see In determining whether Congress has specifically addressed the question at issue, a reviewing court should not confine itself to examining a particular statutory provision in isolation. The meaningor ambiguityof certain words or phrases may only become evident when placed in context. See It is a "fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme." A court must therefore interpret the statute "as a symmetrical and coherent regulatory scheme," and "fit, if possible, all parts into an harmonious whole," Similarly, the meaning of one statute may be affected by other Acts, particularly where Congress has spoken subsequently and more specifically to the topic at hand. See United 523 U.S. ; United In addition, we must be guided to a degree by common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency. Cf. MCI Telecommunications With these principles in mind, we find that Congress has directly spoken to the issue here and precluded the FDA's jurisdiction to regulate tobacco products. A Viewing the FDCA as a whole, it is evident that one of the Act's core objectives is to ensure that any product regulated by the FDA is "safe" and "effective" for its intended use. See 21 U.S. C. 393(b)(2) (1994 ed., Supp. III) (defining the FDA's mission); More Information for Better Patient Care: Hearing before the Senate Committee on Labor and Human Resources, 104th Cong., 2d Sess., 83 (statement of FDA Deputy Comm'r Schultz) ("A fundamental precept of drug and device regulation in this country is that these products must be proven safe and effective before they can be sold"). This essential purpose pervades the FDCA. For instance, 21 U.S. C. 393(b)(2) (1994 ed., Supp. III) defines *134 the FDA's "[m]ission" to include "protect[ing] the public health by ensuring that drugsare safe and effective" and that "there is reasonable assurance of the safety and effectiveness of devices intended for human use." The FDCA requires premarket approval of any new drug, with some limited exceptions, and states that the FDA "shall issue an order refusing to approve the |
Justice O'Connor | 2,000 | 14 | majority | FDA v. Brown & Williamson Tobacco Corp. | https://www.courtlistener.com/opinion/118347/fda-v-brown-williamson-tobacco-corp/ | the FDA "shall issue an order refusing to approve the application" of a new drug if it is not safe and effective for its intended purpose. 355(d)(1)-(2), (4)-(5). If the FDA discovers after approval that a drug is unsafe or ineffective, it "shall, after due notice and opportunity for hearing to the applicant, withdraw approval" of the drug. 21 U.S. C. 355(e)(1)-(3). The Act also requires the FDA to classify all devices into one of three categories. 360c(b)(1). Regardless of which category the FDA chooses, there must be a "reasonable assurance of the safety and effectiveness of the device." 21 U.S. C. 360c(a)(1)(A)(i), (B), (C) (1994 ed. and Supp. III); Even the "restricted device" provision pursuant to which the FDA promulgated the regulations at issue here authorizes the agency to place conditions on the sale or distribution of a device specifically when "there cannot otherwise be reasonable assurance of its safety and effectiveness." 21 U.S. C. 360j(e). Thus, the Act generally requires the FDA to prevent the marketing of any drug or device where the "potential for inflicting death or physical injury is not offset by the possibility of therapeutic benefit." United In its rulemaking proceeding, the FDA quite exhaustively documented that "tobacco products are unsafe," "dangerous," and "cause great pain and suffering from illness." It found that the consumption of tobacco products presents "extraordinary health risks," and that "tobacco use is the single leading cause of preventable death in the United States." It stated that "[m]ore than 400,000 people die each year from tobaccorelated illnesses, such as cancer, respiratory illnesses, and *135 heart disease, often suffering long and painful deaths," and that "[t]obacco alone kills more people each year in the United States than acquired immunodeficiency syndrome (AIDS), car accidents, alcohol, homicides, illegal drugs, suicides, and fires, combined." Indeed, the FDA characterized smoking as "a pediatric disease," because "one out of every three young people who become regular smokers will die prematurely as a result," These findings logically imply that, if tobacco products were "devices" under the FDCA, the FDA would be required to remove them from the market. Consider, first, the FDCA's provisions concerning the misbranding of drugs or devices. The Act prohibits "[t]he introduction or delivery for introduction into interstate commerce of any food, drug, device, or cosmetic that is adulterated or misbranded." 21 U.S. C. 331(a). In light of the FDA's findings, two distinct FDCA provisions would render cigarettes and smokeless tobacco misbranded devices. First, 352(j) deems a drug or device misbranded "[i]f it is dangerous to health when used in the dosage or manner, or |
Justice O'Connor | 2,000 | 14 | majority | FDA v. Brown & Williamson Tobacco Corp. | https://www.courtlistener.com/opinion/118347/fda-v-brown-williamson-tobacco-corp/ | to health when used in the dosage or manner, or with the frequency or duration prescribed, recommended, or suggested in the labeling thereof." The FDA's findings make clear that tobacco products are "dangerous to health" when used in the manner prescribed. Second, a drug or device is misbranded under the Act "[u]nless its labeling bears adequate directions for use in such manner and form, as are necessary for the protection of users," except where such directions are "not necessary for the protection of the public health." 352(f)(1). Given the FDA's conclusions concerning the health consequences of tobacco use, there are no directions that could adequately protect consumers. That is, there are no directions that could make tobacco products safe for obtaining their intended effects. Thus, were tobacco products within the FDA's jurisdiction, the Act would deem them misbranded devices that could not be introduced into interstate *136 commerce. Contrary to the dissent's contention, the Act admits no remedial discretion once it is evident that the device is misbranded. Second, the FDCA requires the FDA to place all devices that it regulates into one of three classifications. See 360c(b)(1). The agency relies on a device's classification in determining the degree of control and regulation necessary to ensure that there is "a reasonable assurance of safety and effectiveness." The FDA has yet to classify tobacco products. Instead, the regulations at issue here represent so-called "general controls," which the Act entitles the agency to impose in advance of classification. See -44405. Although the FDCA prescribes no deadline for device classification, the FDA has stated that it will classify tobacco products "in a future rulemaking" as required by the Act. Given the FDA's findings regarding the health consequences of tobacco use, the agency would have to place cigarettes and smokeless tobacco in Class III because, even after the application of the Act's available controls, they would "presen[t] a potential unreasonable risk of illness or injury." 21 U.S. C. 360c(a)(1)(C). As Class III devices, tobacco products would be subject to the FDCA's premarket approval process. See 21 U.S. C. 360c(a)(1)(C) (1994 ed., Supp. III); 21 U.S. C. 360e; Under these provisions, the FDA would be prohibited from approving an application for premarket approval without "a showing of reasonable assurance that such device is safe under the conditions of use prescribed, recommended, or suggested in the proposed labeling thereof." 21 U.S. C. 360e(d)(2)(A). In view of the FDA's conclusions regarding the health effects of tobacco use, the agency would have no basis for finding any such reasonable assurance of safety. Thus, once the FDA fulfilled its |
Justice O'Connor | 2,000 | 14 | majority | FDA v. Brown & Williamson Tobacco Corp. | https://www.courtlistener.com/opinion/118347/fda-v-brown-williamson-tobacco-corp/ | reasonable assurance of safety. Thus, once the FDA fulfilled its statutory obligation to classify tobacco products, it could not allow them to be marketed. *137 The FDCA's misbranding and device classification provisions therefore make evident that were the FDA to regulate cigarettes and smokeless tobacco, the Act would require the agency to ban them. In fact, based on these provisions, the FDA itself has previously taken the position that if tobacco products were within its jurisdiction, "they would have to be removed from the market because it would be impossible to prove they were safe for their intended us[e]." Public Health Cigarette Amendments of 1971: Hearings before the Commerce Subcommittee on S. 1454, 92d Cong., 2d Sess., 239 (1972) (hereinafter 1972 Hearings) (statement of FDA Comm'r Charles Edwards). See also Cigarette Labeling and Advertising: Hearings before the House Committee on Interstate and Foreign Commerce, 88th Cong., 2d Sess., 18 (1964) (hereinafter 1964 Hearings) (statement of Dept. of Health, Education, and Welfare (HEW) Secretary Anthony Celebrezze that proposed amendments to the FDCA that would have given the FDA jurisdiction over "smoking product[s]" "might well completely outlaw at least cigarettes"). Congress, however, has foreclosed the removal of tobacco products from the market. A provision of the United States Code currently in force states that "[t]he marketing of tobacco constitutes one of the greatest basic industries of the United States with ramifying activities which directly affect interstate and foreign commerce at every point, and stable conditions therein are necessary to the general welfare." 7 U.S. C. 1311(a). More importantly, Congress has directly addressed the problem of tobacco and health through legislation on six occasions since 1965. See Federal Cigarette Labeling and Advertising Act (FCLAA), Stat. 282; Public Health Cigarette Smoking Act of 1969, Stat. 87; Alcohol and Drug Abuse Amendments of 1983, Stat. 175; Comprehensive Smoking Education Act, Stat. 2200; Comprehensive Smokeless Tobacco Health Education Act of 1986, Stat. 30; Alcohol, Drug Abuse, and Mental *138 Health Administration Reorganization Act, Pub. L. 102-321, 202, When Congress enacted these statutes, the adverse health consequences of tobacco use were well known, as were nicotine's pharmacological effects. See, e. g., U. S. Dept. of Health, Education, and Welfare, U. S. Surgeon General's Advisory Committee, Smoking and Health 25-40, 69-75 (1964) (hereinafter 1964 Surgeon General's Report) (concluding that cigarette smoking causes lung cancer, coronary artery disease, and chronic bronchitis and emphysema, and that nicotine has various pharmacological effects, including stimulation, tranquilization, and appetite suppression); U. S. Dept. of Health and Human Services, Public Health Service, Health Consequences of Smoking for Women 7-12 (finding that mortality rates for |
Justice O'Connor | 2,000 | 14 | majority | FDA v. Brown & Williamson Tobacco Corp. | https://www.courtlistener.com/opinion/118347/fda-v-brown-williamson-tobacco-corp/ | of Smoking for Women 7-12 (finding that mortality rates for lung cancer, chronic lung disease, and coronary heart disease are increased for both women and men smokers, and that smoking during pregnancy is associated with significant adverse health effects on the unborn fetus and newborn child); U. S. Dept. of Health and Human Services, Public Health Service, Why People Smoke Cigarettes in Smoking Prevention Education Act, Hearings on H. R. 1824 before the Subcommittee on Health and the Environment of the House Committee on Energy and Commerce, 98th Cong., 1st Sess., 32-37 (hereinafter 1983 House Hearings) (stating that smoking is "the most widespread example of drug dependence in our country," and that cigarettes "affect the chemistry of the brain and nervous system"); U. S. Dept. of Health and Human Services, Public Health Service, The Health Consequences of Smoking: Nicotine Addiction 6-9, 145-239 (hereinafter 1988 Surgeon General's Report) (concluding that tobacco products are addicting in much the same way as heroin and cocaine, and that nicotine is the drug that causes addiction). Nonetheless, Congress stopped well short of ordering a ban. Instead, it has generally regulated the labeling and advertisement of tobacco products, expressly providing that it is the policy of Congress that "commerce and the national *139 economy may be protected to the maximum extent consistent with" consumers "be[ing] adequately informed about any adverse health effects." 15 U.S. C. 1331. Congress' decisions to regulate labeling and advertising and to adopt the express policy of protecting "commerce and the national economy to the maximum extent" reveal its intent that tobacco products remain on the market. Indeed, the collective premise of these statutes is that cigarettes and smokeless tobacco will continue to be sold in the United States. A ban of tobacco products by the FDA would therefore plainly contradict congressional policy. The FDA apparently recognized this dilemma and concluded, somewhat ironically, that tobacco products are actually "safe" within the meaning of the FDCA. In promulgating its regulations, the agency conceded that "tobacco products are unsafe, as that term is conventionally understood." Nonetheless, the FDA reasoned that, in determining whether a device is safe under the Act, it must consider "not only the risks presented by a product but also any of the countervailing effects of use of that product, including the consequences of not permitting the product to be marketed." -44413. Applying this standard, the FDA found that, because of the high level of addiction among tobacco users, a ban would likely be "dangerous." In particular, current tobacco users could suffer from extreme withdrawal, the health care system and available pharmaceuticals |
Justice O'Connor | 2,000 | 14 | majority | FDA v. Brown & Williamson Tobacco Corp. | https://www.courtlistener.com/opinion/118347/fda-v-brown-williamson-tobacco-corp/ | from extreme withdrawal, the health care system and available pharmaceuticals might not be able to meet the treatment demands of those suffering from withdrawal, and a black market offering cigarettes even more dangerous than those currently sold legally would likely develop. The FDA therefore concluded that, "while taking cigarettes and smokeless tobacco off the market could prevent some people from becoming addicted and reduce death and disease for others, the record does not establish that such a ban is the appropriate public health response under the act." *140 It may well be, as the FDA asserts, that "these factors must be considered when developing a regulatory scheme that achieves the best public health result for these products." But the FDA's judgment that leaving tobacco products on the market "is more effective in achieving public health goals than a ban," ib is no substitute for the specific safety determinations required by the FDCA's various operative provisions. Several provisions in the Act require the FDA to determine that the product itself is safe as used by consumers. That is, the product's probable therapeutic benefits must outweigh its risk of harm. See United In contrast, the FDA's conception of safety would allow the agency, with respect to each provision of the FDCA that requires the agency to determine a product's "safety" or "dangerousness," to compare the aggregate health effects of alternative administrative actions. This is a qualitatively different inquiry. Thus, although the FDA has concluded that a ban would be "dangerous," it has not concluded that tobacco products are "safe" as that term is used throughout the Act. Consider 21 U.S. C. 360c(a)(2), which specifies those factors that the FDA may consider in determining the safety and effectiveness of a device for purposes of classification, performance standards, and premarket approval. For all devices regulated by the FDA, there must at least be a "reasonable assurance of the safety and effectiveness of the device." See 21 U.S. C. 360c(a)(1)(A)(i), (B), (C) (1994 ed. and Supp. III); Title 21 U.S. C. 360c(a)(2) provides that "the safety and effectiveness of a device are to be determined "(A) with respect to the persons for whose use the device is represented or intended, *141 "(B) with respect to the conditions of use prescribed, recommended, or suggested in the labeling of the device, and "(C) weighing any probable benefit to health from the use of the device against any probable risk of injury or illness from such use." A straightforward reading of this provision dictates that the FDA must weigh the probable therapeutic benefits of the device to the |
Justice O'Connor | 2,000 | 14 | majority | FDA v. Brown & Williamson Tobacco Corp. | https://www.courtlistener.com/opinion/118347/fda-v-brown-williamson-tobacco-corp/ | weigh the probable therapeutic benefits of the device to the consumer against the probable risk of injury. Applied to tobacco products, the inquiry is whether their purported benefitssatisfying addiction, stimulation and sedation, and weight controloutweigh the risks to health from their use. To accommodate the FDA's conception of safety, however, one must read "any probable benefit to health" to include the benefit to public health stemming from adult consumers' continued use of tobacco products, even though the reduction of tobacco use is the raison d'être of the regulations. In other words, the FDA is forced to contend that the very evil it seeks to combat is a "benefit to health." This is implausible. The FDA's conception of safety is also incompatible with the FDCA's misbranding provision. Again, 352(j) provides that a product is "misbranded" if "it is dangerous to health when used in the dosage or manner, or with the frequency or duration prescribed, recommended, or suggested in the labeling thereof." According to the FDA's understanding, a product would be "dangerous to health," and therefore misbranded under 352(j), when, in comparison to leaving the product on the market, a ban would not produce "adverse health consequences" in aggregate. Quite simply, these are different inquiries. Although banning a particular product might be detrimental to public health in aggregate, the product could still be "dangerous to health" when used as directed. Section 352(j) focuses on dangers to the consumer from use of the product, not those stemming from the agency's remedial measures. *142 Consequently, the analogy made by the FDA and the dissent to highly toxic drugs used in the treatment of various cancers is unpersuasive. See ; post, at 177 (opinion of Breyer, J.). Although "dangerous" in some sense, these drugs are safe within the meaning of the Act because, for certain patients, the therapeutic benefits outweigh the risk of harm. Accordingly, such drugs cannot properly be described as "dangerous to health" under 21 U.S. C. 352(j). The same is not true for tobacco products. As the FDA has documented in great detail, cigarettes and smokeless tobacco are an unsafe means to obtaining any pharmacological effect. The dissent contends that our conclusion means that "the FDCA requires the FDA to ban outright `dangerous' drugs or devices," post, at 174, and that this is a "perverse" reading of the statute, post, at 174, 180. This misunderstands our holding. The FDA, consistent with the FDCA, may clearly regulate many "dangerous" products without banning them. Indeed, virtually every drug or device poses dangers under certain conditions. What the FDA may not do is conclude |
Justice O'Connor | 2,000 | 14 | majority | FDA v. Brown & Williamson Tobacco Corp. | https://www.courtlistener.com/opinion/118347/fda-v-brown-williamson-tobacco-corp/ | certain conditions. What the FDA may not do is conclude that a drug or device cannot be used safely for any therapeutic purpose and yet, at the same time, allow that product to remain on the market. Such regulation is incompatible with the FDCA's core objective of ensuring that every drug or device is safe and effective. Considering the FDCA as a whole, it is clear that Congress intended to exclude tobacco products from the FDA's jurisdiction. A fundamental precept of the FDCA is that any product regulated by the FDAbut not bannedmust be safe for its intended use. Various provisions of the Act make clear that this refers to the safety of using the product to obtain its intended effects, not the public health ramifications of alternative administrative actions by the FDA. That is, the FDA must determine that there is a reasonable assurance that the product's therapeutic benefits outweigh the risk of harm to the consumer. According to this standard, *143 the FDA has concluded that, although tobacco products might be effective in delivering certain pharmacological effects, they are "unsafe" and "dangerous" when used for these purposes. Consequently, if tobacco products were within the FDA's jurisdiction, the Act would require the FDA to remove them from the market entirely. But a ban would contradict Congress' clear intent as expressed in its more recent, tobacco-specific legislation. The inescapable conclusion is that there is no room for tobacco products within the FDCA's regulatory scheme. If they cannot be used safely for any therapeutic purpose, and yet they cannot be banned, they simply do not fit. B In determining whether Congress has spoken directly to the FDA's authority to regulate tobacco, we must also consider in greater detail the tobacco-specific legislation that Congress has enacted over the past 35 years. At the time a statute is enacted, it may have a range of plausible meanings. Over time, however, subsequent acts can shape or focus those meanings. The "classic judicial task of reconciling many laws enacted over time, and getting them to `make sense' in combination, necessarily assumes that the implications of a statute may be altered by the implications of a later statute." United 484 U. S., at This is particularly so where the scope of the earlier statute is broad but the subsequent statutes more specifically address the topic at hand. As we recognized recently in United "a specific policy embodied in a later federal statute should control our construction of the [earlier] statute, even though it ha[s] not been expressly amended." 523 U.S., at Congress has enacted six separate |
Justice O'Connor | 2,000 | 14 | majority | FDA v. Brown & Williamson Tobacco Corp. | https://www.courtlistener.com/opinion/118347/fda-v-brown-williamson-tobacco-corp/ | expressly amended." 523 U.S., at Congress has enacted six separate pieces of legislation since 1965 addressing the problem of tobacco use and human health. See Those statutes, among other things, require that health warnings appear on all packaging and in all print and outdoor advertisements, see *144 15 U.S. C. 1331, 1333, 4402; prohibit the advertisement of tobacco products through "any medium of electronic communication" subject to regulation by the Federal Communications Commission (FCC), see 1335, 4402(f); require the Secretary of HHS to report every three years to Congress on research findings concerning "the addictive property of tobacco," 42 U.S. C. 290aa2(b)(2); and make States' receipt of certain federal block grants contingent on their making it unlawful "for any manufacturer, retailer, or distributor of tobacco products to sell or distribute any such product to any individual under the age of 18," 300x26(a)(1). In adopting each statute, Congress has acted against the backdrop of the FDA's consistent and repeated statements that it lacked authority under the FDCA to regulate tobacco absent claims of therapeutic benefit by the manufacturer. In fact, on several occasions over this period, and after the health consequences of tobacco use and nicotine's pharmacological effects had become well known, Congress considered and rejected bills that would have granted the FDA such jurisdiction. Under these circumstances, it is evident that Congress' tobacco-specific statutes have effectively ratified the FDA's long-held position that it lacks jurisdiction under the FDCA to regulate tobacco products. Congress has created a distinct regulatory scheme to address the problem of tobacco and health, and that scheme, as presently constructed, precludes any role for the FDA. On January 11, 1964, the Surgeon General released the report of the Advisory Committee on Smoking and Health. That report documented the deleterious health effects of smoking in great detail, concluding, in relevant part, "that cigarette smoking contributes substantially to mortality from certain specific diseases and to the overall death rate." 1964 Surgeon General's Report 31. It also identified the pharmacological effects of nicotine, including "stimulation," "tranquilization," and "suppression of appetite." Seven days after the report's release, the Federal Trade *145 Commission (FTC) issued a notice of proposed rulemaking, see -532 (1964), and in June 1964, the FTC promulgated a final rule requiring cigarette manufacturers "to disclose, clearly and prominently, in all advertising and on every pack, box, carton or other container that cigarette smoking is dangerous to health and may cause death from cancer and other diseases," The rule was to become effective January 1, 1965, but, on a request from Congress, the FTC postponed enforcement for six months. See |
Justice O'Connor | 2,000 | 14 | majority | FDA v. Brown & Williamson Tobacco Corp. | https://www.courtlistener.com/opinion/118347/fda-v-brown-williamson-tobacco-corp/ | from Congress, the FTC postponed enforcement for six months. See In response to the Surgeon General's report and the FTC's proposed rule, Congress convened hearings to consider legislation addressing "the tobacco problem." 1964 Hearings 1. During those deliberations, FDA representatives testified before Congress that the agency lacked jurisdiction under the FDCA to regulate tobacco products. Surgeon General Terry was asked during hearings in 1964 whether HEW had the "authority to brand or label the packages of cigarettes or to control the advertising there." The Surgeon General stated that "we do not have such authority in existing laws governing the Food and Drug Administration." Similarly, FDA Deputy Commissioner Rankin testified in 1965 that "[t]he Food and Drug Administration has no jurisdiction under the Food, Drug, and Cosmetic Act over tobacco, unless it bears drug claims." Cigarette Labeling and Advertising1965: Hearings on H. R. 2248 before the House Committee on Interstate and Foreign Commerce, 89th Cong., 1st Sess., 193 (hereinafter 1965 Hearings). See also Letter to Directors of Bureaus, Divisions and Directors of Districts from FDA Bureau of Enforcement (May 24, 1963), in 1972 Hearings 240 ("[T]obacco marketed for chewing or smoking without accompanying therapeutic claims, does not meet the definitions in the Food, Drug, and Cosmetic Act for food, drug, device or cosmetic"). In fact, HEW Secretary Celebrezze urged Congress not to amend the FDCA to cover *146 "smoking products" because, in light of the findings in the Surgeon General's report, such a "provision might well completely outlaw at least cigarettes. This would be contrary to what, we understand, is intended or what, in the light of our experience with the 18th amendment, would be acceptable to the American people." 1964 Hearings 18. The FDA's disavowal of jurisdiction was consistent with the position that it had taken since the agency's inception. As the FDA concedes, it never asserted authority to regulate tobacco products as customarily marketed until it promulgated the regulations at issue here. See Brief for Petitioners 37; see also Brief for Appellee (FDA) in Action on Smoking and in 9 Rec. in No. 97-1604 (CA4), Tab No. 4, pp. 14-15 ("In the 73 years since the enactment of the original Food and Drug Act, and in the 41 years since the promulgation of the modern Food, Drug, and Cosmetic Act, the FDA has repeatedly informed Congress that cigarettes are beyond the scope of the statute absent health claims establishing a therapeutic intent on behalf of the manufacturer or vendor"). The FDA's position was also consistent with Congress' specific intent when it enacted the FDCA. Before the Act's adoption in |
Justice O'Connor | 2,000 | 14 | majority | FDA v. Brown & Williamson Tobacco Corp. | https://www.courtlistener.com/opinion/118347/fda-v-brown-williamson-tobacco-corp/ | when it enacted the FDCA. Before the Act's adoption in 1938, the FDA's predecessor agency, the Bureau of Chemistry, announced that it lacked authority to regulate tobacco products under the Pure Food and Drug Act of 1906, ch. 3915, unless they were marketed with therapeutic claims. See U. S. Dept. of Agriculture, Bureau of Chemistry, 13 Service and Regulatory Announcements 24 (Apr. 1914) (Feb. 1914 Announcements ¶ 13, Opinion of Chief of Bureau C. L. Alsberg). In 1929, Congress considered and rejected a bill "[t]o amend the Food and Drugs Act of June 30, 1906, by extending its provisions to tobacco and tobacco products." S. 1468, 71st Cong., 1st Sess., 1. See also 71 Cong. Rec. 2589 (1929) (remarks of Sen. Smoot). And, as the FDA admits, there is no evidence in the text of the FDCA or its legislative history that Congress in 1938 even considered *147 the applicability of the Act to tobacco products. See Brief for Petitioners 22, n. 4. Given the economic and political significance of the tobacco industry at the time, it is extremely unlikely that Congress could have intended to place tobacco within the ambit of the FDCA absent any discussion of the matter. Of course, whether the Congress that enacted the FDCA specifically intended the Act to cover tobacco products is not determinative; "it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed." ; see also Nonetheless, this intent is certainly relevant to understanding the basis for the FDA's representations to Congress and the background against which Congress enacted subsequent tobacco-specific legislation. Moreover, before enacting the FCLAA in 1965, Congress considered and rejected several proposals to give the FDA the authority to regulate tobacco. In April 1963, Representative Udall introduced a bill "[t]o amend the Federal Food, Drug, and Cosmetic Act so as to make that Act applicable to smoking products." H. R. 5973, 88th Cong., 1st Sess., 1. Two months later, Senator Moss introduced an identical bill in the Senate. S. 1682, 88th Cong., 1st Sess. (1963). In discussing his proposal on the Senate floor, Senator Moss explained that "this amendment simply places smoking products under FDA jurisdiction, along with foods, drugs, and cosmetics." 109 Cong. Rec. 10322 (1963). In December 1963, Representative Rhodes introduced another bill that would have amended the FDCA "by striking out `food, drug, device, or cosmetic, each place where it appears therein and inserting in lieu thereof `food, drug, device, cosmetic, or smoking product.' " H. R. 9512, 88th Cong., 1st Sess., 3 (1963). And in |
Justice O'Connor | 2,000 | 14 | majority | FDA v. Brown & Williamson Tobacco Corp. | https://www.courtlistener.com/opinion/118347/fda-v-brown-williamson-tobacco-corp/ | R. 9512, 88th Cong., 1st Sess., 3 (1963). And in January 1965, five months before passage of *148 the FCLAA, Representative Udall again introduced a bill to amend the FDCA "to make that Act applicable to smoking products." H. R. 2248, 89th Cong., 1st Sess., 1. None of these proposals became law. Congress ultimately decided in 1965 to subject tobacco products to the less extensive regulatory scheme of the FCLAA, which created a "comprehensive Federal program to deal with cigarette labeling and advertising with respect to any relationship between smoking and health." Pub. L. 89-92, 2, Stat. 282. The FCLAA rejected any regulation of advertising, but it required the warning, "Caution: Cigarette Smoking May Be Hazardous to Your Health," to appear on all cigarette packages. 4, Stat. 283. In the FCLAA's "Declaration of Policy," Congress stated that its objective was to balance the goals of ensuring that "the public may be adequately informed that cigarette smoking may be hazardous to health" and protecting "commerce and the national economy to the maximum extent." 2, Stat. 282 (codified U.S. C. 1331). Not only did Congress reject the proposals to grant the FDA jurisdiction, but it explicitly pre-empted any other regulation of cigarette labeling: "No statement relating to smoking and health, other than the statement required by this Act, shall be required on any cigarette package." Pub. L. 89-92, 5(a), Stat. 283. The regulation of product labeling, however, is an integral aspect of the FDCA, both as it existed in 1965 and today. The labeling requirements currently imposed by the FDCA, which are essentially identical to those in force in 1965, require the FDA to regulate the labeling of drugs and devices to protect the safety of consumers. See 21 U.S. C. 352; 21 U.S. C. 352 (1964 ed. and Supp. IV). As discussed earlier, the Act requires that all products bear "adequate directions for use as are necessary for the protection of users," 21 U.S. C. 352(f)(1); 21 U.S. C. 352(f)(1) (1964 ed.); requires that all products provide "adequate warnings against use in those pathological *149 conditions or by children where its use may be dangerous to health," 21 U.S. C. 352(f)(2); 21 U.S. C. 352(f)(2) (1964 ed.); and deems a product misbranded "[i]f it is dangerous to health when used in the dosage or manner, or with the frequency or duration prescribed, recommended, or suggested in the labeling thereof," 21 U.S. C. 352(j); 21 U.S. C. 352(j) (1964 ed.). In this sense, the FCLAA wasand remainsincompatible with FDA regulation of tobacco products. This is not to say that the FCLAA's pre-emption |
Justice O'Connor | 2,000 | 14 | majority | FDA v. Brown & Williamson Tobacco Corp. | https://www.courtlistener.com/opinion/118347/fda-v-brown-williamson-tobacco-corp/ | products. This is not to say that the FCLAA's pre-emption provision by itself necessarily foreclosed FDA jurisdiction. See -519. But it is an important factor in assessing whether Congress ratified the agency's positionthat is, whether Congress adopted a regulatory approach to the problem of tobacco and health that contemplated no role for the FDA. Further, the FCLAA evidences Congress' intent to preclude any administrative agency from exercising significant policymaking authority on the subject of smoking and health. In addition to prohibiting any additional requirements for cigarette labeling, the FCLAA provided that "[n]o statement relating to smoking and health shall be required in the advertising of any cigarettes the packages of which are labeled in conformity with the provisions of this Act." Pub. L. 89-92, 5(b), Stat. 283. Thus, in reaction to the FTC's attempt to regulate cigarette labeling and advertising, Congress enacted a statute reserving exclusive control over both subjects to itself. Subsequent tobacco-specific legislation followed a similar pattern. By the FCLAA's own terms, the prohibition on any additional cigarette labeling or advertising regulations relating to smoking and health was to expire July 1, 1969. See 10, Stat. 284. In anticipation of the provision's expiration, both the FCC and the FTC proposed rules governing the advertisement of cigarettes. See ; at 17 *150 (FTC proposed rule requiring manufacturers to disclose on all packaging and in all print advertising "`that cigarette smoking is dangerous to health and may cause death from cancer, coronary heart disease, chronic bronchitis, pulmonary emphysema, and other diseases' "). After debating the proper role for administrative agencies in the regulation of tobacco, see generally Cigarette Labeling and Advertising 1969: Hearings before the House Committee on Interstate and Foreign Commerce, 91st Cong., 1st Sess., pt. 2 Congress amended the FCLAA by banning cigarette advertisements "on any medium of electronic communication subject to the jurisdiction of the Federal Communications Commission" and strengthening the warning required to appear on cigarette packages. Public Health Cigarette Smoking Act of 1969, Pub. L. 91-222, 4, 6, -89. Importantly, Congress extended indefinitely the prohibition on any other regulation of cigarette labeling with respect to smoking and health (again despite the importance of labeling regulation under the FDCA). 5(a), (codified U.S. C. 1334(a)). Moreover, it expressly forbade the FTC from taking any action on its pending rule until July 1, 1971, and it required the FTC, if it decided to proceed with its rule thereafter, to notify Congress at least six months in advance of the rule's becoming effective. 7(a), As the chairman of the House committee in which the bill originated stated, "the Congressthe |
Justice O'Connor | 2,000 | 14 | majority | FDA v. Brown & Williamson Tobacco Corp. | https://www.courtlistener.com/opinion/118347/fda-v-brown-williamson-tobacco-corp/ | House committee in which the bill originated stated, "the Congressthe body elected by the people must make the policy determinations involved in this legislationand not some agency made up of appointed officials." 116 Cong. Rec. 20 (1970) (remarks of Rep. Staggers). Four years later, after Congress had transferred the authority to regulate substances covered by the Hazardous Substances Act (HSA) from the FDA to the Consumer Products Safety Commission (CPSC), the American Public Health Association, joined by Senator Moss, petitioned the CPSC to regulate cigarettes yielding more than 21 milligrams of tar. See Action on Smoking and ; R. Kluger, Ashes to Ashes 375-376 After the CPSC determined that it lacked authority under the HSA to regulate cigarettes, a District Court held that the HSA did, in fact, grant the CPSC such jurisdiction and ordered it to reexamine the petition. See American Public Health Association v. Consumer Product Safety Commission, [1972-1975 Transfer Binder] CCH Consumer Prod. Safety Guide ¶ 75,081 (DC 1975), vacated as moot, No. 75-1863 (CADC 1976). Before the CPSC could take any action, however, Congress mooted the issue by adopting legislation that eliminated the agency's authority to regulate "tobacco and tobacco products." Consumer Product Safety Commission Improvements Act of 1976, Pub. L. 94-284, 3(c), (codified U.S. C. 1261(f)(2)). Senator Moss acknowledged that the "legislation, in effect, reverse[d]" the District Court's decision, 121 Cong. Rec. 23563 (1975), and the FDA later observed that the episode was "particularly" "indicative of the policy of Congress to limit the regulatory authority over cigarettes by Federal Agencies," Letter to Action on Smoking and Health (ASH) Executive Director Banzhaf from FDA Comm'r Goyan App. 59. A separate statement in the Senate Report underscored that the legislation's purpose was to "unmistakably reaffirm the clear mandate of the Congress that the basic regulation of tobacco and tobacco products is governed by the legislation dealing with the subject, and that any further regulation in this sensitive and complex area must be reserved for specific Congressional action." S. Rep. No. 94-251, p. 43 (1975) (additional views of Sens. Hartke, Hollings, Ford, Stevens, and Beall). Meanwhile, the FDA continued to maintain that it lacked jurisdiction under the FDCA to regulate tobacco products as customarily marketed. In 1972, FDA Commissioner Edwards testified before Congress that "cigarettes recommended for smoking pleasure are beyond the Federal Food, Drug, and Cosmetic Act." 1972 Hearings 239, 242. He further *152 stated that the FDA believed that the Public Health Cigarette Smoking Act "demonstrates that the regulation of cigarettes is to be the domain of Congress," and that "labeling or banning cigarettes is a |
Justice O'Connor | 2,000 | 14 | majority | FDA v. Brown & Williamson Tobacco Corp. | https://www.courtlistener.com/opinion/118347/fda-v-brown-williamson-tobacco-corp/ | of Congress," and that "labeling or banning cigarettes is a step that can be take[n] only by the Congress. Any such move by FDA would be inconsistent with the clear congressional intent." In 1977, ASH filed a citizen petition requesting that the FDA regulate cigarettes, citing many of the same grounds that motivated the FDA's rulemaking here. See Citizen Petition, No. 77P-0 (May 26, 1977), 10 Rec. in No. 97-1604 (CA4), Tab No. 22, pp. 1-10. ASH asserted that nicotine was highly addictive and had strong physiological effects on the body; that those effects were "intended" because consumers use tobacco products precisely to obtain those effects; and that tobacco causes thousands of premature deaths annually. In denying ASH's petition, FDA Commissioner Kennedy stated that "[t]he interpretation of the Act by FDA consistently has been that cigarettes are not a drug unless health claims are made by the vendors." Letter to ASH Executive Director Banzhaf (Dec. 5, 1977), App. 47. After the matter proceeded to litigation, the FDA argued in its brief to the Court of Appeals that "cigarettes are not comprehended within the statutory definition of the term `drug' absent objective evidence that vendors represent or intend that their products be used as a drug." Brief for Appellee in Action on Smoking and 9 Rec. in No. 97-1604 (CA4), Tab No. 4, at 27-28. The FDA also contended that Congress had "long been aware that the FDA does not consider cigarettes to be within its regulatory authority in the absence of health claims made on behalf of the manufacturer or vendor," and that, because "Congress has never acted to disturb the agency's interpretation," it had "acquiesced in the FDA's interpretation of the statutory limits on its authority to regulate cigarettes." The Court of Appeals upheld the FDA's position, concluding that "[i]f the statute *153 requires expansion, that is the job of Congress." Action on Smoking and 655 F. 2d, at 243. In the FDA also denied a request by ASH to commence rulemaking proceedings to establish the agency's jurisdiction to regulate cigarettes as devices. See Letter to ASH Executive Director Banzhaf from FDA Comm'r Goyan App. 50-51. The agency stated that "[i]nsofar as rulemaking would relate to cigarettes or attached filters as customarily marketed, we have concluded that FDA has no jurisdiction under section 201(h) of the Act [21 U.S. C. 321(h)]." In 1983, Congress again considered legislation on the subject of smoking and health. HHS Assistant Secretary Brandt testified that, in addition to being "a major cause of cancer," smoking is a "major cause of heart disease" and other |
Justice O'Connor | 2,000 | 14 | majority | FDA v. Brown & Williamson Tobacco Corp. | https://www.courtlistener.com/opinion/118347/fda-v-brown-williamson-tobacco-corp/ | smoking is a "major cause of heart disease" and other serious illnesses, and can result in "unfavorable pregnancy outcomes." 1983 House Hearings 19-20. He also stated that it was "well-established that cigarette smoking is a drug dependence, and that smoking is addictive for many people." Nonetheless, Assistant Secretary Brandt maintained that "the issue of regulation of tobacco is something that Congress has reserved to itself, and we do not within the Department have the authority to regulate nor are we seeking such authority." He also testified before the Senate, stating that, despite the evidence of tobacco's health effects and addictiveness, the Department's view was that "Congress has assumed the responsibility of regulating cigarettes." Smoking Prevention and Education Act: Hearings on S. 772 before the Senate Committee on Labor and Human Resources, 98th Cong., 1st Sess., 56 (hereinafter 1983 Senate Hearings). Against this backdrop, Congress enacted three additional tobacco-specific statutes over the next four years that incrementally expanded its regulatory scheme for tobacco products. In 1983, Congress adopted the Alcohol and Drug Abuse Amendments, Stat. 175 (codified at *154 42 U.S. C. 290aa et seq. ), which require the Secretary of HHS to report to Congress every three years on the "addictive property of tobacco" and to include recommendations for action that the Secretary may deem appropriate. A year later, Congress enacted the Comprehensive Smoking Education Act, Stat. 2200, which amended the FCLAA by again modifying the prescribed warning. Notably, during debate on the Senate floor, Senator Hawkins argued that the FCLAA was necessary in part because "[u]nder the Food, Drug and Cosmetic Act, the Congress exempted tobacco products." 130 Cong. Rec. 26953 And in 1986, Congress enacted the Comprehensive Smokeless Tobacco Health Education Act of 1986 (CSTHEA), Stat. 30 (codified U.S. C. 4401 et seq. ), which essentially extended the regulatory provisions of the FCLAA to smokeless tobacco products. Like the FCLAA, the CSTHEA provided that "[n]o statement relating to the use of smokeless tobacco products and health, other than the statements required by [the Act], shall be required by any Federal agency to appear on any package of a smokeless tobacco product." 7(a), (codified U.S. C. 4406(a)). Thus, as with cigarettes, Congress reserved for itself an aspect of smokeless tobacco regulation that is particularly important to the FDCA's regulatory scheme. In 1988, the Surgeon General released a report summarizing the abundant scientific literature demonstrating that "[c]igarettes and other forms of tobacco are addicting," and that "nicotine is psychoactive" and "causes physical dependence characterized by a withdrawal syndrome that usually accompanies nicotine abstinence." 1988 Surgeon General's Report 14. The report |
Justice O'Connor | 2,000 | 14 | majority | FDA v. Brown & Williamson Tobacco Corp. | https://www.courtlistener.com/opinion/118347/fda-v-brown-williamson-tobacco-corp/ | accompanies nicotine abstinence." 1988 Surgeon General's Report 14. The report further concluded that the "pharmacologic and behavioral processes that determine tobacco addiction are similar to those that determine addiction to drugs such as heroin and cocaine." In the same year, FDA Commissioner Young stated before Congress that "it doesn't look like it is possible to regulate [tobacco] under the *155 Food, Drug and Cosmetic Act even though smoking, I think, has been widely recognized as being harmful to human health." Rural Development, Agriculture, and Related Agencies Appropriations for 1989: Hearings before a Subcommittee of the House Committee on Appropriations, 100th Cong., 2d Sess., 409 At the same hearing, the FDA's General Counsel testified that "what is fairly important in FDA law is whether a product has a therapeutic purpose," and "[c]igarettes themselves are not used for a therapeutic purpose as that concept is ordinarily understood." Between 1987 and 1989, Congress considered three more bills that would have amended the FDCA to grant the FDA jurisdiction to regulate tobacco products. See H. R. 3294, 100th Cong., 1st Sess. (1987); H. R. 1494, 101st Cong., 1st Sess. ; S. 769, 101st Cong., 1st Sess. As before, Congress rejected the proposals. In 1992, Congress instead adopted the Alcohol, Drug Abuse, and Mental Health Administration Reorganization Act, Pub. L. 102-321, 202, (codified U.S. C. 300x et seq. ), which creates incentives for States to regulate the retail sale of tobacco products by making States' receipt of certain block grants contingent on their prohibiting the sale of tobacco products to minors. Taken together, these actions by Congress over the past 35 years preclude an interpretation of the FDCA that grants the FDA jurisdiction to regulate tobacco products. We do not rely on Congress' failure to actits consideration and rejection of bills that would have given the FDA this authorityin reaching this conclusion. Indeed, this is not a case of simple inaction by Congress that purportedly represents its acquiescence in an agency's position. To the contrary, Congress has enacted several statutes addressing the particular subject of tobacco and health, creating a distinct regulatory scheme for cigarettes and smokeless tobacco. In doing so, Congress has been aware of tobacco's health hazards and its pharmacological effects. It has also enacted this legislation *156 against the background of the FDA repeatedly and consistently asserting that it lacks jurisdiction under the FDCA to regulate tobacco products as customarily marketed. Further, Congress has persistently acted to preclude a meaningful role for any administrative agency in making policy on the subject of tobacco and health. Moreover, the substance of Congress' regulatory scheme |
Justice O'Connor | 2,000 | 14 | majority | FDA v. Brown & Williamson Tobacco Corp. | https://www.courtlistener.com/opinion/118347/fda-v-brown-williamson-tobacco-corp/ | tobacco and health. Moreover, the substance of Congress' regulatory scheme is, in an important respect, incompatible with FDA jurisdiction. Although the supervision of product labeling to protect consumer health is a substantial component of the FDA's regulation of drugs and devices, see 21 U.S. C. 352 (1994 ed. and Supp. III), the FCLAA and the CSTHEA explicitly prohibit any federal agency from imposing any health-related labeling requirements on cigarettes or smokeless tobacco products, see 15 U.S. C. 1334(a), 4406(a). Under these circumstances, it is clear that Congress' tobacco-specific legislation has effectively ratified the FDA's previous position that it lacks jurisdiction to regulate tobacco. As in Bob Jones "[i]t is hardly conceivable that Congressand in this setting, any Member of Congresswas not abundantly aware of what was going on." Congress has affirmatively acted to address the issue of tobacco and health, relying on the representations of the FDA that it had no authority to regulate tobacco. It has created a distinct scheme to regulate the sale of tobacco products, focused on labeling and advertising, and premised on the belief that the FDA lacks such jurisdiction under the FDCA. As a result, Congress' tobacco-specific statutes preclude the FDA from regulating tobacco products as customarily marketed. Although the dissent takes issue with our discussion of the FDA's change in position, post, at 186-189, our conclusion does not rely on the fact that the FDA's assertion of jurisdiction represents a sharp break with its prior interpretation of the FDCA. Certainly, an agency's initial interpretation of a statute that it is charged with administering is not "carved *157 in stone." ; see also U.S. 735, As we recognized in Motor Vehicle Mfrs. Assn. of United States, v. State Farm Mut. Automobile Ins. Co., agencies "must be given ample latitude to `adapt their rules and policies to the demands of changing circumstances.' " ). The consistency of the FDA's prior position is significant in this case for a different reason: It provides important context to Congress' enactment of its tobacco-specific legislation. When the FDA repeatedly informed Congress that the FDCA does not grant it the authority to regulate tobacco products, its statements were consistent with the agency's unwavering position since its inception, and with the position that its predecessor agency had first taken in 1914. Although not crucial, the consistency of the FDA's prior position bolsters the conclusion that when Congress created a distinct regulatory scheme addressing the subject of tobacco and health, it understood that the FDA is without jurisdiction to regulate tobacco products and ratified that position. The dissent also argues that the proper |
Justice O'Connor | 2,000 | 14 | majority | FDA v. Brown & Williamson Tobacco Corp. | https://www.courtlistener.com/opinion/118347/fda-v-brown-williamson-tobacco-corp/ | ratified that position. The dissent also argues that the proper inference to be drawn from Congress' tobacco-specific legislation is "critically ambivalent." Post, at 182. We disagree. In that series of statutes, Congress crafted a specific legislative response to the problem of tobacco and health, and it did so with the understanding, based on repeated assertions by the FDA, that the agency has no authority under the FDCA to regulate tobacco products. Moreover, Congress expressly pre-empted any other regulation of the labeling of tobacco products concerning their health consequences, even though the oversight of labeling is central to the FDCA's regulatory scheme. And in addressing the subject, Congress consistently evidenced its intent to preclude any federal agency from exercising significant policymaking authority in the area. Under these circumstances, we believe the appropriate *158 inferencethat Congress intended to ratify the FDA's prior position that it lacks jurisdictionis unmistakable. The dissent alternatively argues that, even if Congress' subsequent tobacco-specific legislation did, in fact, ratify the FDA's position, that position was merely a contingent disavowal of jurisdiction. Specifically, the dissent contends that "the FDA's traditional view was largely premised on a perceived inability to prove the necessary statutory `intent' requirement." Post, at 189-190. A fair reading of the FDA's representations prior to 1995, however, demonstrates that the agency's position was essentially unconditional. See, e. g., 1972 Hearings 239, 242 (statement of Comm'r Edwards) ("[R]egulation of cigarettes is to be the domain of Congress," and "[a]ny such move by FDA would be inconsistent with the clear congressional intent"); 1983 House Hearings 74 (statement of Assistant Secretary Brandt) ("[T]he issue of regulation of tobacco is something that Congress has reserved to itself"); 1983 Senate Hearings 56 (statement of Assistant Secretary Brandt) ("Congress has assumed the responsibility of regulating cigarettes"); Brief for Appellee in Action on Smoking and 9 Rec. in No. 97-1604 (CA4), Tab No. 4, at 27, n. 23 (because "Congress has never acted to disturb the agency's interpretation," it "acquiesced in the FDA's interpretation"). To the extent the agency's position could be characterized as equivocal, it was only with respect to the well-established exception of when the manufacturer makes express claims of therapeutic benefit. See, e. g., 1965 Hearings 193 (statement of Deputy Comm'r Rankin) ("The Food and Drug Administration has no jurisdiction under the Food, Drug, and Cosmetic Act over tobacco, unless it bears drug claims"); Letter to ASH Executive Director Banzhaf from FDA Comm'r Kennedy (Dec. 5, 1977), App. 47 ("The interpretation of the Act by FDA consistently has been that cigarettes are not a drug unless health claims are made by |
Justice O'Connor | 2,000 | 14 | majority | FDA v. Brown & Williamson Tobacco Corp. | https://www.courtlistener.com/opinion/118347/fda-v-brown-williamson-tobacco-corp/ | are not a drug unless health claims are made by the vendors"); Letter to ASH Executive Director Banzhaf from *159 FDA Comm'r Goyan Thus, what Congress ratified was the FDA's plain and resolute position that the FDCA gives the agency no authority to regulate tobacco products as customarily marketed. C Finally, our inquiry into whether Congress has directly spoken to the precise question at issue is shaped, at least in some measure, by the nature of the question presented. Deference under to an agency's construction of a statute that it administers is premised on the theory that a statute's ambiguity constitutes an implicit delegation from Congress to the agency to fill in the statutory gaps. See In extraordinary cases, however, there may be reason to hesitate before concluding that Congress has intended such an implicit delegation. Cf. Breyer, Judicial Review of Questions of Law and Policy, This is hardly an ordinary case. Contrary to its representations to Congress since 1914, the FDA has now asserted jurisdiction to regulate an industry constituting a significant portion of the American economy. In fact, the FDA contends that, were it to determine that tobacco products provide no "reasonable assurance of safety," it would have the authority to ban cigarettes and smokeless tobacco entirely. See Brief for Petitioners 35-36; Reply Brief for Petitioners 14. Owing to its unique place in American history and society, tobacco has its own unique political history. Congress, for better or for worse, has created a distinct regulatory scheme for tobacco products, squarely rejected proposals to *160 give the FDA jurisdiction over tobacco, and repeatedly acted to preclude any agency from exercising significant policymaking authority in the area. Given this history and the breadth of the authority that the FDA has asserted, we are obliged to defer not to the agency's expansive construction of the statute, but to Congress' consistent judgment to deny the FDA this power. Our decision in MCI Telecommunications is instructive. That case involved the proper construction of the term "modify" in 203(b) of the Communications Act of 1934. The FCC contended that, because the Act gave it the discretion to "modify any requirement" imposed under the statute, it therefore possessed the authority to render voluntary the otherwise mandatory requirement that long distance carriers file their rates. We rejected the FCC's construction, finding "not the slightest doubt" that Congress had directly spoken to the question. In reasoning even more apt here, we concluded that "[i]t is highly unlikely that Congress would leave the determination of whether an industry will be entirely, or even substantially, rateregulated to agency discretionand |
Justice O'Connor | 2,000 | 14 | majority | FDA v. Brown & Williamson Tobacco Corp. | https://www.courtlistener.com/opinion/118347/fda-v-brown-williamson-tobacco-corp/ | will be entirely, or even substantially, rateregulated to agency discretionand even more unlikely that it would achieve that through such a subtle device as permission to `modify' rate-filing requirements." at As in MCI, we are confident that Congress could not have intended to delegate a decision of such economic and political significance to an agency in so cryptic a fashion. To find that the FDA has the authority to regulate tobacco products, one must not only adopt an extremely strained understanding of "safety" as it is used throughout the Acta concept central to the FDCA's regulatory schemebut also ignore the plain implication of Congress' subsequent tobaccospecific legislation. It is therefore clear, based on the FDCA's overall regulatory scheme and the subsequent tobacco legislation, that Congress has directly spoken to the *161 question at issue and precluded the FDA from regulating tobacco products. * * * By no means do we question the seriousness of the problem that the FDA has sought to address. The agency has amply demonstrated that tobacco use, particularly among children and adolescents, poses perhaps the single most significant threat to public health in the United States. Nonetheless, no matter how "important, conspicuous, and controversial" the issue, and regardless of how likely the public is to hold the Executive Branch politically accountable, post, at 190, an administrative agency's power to regulate in the public interest must always be grounded in a valid grant of authority from Congress. And "`[i]n our anxiety to effectuate the congressional purpose of protecting the public, we must take care not to extend the scope of the statute beyond the point where Congress indicated it would stop.' " United 394 U.S. Reading the FDCA as a whole, as well as in conjunction with Congress' subsequent tobaccospecific legislation, it is plain that Congress has not given the FDA the authority that it seeks to exercise here. For these reasons, the judgment of the Court of Appeals for the Fourth Circuit is affirmed. It is so ordered. |
Justice Thomas | 2,005 | 1 | majority | Pasquantino v. United States | https://www.courtlistener.com/opinion/142889/pasquantino-v-united-states/ | At common law, the revenue rule generally barred courts from enforcing the tax laws of foreign sovereigns. The *353 question presented in this case is whether a plot to defraud a foreign government of tax revenue violates the federal wire fraud statute, 18 U.S. C. 1343 ( ed., Supp. II). Because the plain terms of 1343 criminalize such a scheme, and because this construction of the wire fraud statute does not derogate from the common-law revenue rule, we hold that it does. I Petitioners Carl J. Pasquantino, David B. Pasquantino, and Arthur Hilts were indicted for and convicted of federal wire fraud for carrying out a scheme to smuggle large quantities of liquor into Canada from the United States. According to the evidence presented at trial, the Pasquantinos, while in New York, ordered liquor over the telephone from discount package stores in Maryland. See They employed Hilts and others to drive the liquor over the Canadian border, without paying the required excise taxes. The drivers avoided paying taxes by hiding the liquor in their vehicles and failing to declare the goods to Canadian customs officials. During the time of petitioners' smuggling operation, between and Canada heavily taxed the importation of alcoholic beverages. See S. C., ch. 36, 21.1(1), 21.2(1); Excise Act Schedule 1.(1), R. S. C., ch. E-14 (185); Excise Act Schedule 4, ch. 22, S. C. 23. Uncontested evidence at trial showed that Canadian taxes then due on alcohol purchased in the United States and transported to Canada were approximately double the liquor's purchase price. App. 65-66. Before trial, petitioners moved to dismiss the indictment on the ground that it stated no wire fraud offense. The wire fraud statute prohibits the use of interstate wires to effect "any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises." 18 U.S. C. 1343 ( ed., Supp. II). Petitioners contended that the Government lacked a *354 sufficient interest in enforcing the revenue laws of Canada, and therefore that they had not committed wire fraud. App. 48-57. The District Court denied the motion, and the case went to trial. The jury convicted petitioners of wire fraud. Petitioners appealed their convictions to the United States Court of Appeals for the Fourth Circuit, again urging that the indictment failed to state a wire fraud offense. They argued that their prosecution contravened the common-law revenue rule, because it required the court to take cognizance of the revenue laws of Canada. Over Judge Hamilton's dissent, the panel agreed and reversed the convictions. Petitioners also argued |
Justice Thomas | 2,005 | 1 | majority | Pasquantino v. United States | https://www.courtlistener.com/opinion/142889/pasquantino-v-united-states/ | the panel agreed and reversed the convictions. Petitioners also argued that Canada's right to collect taxes from them was not "money or property" within the meaning of the wire fraud statute, but the panel unanimously rejected that argument. at 24-; The Court of Appeals granted rehearing en banc, vacated the panel's decision, and affirmed petitioners' convictions. It concluded that the common-law revenue rule, rather than barring any recognition of foreign revenue law, simply allowed courts to refuse to enforce the tax judgments of foreign nations, and therefore did not preclude the Government from prosecuting petitioners. The Court of Appeals held as well that Canada's right to receive tax revenue was "money or property" within the meaning of the wire fraud statute. We granted certiorari to resolve a conflict in the Courts of Appeals over whether a scheme to defraud a foreign government of tax revenue violates the wire fraud statute. Compare United with United We *355 agree with the Court of Appeals that it does and therefore affirm the judgment below.[1] II We first consider whether petitioners' conduct falls within the literal terms of the wire fraud statute. The statute prohibits using interstate wires to effect "any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises." 18 U.S. C. 1343 ( ed., Supp. II). Two elements of this crime, and the only two that petitioners dispute here, are that the defendant engage in a "scheme or artifice to defraud," ib and that the "object of the fraud be `[money or] property' in the victim's hands,"[2] Petitioners' smuggling operation satisfies both elements. Taking the latter element first, Canada's right to uncollected excise taxes on the liquor petitioners imported into Canada is "property" in its hands. This right is an entitlement to collect money from petitioners, the possession of which is "something of value" to the Government of Canada. Valuable entitlements like these are "property" as that term ordinarily is employed. See ; Black's Law Dictionary 1382 (4th ed. 151) (defining "property" as "extend[ing] to every species of valuable right and interest"). Had petitioners complied with this legal obligation, they would have paid money to Canada. Petitioners' tax evasion deprived Canada of that money, inflicting an economic injury no less than had they embezzled funds from the Canadian treasury. The object of petitioners' scheme was to deprive Canada of money legally due, and their scheme thereby had as its object the deprivation of Canada's "property." The common law of fraud confirms this characterization of Canada's right to excise taxes. The |
Justice Thomas | 2,005 | 1 | majority | Pasquantino v. United States | https://www.courtlistener.com/opinion/142889/pasquantino-v-united-states/ | confirms this characterization of Canada's right to excise taxes. The right to be paid money has long been thought to be a species of property. See 3 W. Blackstone, Commentaries on the Laws of England 153-155 (1768) (classifying a right to sue on a debt as personal property); 2 J. Kent, Commentaries on American Law *351 (same). Consistent with that understanding, fraud at common law included a scheme to deprive a victim of his entitlement to money. For instance, a debtor who concealed his assets when settling debts with his creditors thereby committed common-law fraud. 1 J. Story, Equity Jurisprudence (I. Redfield 10th rev. ed. 1870); Chesterfield v. Janssen, 28 Eng. Rep. 82, 2 Ves. Sen. 125 (ch. 1750); 1 S. Rapalje & R. Lawrence, A Dictionary of American and English Law 546 (1883). That made sense given the economic equivalence between money in hand and money legally due. The fact that the victim of the fraud happens to be the government, rather than a private party, does not lessen the injury. Our conclusion that the right to tax revenue is property in Canada's hands, contrary to petitioners' contentions, is consistent with In that case, the defendant, *357 had obtained a video poker license by making false statements on his license application. We held that a State's interest in an unissued video poker license was not "property," because the interest in choosing particular licensees was "`purely regulatory'" and "[could not] be economic." We also noted that "the Government nowhere allege[d] that defrauded the State of any money to which the State was entitled by law." is different from this case. Unlike a State's interest in allocating a video poker license to particular applicants, Canada's entitlement to tax revenue is a straightforward "economic" interest. There was no suggestion in that the defendant aimed at depriving the State of any money due under the license; quite the opposite, there was "no dispute that [the defendant's partnership] paid the State of Louisiana its proper share of revenue" due. Here, by contrast, the Government alleged and proved that petitioners' scheme aimed at depriving Canada of money to which it was entitled by law. Canada could hardly have a more "economic" interest than in the receipt of tax revenue. is therefore consistent with our conclusion that Canada's entitlement is "property" as that word is used in the wire fraud statute. Turning to the second element at issue here, petitioners' plot was a "scheme or artifice to defraud" Canada of its valuable entitlement to tax revenue. The evidence showed that petitioners routinely concealed imported liquor from |
Justice Thomas | 2,005 | 1 | majority | Pasquantino v. United States | https://www.courtlistener.com/opinion/142889/pasquantino-v-united-states/ | The evidence showed that petitioners routinely concealed imported liquor from Canadian officials and failed to declare those goods on customs forms. See 336 F.3d, By this conduct, they represented to Canadian customs officials that their drivers had no goods to declare. This, then, was a scheme "designed to defraud by representations," (186), and therefore a "scheme or artifice to defraud" Canada of taxes due on the smuggled goods. * Neither the antismuggling statute, 18 U.S. C. 546,[3] nor U. S. tax treaties, see Attorney General of 8 F.3d 103, 115-11 convince us that petitioners' scheme falls outside the terms of the wire fraud statute.[4] Unlike the treaties and the antismuggling statute, the wire fraud statute punishes fraudulent use of domestic wires, whether or not such conduct constitutes smuggling, occurs aboard a vessel, or evades foreign taxes. See post, at 380, n. (GINSBURG, J., dissenting) (noting that the antismuggling statute does not apply to this prosecution). Petitioners would be equally liable if they had used interstate wires to defraud Canada not of taxes due, but of money from the Canadian treasury. The wire fraud statute "applies without differentiation" to these two categories of fraud. "To give these same words a different meaning *35 for each category would be to invent a statute rather than interpret one." We therefore decline to "interpret [this] criminal statute more narrowly than it is written." 522 U.S. 38, (18). III We next consider petitioners' revenue rule argument. Petitioners argue that, to avoid reading 1343 to derogate from the common-law revenue rule, we should construe the otherwise-applicable language of the wire fraud statute to except frauds directed at evading foreign taxes. Their argument relies on the canon of construction that "[s]tatutes which invade the common law are to be read with a presumption favoring the retention of long-established and familiar principles, except when a statutory purpose to the contrary is evident." United 507 U.S. 52, (13) This presumption is, however, no bar to a construction that conflicts with a common-law rule if the statute "`speak[s] directly' to the question addressed by the common law." Whether the wire fraud statute derogates from the common-law revenue rule depends, in turn, on whether reading 1343 to reach this prosecution conflicts with a well-established revenue rule principle. We clarified this constraint on the application of the nonderogation canon in United The issue in Craft was whether the property interest of a tenant by the entirety was exempt from a federal tax lien. We construed the federal tax lien statute to reach such a property interest, despite the tension between that construction |
Justice Thomas | 2,005 | 1 | majority | Pasquantino v. United States | https://www.courtlistener.com/opinion/142889/pasquantino-v-united-states/ | such a property interest, despite the tension between that construction and the common-law rule that entireties property enjoys immunity from liens, because this "common-law rule was not so well established with respect to the application of a federal tax lien that we must assume that Congress considered the impact of its enactment on the question now before us." *360[5] So too here, before we may conclude that Congress intended to exempt the present prosecution from the broad reach of the wire fraud statute, we must find that the common-law revenue rule clearly barred such a prosecution. We examine the state of the common law as of 152, the year Congress enacted the wire fraud statute. See (1).[6] The wire fraud statute derogates from no well-established revenue rule principle. We are aware of no common-law revenue rule case decided as of 152 that held or clearly implied that the revenue rule barred the United States from prosecuting a fraudulent scheme to evade foreign taxes. The traditional rationales for the revenue rule, moreover, do not plainly suggest that it swept so broadly. We consider these two points in turn. A We first consider common-law revenue rule jurisprudence as it existed in 152, the year Congress enacted 1343. Since the late 1th and early 20th century, courts have treated the common-law revenue rule as a corollary of the *361 rule that, as Chief Justice Marshall put it, "[t]he Courts of no country execute the penal laws of another." The Antelope, The rule against the enforcement of foreign penal statutes, in turn, tracked the common-law principle that crimes could only be prosecuted in the country in which they were committed. See, e. g., J. Story, Commentaries on the Conflict of Laws 620, p. 840 (M. Bigelow ed. 8th ed. 1883). The basis for inferring the revenue rule from the rule against foreign penal enforcement was an analogy between foreign revenue laws and penal laws. See 127 U.S. 5, 20 ; Leflar, Extrastate Enforcement of Penal and Governmental Claims, 46 Harv. L. Rev. 13, 21 (132) Courts first drew that inference in a line of cases prohibiting the enforcement of tax liabilities of one sovereign in the courts of another sovereign, such as a suit to enforce a tax judgment.[7] The revenue rule's grounding in these cases shows that, at its core, it prohibited the collection of tax obligations of foreign nations. Unsurprisingly, then, the revenue rule is often stated as prohibiting the collection of foreign tax claims. See Brief for Petitioners 16 (noting that "[t]he most straightforward application of the revenue rule arises when |
Justice Thomas | 2,005 | 1 | majority | Pasquantino v. United States | https://www.courtlistener.com/opinion/142889/pasquantino-v-united-states/ | "[t]he most straightforward application of the revenue rule arises when a foreign sovereign attempts to sue directly in its own right to enforce a tax judgment in the courts of another nation").[8] *362 The present prosecution is unlike these classic examples of actions traditionally barred by the revenue rule. It is not a suit that recovers a foreign tax liability, like a suit to enforce a judgment. This is a criminal prosecution brought by the United States in its sovereign capacity to punish domestic criminal conduct. Petitioners nevertheless argue that common-law revenue rule jurisprudence as of 152 prohibited such prosecutions. Revenue rule cases, however, do not establish that proposition, much less clearly so. 1 Petitioners first analogize the present action to several cases that have applied the revenue rule to bar indirect enforcement of foreign revenue laws, in contrast to the direct collection of a tax obligation. They cite, for example, a decision of an Irish trial court holding that a private liquidator could not recover assets unlawfully distributed and moved to Ireland by a corporate director, because the recovery would go to satisfy the company's Scottish tax obligations. Peter Buchanan Ltd. v. McVey, 155 A. C. 516, 52-530 (Ir. H. Ct. 150), app. dism'd, 155 A. C. 530 (Ir. Sup. Ct. 151).[]*363 The court found that "the sole object of the liquidation proceedings in Scotland was to collect a revenue debt," because if the liquidator won, "every penny recovered after paying certain costs could be claimed by the Scottish Revenue." According to the Buchanan court, "[i]n every case the substance of the claim must be scrutinized, and if it then appears that it is really a suit brought for the purpose of collecting the debts of a foreign revenue it must be rejected." at 52. Buchanan and the other cases on which petitioners rely cannot bear the weight petitioners place on them. Many of them were decided after 152, too late for the Congress that passed the wire fraud statute to have relied on them. Others come from foreign courts. Drawing sure inferences regarding Congress' intent from such foreign citations is perilous, as several of petitioners' cases illustrate.[10] *364 More important, none of these cases clearly establishes that the revenue rule barred this prosecution. None involved a domestic sovereign acting pursuant to authority conferred by a criminal statute. The difference is significant. An action by a domestic sovereign enforces the sovereign's own penal law. A prohibition on the enforcement of foreign penal law does not plainly prevent the Government from enforcing a domestic criminal law. Such an extension, to |
Justice Thomas | 2,005 | 1 | majority | Pasquantino v. United States | https://www.courtlistener.com/opinion/142889/pasquantino-v-united-states/ | from enforcing a domestic criminal law. Such an extension, to our knowledge, is unprecedented in the long history of either the revenue rule or the rule against enforcement of penal laws. Moreover, none of petitioners' cases (with the arguable exception of Banco Do Brasil, S. 10 N.E.2d 235 (App. 163)) barred an action that had as its primary object the deterrence and punishment of fraudulent conduct a substantial domestic regulatory interest entirely independent of foreign tax enforcement. The main object of the action in each of those cases was the collection of money that would pay foreign tax claims. The absence of such an object in this action means that the link between this prosecution and foreign tax collection is incidental and attenuated at best, making it not plainly one in which "the whole object of the suit is to collect tax for a foreign revenue." Buchanan, at 52. Even those courts that as of 152 had extended the revenue rule beyond its core prohibition had not faced a case closely *365 analogous to this one and thus we cannot say with any reasonable certainty whether Congress in 152 would have considered this prosecution within the revenue rule. Petitioners answer that the recovery of taxes is indeed the object of this suit, because restitution of the lost tax revenue to Canada is required under the Mandatory Victims Restitution Act of 18 U.S. C. 3663A-3664 ( ed. and Supp. II).[11] We do not think it matters whether the provision of restitution is mandatory in this prosecution. Regardless, the wire fraud statute advances the Federal Government's independent interest in punishing fraudulent domestic criminal conduct, a significant feature absent from all of petitioners' revenue rule cases. The purpose of awarding restitution in this action is not to collect a foreign tax, but to mete out appropriate criminal punishment for that conduct. In any event, any conflict between mandatory restitution and the revenue rule would not change our holding today. If awarding restitution to foreign sovereigns were contrary to the revenue rule, the proper resolution would be to construe the Mandatory Victims Restitution Act not to allow such awards, rather than to assume that the later enacted restitution statute impliedly repealed 1343 as applied to frauds against foreign sovereigns. 2 We are no more persuaded by a second line of cases on which petitioners rely. Petitioners analogize the present case to early English common-law cases from which the revenue rule originally derived. Those early cases involved contract law, and they held that contracts executed with the purpose of evading the revenue laws |
Justice Thomas | 2,005 | 1 | majority | Pasquantino v. United States | https://www.courtlistener.com/opinion/142889/pasquantino-v-united-states/ | contracts executed with the purpose of evading the revenue laws of other nations were enforceable, notwithstanding the rule against enforcing contracts *366 with illegal purposes. See Boucher v. Lawson, Cas. T. Hard. 85, 8-0, 5 Eng. Rep. 53, 55-56 (K. B. 1734); Planche v. Fletcher, 1 Dougl. 251, Eng. Rep. 164 (K. B. 177). Petitioners argue that these cases demonstrate that "indirect" enforcement of revenue laws is at the very core of the common-law revenue rule, rather than at its margins. The argument is unavailing. By the mid-20th century, the revenue rule had developed into a doctrine very different from its original form. Early revenue rule cases were driven by the interest in lessening the commercial disruption caused by the high tariffs of the day. As Lord Hardwicke explained, if contracts that aimed at circumventing foreign revenue laws were unenforceable, "it would cut off all benefit of such trade from this kingdom, which would be of very bad consequence to the principal and most beneficial branches of our trade." Boucher, at 8, 5 Eng. Rep., at 56. By the 20th century, however, that rationale for the revenue rule had been supplanted. By then, as we have explained, courts had begun to apply the revenue rule to tax obligations on the strength of the analogy between a country's revenue laws and its penal ones, see superseding the original promotion-of-commerce rationale for the rule. Dodge, Breaking the Public Law Taboo, 43 Harv. Int'l L. J. 161, 178 ; Buchanan, 155 A. C., at 522-524, 528-52. The early English cases rest on a far different foundation from that on which the revenue rule came to rest. They thus say little about whether the wire fraud statute derogated from the revenue rule in its mid-20th-century form. 3 Granted, this criminal prosecution "enforces" Canadian revenue law in an attenuated sense, but not in a sense that clearly would contravene the revenue rule. From its earliest days, the revenue rule never proscribed all enforcement of foreign revenue law. For example, at the same time they were enforcing domestic contracts that had the purpose of *367 violating foreign revenue law, English courts also considered void foreign contracts that lacked tax stamps required under foreign revenue law. See Alves v. Hodgson, 7 T. R. 241, 243, 101 Eng. Rep. 53, 55 (K. B. 177); Clegg v. Levy, 3 Camp. 167, 170 Eng. Rep. 1343 (N. P. 1812). Like the present prosecution, cases voiding foreign contracts under foreign law no doubt "enforced" foreign revenue law in the sense that they encouraged the payment of foreign taxes; yet they fell |
Justice Thomas | 2,005 | 1 | majority | Pasquantino v. United States | https://www.courtlistener.com/opinion/142889/pasquantino-v-united-states/ | they encouraged the payment of foreign taxes; yet they fell outside the revenue rule's scope. The line the revenue rule draws between impermissible and permissible "enforcement" of foreign revenue law has therefore always been unclear. The uncertainty persisted in American courts that recognized the revenue rule. In one of the earliest appearances of the revenue rule in America, the Supreme Court of New Hampshire entertained an action that required extensive recognition of a sister State's revenue laws. Henry v. Sargeant, 13 N. H. 321 (1843). There, the plaintiff sought damages, alleging that a Vermont selectman had imposed an illegal tax on him. The court found that the revenue rule did not bar the action, though the suit required the court to enforce the revenue laws of Vermont, see Likewise, in In re Hollins, 7 Misc. 200, 13 N. Y. S. 713 (Sur. Ct.), aff'd, (113); aff'd, (App. 114) the court held that an estate executor could satisfy foreign taxes due on a decedent's estate out of property of the estate, notwithstanding a legatee's argument that the revenue rule barred authorizing such 7 Misc., at 207-208, 13 N. Y. S., at 716-717. The court explained: "While it is doubtless true that this court will not aid a foreign country in the enforcement of its revenue laws, it will not refuse to direct a just and equitable administration of that part of an estate within its jurisdiction merely because such direction would result in the *368 enforcement of such revenue laws." 13 N. Y. S., at 717. These cases demonstrate that the extent to which the revenue rule barred indirect recognition of foreign revenue laws was unsettled as of 152. Following the reasoning of In re Hollins, for instance, Congress might well have thought that courts would enforce the wire fraud statute, even if doing so might incidentally recognize Canadian revenue law. The uncertainty highlights that "[i]ndirect enforcement is easier to describe than to define," and "it is sometimes difficult to draw the line between an issue involving merely recognition of a foreign law and indirect enforcement of it." 1 A. Dicey & J. Morris, Conflict of Laws 0 Even if the present prosecution is analogous to the indirect enforcement cases on which petitioners rely, those cases do not yield a rule sufficiently well established to narrow the wire fraud statute in the context of this criminal prosecution. B Having concluded that revenue rule jurisprudence is no clear bar to this prosecution, we next turn to whether the purposes of the revenue rule, as articulated in the relevant authorities, suggest differently. They |
Justice Thomas | 2,005 | 1 | majority | Pasquantino v. United States | https://www.courtlistener.com/opinion/142889/pasquantino-v-united-states/ | rule, as articulated in the relevant authorities, suggest differently. They do not. First, this prosecution poses little risk of causing the principal evil against which the revenue rule was traditionally thought to guard: judicial evaluation of the policy-laden enactments of other sovereigns. See, e. g., (CA2 12) As Judge Hand put it, allowing courts to enforce another country's revenue laws was thought to be a delicate inquiry "when it concerns the relations between the foreign state and its own citizens To pass upon the provisions for the public order of another state is, or at any rate should be, beyond the powers of a court; it involves *36 the relations between the states themselves, with which courts are incompetent to deal, and which are intrusted to other authorities." The present prosecution creates little risk of causing international friction through judicial evaluation of the policies of foreign sovereigns. This action was brought by the Executive to enforce a statute passed by Congress. In our system of government, the Executive is "the sole organ of the federal government in the field of international relations," United 2 U.S. 304, (136), and has ample authority and competence to manage "the relations between the foreign state and its own citizens" and to avoid "embarass[ing] its neighbor[s]," at ; see also Chicago & Southern Air Lines, (148). True, a prosecution like this one requires a court to recognize foreign law to determine whether the defendant violated U. S. law. But we may assume that by electing to bring this prosecution, the Executive has assessed this prosecution's impact on this Nation's relationship with Canada, and concluded that it poses little danger of causing international friction. We know of no common-law court that has applied the revenue rule to bar an action accompanied by such a safeguard, and neither petitioners nor the dissent directs us to any. The greater danger, in fact, would lie in our judging this prosecution barred based on the foreign policy concerns animating the revenue rule, concerns that we have "neither aptitude, facilities nor responsibility" to evaluate. More broadly, petitioners argue that the revenue rule avoids giving domestic effect to politically sensitive and controversial policy decisions embodied in foreign revenue laws, regardless of whether courts need pass judgment on such laws. See Banco Nacional de 376 U.S. 38, (164) ("[C]ourts customarily *370 refuse to enforce the revenue and penal laws of a foreign state, since no country has an obligation to further the governmental interests of a foreign sovereign"). This worries us little here. The present prosecution, if authorized by the wire fraud statute, |
Justice Thomas | 2,005 | 1 | majority | Pasquantino v. United States | https://www.courtlistener.com/opinion/142889/pasquantino-v-united-states/ | The present prosecution, if authorized by the wire fraud statute, embodies the policy choice of the two political branches of our Government Congress and the Executive to free the interstate wires from fraudulent use, irrespective of the object of the fraud. Such a reading of the wire fraud statute gives effect to that considered policy choice. It therefore poses no risk of advancing the policies of Canada illegitimately. Still a final revenue rule rationale petitioners urge is the concern that courts lack the competence to examine the validity of unfamiliar foreign tax schemes. See, e. g., Leflar 218. Foreign law, of course, posed no unmanageable complexity in this case. The District Court had before it uncontroverted testimony of a Government witness that petitioners' scheme aimed at violating Canadian tax law. See App. 65-66. Nevertheless, Federal Rule of Criminal Procedure1 addresses petitioners' concern by setting forth a procedure for interpreting foreign law that improves on those available at common law. Specifically, it permits a court, in deciding issues of foreign law, to consider "any relevant material or source including testimony without regard to the Federal Rules of Evidence." By contrast, common-law procedures for dealing with foreign law those available to the courts that formulated the revenue rule were more cumbersome. See Advisory Committee's Notes on Fed. Rule Crim. Proc.1, 18 U.S. C. App., p. 1606 (noting that the rule improves on common-law procedures for proving foreign law). Rule1 gives federal courts sufficient means to resolve the incidental foreign law issues they may encounter in wire fraud prosecutions. *371IV Finally, our interpretation of the wire fraud statute does not give it "extraterritorial effect."[12]Post, at (GINSBURG, J., dissenting). Petitioners used U. S. interstate wires to execute a scheme to defraud a foreign sovereign of tax revenue. Their offense was complete the moment they executed the scheme inside the United States; "[t]he wire fraud statute punishes the scheme, not its success." United ; see 161 U. S., at This domestic element of petitioners' conduct is what the Government is punishing in this prosecution, no less than when it prosecutes a scheme to defraud a foreign individual or corporation, or a foreign government acting as a market participant. See post, at 37, n. 8 (GINSBURG, J., dissenting) (noting that such prosecutions of foreign individuals, corporations, and governments are domestic applications of the wire fraud statute).[13] In any event, the wire fraud statute punishes frauds executed "in interstate or foreign *372 commerce," 18 U.S. C. 1343 ( ed., Supp. II), so this is surely not a statute in which Congress |
Justice Blackmun | 1,985 | 11 | majority | Dowling v. United States | https://www.courtlistener.com/opinion/111502/dowling-v-united-states/ | The National Stolen Property Act provides for the imposition of criminal penalties upon any person who "transports in interstate or foreign commerce any goods, wares, merchandise, securities or money, of the value of $5,000 or more, knowing the same to have been stolen, converted or taken by fraud." 8 U.S. C. 234. In this case, we must determine whether the statute reaches the interstate transportation of "bootleg" phonorecords, "stolen, converted or taken by fraud" only in the sense that they were manufactured and distributed without the consent of the copyright owners of the musical compositions performed on the records. I After a bench trial in the United District Court for the Central District of California conducted largely on the basis of a stipulated record, petitioner Paul Edmond Dowling was convicted of one count of conspiracy to transport stolen property in interstate commerce, in violation of 8 U.S. C. *209 37; eight counts of interstate transportation of stolen property, in violation of 8 U.S. C. 234; nine counts of copyright infringement, in violation of 7 U.S. C. 506(a); and three counts of mail fraud, in violation of 8 U.S. C. 34.[] The offenses stemmed from an extensive bootleg record operation involving the manufacture and distribution by mail of recordings of vocal performances by Elvis Presley.[2] The *20 evidence demonstrated that sometime around 976, Dowling, to that time an avid collector of Presley recordings, began in conjunction with codefendant William Samuel Theaker to manufacture phonorecords of unreleased Presley recordings. They used material from a variety of sources, including studio outtakes, acetates, soundtracks from Presley motion pictures, and tapes of Presley concerts and television appearances.[3] Until early 980, Dowling and Theaker had the records manufactured at a record-pressing company in Burbank, *2 Cal. When that company later refused to take their orders, they sought out other record-pressing companies in Los Angeles and, through codefendant Richard Minor, in Miami, Fla. The bootleg entrepreneurs never obtained authorization from or paid royalties to the owners of the copyrights in the musical compositions.[4] In the beginning, Dowling, who resided near Baltimore, handled the "artistic" end of the operation, contributing his knowledge of the Presley subculture, seeking out and selecting the musical material, designing the covers and labels, and writing the liner notes, while Theaker, who lived in Los Angeles and had some familiarity with the music industry, took care of the business end, arranging for the record pressings, distributing catalogs, and filling orders. In early 979, however, having come to suspect that the FBI was investigating the west coast operation, Theaker began making shipments by commercial trucking |
Justice Blackmun | 1,985 | 11 | majority | Dowling v. United States | https://www.courtlistener.com/opinion/111502/dowling-v-united-states/ | west coast operation, Theaker began making shipments by commercial trucking companies of large quantities of the albums to Dowling in Maryland. Throughout 979 and 980, the venturers did their marketing through Send Service, a labeling and addressing entity, which distributed at least 50,000 copies of their catalog and advertising flyers to addresses on mailing lists provided by Theaker and Dowling. Theaker would collect customers' orders from post office *22 boxes in Glendale, Cal., and mail them to Dowling in Maryland, who would fill the orders. The two did a substantial business: the stipulated testimony establishes that throughout this period Dowling mailed several hundred packages per week and regularly spent $,000 per week in postage. The men also had occasion to make large shipments from Los Angeles to Minor in Miami, who purchased quantities of their albums for resale through his own channels. The eight 234 counts on which Dowling was convicted arose out of six shipments of bootleg phonorecords from Los Angeles to Baltimore and two shipments from Los Angeles to Miami. See n. The evidence established that each shipment included thousands of albums, that each album contained performances of copyrighted musical compositions for the use of which no licenses had been obtained nor royalties paid, and that the value of each shipment attributable to copyrighted material exceeded the statutory minimum. Dowling appealed from all the convictions save those for copyright infringement, and the United Court of Appeals for the Ninth Circuit affirmed in all respects. 739 F.2d 445 (984). As to the charges under 234, the court relied on its decision in United 75 F.2d 459 (983), cert. denied, 465 U.S. 022 (984), where it had held that interstate transportation of videotape cassettes containing unauthorized copies of copyrighted motion pictures involved stolen goods within the meaning of the statute.[5] As in Belmont, the court reasoned that the rights of copyright owners in their protected property were indistinguishable from ownership interests in other types of property and were equally deserving of protection under the statute. 739 F.2d, at 450, 75 F.2d, at 46-462. *23 We granted certiorari to resolve an apparent conflict among the Circuits[6] concerning the application of the statute to interstate shipments of bootleg and pirated sound recordings and motion pictures whose unauthorized distribution infringed valid copyrights. 469 U.S. 57 (985). II Federal crimes, of course, "are solely creatures of statute." 47 U.S. 49, (985), citing United (82). Accordingly, when assessing the reach of a federal criminal statute, we must pay close heed to language, legislative history, and purpose in order strictly to determine the scope of the |
Justice Blackmun | 1,985 | 11 | majority | Dowling v. United States | https://www.courtlistener.com/opinion/111502/dowling-v-united-states/ | purpose in order strictly to determine the scope of the conduct the enactment forbids. Due respect for the prerogatives of Congress in defining federal crimes prompts restraint in this area, where we typically find a "narrow interpretation" appropriate. See (982). Chief Justice Marshall early observed: "The rule that penal laws are to be construed strictly, is perhaps not much less old than construction itself. It is founded on the tenderness of the law for the rights of *24 individuals; and on the plain principle that the power of punishment is vested in the legislative, not in the judicial department. It is the legislature, not the Court, which is to define a crime, and ordain its punishment." United (820). Thus, the Court has stressed repeatedly that " ` "when choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite." ' " 458 U. S., at United v. Bass, (97), which in turn quotes United v. Universal C. I. T. Credit 344 U.S. 28, 22-222 (2). A Applying that prudent rule of construction here, we examine at the outset the statutory language. Section 234 requires, first, that the defendant have transported "goods, wares, [or] merchandise" in interstate or foreign commerce; second, that those goods have a value of "$5,000 or more"; and, third, that the defendant "kno[w] the same to have been stolen, converted or taken by fraud." Dowling does not contest that he caused the shipment of goods in interstate commerce, or that the shipments had sufficient value to meet the monetary requirement. He argues, instead, that the goods shipped were not "stolen, converted or taken by fraud." In response, the Government does not suggest that Dowling wrongfully came by the phonorecords actually shipped or the physical materials from which they were made; nor does it contend that the objects that Dowling caused to be shipped, the bootleg phonorecords, were "the same" as the copyrights in the musical compositions that he infringed by unauthorized distribution of Presley performances of those compositions. The Government argues, however, that the shipments come within the reach of 234 because the phonorecords physically *25 embodied performances of musical compositions that Dowling had no legal right to distribute. According to the Government, the unauthorized use of the musical compositions rendered the phonorecords "stolen, converted or taken by fraud" within the meaning of the statute.[7] We *26 must determine, therefore, whether phonorecords that include the performance of copyrighted musical |
Justice Blackmun | 1,985 | 11 | majority | Dowling v. United States | https://www.courtlistener.com/opinion/111502/dowling-v-united-states/ | therefore, whether phonorecords that include the performance of copyrighted musical compositions for the use of which no authorization has been sought nor royalties paid are consequently "stolen, converted or taken by fraud" for purposes of 234. We conclude that they are not. The courts interpreting 234 have never required, of course, that the items stolen and transported remain in entirely unaltered form. See, e. g., United v. Moore, 57 F.2d 54, 58 (CA3) (counterfeit printed Ticketron tickets "the same" as stolen blanks from which they were printed), cert. denied, 435 U.S. 6 (978). Nor does it matter that the item owes a major portion of its value to an intangible component. See, e. g., United v. Seagraves, (CA3 9) ; United v. Greenwald, (CA6) (documents bearing secret chemical formulae), cert. denied, 44 U.S. 854 (973). But these cases and others prosecuted under 234 have always involved physical "goods, wares, [or] merchandise" that have themselves been "stolen, converted or taken by fraud." This basic element comports with the common-sense meaning of the statutory language: by requiring that the "goods, wares, [or] merchandise" be "the same" as those "stolen, converted or taken by fraud," the provision seems clearly to contemplate a physical identity between the items unlawfully obtained and those eventually transported, and hence some prior physical taking of the subject goods. In contrast, the Government's theory here would make theft, conversion, or fraud equivalent to wrongful appropriation of statutorily protected rights in copyright. The copyright owner, however, holds no ordinary chattel. A copyright, like other intellectual property, comprises a series of carefully defined and carefully delimited interests to which the law affords correspondingly exact protections. "Section 06 of the Copyright Act confers a bundle of exclusive rights *27 to the owner of the copyright," which include the rights "to publish, copy, and distribute the author's work." Harper & Publishers, 47 U.S. 539, (985). See 7 U.S. C. 06. However, "[t]his protection has never accorded the copyright owner complete control over all possible uses of his work." Sony 464 U.S. 47, (984); For example, 07 of the Copyright Act "codifies the traditional privilege of other authors to make `fair use' of an earlier writer's work." Harper & Likewise, 5 grants compulsory licenses in nondramatic musical works. Thus, the property rights of a copyright holder have a character distinct from the possessory interest of the owner of simple "goods, wares, [or] merchandise," for the copyright holder's dominion is subjected to precisely defined limits. It follows that interference with copyright does not easily equate with theft, conversion, or fraud. The Copyright Act even employs |
Justice Blackmun | 1,985 | 11 | majority | Dowling v. United States | https://www.courtlistener.com/opinion/111502/dowling-v-united-states/ | with theft, conversion, or fraud. The Copyright Act even employs a separate term of art to define one who misappropriates a copyright: " `Anyone who violates any of the exclusive rights of the copyright owner,' that is, anyone who trespasses into his exclusive domain by using or authorizing the use of the copyrighted work in one of the five ways set forth in the statute, `is an infringer of the copyright.' [7 U.S. C.] 50(a)." Sony There is no dispute in this case that Dowling's unauthorized inclusion on his bootleg albums of performances of copyrighted compositions constituted infringement of those copyrights. It is less clear, however, that the taking that occurs when an infringer arrogates the use of another's protected work comfortably fits the terms associated with physical removal employed by 234. The infringer invades a statutorily defined province guaranteed to the copyright holder alone. But he does not assume physical control over the copyright; nor does he wholly deprive its owner of its use. While one may colloquially link infringement with some general notion of wrongful *28 appropriation, infringement plainly implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud. As a result, it fits but awkwardly with the language Congress chose "stolen, converted or taken by fraud" to describe the sorts of goods whose interstate shipment 234 makes criminal.[8] "And, when interpreting a criminal statute that does not explicitly reach the conduct in question, we are reluctant to base an expansive reading on inferences drawn from subjective and variable `understandings.' " B In light of the ill-fitting language, we turn to consider whether the history and purpose of 234 evince a plain congressional intention to reach interstate shipments of goods infringing copyrights. Our examination of the background of the provision makes more acute our reluctance to read 234 to encompass merchandise whose contraband character derives from copyright infringement. Congress enacted 234 as an extension of the National Motor Vehicle Theft Act, ch. 89, 4 Stat. 324, currently codified at 8 U.S. C. 232. Passed in 99, the earlier *29 Act was an attempt to supplement the efforts of the to combat automobile thefts. Particularly in areas close to state lines,[9] state law enforcement authorities were seriously hampered by car thieves' ability to transport stolen vehicles beyond the jurisdiction in which the theft occurred.[0] Legislating pursuant to its commerce power,[] Congress made unlawful the interstate transportation of stolen vehicles, thereby filling in the enforcement gap by "strik[ing] down State lines which serve as barriers to protect [these interstate criminals] from justice." 58 |
Justice Blackmun | 1,985 | 11 | majority | Dowling v. United States | https://www.courtlistener.com/opinion/111502/dowling-v-united-states/ | as barriers to protect [these interstate criminals] from justice." 58 Cong. Rec. 5476 (99) (statement of Rep. Newton).[2] Congress acted to fill an identical enforcement gap when in 934 it "extend[ed] the provisions of the National Motor Vehicle Theft Act to other stolen property" by means of the National Stolen Property Act. Act of May 22, 934, 48 *. See S. Rep. No. 538, 73d Cong., 2d Sess., (934); H. R. Rep. No. 462, 73d Cong., 2d Sess., (934); H. R. Conf. Rep. No. 599, 73d Cong., 2d Sess., 3 (934). Again, Congress acted under its commerce power to assist the ' efforts to foil the "roving criminal," whose movement across state lines stymied local law enforcement officials. 78 Cong. Rec. 2947 (934) (statement of Attorney General Cummings).[3] As with its progenitor, Congress responded in the National Stolen Property Act to "the need for federal action" in an area that normally would have been left to state law. United v. Turley, 47 (7). No such need for supplemental federal action has ever existed, however, with respect to copyright infringement, for the obvious reason that Congress always has had the bestowed authority to legislate directly in this area. Article I, 8, cl. 8, of the Constitution provides that Congress shall have the power "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." By virtue of the explicit constitutional grant, Congress has the unquestioned authority to penalize directly the distribution of goods that infringe copyright, whether or not those goods affect interstate commerce. Given that power, it is *22 implausible to suppose that Congress intended to combat the problem of copyright infringement by the circuitous route hypothesized by the Government. See United v. Smith, (CA5 982). Of course, the enactment of criminal penalties for copyright infringement would not prevent Congress from choosing as well to criminalize the interstate shipment of infringing goods. But in dealing with the distribution of such goods, Congress has never thought it necessary to distinguish between intrastate and interstate activity. Nor does any good reason to do so occur to us. In sum, the premise of 234 the need to fill with federal action an enforcement chasm created by limited state jurisdiction simply does not apply to the conduct the Government seeks to reach here. C The history of copyright infringement provisions affords additional reason to hesitate before extending 234 to cover the interstate shipments in this case. Not only has Congress chiefly relied on an array of |
Justice Blackmun | 1,985 | 11 | majority | Dowling v. United States | https://www.courtlistener.com/opinion/111502/dowling-v-united-states/ | Not only has Congress chiefly relied on an array of civil remedies to provide copyright holders protection against infringement, see 7 U.S. C. 502-505, but in exercising its power to render criminal certain forms of copyright infringement, it has acted with exceeding caution. The first full-fledged criminal provisions appeared in the Copyright Act of 909, and specified that misdemeanor penalties of up to one year in jail or a fine between $00 and $,000, or both, be imposed upon "any person who willfully and for profit" infringed a protected copyright.[4] This provision *222 was little used. In 974, however, Congress amended the section, by then 7 U.S. C. 04 (976 ed.) by the 947 revision,[5] substantially to increase penalties for record piracy.[6] The new version retained the existing language, but supplemented it with a new subsection (b), which provided that one who "willfully and for profit" infringed a copyright in sound recordings would be subject to a fine of up to $25,000 or imprisonment for up to one year, or both. 7 U.S. C. 04(b) (976 ed.).[7] The legislative history demonstrates that in increasing the penalties available for this category of infringement, Congress carefully calibrated the penalty to the problem: it had come to recognize that "record piracy is so profitable that ordinary penalties fail to deter prospective offenders." H. R. Rep. No. 93-58, p. 4 (974). Even so, because it considered record piracy primarily an economic offense, Congress, after serious consideration, rejected a proposal to increase the available term of imprisonment to three years for a first offense and seven years for a subsequent offense. *223 When in 976, after more than 20 years of study, Congress adopted a comprehensive revision of the Copyright Act, see Mills Music, 469 U.S. 53, 59-6 (985); Sony 464 U. S., n. 9 it again altered the scope of the criminal infringement actions, albeit cautiously. Section 0 of the new Act provided: "Any person who infringes a copyright willfully and for purposes of commercial advantage or private financial gain shall be fined not more than $0,000 or imprisoned for not more than one year, or both: Provided, however, That any person who infringes willfully and for purposes of commercial advantage or private financial gain the copyright in a sound recording afforded by subsections (), (2), or (3) of section 06 or the copyright in a motion picture afforded by subsections (), (3), or (4) of section 06 shall be fined not more than $25,000 or imprisoned for not more than one year, or both, for the first such offense and shall be fined |
Justice Blackmun | 1,985 | 11 | majority | Dowling v. United States | https://www.courtlistener.com/opinion/111502/dowling-v-united-states/ | both, for the first such offense and shall be fined not more than $50,000 or imprisoned for not more than two years, or both, for any subsequent offense." 7 U.S. C. 506(a) (976 ed., Supp. V). Two features of this provision are noteworthy: first, Congress extended to motion pictures the enhanced penalties applicable by virtue of prior 04 to infringement of rights in sound recordings; and, second, Congress recited the infringing uses giving rise to liability. It is also noteworthy that despite the urging of representatives of the film industry, see Copyright Law Revision: Hearings on H. R. 2223 before the Subcommittee on Courts, Civil Liberties, and the Administration of Justice of the House Committee on the Judiciary, 94th Cong., st Sess., 76 (975) (statement of Jack Valenti, president of the Motion Picture Association of America, Inc.), and the initial inclination of the Senate, *224 see S. Rep. No. 94-473, p. 46 (975), Congress declined once again to provide felony penalties for copyright infringement involving sound recordings and motion pictures. Finally, by the Piracy and Counterfeiting Amendments Act of 982, Pub. L. 97-80, 96 Stat. 9, Congress chose to address the problem of bootlegging and piracy of records, tapes, and films by imposing felony penalties on such activities. Section 5 of the 982 Act revised 7 U.S. C. 506(a) to provide that "[a]ny person who infringes a copyright willfully and for purposes of commercial advantage or private financial gain shall be punished as provided in section 239 of title 8." Section 239(b)(), in turn, was then enacted to provide for a fine of up to $250,000, or imprisonment of up to five years, or both, if the offense "involves the reproduction or distribution, during any one-hundred-and-eighty-day period, of at least one thousand phonorecords or copies infringing the copyright in one or more sound recordings [or] at least sixty-five copies infringing the copyright in one or more motion pictures or other audiovisual works." Subsection (b)(2) provides for a similar fine and up to two years' imprisonment if the offense involves "more than one hundred but less than one thousand phonorecords or copies infringing the copyright in one or more sound recordings [or] more than seven but less than sixty-five copies infringing the copyright in one or more motion pictures or other audiovisual works." And subsection (b)(3) provides for a fine of not more than $25,000 and up to one year's imprisonment in any other case of willful infringement. The legislative history indicates that Congress set out from a belief that the existing misdemeanor penalties for copyright infringement were simply inadequate to |
Justice Blackmun | 1,985 | 11 | majority | Dowling v. United States | https://www.courtlistener.com/opinion/111502/dowling-v-united-states/ | existing misdemeanor penalties for copyright infringement were simply inadequate to deter the enormously lucrative activities of large-scale bootleggers and pirates. See 28 Cong. Rec. 8-9 (982) (remarks of Rep. Kastenmeier); The Piracy and Counterfeiting Amendments Act of 98: Hearings on S. 69 before the Subcommittee on Criminal Law of the Senate Committee on the Judiciary, 97th Cong., st Sess., 8 (98) (statement of Renee *225 L. Szybala, Special Assistant to the Associate Attorney General). Accordingly, it acted to "strengthen the laws against record, tape, and film piracy" by "increas[ing] the penalties. for copyright infringements involving such products," thereby "bring[ing] the penalties for record and film piracy. into line with the enormous profits which are being reaped from such activities." S. Rep. No. 97-274, pp. 7 (98).[8] Thus, the history of the criminal infringement provisions of the Copyright Act reveals a good deal of care on Congress' part before subjecting copyright infringement to serious criminal penalties. First, Congress hesitated long before imposing felony sanctions on copyright infringers. Second, when it did so, it carefully chose those areas of infringement that required severe response specifically, sound recordings and motion pictures and studiously graded penalties even in those areas of heightened concern. This step-by-step, carefully considered approach is consistent with Congress' traditional sensitivity to the special concerns implicated by the copyright laws. In stark contrast, the Government's theory of this case presupposes a congressional decision to bring the felony provisions of 234, which make available the comparatively light fine of not more than $0,000 but the relatively harsh *226 term of imprisonment of up to 0 years, to bear on the distribution of a sufficient quantity of any infringing goods simply because of the presence here of a factor interstate transportation not otherwise thought relevant to copyright law. The Government thereby presumes congressional adoption of an indirect but blunderbuss solution to a problem treated with precision when considered directly. To the contrary, the discrepancy between the two approaches convinces us that Congress had no intention to reach copyright infringement when it enacted 234. D The broad consequences of the Government's theory, both in the field of copyright and in kindred fields of intellectual property law, provide a final and dispositive factor against reading 234 in the manner suggested. For example, in Harper & Publishers, 47 U.S. 539 (985), this Court very recently held that The Nation, a weekly magazine of political commentary, had infringed former President Ford's copyright in the unpublished manuscript of his memoirs by verbatim excerpting of some 300 words from the work. It rejected The Nation's |
Justice Blackmun | 1,985 | 11 | majority | Dowling v. United States | https://www.courtlistener.com/opinion/111502/dowling-v-united-states/ | some 300 words from the work. It rejected The Nation's argument that the excerpting constituted fair use. Presented with the facts of that case as a hypothetical at oral argument in the present litigation, the Government conceded that its theory of 234 would permit prosecution of the magazine if it transported copies of sufficient value across state lines. Tr. of Oral Arg. 35. Whatever the wisdom or propriety of The Nation's decision to publish the excerpts, we would pause, in the absence of any explicit indication of congressional intention, to bring such conduct within the purview of a criminal statute making available serious penalties for the interstate transportation of goods "stolen, converted or taken by fraud." Likewise, the field of copyright does not cabin the Government's theory, which would as easily encompass the law of patents and other forms of intellectual property. If "the *227 intangible idea protected by the copyright is effectively made tangible by its embodiment upon the tapes," United v. Gottesman, 724 F.2d 57, 520 (CA 984), phonorecords, or films shipped in interstate commerce as to render those items stolen goods for purposes of 234, so too would the intangible idea protected by a patent be made tangible by its embodiment in an article manufactured in accord with patented specifications. Thus, as the Government as much as acknowledged at argument, Tr. of Oral Arg. 29, its view of the statute would readily permit its application to interstate shipments of patent-infringing goods. Despite its undoubted power to do so, however, Congress has not provided criminal penalties for distribution of goods infringing valid patents.[9] Thus, the rationale supporting application of the statute under the circumstances of this case would equally justify its use in wide expanses of the law which Congress has evidenced no intention to enter by way of criminal sanction.[20] This factor militates strongly against the reading proffered by the Government. Cf. *228 III No more than other legislation do criminal statutes take on straitjackets upon enactment. In sanctioning the use of 234 in the manner urged by the Government here, the Courts of Appeals understandably have sought to utilize an existing and readily available tool to combat the increasingly serious problem of bootlegging, piracy, and copyright infringement. Nevertheless, the deliberation with which Congress over the last decade has addressed the problem of copyright infringement for profit, as well as the precision with which it has chosen to apply criminal penalties in this area, demonstrates anew the wisdom of leaving it to the legislature to define crime and prescribe penalties.[2] Here, the language of 234 does not |
Justice Blackmun | 1,993 | 11 | dissenting | South Dakota v. Bourland | https://www.courtlistener.com/opinion/112885/south-dakota-v-bourland/ | The land at issue in this case is part of the Cheyenne River Sioux Reservation.[1] The United States did not take this land with the purpose of destroying tribal government or even with the purpose of limiting tribal authority. It simply wished to build a dam. The Tribe's authority to regulate hunting and fishing on the taken area is consistent with the uses to which Congress has put the land, and, in my view, that authority must be understood to continue until Congress clearly decides to end it. The majority's analysis focuses on the Tribe's authority to regulate hunting and fishing under the Fort Laramie Treaty of 1868, see ante, at 687-694, with barely a nod acknowledging that the Tribe might retain such authority as an aspect of its inherent sovereignty, see ante, at 694-695. Yet it is a fundamental principle of federal Indian law that Indian tribes possess "`inherent powers of a limited sovereignty which has never been extinguished.' " United quoting F. Cohen, Handbook of Federal Indian Law 122 (1945). This Court has recognized that the inherent sovereignty of Indian tribes extends "`over both their members and their territory. ` " quoting United Inherent tribal sovereignty "exists only at the sufferance of Congress and is subject to complete defeasance. But until *699 Congress acts, the tribes retain their existing sovereign powers. In sum, Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status." This Court has found implicit divestiture of inherent sovereignty necessary only "where the exercise of tribal sovereignty would be inconsistent with the overriding interests of the National Government, as when the tribes seek to engage in foreign relations, alienate their lands to non-Indians without federal consent, or prosecute non-Indians in tribal courts which do not accord the full protections of the Bill of Rights."[2] The Fort Laramie Treaty confirmed the Tribe's sovereignty over the land in question in the most sweeping terms by providing that it be "set apart for the absolute and undisturbed use and occupation of the [Sioux]." The majority acknowledges that this provision arguably conferred "`upon the Tribe the authority to control hunting and fishing on those lands.' " Ante, at 688, quoting Because "treaties should be construed liberally in favor of the Indians," *700 County of the majority is right to proceed on the assumption that authority to control hunting and fishing is included in the Fort Laramie Treaty. The question, then, is whether Congress intended to abrogate the Tribe's right to regulate non-Indian hunting and |
Justice Blackmun | 1,993 | 11 | dissenting | South Dakota v. Bourland | https://www.courtlistener.com/opinion/112885/south-dakota-v-bourland/ | to abrogate the Tribe's right to regulate non-Indian hunting and fishing on the taken areaa right flowing from its original sovereign power that was expressly confirmed by treaty. This Court does not lightly impute such an intent to Congress. There must be "clear evidence that Congress actually considered the conflict between its intended action on the one hand and Indian treaty rights on the other, and chose to resolve that conflict by abrogating the treaty." United ; see also ; 447 U. S., at The majority, however, points not even to a scrap of evidence that Congress actually considered the possibility that by taking the land in question it would deprive the Tribe of its authority to regulate non-Indian hunting and fishing on that land. Instead, it finds Congress' intent implicit in the fact that Congress deprived the Tribe of its right to exclusive use of the land, that Congress gave the Army Corps of Engineers authority to regulate public access to the land, and that Congress failed explicitly to reserve to the Tribe the right to regulate non-Indian hunting and fishing. Despite its citation of Menominee and County of see ante, at 687, the majority adopts precisely the sort of reasoning-by-implication that those cases reject. The majority supposes that the Tribe's right to regulate non-Indian hunting and fishing is incidental to and dependent on its treaty right to exclusive use of the area and that the Tribe's right to regulate was therefore lost when its right to *701 exclusive use was abrogated. See ante, at 689. This reasoning fails on two counts. First, treaties "`must be construed, not according to the technical meaning of [their] words to learned lawyers, but in the sense in which they would naturally be understood by the Indians.' " quoting I find it implausible that the Tribe here would have thought every right subsumed in the Fort Laramie Treaty's sweeping language to be defeated the moment they lost the right to exclusive use of their land. Second, the majority's myopic focus on the Treaty ignores the fact that this Treaty merely confirmed the Tribe's preexisting sovereignty over the reservation land. Even on the assumption that the Tribe's treaty-based right to regulate hunting and fishing by non-Indians was lost with the Tribe's power to exclude non-Indians, its inherent authority to regulate such hunting and fishing continued. The majority's reliance on and Brendale in this regard is misplaced. In those cases, the reservation land at issue had been conveyed in fee to non-Indians pursuant to the Indian General Allotment Act of 1887, which aimed at the |
Justice Blackmun | 1,993 | 11 | dissenting | South Dakota v. Bourland | https://www.courtlistener.com/opinion/112885/south-dakota-v-bourland/ | Indian General Allotment Act of 1887, which aimed at the eventual elimination of reservations and the assimilation of Indian peoples. See n. 9. In the Court concluded: "It defies common sense to suppose that Congress would intend that nonIndians purchasing allotted lands would become subject to tribal jurisdiction when an avowed purpose of the allotment policy was the ultimate destruction of tribal government." See also The majority finds the purpose for which the land is alienated irrelevant, relying on `s statement that "`what is relevant is the effect of the land alienation occasioned by that policy on Indian treaty rights tied to Indian use and occupation of reservation land. ` " *702 Ante, at 692, quoting 450 U. S., This statement, however, simply responded to an argument that "[t]he policy of allotment and sale of surplus reservation land was repudiated in 1934." Read in context, the language on which the majority relies in no way rejects Congress' purpose as irrelevant but rather specifies which congressional purpose is relevant i. e., its purpose at the time Indian land is alienated. In this case, as the majority acknowledges, see ante, at 683-684, Congress' purpose was simply to build a dam. Congress also provided that the taken area should be open to non-Indians for "recreational purposes." See ante, at 689. But these uses of the land are perfectly consistent with continued tribal authority to regulate hunting and fishing by non-Indians. To say that non-Indians may hunt and fish in the taken area is not to say that they may do so free of tribal regulation any more than it is to say that they may do so free of state or federal regulation. Even if the Tribe lacks the power to exclude, it may sanction with fines and other civil penalties those who violate its regulations. Apparently the majority also believes that tribal authority to regulate hunting and fishing is inconsistent with the fact that Congress has given the Army Corps of Engineers authority to promulgate regulations for use of the area by the general public. See ante, at 691, 692, and n. 13. I see no inconsistency. The Corps in fact has decided not to promulgate its own hunting and fishing regulations and instead has provided that "[a]ll Federal, state and local laws governing [hunting, fishing, and trapping] apply on project lands and waters." ; see Tr. of Oral Arg. 50. This regulation clearly envisions a system of concurrent jurisdiction over hunting and fishing in the taken area. The majority offers no explanation why concurrent jurisdiction suddenly becomes untenable when the local |
Justice Blackmun | 1,993 | 11 | dissenting | South Dakota v. Bourland | https://www.courtlistener.com/opinion/112885/south-dakota-v-bourland/ | explanation why concurrent jurisdiction suddenly becomes untenable when the local authority is an Indian tribe. To the extent that such a system proves unworkable, the regulations themselves provide that tribal *703 rights prevail, for part 327 applies to "lands and waters which are subject to treaties and Federal laws and regulations concerning the rights of Indian Nations" only to the extent that part 327 is "not inconsistent with such treaties and Federal laws and regulations." 327.1(f). In its search for a statement from Congress abrogating the Tribe's right to regulate non-Indian hunting and fishing in the taken area, the majority turns to a provision in the Cheyenne River Act that the compensation paid for the taken area "`shall be in final and complete settlement of all claims, rights, and demands' of the Tribe." Ante, at 690, quoting Pub. L. 776, II, 68 Stat. 91. But this provision simply makes clear that Congress intended no further compensation for the rights it took from the Tribe. It does not address the question of which rights Congress intended to take or, more specifically, whether Congress intended to take the Tribe's right to regulate hunting and fishing by non-Indians. The majority also relies on the fact that IX of the Act expressly reserved to the Tribe the right to hunt and fish but not the right to regulate hunting and fishing. See ante, at 690. To imply an intent to abrogate Indian rights from such congressional silence once again ignores the principles that "Congress' intention to abrogate Indian treaty rights be clear and plain," and that "`statutes are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit.' " County of quoting v. Blackfeet Tribe, Congress' failure to address the subject of the Tribe's regulatory authority over hunting and fishing means that the Tribe's authority survives and not the reverse.[3] *704 It is some small consolation that the Court's decision permits the Federal Government to remedy this situation with a more explicit regulation authorizing the Tribe to regulate hunting and fishing in the taken area. See ante, at 691. I regret, however, that the Court's decision makes such action necessary. I dissent. |
Justice Thomas | 2,016 | 1 | majority | Universal Health Services, Inc. v. United States ex rel. Escobar | https://www.courtlistener.com/opinion/3213977/universal-health-services-inc-v-united-states-ex-rel-escobar/ | The False Claims Act, 31 U.S. C. et seq., imposes significant penalties on those who defraud the Govern- ment. This case concerns a theory of False Claims Act liability commonly referred to as “implied false certifica- tion.” According to this theory, when a defendant submits a claim, it impliedly certifies compliance with all condi- tions of payment. But if that claim fails to disclose the defendant’s violation of a material statutory, regulatory, or contractual requirement, so the theory goes, the de- fendant has made a misrepresentation that renders the claim “false or fraudulent” under (a)(1)(A). This case requires us to consider this theory of liability and to clarify some of the circumstances in which the False Claims Act imposes liability. We first hold that, at least in certain circumstances, the implied false certification theory can be a basis for liabil- ity. Specifically, liability can attach when the defendant submits a claim for payment that makes specific represen- tations about the goods or services provided, but knowingly 2 UNIVERSAL HEALTH SERVICES, INC. v. UNITED STATES EX REL. ESCOBAR Opinion of the Court fails to disclose the defendant’s noncompliance with a statutory, regulatory, or contractual requirement. In these circumstances, liability may attach if the omission renders those representations misleading. We further hold that False Claims Act liability for fail- ing to disclose violations of legal requirements does not turn upon whether those requirements were expressly designated as conditions of payment. Defendants can be liable for violating requirements even if they were not expressly designated as conditions of payment. Conversely, even when a requirement is expressly designated a condition of payment, not every violation of such a re- quirement gives rise to liability. What matters is not the label the Government attaches to a requirement, but whether the defendant knowingly violated a requirement that the defendant knows is material to the Government’s payment decision. A misrepresentation about compliance with a statutory, regulatory, or contractual requirement must be material to the Government’s payment decision in order to be ac- tionable under the False Claims Act. We clarify below how that rigorous materiality requirement should be enforced. Because the courts below interpreted (a)(1)(A) differently, we vacate the judgment and remand so that those courts may apply the approach set out in this opinion. I A Enacted in 1863, the False Claims Act “was originally aimed principally at stopping the massive frauds perpe- trated by large contractors during the Civil War.” United “[A] series of sensational congressional investigations” prompted hearings where witnesses “painted a sordid picture of how Cite as: 579 U. S. (16) 3 Opinion |
Justice Thomas | 2,016 | 1 | majority | Universal Health Services, Inc. v. United States ex rel. Escobar | https://www.courtlistener.com/opinion/3213977/universal-health-services-inc-v-united-states-ex-rel-escobar/ | of how Cite as: 579 U. S. (16) 3 Opinion of the Court the United States had been billed for nonexistent or worthless goods, charged exorbitant prices for goods deliv- ered, and generally robbed in purchasing the necessities of war.” United (1958). Congress responded by imposing civil and criminal liability for 10 types of fraud on the Government, subject- ing violators to double damages, forfeiture, and up to five years’ imprisonment. Act of Mar. 2, 1863, ch. 67, 12 Stat. 696. Since then, Congress has repeatedly amended the Act, but its focus remains on those who present or directly induce the submission of false or fraudulent claims. See 31 U.S. C. (a) (imposing civil liability on “any person who knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval”). A “claim” now includes direct requests to the Government for payment as well as reimbursement requests made to the recipients of federal funds under federal benefits programs. See (b)(2)(A). The Act’s scienter re- quirement defines “knowing” and “knowingly” to mean that a person has “actual knowledge of the information,” “acts in deliberate ignorance of the truth or falsity of the information,” or “acts in reckless disregard of the truth or falsity of the ” (b)(1)(A). And the Act defines “material” to mean “having a natural tendency to influence, or be capable of influencing, the payment or receipt of money or property.” (b)(4). Congress also has increased the Act’s civil penalties so that liability is “essentially punitive in nature.” Vermont Agency of Natural Defendants are subjected to treble damages plus civil penalties of up to $10,000 per false claim. (a); (a)(9) (15) (adjusting penalties for inflation). 4 UNIVERSAL HEALTH SERVICES, INC. v. UNITED STATES EX REL. ESCOBAR Opinion of the Court B The alleged False Claims Act violations here arose within the Medicaid program, a joint state-federal pro- gram in which healthcare providers serve poor or disabled patients and submit claims for government reimburse- ment. See generally 42 U.S. C. et seq. The facts recited in the complaint, which we take as true at this stage, are as follows. For five years, Yarushka Rivera, a teenage beneficiary of Massachusetts’ Medicaid program, received counseling services at Arbour Counseling Ser- vices, a satellite mental health facility in Lawrence, Massa- chusetts, owned and operated by a subsidiary of peti- tioner Universal Health Services. Beginning in 04, when Yarushka started having behavioral problems, five medical professionals at Arbour intermittently treated her. In May 09, Yarushka had an adverse reaction to a medication that a purported doctor at Arbour prescribed after |
Justice Thomas | 2,016 | 1 | majority | Universal Health Services, Inc. v. United States ex rel. Escobar | https://www.courtlistener.com/opinion/3213977/universal-health-services-inc-v-united-states-ex-rel-escobar/ | a medication that a purported doctor at Arbour prescribed after diagnosing her with bipolar disorder. Her condition worsened; she suffered a seizure that required hospitaliza- tion. In October 09, she suffered another seizure and died. She was 17 years old. Thereafter, an Arbour counselor revealed to respondents Carmen Correa and Julio Escobar—Yarushka’s mother and stepfather—that few Arbour employees were actually licensed to provide mental health counseling and that supervision of them was minimal. Respondents discovered that, of the five professionals who had treated Yarushka, only one was properly licensed. The practitioner who diagnosed Yarushka as bipolar identified herself as a psychologist with a Ph. D., but failed to mention that her degree came from an unaccredited Internet college and that Massachusetts had rejected her application to be licensed as a psychologist. Likewise, the practitioner who prescribed medicine to Yarushka, and who was held out as a psychiatrist, was in fact a nurse who lacked authority to prescribe medications absent supervision. Rather than Cite as: 579 U. S. (16) 5 Opinion of the Court ensuring supervision of unlicensed staff, the clinic’s direc- tor helped to misrepresent the staff ’s qualifications. And the problem went beyond those who treated Yarushka. Some 23 Arbour employees lacked licenses to provide mental health services, yet—despite regulatory require- ments to the contrary—they counseled patients and pre- scribed drugs without supervision. When submitting reimbursement claims, Arbour used payment codes corresponding to different services that its staff provided to Yaruskha, such as “Individual Therapy” and “family therapy.” Staff members also misrepresented their qualifications and licensing status to the Federal Government to obtain individual National Provider Identification numbers, which are submitted in connection with Medicaid reimbursement claims and correspond to specific job titles. For instance, one Arbour staff member who treated Yaruskha registered for a num- ber associated with “ ‘Social Worker, Clinical,’ ” despite lacking the credentials and licensing required for social workers engaged in mental health counseling. 1 After researching Arbour’s operations, respondents filed complaints with various Massachusetts agencies. Massa- chusetts investigated and ultimately issued a report de- tailing Arbour’s violation of over a dozen Massachusetts Medicaid regulations governing the qualifications and supervision required for staff at mental health facili- ties. Arbour agreed to a remedial plan, and two Arbour employees also entered into consent agreements with Massachusetts. In 11, respondents filed a qui tam suit in federal court, see 31 U.S. C. alleging that Universal Health had violated the False Claims Act under an im- plied false certification theory of liability. The operative complaint asserts that Universal Health (acting through Arbour) submitted reimbursement claims that made |
Justice Thomas | 2,016 | 1 | majority | Universal Health Services, Inc. v. United States ex rel. Escobar | https://www.courtlistener.com/opinion/3213977/universal-health-services-inc-v-united-states-ex-rel-escobar/ | Universal Health (acting through Arbour) submitted reimbursement claims that made representations about the specific services provided by 6 UNIVERSAL HEALTH SERVICES, INC. v. UNITED STATES EX REL. ESCOBAR Opinion of the Court specific types of professionals, but that failed to disclose serious violations of regulations pertaining to staff qualifi- cations and licensing requirements for these services.1 Specifically, the Massachusetts Medicaid program re- quires satellite facilities to have specific types of clinicians on staff, delineates licensing requirements for particular positions (like psychiatrists, social workers, and nurses), and details supervision requirements for other staff. See 130 Code Mass. Regs. 429.4 (14). Universal Health allegedly flouted these regulations because Arbour employed unqualified, unlicensed, and unsupervised staff. The Massachusetts Medicaid pro- gram, unaware of these deficiencies, paid the claims. Universal Health thus allegedly defrauded the program, which would not have reimbursed the claims had it known that it was billed for mental health services that were performed by unlicensed and unsupervised staff. The United States declined to intervene. The District Court granted Universal Health’s motion to dismiss the complaint. Circuit precedent had previously embraced the implied false certification theory of liability. See, e.g., United States ex rel. (CA1 11). But the District Court held that respondents had failed to state a claim under that theory because, with one exception not relevant here, none of the regulations that Arbour violated was a condition of payment. See 14 WL 1271757, *6–2 (D Mass., Mar. 26, 14). The United States Court of Appeals for the First Circuit reversed in relevant part and remanded. 517 (15). The court observed that each time a billing —————— 1 Although Universal Health submitted some of the claims at issue before 09, we assume—as the parties have done—that the 09 amendments to the False Claims Act apply here. Universal Health does not argue, and we thus do not consider, whether pre-09 conduct should be treated differently. Cite as: 579 U. S. (16) 7 Opinion of the Court party submits a claim, it “implicitly communicate[s] that it conformed to the relevant program requirements, such that it was entitled to payment.” To determine whether a claim is “false or fraudulent” based on such implicit communications, the court explained, it “asks simply whether the defendant, in submitting a claim for reimbursement, knowingly misrepresented compliance with a material precondition of payment.” In the court’s view, a statutory, regulatory, or contractual requirement can be a condition of payment either by ex- pressly identifying itself as such or by implication. at 512–513. The court then held that Universal Health had violated Massachusetts Medicaid regulations that “clearly impose conditions |
Justice Thomas | 2,016 | 1 | majority | Universal Health Services, Inc. v. United States ex rel. Escobar | https://www.courtlistener.com/opinion/3213977/universal-health-services-inc-v-united-states-ex-rel-escobar/ | Health had violated Massachusetts Medicaid regulations that “clearly impose conditions of payment.” The court further held that the regulations themselves “constitute[d] dispositive evidence of materiality,” because they identi- fied adequate supervision as an “express and absolute” condition of payment and “repeated[ly] reference[d]” su- pervision. We granted certiorari to resolve the disagreement among the Courts of Appeals over the validity and scope of the implied false certification theory of liability. 577 U. S. (15). The Seventh Circuit has rejected this theory, reasoning that only express (or affirmative) falsehoods can render a claim “false or fraudulent” under 31 U.S. C. (a)(1)(A). United States v. Sanford-Brown, Ltd., 788 F.3d 696, 711–712 (15). Other courts have accepted the theory, but limit its application to cases where defendants fail to disclose violations of expressly designated condi- tions of payment. E.g., (CA2 11). Yet others hold that conditions of payment need not be expressly designated as such to be a basis for False Claims Act liability. E.g., United (CADC 10) (). 8 UNIVERSAL HEALTH SERVICES, INC. v. UNITED STATES EX REL. ESCOBAR Opinion of the Court II We first hold that the implied false certification theory can, at least in some circumstances, provide a basis for liability. By punishing defendants who submit “false or fraudulent claims,” the False Claims Act encompasses claims that make fraudulent misrepresentations, which include certain misleading omissions. When, as here, a defendant makes representations in submitting a claim but omits its violations of statutory, regulatory, or contrac- tual requirements, those omissions can be a basis for liability if they render the defendant’s representations misleading with respect to the goods or services provided. To reach this conclusion, “[w]e start, as always, with the language of the statute.” Allison (08) (brackets in original; internal quotation marks omitted). The False Claims Act imposes civil liability on “any person who knowingly presents, or causes to be presented, a false or fraudulent claim for payment or approval.” (a)(1)(A). Congress did not define what makes a claim “false” or “fraudulent.” But “[i]t is a settled principle of interpretation that, absent other indication, Congress intends to incorporate the well-settled meaning of the common-law terms it uses.” Sekhar v. United States, 570 U. S. (13) (slip op., at 3) (internal quotation marks omitted). And the term “fraudulent” is a paradig- matic example of a statutory term that incorporates the common-law meaning of fraud. See (the term “actionable ‘fraud’” is one with “a well-settled meaning at common law”).2 —————— 2 The False Claims Act abrogates the common law in certain respects. For instance, the Act’s scienter requirement “require[s] no proof of |
Justice Thomas | 2,016 | 1 | majority | Universal Health Services, Inc. v. United States ex rel. Escobar | https://www.courtlistener.com/opinion/3213977/universal-health-services-inc-v-united-states-ex-rel-escobar/ | For instance, the Act’s scienter requirement “require[s] no proof of specific intent to defraud.” 31 U.S. C. (b)(1)(B). But we presume that Congress retained all other elements of common-law fraud that are consistent with the statutory text because there are no textual indicia to the contrary. See –25. Cite as: 579 U. S. (16) 9 Opinion of the Court Because common-law fraud has long encompassed cer- tain misrepresentations by omission, “false or fraudulent claims” include more than just claims containing express falsehoods. The parties and the Government agree that misrepresentations by omission can give rise to liability. Brief for Petitioner 30–31; Brief for Respondents –31; Brief for United States as Amicus Curiae 16–. The parties instead dispute whether submitting a claim without disclosing violations of statutory, regulatory, or contractual requirements constitutes such an actionable misrepresentation. Respondents and the Government invoke the common-law rule that, while nondisclosure alone ordinarily is not actionable, “[a] representation stating the truth so far as it goes but which the maker knows or believes to be materially misleading because of his failure to state additional or qualifying matter” is actionable. Restatement (Second) of Torts p. 62 They contend that every submission of a claim for payment implicitly represents that the claimant is legally entitled to payment, and that failing to disclose violations of material legal requirements renders the claim mislead- ing. Universal Health, on the other hand, argues that submitting a claim involves no representations, and that a different common-law rule thus governs: nondisclosure of legal violations is not actionable absent a special “ ‘duty to exercise reasonable care to disclose the matter in question,’ ” which it says is lacking in Government con- tracting. Brief for Petitioner 31 (quoting Restatement (Second) of Torts at 119). We need not resolve whether all claims for payment implicitly represent that the billing party is legally enti- tled to payment. The claims in this case do more than merely demand payment. They fall squarely within the rule that half-truths—representations that state the truth only so far as it goes, while omitting critical qualifying 10 UNIVERSAL HEALTH SERVICES, INC. v. UNITED STATES EX REL. ESCOBAR Opinion of the Court information—can be actionable misrepresentations.3 A classic example of an actionable half-truth in contract law is the seller who reveals that there may be two new roads near a property he is selling, but fails to disclose that a third potential road might bisect the property. See Junius Constr. (Cardozo, J.). “The enumeration of two streets, described as unopened but projected, was a tacit represen- tation that the land to be conveyed |
Justice Thomas | 2,016 | 1 | majority | Universal Health Services, Inc. v. United States ex rel. Escobar | https://www.courtlistener.com/opinion/3213977/universal-health-services-inc-v-united-states-ex-rel-escobar/ | a tacit represen- tation that the land to be conveyed was subject to no others, and certainly subject to no others materially affect- ing the value of the purchase.” Likewise, an appli- cant for an adjunct position at a local college makes an actionable misrepresentation when his resume lists prior jobs and then retirement, but fails to disclose that his “retirement” was a prison stint for perpetrating a $12 million bank fraud. See 3 D. Dobbs, P. Hayden, & H. Bublick, Law of Torts pp. 702–703, and n. 14 (2d ed. 11) (citing 78, 80–82, (01)). So too here, by submitting claims for payment using payment codes that corresponded to specific counseling services, Universal Health represented that it had pro- vided individual therapy, family therapy, preventive medica- tion counseling, and other types of treatment. Moreover, Arbour staff members allegedly made further representa- tions in submitting Medicaid reimbursement claims by using National Provider Identification numbers corre- sponding to specific job titles. And these representations —————— 3 This rule recurs throughout the common law. In tort law, for exam- ple, “if the defendant does speak, he must disclose enough to prevent his words from being misleading.” W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts p. 738 (5th ed. 1984). Contract law also embraces this principle. See, e.g., Restate- ment (Second) of Contracts Comment a, p. 432 (1979). And we have used this definition in other statutory contexts. See, e.g., Matrixx Initiatives, (11) Cite as: 579 U. S. (16) 11 Opinion of the Court were clearly misleading in context. Anyone informed that a social worker at a Massachusetts mental health clinic provided a teenage patient with individual counseling services would probably—but wrongly—conclude that the clinic had complied with core Massachusetts Medicaid requirements (1) that a counselor “treating children [is] required to have specialized training and experience in children’s services,” 130 Code Mass. Regs. §429.4, and also (2) that, at a minimum, the social worker possesses the prescribed qualifications for the job, By using payment and other codes that conveyed this information without disclosing Arbour’s many violations of basic staff and licensing requirements for mental health facilities, Universal Health’s claims constituted misrepresentations. Accordingly, we hold that the implied certification theory can be a basis for liability, at least where two conditions are satisfied: first, the claim does not merely request payment, but also makes specific representations about the goods or services provided; and second, the defendant’s failure to disclose noncompliance with material statutory, regulatory, or contractual requirements makes those representations misleading half-truths.4 III The second question |
Justice Thomas | 2,016 | 1 | majority | Universal Health Services, Inc. v. United States ex rel. Escobar | https://www.courtlistener.com/opinion/3213977/universal-health-services-inc-v-united-states-ex-rel-escobar/ | requirements makes those representations misleading half-truths.4 III The second question presented is whether, as Universal Health urges, a defendant should face False Claims Act liability only if it fails to disclose the violation of a contrac- tual, statutory, or regulatory provision that the Govern- —————— 4 As an alternative argument, Universal Health asserts that mislead- ing partial disclosures constitute fraudulent misrepresentations only when the initial statement partially disclosed unfavorable Not so. “[A] statement that contains only favorable matters and omits all reference to unfavorable matters is as much a false representation as if all the facts stated were untrue.” Restatement (Second) of Torts, Comment a, pp. 62–63 12 UNIVERSAL HEALTH SERVICES, INC. v. UNITED STATES EX REL. ESCOBAR Opinion of the Court ment expressly designated a condition of payment. We conclude that the Act does not impose this limit on liabil- ity. But we also conclude that not every undisclosed viola- tion of an express condition of payment automatically triggers liability. Whether a provision is labeled a condi- tion of payment is relevant to but not dispositive of the materiality inquiry. A Nothing in the text of the False Claims Act sup- ports Universal Health’s proposed restriction. Section 3729(a)(1)(A) imposes liability on those who present “false or fraudulent claims” but does not limit such claims to misrepresentations about express conditions of payment. See (rejecting any textual basis for an express-designation rule). Nor does the common- law meaning of fraud tether liability to violating an ex- press condition of payment. A statement that misleadingly omits critical facts is a misrepresentation irrespective of whether the other party has expressly signaled the im- portance of the qualifying at 9–11. The False Claims Act’s materiality requirement also does not support Universal Health. Under the Act, the misrepresentation must be material to the other party’s course of action. But, as discussed below, see infra, at 15– 17, statutory, regulatory, and contractual requirements are not automatically material, even if they are labeled conditions of payment. Cf. Matrixx Initiatives, Inc. v. Siracusano, (11) (materiality cannot rest on “a single fact or occurrence as always determina- tive” ). Nor does the Act’s scienter requirement, (b)(1)(A), support Universal Health’s position. A defendant can have “actual knowledge” that a condition is material with- out the Government expressly calling it a condition of payment. If the Government failed to specify that guns it Cite as: 579 U. S. (16) 13 Opinion of the Court orders must actually shoot, but the defendant knows that the Government routinely rescinds contracts if the guns do not shoot, the defendant has “actual knowledge.” Like- wise, |
Justice Thomas | 2,016 | 1 | majority | Universal Health Services, Inc. v. United States ex rel. Escobar | https://www.courtlistener.com/opinion/3213977/universal-health-services-inc-v-united-states-ex-rel-escobar/ | do not shoot, the defendant has “actual knowledge.” Like- wise, because a reasonable person would realize the im- perative of a functioning firearm, a defendant’s failure to appreciate the materiality of that condition would amount to “deliberate ignorance” or “reckless disregard” of the “truth or falsity of the information” even if the Govern- ment did not spell this out. Universal Health nonetheless contends that False Claims Act liability should be limited to undisclosed viola- tions of expressly designated conditions of payment to provide defendants with fair notice and to cabin liability. But policy arguments cannot supersede the clear statutory text. Kloeckner v. Solis, 568 U. S. –, n. 4 (12) (slip op., at 13–14, n. 4). In any event, Universal Health’s approach risks undercutting these policy goals. The Gov- ernment might respond by designating every legal re- quirement an express condition of payment. But billing parties are often subject to thousands of complex statutory and regulatory provisions. Facing False Claims Act liabil- ity for violating any of them would hardly help would-be defendants anticipate and prioritize compliance obliga- tions. And forcing the Government to expressly designate a provision as a condition of payment would create further arbitrariness. Under Universal Health’s view, misrepre- senting compliance with a requirement that the Govern- ment expressly identified as a condition of payment could expose a defendant to liability. Yet, under this theory, misrepresenting compliance with a condition of eligibility to even participate in a federal program when submitting a claim would not. Moreover, other parts of the False Claims Act allay Universal Health’s concerns. “[I]nstead of adopting a circumscribed view of what it means for a claim to be false or fraudulent,” concerns about fair notice and open-ended 14 UNIVERSAL HEALTH SERVICES, INC. v. UNITED STATES EX REL. ESCOBAR Opinion of the Court liability “can be effectively addressed through strict en- forcement of the Act’s materiality and scienter require- ments.” Those requirements are rigorous. B As noted, a misrepresentation about compliance with a statutory, regulatory, or contractual requirement must be material to the Government’s payment decision in order to be actionable under the False Claims Act. We now clarify how that materiality requirement should be enforced. Section 3729(b)(4) defines materiality using language that we have employed to define materiality in other federal fraud statutes: “[T]he term ‘material’ means hav- ing a natural tendency to influence, or be capable of influ- encing, the payment or receipt of money or property.” See (using this definition to interpret the mail, bank, and wire fraud statutes); (same for fraudulent statements to immigration officials). This materiality requirement descends from |
Justice Thomas | 2,016 | 1 | majority | Universal Health Services, Inc. v. United States ex rel. Escobar | https://www.courtlistener.com/opinion/3213977/universal-health-services-inc-v-united-states-ex-rel-escobar/ | fraudulent statements to immigration officials). This materiality requirement descends from “common-law antecedents.” Indeed, “the common law could not have con- ceived of ‘fraud’ without proof of materiality.” at ; see also Brief for United States as Amicus Curiae 30 (describing common-law principles and arguing that materiality under the False Claims Act should in- volve a “similar approach”). We need not decide whether (a)(1)(A)’s materiality requirement is governed by (b)(4) or derived directly from the common law. Under any understanding of the concept, materiality “look[s] to the effect on the likely or actual behavior of the recipient of the alleged misrepre- sentation.” 26 R. Lord, Williston on Contracts p. 549 (4th ed. 03) (Williston). In tort law, for instance, a “matter is material” in only two circumstances: (1) “[if ] a reasonable man would attach importance to [it] in deter- Cite as: 579 U. S. (16) 15 Opinion of the Court mining his choice of action in the transaction”; or (2) if the defendant knew or had reason to know that the recipient of the representation attaches importance to the specific matter “in determining his choice of action,” even though a reasonable person would not. Restatement (Second) of Torts at 80. Materiality in contract law is substan- tially similar. See Restatement (Second) of Contracts and Comment c, pp. 4, 1 (1979) (“[A] misrep- resentation is material” only if it would “likely induce a reasonable person to manifest his assent,” or the defend- ant “knows that for some special reason [the representa- tion] is likely to induce the particular recipient to manifest his assent” to the transaction).5 The materiality standard is demanding. The False Claims Act is not “an all-purpose antifraud statute,” Alli- son or a vehicle for punishing garden-variety breaches of contract or regulatory viola- tions. A misrepresentation cannot be deemed material merely because the Government designates compliance with a particular statutory, regulatory, or contractual requirement as a condition of payment. Nor is it sufficient for a finding of materiality that the Government would have the option to decline to pay if it knew of the defend- —————— 5 Accord, Williston pp. 549–550 (“most popular” understand- ing is “that a misrepresentation is material if it concerns a matter to which a reasonable person would attach importance in determining his or her choice of action with respect to the transaction involved: which will induce action by a complaining party[,] knowledge of which would have induced the recipient to act differently” (footnote omitted)); at 550 (noting rule that “a misrepresentation is material if, had it not been made, the party complaining of fraud |
Justice Thomas | 2,016 | 1 | majority | Universal Health Services, Inc. v. United States ex rel. Escobar | https://www.courtlistener.com/opinion/3213977/universal-health-services-inc-v-united-states-ex-rel-escobar/ | had it not been made, the party complaining of fraud would not have taken the action alleged to have been induced by the misrepresentation”); Junius Constr. (a misrepresentation is material if it “went to the very essence of the bargain”); cf. v. United States, 16, n. 5 (relying on “ ‘natural tendency to influence’ ” standard and citing Restatement (Second) of Torts definition of materiality). 16 UNIVERSAL HEALTH SERVICES, INC. v. UNITED STATES EX REL. ESCOBAR Opinion of the Court ant’s noncompliance. Materiality, in addition, cannot be found where noncompliance is minor or insubstantial. See United States ex rel. (1943) (contractors’ misrepresentation that they satisfied a non-collusive bidding requirement for federal program contracts violated the False Claims Act because “[t]he government’s money would never have been placed in the joint fund for payment to respondents had its agents known the bids were collusive”); see also Junius Constr., 257 N.Y., at 178 N. E., at (an undisclosed fact was material because “[n]o one can say with reason that the plaintiff would have signed this contract if informed of the likelihood” of the undisclosed fact). In sum, when evaluating materiality under the False Claims Act, the Government’s decision to expressly iden- tify a provision as a condition of payment is relevant, but not automatically dispositive. Likewise, proof of material- ity can include, but is not necessarily limited to, evidence that the defendant knows that the Government consis- tently refuses to pay claims in the mine run of cases based on noncompliance with the particular statutory, regulatory, or contractual requirement. Conversely, if the Govern- ment pays a particular claim in full despite its actual knowledge that certain requirements were violated, that is very strong evidence that those requirements are not material. Or, if the Government regularly pays a particu- lar type of claim in full despite actual knowledge that certain requirements were violated, and has signaled no change in position, that is strong evidence that the re- quirements are not material.6 —————— 6 We reject Universal Health’s assertion that materiality is too fact intensive for courts to dismiss False Claims Act cases on a motion to dismiss or at summary judgment. The standard for materiality that we have outlined is a familiar and rigorous one. And False Claims Act plaintiffs must also plead their claims with plausibility and particular- ity under Federal Rules of Civil Procedure 8 and 9(b) by, for instance, Cite as: 579 U. S. (16) 17 Opinion of the Court These rules lead us to disagree with the Government’s and First Circuit’s view of materiality: that any statutory, regulatory, or |
Justice Thomas | 2,016 | 1 | majority | Universal Health Services, Inc. v. United States ex rel. Escobar | https://www.courtlistener.com/opinion/3213977/universal-health-services-inc-v-united-states-ex-rel-escobar/ | First Circuit’s view of materiality: that any statutory, regulatory, or contractual violation is material so long as the defendant knows that the Government would be enti- tled to refuse payment were it aware of the violation. See Brief for United States as Amicus Curiae 30; Tr. of Oral Arg. 43 (Government’s “test” for materiality “is whether the person knew that the government could lawfully with- hold payment”); 780 F.3d, ; see also Tr. of Oral Arg. 26, 29 (statements by respondents’ counsel endorsing this view). At oral argument, the United States explained the implications of its position: If the Government contracts for health services and adds a requirement that contrac- tors buy American-made staplers, anyone who submits a claim for those services but fails to disclose its use of foreign staplers violates the False Claims Act. To the Government, liability would attach if the defendant’s use of foreign staplers would entitle the Government not to pay the claim in whole or part—irrespective of whether the Government routinely pays claims despite knowing that foreign staplers were used. at –45. Likewise, if the Government required contractors to aver their compli- ance with the entire U. S. Code and Code of Federal Regu- lations, then under this view, failing to mention noncom- pliance with any of those requirements would always be material. The False Claims Act does not adopt such an extraordinarily expansive view of liability. * * * Because both opinions below assessed respondents’ complaint based on interpretations of (a)(1)(A) that differ from ours, we vacate the First Circuit’s judgment and remand the case for reconsideration of whether re- spondents have sufficiently pleaded a False Claims Act —————— pleading facts to support allegations of materiality. 18 UNIVERSAL HEALTH SERVICES, INC. v. UNITED STATES EX REL. ESCOBAR Opinion of the Court violation. See Omnicare, Inc. v. Laborers Dist. Council Constr. Industry Pension Fund, 575 U. S. (15) (slip op., at 19). We emphasize, however, that the False Claims Act is not a means of imposing treble damages and other penalties for insignificant regulatory or contractual violations. This case centers on allegations of fraud, not medical malpractice. Respondents have alleged that Universal Health misrepresented its compliance with mental health facility requirements that are so central to the provision of mental health counseling that the Medi- caid program would not have paid these claims had it known of these violations. Respondents may well have adequately pleaded a violation of (a)(1)(A). But we leave it to the courts below to resolve this in the first instance. The judgment of the Court of Appeals is vacated, and |
Justice Blackmun | 1,981 | 11 | concurring | Federated Department Stores, Inc. v. Moitie | https://www.courtlistener.com/opinion/110520/federated-department-stores-inc-v-moitie/ | While I agree with the result reached in this case, I write separately to state my views on two points. First, I, for one, would not close the door upon the possibility that there are cases in which the doctrine of res judicata *403 must give way to what the Court of Appeals referred to as "overriding concerns of public policy and simple justice." Professor Moore has noted: "Just as res judicata is occasionally qualified by an overriding, competing principle of public policy, so occasionally it needs an equitable tempering." 1B J. Moore & T. Currier, Moore's Federal Practice ¶ 0.405 [12], p. 791 (footnote omitted). See also ("A system of procedure is perverted from its proper function when it multiplies impediments to justice without the warrant of clear necessity"). But this case is clearly not one in which equity requires that the doctrine give way. Unlike the nonappealing party in Reed, respondents were not "caught in a mesh of procedural complexities." Instead, they made a deliberate tactical decision not to appeal. Nor would public policy be served by making an exception to the doctrine in this case; to the contrary, there is a special need for strict application of res judicata in complex multiple party actions of this sort so as to discourage "break-away" litigation. Cf. Finally, this is not a case "where the rights of appealing and non-appealing parties are so interwoven or dependent on each other as to require a reversal of the whole judgment when a part thereof is reversed." See Ford Motor Credit[*] *404 Second, and in contrast, I would flatly hold that Brown I is res judicata as to respondents' state-law claims. Like the District Court, the Court of Appeals found that those state-law claims were simply disguised federal claims; since respondents have not cross-petitioned from that judgment, their argument that this case should be remanded to state court should be itself barred by res judicata. More important, even if the state and federal claims are distinct, respondents' failure to allege the state claims in Brown I manifestly bars their allegation in Brown II. The dismissal of Brown I is res judicata not only as to all claims respondents actually raised, but also as to all claims that could have been raised. See ; Restatement (Second) of Judgments 61.1 (Tent. Draft No. 5, Mar. 10, 1978). Since there is no reason to believe that it was clear at the outset of this litigation that the District Court would have declined to exercise pendent jurisdiction over state claims, respondents were obligated to plead those claims |
Justice Brennan | 1,985 | 13 | majority | NLRB v. Longshoremen | https://www.courtlistener.com/opinion/111497/nlrb-v-longshoremen/ | The Rules on Containers are collectively bargained-for guidelines requiring marine shipping companies to allow some of the large cargo containers that they own or lease to be loaded or unloaded by longshoremen at the pier n we reviewed the National Labor Relations Board's conclusion that the Rules and their enforcement constituted unlawful secondary activity under 8(b)(4)(B) and 8(e) of the National Labor Relations Act, as amended, 29 US C 158(b)(4) (B) and 158(e) Respondent union, the nternational Longshoremen's Association (LA), defended the Rules as lawful under the "work preservation" doctrine of National Manufacturers We ruled, however, that the Board's preliminary definition of the work in dispute had been legally erroneous, because it focused on the off-pier work of nonlongshoremen rather than on the work of longshoremen sought to be -508 We therefore affirmed the Court of Appeals' remand of the Rules to the Board, directing it to "focus on the work of the bargaining unit employees, not *64 on the work of other employees who may be doing the same or similar work" The Board then sustained the Rules, but held that their enforcement against "short-stopping" truckers and "traditional" warehousers is unlawful 266 N L R B 230 (1983) The question now presented is whether the Board's partial invalidation of the Rules as applied in these two contexts is consistent with LA At issue is the response of unionized dockworkers to a technological innovation known as "containerization" Traditionally, longshoremen employed by steamship or stevedoring companies loaded and unloaded cargo into and out of oceangoing vessels at the pier Cargo arriving at the pier by truck was "transferred piece by piece from the truck's tailgate to the ship by longshoremen The longshoremen checked the cargo, sorted it, placed it on pallets and moved it by forklift to the side of the ship, and lifted it by means of a sling or hook into the ship's hold The process was reversed for cargo taken off incoming ships" As we explained in some detail in LA the advent of containerization some 25 years ago profoundly transformed this traditional pattern, by reducing the cost of ocean cargo transport and "largely eliminat[ing] the need for cargo handling at intermediate stages" [1] *65 t is thus unsurprising that "the amount of on-pier work involved in cargo handling has been drastically reduced" and that containerization has been since its inception a "hotly disputed topic of collective bargaining" between the LA and the marine shipping companies The Rules are the evolutionary product of the LA's bargaining efforts that began with the introduction of the first oceangoing container ship |
Justice Brennan | 1,985 | 13 | majority | NLRB v. Longshoremen | https://www.courtlistener.com/opinion/111497/nlrb-v-longshoremen/ | began with the introduction of the first oceangoing container ship in the Port of New York in 1957[2] The Rules do not require that all containers be loaded or unloaded by longshoremen at the pier nstead, they apply only to containers that would otherwise be loaded or unloaded within the local port area, defined for convenience as *66 anywhere within a 50-mile radius of the port Rule 1(a)[3] Containers directly coming from or going to points beyond the 50-mile radius are not affected by the Rules Rule 2 Even within the 50-mile area, containers that go directly to the owner of the cargo or to "bona fide" warehouses are exempted from the Rules Rules 1(a)(2) and (3), 2(B)(4)[4] To ensure compliance, a fine of $1,000 is levied against a marine shipping company for each of its containers that it allows to be handled in violation of the Rules Rule 7(c) As we noted in LA : "The practical effect of the Rules is that some 80% of containers pass over the piers intact The remaining 20% are [loaded and unloaded] by longshoremen, regardless of whether that work duplicates work done by non-LA employees off-pier" Although the marine shipping companies and longshoremen have accepted the various compromises that the Rules represent, three groups of non-LA employers are unhappy *67 with the Rules Freight consolidators, truckers, and warehousers all also load and unload containers Freight consolidators are in the business of arranging for small loads of cargo to be delivered to their off-pier facilities, where consolidator employees combine the cargo with cargo from other parties to pack full containers, which are then delivered to the pier Consolidators also receive from incoming vessels containers packed with several parties' cargo, which they unload and disperse to the respective owners Unlike consolidators, many of whose businesses have been founded on containerization, some truckers and warehousers have always performed some off-pier cargo handling work For example, prior to containerization, some interstate truckers would pick up cargo at the pier, drive a short distance to a central facility, and then unload and reload the cargo to meet weight, safety, or delivery requirements Such unloading and reloading near the pier still sometimes occurs, even if the cargo is picked up in containers The trucking practice of stopping in the vicinity of the pier to unload and reload cargo for reasons related to trucking requirements is known as "shortstopping" Similarly, some warehousers have always performed some loading and unloading of cargo stored at the warehouse for reasons unrelated to marine transportation; such cargo handling is still sometimes necessary even |
Justice Brennan | 1,985 | 13 | majority | NLRB v. Longshoremen | https://www.courtlistener.com/opinion/111497/nlrb-v-longshoremen/ | marine transportation; such cargo handling is still sometimes necessary even though cargo is shipped in containers[5] All these facts were before the Court in LA We did not find that any of them required invalidation of the Rules nstead, because we found that the Board had erred as a matter of law in defining the "work" in controversy, we remanded to the Board for further proceedings 447 U S, at *68 512-513 Nine cases involving charges of unfair labor practices filed by consolidators, truckers, or warehousers against the LA were then consolidated by the Board and sent to an Administrative Law Judge (ALJ) for factfinding and disposition[6] The charging parties claimed generally that the Rules constitute an unlawful agreement in violation of 8(e),[7] and that enforcement of the Rules, which has resulted in marine transport companies not dealing with certain off-pier *69 employers, constitutes secondary boycotting illegal under 8(b)(4)(B)[8] n a detailed opinion, the ALJ sustained the Rules as a valid work preservation agreement He found that the "historic jurisdiction" of longshoremen "includes all work in connection with the loading and unloading of cargo on ships, including such related intermediate steps as receipt, storage, sorting, checking, palletizing, cargo repair, carpentry, maintenance and delivery" 266 N L R B, at 247 He rejected the argument that containerization has so changed the character of the cargo transportation industry that this work has simply disappeared[9] Noting that the Rules are *70 "narrowly tailored" to preserve only the work of loading and unloading containers, and that "[n]o other work is sought," the ALJ also found that "the Rules merely restore to the unit work traditionally performed by the LA" With regard to the alleged secondary nature of the Rules, the ALJ found that the Rules have a clear work-preserving objective and that no secondary motivation was shown: "On this record, there can be little question that the Rules represented a negotiated response to accommodate the inroads on LA work jurisdiction" caused by containerization, and "the evidence fails to disclose any significant LA interest in the labor relations of the [off-pier] employers boycotted by the Rules" [10] The ALJ did not end his inquiry there, however He concluded that despite the work preservation objective of the Rules, they might still be invalid if they had the effect of reserving for longshoremen cargo handling work that had been done by nonlongshore labor prior to containerization and thus was not "created" by containerization The ALJ reasoned that "to the extent that the Rules seek to compensate longshoremen for losses at the expense of inland employees whose jobs |
Justice Brennan | 1,985 | 13 | majority | NLRB v. Longshoremen | https://www.courtlistener.com/opinion/111497/nlrb-v-longshoremen/ | for losses at the expense of inland employees whose jobs did not derive from containerization, a *71 proscribed `work acquisition' objective would attach" He then found that, although the "skills utilized are indistinct from those of deep sea longshoremen," cargo handling work done by shortstoppers and "traditional" warehousers is work "assumed for a different purpose" than longshore cargo handling and "preexisted" containerization He declared that the Rules therefore took on an impermissible secondary character when applied in those two contexts, and sustained unfair labor charges in three cases[11] The Board adopted the ALJ's findings and conclusions, stating that "the LA had an overall work preservation objective in negotiating the Rules," and that "the work of loading and unloading containers claimed by the Rules is functionally related to the traditional loading and unloading work of the longshoremen" The Board therefore held the Rules lawful as a general matter t also agreed with the ALJ's partial invalidation "as applied," however, after modifying the ALJ's views in two respects First, the Board provided a definition of "the work in dispute," because the ALJ had not done so explicitly Second, the Board rejected the ALJ's "findings that an illegal work acquisition objective is revealed in the Rules," *72 because his analysis "appear[ed] to conflict" with the direction in LA to focus on the work of longshoremen, not off-pier laborers 266 N L R B, -237 "By focusing on the economic character of the trucking and warehousing industry and on the work historically performed by trucking and warehousing employees, the [ALJ's] findings give undue emphasis to the work historically performed by trucking and warehousing employees and to the fact that this work was not created by containerization" Nevertheless, the Board held the Rules unlawful "as applied to `shortstopping' and `traditional' warehousing practices" The Board reasoned that some cargo loading and unloading work required to be performed by longshoremen under the Rules would unnecessarily duplicate the similar work done by "shortstopping" truckers and "traditional" warehousers Because cargo in containers can now be moved directly to and from warehouses and trucking terminals without loading or unloading at the pier, the necessity for such longshore labor has been removed, while "traditional" warehousers and "shortstopping" truckers must still do some container loading and unloading at their facilities Thus, the Board concluded, the loading and unloading work of the longshoremen "no longer exists as a step in the cargo handling process" and "essentially was eliminated" in these two contexts Because the Rules seek to preserve this "eliminated" work, the Board concluded that they have "an illegal work acquisition objective" as |
Justice Brennan | 1,985 | 13 | majority | NLRB v. Longshoremen | https://www.courtlistener.com/opinion/111497/nlrb-v-longshoremen/ | concluded that they have "an illegal work acquisition objective" as applied The Court of Appeals for the Fourth Circuit affirmed the Board's general validation of the Rules, concluding that the Board's crucial dual findings that the shipping companies have the "right to control" container work, and that the Rules had a bona fide work preservation objective were supported by substantial evidence American Trucking Assns, For *73 two reasons, however, the Court of Appeals refused to enforce the Board's decision that the Rules constitute unlawful secondary activity when applied to containers destined for "shortstopping" truckers and "traditional" warehousers First, in concluding that a partial objective of the Rules is "work acquisition," the Board had failed to make any factual finding that the Rules actually operate to deprive "shortstopping" truckers or "traditional" warehousers of any work Second, the Court of Appeals concluded that, as a matter of law, an agreement that preserves duplicative or technologically "eliminated" work simply does not constitute "work acquisition" National had approved as lawful primary activity a collective-bargaining agreement whose objective was "protection of union members from a diminution of work flowing from changes in technology" The ALJ and the Board both had found that the same work-preserving purpose underlies the Rules on Containers The Rules do not "in any way prevent the identical off-pier work," and although such work may be economically inefficient, "it is not our function as a court of review to weigh the economic cost of the Rules" 734 F2d, The Court of Appeals therefore concluded that "the Rules are lawful in their entirety and may be enforced" Although a number of the charging parties sought review of the Fourth Circuit's decision, we granted only the Board's petition for certiorari, thereby limiting our inquiry to the alleged unlawfulness of the Rules with regard to "shortstopping" truckers and "traditional" warehousers A We have labored in the past to determine Congress' will as expressed in 8(b)(4)(B) and 8(e) this case requires no new development n light of the Board's factual findings, *74 we believe the Court of Appeals' conclusion that the Rules do not violate these provisions, flows as a matter of course from National and LA [12] n National after reviewing in detail the relevant legislative and judicial history, we concluded that "Congress meant that both 8(e) and 8(b)(4)(B) reach only secondary pressures" ; accord, Houston Contractors [13] n this regard, the prohibitory scope of 8(e) was found to be no broader than that of 8(b)(4)(B) 638 The purpose of 8(e) had been to close a "loophole" in the labor laws that |
Justice Brennan | 1,985 | 13 | majority | NLRB v. Longshoremen | https://www.courtlistener.com/opinion/111497/nlrb-v-longshoremen/ | been to close a "loophole" in the labor laws that allowed unions to employ "hot cargo" agreements *75 to pressure neutral employers not to handle nonunion goods ; see Carpenters v NLRB, 357 US 93 However, we concluded, "Congress in enacting 8(e) had no thought of prohibiting agreements directed to work preservation" 386 US, at 640[14] Such agreements "are not used as a sword" to achieve secondary objectives, but as "a shield carried solely to preserve the members' jobs" Because the labor laws do not prohibit bona fide primary activity, we stated that the central inquiry for evaluating claims of work preservation is "whether, under all the surrounding circumstances, the Union's objective was preservation of work for [the primary employer's] employees, or whether the agreements and boycott were tactically calculated to satisfy union objectives elsewhere The touchstone is whether the agreement or its maintenance is addressed to the labor relations of the contracting employer vis a vis his own employees" We expressly noted that a different case might be presented if a union engaged in activity "to reach out to monopolize jobs *76 or acquire new job tasks when their own jobs are not threatened " -631 [15] We reaffirmed the National analysis in LA and noted that "a lawful work preservation agreement must pass two tests": the objective of the agreement must be preservation of work for members of the union rather than some secondary goal, and the "right of control" test of NLRB v 429 US 507 must be satisfied 447 US, at 504[16] We ruled, however, that the Board had *77 erred as an initial matter by defining the "work in dispute" as "off-pier" container loading and unloading Because technological innovation may significantly change the character of an industry, work preservation agreements negotiated to address such change "typically come into being when employees' traditional work is displaced" Consequently, the place where work is to be done often lies at the heart of the controversy, and is seldom relevant to the definition of the work itself See -507[17] The Board's focus on the container work performed off-pier by nonlongshoremen was erroneous because it ignored the question whether "the parties have tailored their agreement to the objective of preserving the essence of the traditional work patterns," n 24, and "foreclosed by definition any possibility that the longshoremen could negotiate an agreement to permit them to continue to play any part in the loading or unloading of containerized cargo" LA concluded, however, that collective-bargaining agreements designed to "accommodate change" while still preserving some type of work for union |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.