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Justice Stewart | 1,975 | 18 | majority | Twentieth Century Music Corporation v. George Aiken | https://www.courtlistener.com/opinion/109288/twentieth-century-music-corporation-v-george-aiken/ | of Australia, Ltd., (1925) Vict.L.R. 350; Messager v. British Broadcasting Ltd., (1927) 2 K.B. 543, rev'd on other grounds, (1928) 1 K.B. 660, aff'd (1929) A.C. 151. See generally Caldwell, The Broadcasting of Copyrighted Works, 1 J.Air L. 584 (1930); Note, 75 U.Pa.L.Rev. 549 (1927); Note, 39 Harv.L.Rev. 269 (1925). 17 If, by analogy to a live performance in a concert hall or cabaret, a radio station 'performs' a musical composition when it broadcasts it, the same analogy would seem to require the conclusion that those who listen to the broadcast through the use of radio receivers do not perform the composition. And that is exactly what the early federal cases held. 'Certainly those who listen do not perform, and therefore do not infringe.' Jerome H. Remick & 'One who manually or by human agency merely actuates electrical instrumentalities, whereby inaudible elements that are omnipresent in the air are made audible to persons who are within hearing, does not 'perform' within the meaning of the Copyright Law.' (S.D.Cal.1929). Such was the state of the law when this Court in decided Buck v. jewell-LaSalle Realty In that case the Court was called upon to answer the following question certified by the Court of Appeals for the Eighth Circuit: 'Do the acts of a hotel proprietor, in making available to his guests, through the instrumentality of a radio receiving set and loud speakers installed in his hotel and under his control and for the entertainment of his guests, the hearing of a copyrighted musical composition which has been broadcast from a radio transmitting station, constitute a performance of such composition within the meaning of (e)?' The Court answered the certified question in the affirmative. In stating the facts of the case, however, the Court's opinion made clear that the broadcaster of the musical composition was not licensed to perform it, and at least twice in the course of its opinion the Court indicated that the answer to the certified question might have been different if the broadcast itself had been authorized by the copyright holder.10 19 We may assume for present purposes that the Jewel-LaSalle decision retains authoritative force in a factual situation like that in which it arose.11 But, as the Court of Appeals in this case perceived, this Court has in two recent decisions explicitly disavowed the view that the reception of an electronic broadcast can constitute a performance, when the broadcaster himself is licensed to perform the copyrighted material that he broadcasts. Fortnightly ; Teleprompter 20 The language of the Court's opinion in the Fortnightly case could hardly be |
Justice Stewart | 1,975 | 18 | majority | Twentieth Century Music Corporation v. George Aiken | https://www.courtlistener.com/opinion/109288/twentieth-century-music-corporation-v-george-aiken/ | the Court's opinion in the Fortnightly case could hardly be more explicitly dispositive of the question now before us: 21 'The television broadcaster in one sense does less than the exhibitor of a motion picture or stage play; he supplies his audience not with visible images but only with electronic signals. The viewer conversely does more than a member of a theater audience; he provides the equipment to convert electronic signals into audible sound and visible images. Despite these deviations from the conventional situation contemplated by the framers of the Copyright Act, broadcasters have been judicially treated as exhibitors, and viewers as members of a theater audience. Broadcasters perform. Viewers do not perform. Thus, while both broadcaster and viewer play crucial roles in the total television process, a line is drawn between them. One is treated as active performer; the other, as passive beneficiary.' —, 22 The Fortnightly and Teleprompter cases, to be sure, involved television, not radio, and the copyrighted materials there in issue were literary and dramatic works, not musical compositions. But, as the Court of Appeals correctly observed: 'If Fortnightly, with its elaborate CATV plant and Teleprompter with its even more sophisticated and extended technological and programming facilities were not 'performing,' then logic dictates that no 'performance' resulted when the (respondent) merely activated his restaurant radio.' 23 To hold in this case that the respondent Aiken 'performed' the petitioners' copyrights works would thus require us to overrule two very recent decisions of this Court. But such a holding would more than offend the principles of stare decisis; it would result in a regime of copyright law that would be both wholly unenforceable and highly inequitable. 24 The practical unenforceability of a ruling that all of those in Aiken's position are copyright infringers is self-evident. One has only to consider the countless business establishments in this country with radio or television sets on their premises—bars, beauty shops, cafeterias, car washes, dentists' offices, and drivins—to realize the total futility of any evenhanded effort on the part of copyright holders to license even a substantial percentage of them.12 25 And a ruling that a radio listener 'performs' every broadcast that he receives would be highly inequitable for two distinct reasons. First, a person in Aiken's position would have no sure way of protecting himself from liability for copyright infringement except by keeping his radio set turned off. For even if he secured a license from ASCAP, he would have no way of either foreseeing or controlling the broadcast of compositions whose copyright was held by someone else.13 Secondly, to hold |
Justice Stewart | 1,975 | 18 | majority | Twentieth Century Music Corporation v. George Aiken | https://www.courtlistener.com/opinion/109288/twentieth-century-music-corporation-v-george-aiken/ | whose copyright was held by someone else.13 Secondly, to hold that all in Aiken's position 'performed' these musical compositions would be to authorize the sale of an untold number of licenses for what is basically a single public rendition of a copyrighted work. The exaction of such multiple tribute would go far beyond what is required for the economic protection of copyright owners,14 and would be wholly at odds with the balanced congressional purpose behind (e): 26 'The main object to be desired in expanding copyright protection accorded to music has been to give to the composer an adequate return for the value of his composition, and it has been a serious and a difficult task to combine the protection of the composer with the protection of the public, and to so frame an act that it would accomplish the double purpose of securing to the composer an adequate return for all use made of his composition and at the same time prevent the formation of oppressive monopolies, which might be founded upon the very rights granted to the composer for the purpose of protecting his interests.' H.R.Rep. No. 2222, 60th Cong., 2d Sess., 7 (1909). 27 For the reasons stated in this opinion, the judgment of the Court of Appeals is affirmed. 28 It is so ordered. 29 Affirmed. 30 Mr. Justice BLACKMUN, concurring in the result. 31 My discomfort, now decisionaly outdated to be sure, with the Court's opinion and judgment is threefold: 32 1. My first discomfort is factual. Respondent Aiken hardly was an innocent 'listener,' as the Court seems to characterize him throughout its opinion and particularly ante, at 162. In one sense, of course, he was a listener, for as he operated his small food shop and served his customers, he heard the broadcasts himself. Perhaps his work was made more enjoyable by the soothing and entertaining effects of the music. With this aspect I would have no difficulty. 33 But respondent Aiken installed four loudspeakers in his small shop. This, obviously, was not done for his personal use and contentment so that he might hear the broadcast, in any corner he might be, above the noise of commercial transactions. It was done for the entertainment and edification of his customers. It was part of what Mr. Aiken offered his trade, and it added, in his estimation, to the atmosphere and attraction of his establishment. Viewed in this light, respondent is something more than a mere listener and is not so simply to be categorized. 34 2. My second discomfort is precedential. Forty-four years ago, |
Justice Stewart | 1,975 | 18 | majority | Twentieth Century Music Corporation v. George Aiken | https://www.courtlistener.com/opinion/109288/twentieth-century-music-corporation-v-george-aiken/ | 34 2. My second discomfort is precedential. Forty-four years ago, in a unanimous opinion written by Mr. Justice Brandeis, this Court held that a hotel proprietor's use of a radio receiving set and loudspeakers for the entertainment of hotel guests constituted a performance within the meaning of 1 of the Copyright Act, Buck v. Jewell-LaSalle Realty For more than 35 years the rule in Jewell-LaSalle was a benchmark in copyright law and was the foundation of a significant portion of the rather elaborate licensing agreements that evolved with the developing media technology. Seven years ago the Court, by a 5—1 vote, and with three Justice not participating, held that a community antenna television (CATV) station that transmitted copyrighted works to home subscribers was not performing the works, within the meaning of 1 of the Copyright Act. Fortnightly The divided Court only briefly noted the relevance of Jewell-LaSalle and announced that that decision 'must be understood as limited to its own facts.' at 396—397, n. I have already indicated my disagreement with the reasoning of Fortnightly and my conviction that it, rather than Jewell-LaSalle, is the case that should be limited to its facts. Teleprompter I was there concerned about the Court's simplistic view of television's complications, a view perhaps encouraged by the obvious inadequacies of an ancient copyright Act for today's technology. A majority of the Court, however, felt otherwise and extended the simplistic analysis rejected in Jewell-LaSalle, but embraced in Fortnightly, to even more complex arrangements in the CATV industry. Teleprompter 35 I had hoped, secondarily, that the reasoning of Fortnightly and Teleprompter would be limited to CATV. At least in that context the two decisions had the arguably desirable effect of protecting an infant industry from a premature death. Today, however, the Court extends Fortnightly and Teleprompter into radio broadcasting, effectively overrules Jewell-LaSalle, and thereby abrogates more than 40 years of established business practices. I would limit the application of Teleprompter and Fortnightly to the peculiar industry that spawned them. Parenthetically, it is of interest to note that this is precisely the result that would be achieved by virtually all versions of proposed revisions of the Copyright Act. See, e.g., 101 of S. 1361, 93d Cong., 2d See., which sought to amend, 10(5). See also 48(5) and (6) of the British Copyright Act of 1956, 4 & 5 Eliz. 2, c. 74, which distinguishes between the use of a radio in a public place and 'the causing of a work or other subject-matter to be transmitted to subscribers to a diffusion service.' 36 Resolution of these difficult problems |
Justice Stewart | 1,975 | 18 | majority | Twentieth Century Music Corporation v. George Aiken | https://www.courtlistener.com/opinion/109288/twentieth-century-music-corporation-v-george-aiken/ | to a diffusion service.' 36 Resolution of these difficult problems and the fashioning of a more modern statute are to be expected from the Congress. In any event, for now, the Court seems content to continue with its simplistic appraoch and to accompany it with a pragmatic reliance on the 'practical unenforceability,' ante, at 162, of the copyright law against persons such as George Aiken. 37 3. My third discomfort is tactical. I cannot understand why the Court is so reluctant to do directly what it obviously is doing indirectly, namely, to overrule Jewell-LaSalle. Of course, in my view, that decision was correct at the time it was decided, and I would regard it as good law today under the identical statute and with identical broadcasting. But, as I have noted, the Court in Fortnightly limited Jewell-LaSalle 'to its own facts,' and in Teleprompter ignored its existence completely by refusing even to cite it. This means, it seems to me, that the Court did not want to overrule it, but nevertheless did not agree with it and felt, hopefully, that perhaps it would not bother us anymore anyway. Today the Court does much the same thing again by extracting and discovering great significance in the fact that the broadcaster in Jewell-LaSalle was not licensed to perform the composition. I cannot join the Court's intimation, ante, at 160-surely stretched to the breaking point—that Mr. Justice Brandeis and the unanimous Court for which he spoke would have reached a contrary conclusion in Jewell-LaSalle in had that broadcaster been licensed. The Court dances around Jewell-LaSalle, as indeed it must, for it is potent opposing precedent for the present case and stands stalwart against respondent Aiken's position. I think we should be realistic and forthright and, if Jewell-LaSalle is in the way, overrule it. 38 Although I dissented in Teleprompter, that case and Fortnightly, before it, have been decided. With the Court insisting on adhering to the rationale of those cases, the result reached by the Court of Appeals and by this Court is compelled. Accepting the precedent of those cases, I concur in the result. |
Justice Blackmun | 1,982 | 11 | concurring | White v. New Hampshire Dept. of Employment Security | https://www.courtlistener.com/opinion/110658/white-v-new-hampshire-dept-of-employment-security/ | I agree with much that is said in the Court's opinion and I therefore concur, of course, in its judgment. I wish, however, that the Court had gone one step further. We granted certiorari in this case, as the Court notes, ante, at 450, to resolve the existing conflict among the Courts of Appeals regarding postjudgment requests for attorney's fees under 42 U.S. C. 1988. Three Circuits have held that these fee requests are not within Federal Rule of Civil Procedure 59(e), but are within the reach of Rules 54(d) and 58. Two have held that the requests are subject to Rule 59(e). And a sixth has held that such a request is not governed by any of the three Rules. See ante, at 450, n. 9. The Court today settles the conflict so far as Rule 59(e) and its inapplicability to a fee request are concerned. But it leaves unanswered the applicability of Rules 54(d) and 58 because "this question is unnecessary to our disposition of this case." Ante, at 454 and this page, n. 17. I would answer that question, and hold that Rules 54(d) and 58 also do not apply to postjudgment 1988 fees requests. I believe that the federal courts and the lawyers that practice in them should have an answer so that we shall not have yet another case to decide before the correct procedure for evaluating such requests is settled for all concerned. *456 I note, happily, that the Court at least touches upon the ultimate answer, ante, at 454, and n. 17, when it observes that district courts are free to adopt local rules. By so saying, the Court comes close to approving the position taken by the United States Court of Appeals for the Eighth Circuit in I think the Eighth Circuit is correct in its approach to the general problem. Thus, I would approve that approach and have the matter settled, eliminating the inconsistency which the Court leaves between the views of the Fifth, Sixth, and Seventh Circuits on the one hand, and the view of the Eighth Circuit on the other. |
Justice Kennedy | 2,016 | 4 | majority | Encino Motorcars, LLC v. Navarro | https://www.courtlistener.com/opinion/3214885/encino-motorcars-llc-v-navarro/ | This case addresses whether a federal statute requires payment of increased compensation to certain automobile dealership employees for overtime work. The federal statute in question is the Fair Labor Standards Act (FLSA), 29 U.S. C. et seq., enacted in 1938 to “pro tect all covered workers from substandard wages and oppressive working hours.” Among its other provisions, the FLSA requires employers to pay overtime compensation to covered employees who work more than 40 hours in a given week. The rate of overtime pay must be “not less than one and one-half times the regular rate” of the employee’s pay. Five current and former service advisors brought this suit alleging that the automobile dealership where they were employed was required by the FLSA to pay them overtime wages. The dealership contends that the posi tion and duties of a service advisor bring these employees within which establishes an exemption from the FLSA overtime provisions for certain employees 2 ENCINO MOTORCARS, LLC v. NAVARRO Opinion of the Court engaged in selling or servicing automobiles. The case turns on the interpretation of this exemption. I A Automobile dealerships in many communities not only sell vehicles but also sell repair and maintenance services. Among the employees involved in providing repair and maintenance services are service advisors, partsmen, and mechanics. Service advisors interact with customers and sell them services for their vehicles. A service advisor’s duties may include meeting customers; listening to their concerns about their cars; suggesting repair and mainte nance services; selling new accessories or replacement parts; recording service orders; following up with custom ers as the services are performed (for instance, if new problems are discovered); and explaining the repair and maintenance work when customers return for their vehi cles. See App. 40–41; see also ; 29 CFR (1971). Partsmen obtain the vehicle parts needed to perform repair and maintenance and provide those parts to the mechanics. See Me chanics perform the actual repair and maintenance work. See In 1961, Congress enacted a blanket exemption from the FLSA’s minimum wage and overtime provisions for all automobile dealership employees. Fair Labor Standards Amendments of 1961, In 1966, Congress repealed that broad exemption and replaced it with a narrower one. The revised statute did not exempt dealer ship employees from the minimum wage requirement. It also limited the exemption from the overtime compensa tion requirement to cover only certain employees—in particular, “any salesman, partsman, or mechanic primar ily engaged in selling or servicing automobiles, trailers, Cite as: 579 U. S. (2016) 3 Opinion of the Court trucks, farm implements, or aircraft” at a covered |
Justice Kennedy | 2,016 | 4 | majority | Encino Motorcars, LLC v. Navarro | https://www.courtlistener.com/opinion/3214885/encino-motorcars-llc-v-navarro/ | the Court trucks, farm implements, or aircraft” at a covered dealer ship. Fair Labor Standards Amendments of 1966, Congress authorized the Department of Labor to “promulgate necessary rules, regulations, or orders” with respect to this new provision. at 844. The Department exercised that authority in 1970 and issued a regulation that defined the statutory terms “salesman,” “partsman,” and “mechanic.” 35 Fed. Reg. 5896 (1970) (codified at (c)). The De partment intended its regulation as a mere interpretive rule explaining its own views, rather than a legislative rule with the force and effect of law; and so the Depart ment did not issue the regulation through the notice-and comment procedures of the Administrative Procedure Act. See ; see also 5 U.S. C. (ex empting interpretive rules from notice and comment). The 1970 interpretive regulation defined “salesman” to mean “an employee who is employed for the purpose of and is primarily engaged in making sales or obtaining orders or contracts for sale of the vehicles or farm imple ments which the establishment is primarily engaged in selling.” (c)(1) (1971). By limiting the statutory term to salesmen who sell vehicles or farm implements, the regulation excluded service advisors from the exemption, since a service advisor sells repair and maintenance services but not the vehicle itself. The regu lation made that exclusion explicit in a later subsection: “Employees variously described as service manager, ser vice writer, service advisor, or service salesman are not exempt under [the statute]. This is true despite the fact that such an employee’s principal function may be dis agnosing [sic] the mechanical condition of vehicles brought in for repair, writing up work orders for repairs authorized by the customer, assigning the work to various employees and directing and checking on the work of mechanics.” 4 ENCINO MOTORCARS, LLC v. NAVARRO Opinion of the Court Three years later, the Court of Appeals for the Fifth Circuit rejected the Department’s conclusion that service advisors are not covered by the statutory exemption. Deel Certain District Courts followed that precedent. See Yenney v. Cass County 81 CCH LC ¶33,506 (Neb. 1977); Brennan v. North Bros. Ford, Inc., 76 CCH LC ¶33,247 (ED Mich. 1975), aff ’d sub nom. Dunlop v. North Bros. Ford, Inc., ; Brennan v. Import Volkswagen, Inc., 81 CCH LC ¶33,522 (Kan. 1975). In the meantime, Congress amended the statutory provision by enacting its present text, which now sets out the exemption in two subsections. Fair Labor Standards Amendments of 1974, The first subsec tion is at issue in this case. It exempts “any salesman, partsman, or mechanic primarily engaged in |
Justice Kennedy | 2,016 | 4 | majority | Encino Motorcars, LLC v. Navarro | https://www.courtlistener.com/opinion/3214885/encino-motorcars-llc-v-navarro/ | It exempts “any salesman, partsman, or mechanic primarily engaged in selling or servicing automobiles, trucks, or farm implements” at a covered dealership. 29 U.S. C. The second subsection exempts “any salesman primarily engaged in selling trailers, boats, or aircraft” at a covered dealership. The statute thus exempts certain employ ees engaged in servicing automobiles, trucks, or farm implements, but not similar employees engaged in servic ing trailers, boats, or aircraft. In 1978, the Department issued an opinion letter de parting from its previous position. Taking a position consistent with the cases decided by the courts, the opin ion letter stated that service advisors could be exempt under Dept. of Labor, Wage & Hour Div., Opinion Letter No. 1520 (WH–467) (1978), [1978–1981 Transfer Binder] CCH Wages–Hours Administrative Rulings ¶31,207. The letter acknowledged that the De partment’s new policy “represent[ed] a change from the position set forth in section 779.372(c)(4)” of its 1970 In 1987, the Department confirmed its 1978 Cite as: 579 U. S. (2016) 5 Opinion of the Court interpretation by amending its Field Operations Hand book to clarify that service advisors should be treated as exempt under It observed that some courts had interpreted the statutory exemption to cover service advisors; and it stated that, as a result of those decisions, it would “no longer deny the [overtime] exemption for such employees.” Dept. of Labor, Wage & Hour Div., Field Operations Handbook, Insert No. 1757, 24L04–4(k) (Oct. 20, 1987), online at https://perma.cc/5GHD-KCJJ (all Internet materials as last visited June 16, 2016). The Department again acknowledged that its new position represented a change from its 1970 regulation and stated that the regulation would “be revised as soon as is practi cable.” Twenty-one years later, in 2008, the Department at last issued a notice of proposed rulemaking. 73 Fed. Reg. 654. The notice observed that every court that had considered the question had held service advisors to be exempt under and that the Department itself had treated service advisors as exempt since 1987. at 658–659. The Department proposed to revise its regulations to accord with existing practice by inter preting the exemption in to cover service advisors. In 2011, however, the Department changed course yet again. It announced that it was “not proceeding with the proposed rule.” Instead, the Depart ment completed its 2008 notice-and-comment rulemaking by issuing a final rule that took the opposite position from the proposed rule. The new final rule followed the original 1970 regulation and interpreted the statutory term “salesman” to mean only an employee who sells automo biles, trucks, or farm implements. (codified at (c)(1)). |
Justice Kennedy | 2,016 | 4 | majority | Encino Motorcars, LLC v. Navarro | https://www.courtlistener.com/opinion/3214885/encino-motorcars-llc-v-navarro/ | sells automo biles, trucks, or farm implements. (codified at (c)(1)). The Department gave little explanation for its decision to abandon its decades-old practice of treating service 6 ENCINO MOTORCARS, LLC v. NAVARRO Opinion of the Court advisors as exempt under It was also less than precise when it issued its final rule. As described above, the 1970 regulation included a separate subsection stating in express terms that service advisors “are not exempt” under the relevant provision. 29 CFR (1971). In promulgating the 2011 regula tion, however, the Department eliminated that separate subsection. According to the United States, this change appears to have been “an inadvertent mistake in drafting.” Tr. of Oral Arg. 50. B Petitioner is a Mercedes-Benz automobile dealership in the Los Angeles area. Respondents are or were employed by petitioner as service advisors. They assert that peti tioner required them to be at work from 7 a.m. to 6 p.m. at least five days per week, and to be available for work matters during breaks and while on vacation. App. 39–40. Respondents were not paid a fixed salary or an hourly wage for their work; instead, they were paid commissions on the services they sold. at 40–41. Respondents sued petitioner in the United States Dis trict Court for the Central District of California, alleging that petitioner violated the FLSA by failing to pay them overtime compensation when they worked more than 40 hours in a week. at 42–44. Petitioner moved to dis miss, arguing that the FLSA overtime provisions do not apply to respondents because service advisors are covered by the statutory exemption in The District Court agreed and granted the motion to dismiss. The Court of Appeals for the Ninth Circuit reversed in relevant part. It construed the statute by deferring under U. S. A. to the interpretation set forth by the Department in its 2011 Applying that deference, the Court of Appeals held that service Cite as: 579 U. S. (2016) 7 Opinion of the Court advisors are not covered by the exemption. The Court of Appeals recognized, however, that its decision conflicted with cases from a number of other courts. at 1274 ; Deel ; ). This Court granted certiorari to resolve the question. 577 U. S. (2016). II A The full text of the statutory subsection at issue states that the overtime provisions of the FLSA shall not apply to: “any salesman, partsman, or mechanic primarily en gaged in selling or servicing automobiles, trucks, or farm implements, if he is employed by a nonmanufac turing establishment primarily engaged in the busi ness of selling |
Justice Kennedy | 2,016 | 4 | majority | Encino Motorcars, LLC v. Navarro | https://www.courtlistener.com/opinion/3214885/encino-motorcars-llc-v-navarro/ | turing establishment primarily engaged in the busi ness of selling such vehicles or implements to ultimate purchasers.” The question presented is whether this exemption should be interpreted to include service advisors. To resolve that question, it is necessary to determine what deference, if any, the courts must give to the Department’s 2011 interpretation. In the usual course, when an agency is authorized by Congress to issue regulations and promulgates a regula tion interpreting a statute it enforces, the interpretation receives deference if the statute is ambiguous and if the agency’s interpretation is reasonable. This principle is implemented by the two-step analysis set forth in Chev- ron. At the first step, a court must determine whether Congress has “directly spoken to the precise question at issue.” If so, “that is the end of the 8 ENCINO MOTORCARS, LLC v. NAVARRO Opinion of the Court matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” at 842–8. If not, then at the second step the court must defer to the agency’s interpretation if it is “reasona ble.” A premise of is that when Congress grants an agency the authority to administer a statute by issuing regulations with the force of law, it presumes the agency will use that authority to resolve ambiguities in the statu tory scheme. See at 8–844; United When Congress authorizes an agency to proceed through notice-and comment rulemaking, that “relatively formal administra tive procedure” is a “very good indicator” that Congress intended the regulation to carry the force of law, so Chev- ron should apply. at But deference is not warranted where the regulation is “procedurally defective”—that is, where the agency errs by failing to follow the correct procedures in issuing the ; cf. Long Island Care at (reject ing challenge to procedures by which regulation was is sued and affording deference). Of course, a party might be foreclosed in some instances from challenging the procedures used to promulgate a given rule. Cf., e.g., JEM Broadcasting 324–326 (CADC 1994); cf. also 458– 459 (1997) (party cannot challenge agency’s failure to amend its rule in light of changed circumstances without first seeking relief from the agency). But where a proper challenge is raised to the agency procedures, and those procedures are defective, a court should not accord Chev- ron deference to the agency interpretation. Respondents do not contest the manner in which petitioner has chal lenged the agency procedures here, and so this opinion assumes without deciding that the challenge was proper. Cite as: 579 U. S. (2016) 9 Opinion |
Justice Kennedy | 2,016 | 4 | majority | Encino Motorcars, LLC v. Navarro | https://www.courtlistener.com/opinion/3214885/encino-motorcars-llc-v-navarro/ | was proper. Cite as: 579 U. S. (2016) 9 Opinion of the Court One of the basic procedural requirements of administra tive rulemaking is that an agency must give adequate reasons for its decisions. The agency “must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Motor Vehicle Mfrs. Assn. of United States, That requirement is satisfied when the agency’s explana tion is clear enough that its “path may reasonably be discerned.” Bowman Transp., But where the agency has failed to provide even that minimal level of analysis, its action is arbitrary and capricious and so cannot carry the force of law. See 5 U.S. C. State at 42–. Agencies are free to change their existing policies as long as they provide a reasoned explanation for the change. See, e.g., National Cable & Telecommunications 981–982 (2005); –864. When an agency changes its existing position, it “need not always provide a more detailed justification than what would suffice for a new policy created on a blank slate.” But the agency must at least “display awareness that it is chang ing position” and “show that there are good reasons for the new policy.” In explaining its changed position, an agency must also be cognizant that longstanding policies may have “engendered serious reli ance interests that must be taken into account.” ; see also Smiley v. Citibank (South Dakota), N. A., 517 U.S. 735, 742 (1996). “In such cases it is not that further justi fication is demanded by the mere fact of policy change; but that a reasoned explanation is needed for disregarding facts and circumstances that underlay or were engendered 10 ENCINO MOTORCARS, LLC v. NAVARRO Opinion of the Court by the prior policy.” Fox Television at –516. It follows that an “[u]nexplained inconsistency” in agency policy is “a reason for holding an interpretation to be an arbitrary and capricious change from agency practice.” Brand An arbitrary and ca pricious regulation of this sort is itself unlawful and re ceives no deference. See at 227. B Applying those principles here, the unavoidable conclu sion is that the 2011 regulation was issued without the reasoned explanation that was required in light of the Department’s change in position and the significant reli ance interests involved. In promulgating the 2011 regula tion, the Department offered barely any explanation. A summary discussion may suffice in other circumstances, but here—in particular because of decades of industry reliance on the Department’s prior policy—the explanation fell short of the agency’s duty to explain |
Justice Kennedy | 2,016 | 4 | majority | Encino Motorcars, LLC v. Navarro | https://www.courtlistener.com/opinion/3214885/encino-motorcars-llc-v-navarro/ | policy—the explanation fell short of the agency’s duty to explain why it deemed it necessary to overrule its previous position. The retail automobile and truck dealership industry had relied since 1978 on the Department’s position that service advisors are exempt from the FLSA’s overtime pay re quirements. See National Automobile Dealers Associa tion, Comment Letter on Proposed Rule Updating Reg ulations Issued Under the Fair Labor Standards Act (Sept. 26, 2008), online at https://www.regulations.gov/ #!documentDetail;D=WHD-2008-0003-0038. Dealerships and service advisors negotiated and structured their com pensation plans against this background understanding. Requiring dealerships to adapt to the Department’s new position could necessitate systemic, significant changes to the dealerships’ compensation arrangements. See Brief for National Automobile Dealers Association et al. as Amici Curiae 13–14. Dealerships whose service advisors Cite as: 579 U. S. (2016) 11 Opinion of the Court are not compensated in accordance with the Department’s new views could also face substantial FLSA liability, see 29 U.S. C. even if this risk of liability may be diminished in some cases by the existence of a separate FLSA exemption for certain employees paid on a commis sion basis, see and even if a dealership could defend against retroactive liability by showing it relied in good faith on the prior agency position, see In light of this background, the Department needed a more reasoned explanation for its decision to depart from its existing enforcement policy. The Department said that, in reaching its decision, it had “carefully considered all of the comments, analyses, and arguments made for and against the proposed changes.” And it noted that, since 1978, it had treated service advisors as exempt in certain circum stances. It also noted the comment from the National Automobile Dealers Association stating that the industry had relied on that interpretation. But when it came to explaining the “good reasons for the new policy,” Fox Television at the Department said almost nothing. It stated only that it would not treat service advisors as exempt because “the statute does not include such positions and the Depart ment recognizes that there are circumstances under which the requirements for the exemption would not be met.” 76 Fed. Reg. 18838. It continued that it “believes that this interpretation is reasonable” and “sets forth the appropri ate approach.” Although an agency may justify its policy choice by explaining why that policy “is more con sistent with statutory language” than alternative policies, Long Island Care at (internal quotation marks omitted), the Department did not analyze or explain why the statute should be interpreted to exempt dealership employees who sell vehicles but not |
Justice Kennedy | 2,016 | 4 | majority | Encino Motorcars, LLC v. Navarro | https://www.courtlistener.com/opinion/3214885/encino-motorcars-llc-v-navarro/ | interpreted to exempt dealership employees who sell vehicles but not dealership employees who sell services (that is, service advisors). 12 ENCINO MOTORCARS, LLC v. NAVARRO Opinion of the Court And though several public comments supported the De partment’s reading of the statute, the Department did not explain what (if anything) it found persuasive in those comments beyond the few statements above. It is not the role of the courts to speculate on reasons that might have supported an agency’s decision. “[W]e may not supply a reasoned basis for the agency’s action that the agency itself has not given.” State 463 U.S., at (citing SEC v. Chenery 196 (1947)). Whatever potential reasons the Department might have given, the agency in fact gave almost no rea sons at all. In light of the serious reliance interests at stake, the Department’s conclusory statements do not suffice to explain its decision. See Fox Television 556 U.S., at –516. This lack of reasoned explication for a regulation that is inconsistent with the Department’s longstanding earlier position results in a rule that cannot carry the force of law. See 5 U.S. C. State at 42–. It follows that this regulation does not receive deference in the interpretation of the relevant statute. * * * For the reasons above, must be construed without placing controlling weight on the Department’s 2011 Because the decision below relied on deference to this regulation, it is appropriate to remand for the Court of Appeals to interpret the statute in the first instance. Cf. –239. The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Cite as: 579 U. S. (2016) 1 GINSBURG, J., concurring SUPREME COURT OF THE UNITED STATES No. 15–415 ENCINO MOTORCARS, LLC, PETITIONER v. HECTOR NAVARRO, ET AL. |
Justice White | 1,975 | 6 | majority | NLRB v. Sears, Roebuck & Co. | https://www.courtlistener.com/opinion/109241/nlrb-v-sears-roebuck-co/ | The National Labor Relations Board (the Board) and its General Counsel seek to set aside an order of the United District Court directing disclosure to respondent, Sears, Roebuck & Co. (Sears), pursuant to *136 the Freedom of Information Act, 5 U.S. C. 552 (Act), of certain memoranda, known as "Advice Memoranda" and "Appeals Memoranda," and related documents generated by the Office of the General Counsel in the course of deciding whether or not to permit the filing with the Board of unfair labor practice complaints. The Act's background and its principal objectives are described in and will not be repeated here. It is sufficient to note for present purposes that the Act seeks "to establish a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language." S. Rep. No. 813, 89th Cong., 1st Sess., 3 (hereinafter S. Rep. No. 813); As the Act is structured, virtually every document generated by an agency is available to the public in one form or another, unless it falls within one of the Act's nine exemptions. Certain documents described in 5 U.S. C. 552 (a) (1) such as "rules of procedure" must be published in the Federal Register; other, including "final opinions made in the adjudication of cases," "statements of policy and interpretations which have been adopted by the agency," and "instructions to staff that affect a member of the public," described in 5 U.S. C. 552 (a) (2),[1] must be indexed and made available to a *137 member of the public on demand, H. R. Rep. No. 17, 89th Cong., 2d Sess., 8 (1966) (hereinafter H. R. Rep. No. 17). Finally, and more comprehensively, all "identifiable records" must be made available to a member of the public on demand. 5 U.S. C. 552 (a) (3).[2] The Act expressly states, however, that the disclosure obligation "does not apply" to those documents described in the nine enumerated exempt categories listed in 552 (b).[3] Sears claims, and the courts below ruled, that the memoranda sought are expressions of legal and policy decisions already adopted by the agency and constitute "final opinions" and "instructions to staff that affect a member of the public," both categories being expressly disclosable *138 under 552 (a) (2) of the Act, pursuant to its purposes to prevent the creation of "secret law." In any event, Sears claims, the memoranda are nonexempt "identifiable records" which must be disclosed under 552 (a) (3). The General Counsel, on the other hand, claims that the memoranda sought here are not final opinions under 552 (a) (2) and that even if they |
Justice White | 1,975 | 6 | majority | NLRB v. Sears, Roebuck & Co. | https://www.courtlistener.com/opinion/109241/nlrb-v-sears-roebuck-co/ | opinions under 552 (a) (2) and that even if they are "identifiable records" otherwise disclosable under 552 (a) (3), they are exempt under 552 (b), principally as "intra-agency" communications under 552 (b) (5) (Exemption 5), made in the course of formulating agency decisions on legal and policy matters. I Crucial to the decision of this case is an understanding of the function of the documents in issue in the context of the administrative process which generated them. We deal with this matter first. Under 1 et seq. of the National Labor Relations Act, as amended by the Labor Management Relations Act, 1947, U.S. C. 151 et seq., the process of adjudicating unfair labor practice cases begins with the filing by a private party of a "charge," 3 (d) and 10 (b), U.S. C. 153 (d) and 160 (b); CFR 101.2 ; Auto ; Although Congress has designated the Board as the principal body which adjudicates the unfair labor practice case based on such charge, U.S. C. 160, the Board may adjudicate only upon the filing of a "complaint"; and Congress has delegated to the Office of General Counsel "on behalf of the Board" the unreviewable authority to determine whether a complaint shall be filed. U.S. C. 153 (d); In those cases in which he decides that a complaint shall issue, the General Counsel becomes an advocate *139 before the Board in support of the complaint. In those cases in which he decides not to issue a complaint, no proceeding before the Board occurs at all. The practical effect of this administrative scheme is that a party believing himself the victim of an unfair labor practice can obtain neither adjudication nor remedy under the labor statute without first persuading the Office of General Counsel that his claim is sufficiently meritorious to warrant Board consideration. In order to structure the considerable power which the administrative scheme gives him, the General Counsel has adopted certain procedures for processing unfair labor practice charges. Charges are filed in the first instance with one of the Board's 31 Regional Directors,[4] to whom the General Counsel has delegated the initial power to decide whether or not to issue a complaint. CFR 101.8, 102.10. A member of the staff of the Regional Office then conducts an investigation of the charge, which may include interviewing witnesses and reviewing documents. CFR 101.4. If, on the basis of the investigation, the Regional Director believes the charge has merit, a settlement will be attempted, or a complaint issued. If the charge has no merit in the Regional Director's judgment, the charging party |
Justice White | 1,975 | 6 | majority | NLRB v. Sears, Roebuck & Co. | https://www.courtlistener.com/opinion/109241/nlrb-v-sears-roebuck-co/ | no merit in the Regional Director's judgment, the charging party will be so informed by letter with a brief explanation of the reasons. CFR 101.6, 101.8, 102.15, 102.19. In such a case, the charging party will also be informed of his right to appeal within 10 days to the Office of the General Counsel in Washington, D. C. CFR 101.6, 102.19. If the charging party exercises this right, the entire file in the possession of the Regional Director will be sent to *140 the Office of Appeals in the General Counsel's Office in Washington, D. C. The case will be assigned to a staff attorney in the Office of Appeals, who prepares a memorandum containing an analysis of the factual and legal issues in the case. This memorandum is called an "agenda minute"[5] and serves as the basis for discussion at a meeting of the "Appeals Committee," which includes the Director and Associate Director of the Office of Appeals. At some point in this period, the charging party may make a written presentation of his case as of right and an oral presentation in the discretion of the General Counsel. CFR 102.19. If an oral presentation is allowed, the subject of the unfair labor practice charge is notified and allowed a similar but separate opportunity to make an oral presentation. In any event, a decision is reached by the Appeals Committee; and the decision and the reasons for it are set forth in a memorandum called the "General Counsel's Minute" or the "Appeals Memorandum." This document is then cleared through the General Counsel himself. If the case is unusually complex or important, the General Counsel will have been brought into the process at an earlier stage and will have had a hand in the decision and the expression of its basis in the Appeals Memorandum. In either event, the Appeals Memorandum is then sent to the Regional Director who follows its instructions. If the appeal is rejected and the Regional Director's decision not to issue a complaint is sustained, a separate document is prepared and sent by the General Counsel in letter form to the charging party, more briefly setting forth the reasons for the denial of his appeal.[6] The Appeals Memoranda, *141 whether sustaining or overruling the Regional Directors, constitute one class of documents at issue in this case. The appeals process affords the General Counsel's Office in Washington some opportunity to formulate a coherent policy, and to achieve some measure of uniformity, in enforcing the labor laws. The appeals process alone, however, is not wholly adequate for this |
Justice White | 1,975 | 6 | majority | NLRB v. Sears, Roebuck & Co. | https://www.courtlistener.com/opinion/109241/nlrb-v-sears-roebuck-co/ | appeals process alone, however, is not wholly adequate for this purpose: when the Regional Director initially decides to file a complaint, no appeal is available; and when the Regional Director decides not to file a complaint, the charging party may neglect to appeal. Accordingly, to further "fair and uniform administration of the Act,"[7] the General Counsel requires the Regional Directors, before reaching an initial decision in connection with charges raising certain issues specified by the General Counsel, to submit the matter to the General Counsel's "Advice Branch," also located in Washington, D. C. In yet other kinds of cases, the Regional Directors are permitted to seek the counsel of the Advice Branch. When a Regional Director seeks "advice" from the Advice Branch, he does so through a memorandum which sets forth the facts of the case, a statement of the issues on which advice is sought, and a recommendation. The case is then assigned to a staff attorney in the Advice Branch who researches the legal issues presented by reading prior Board and court decisions and "prior advice determinations in similar or related cases," Statement 3076,[8] and reports, orally or in *142 writing, to a Committee or "agenda" made up of various high-ranking members of the General Counsel's Office. The Committee recommendation is then arrived at and communicated to the General Counsel, together with the recommendation of the Regional Director and any dissenting views in the Committee. In special cases, the General Counsel may schedule special agendas and invite other staff members to submit their recommendations. In either event, the General Counsel will decide the issue submitted, and his "final determination" will be communicated to the Regional Director by way of an Advice Memorandum. The memorandum will briefly summarize the facts, against the background of which the legal or policy issue is to be decided, set forth the General Counsel's answer to the legal or policy issue submitted together with a "detailed legal rationale," and contain "instructions for the final processing of the case." Depending upon the conclusion reached in the memorandum, the Regional Director will either file a complaint or send a letter to the complaining party advising him of the Regional Director's decision not to proceed and informing him of his right to appeal. It is these Advice Memoranda which constitute the other class of documents of which Sears seeks disclosure in this case. II This case arose in the following context. By letter dated July 14, Sears requested that the General Counsel disclose to it pursuant to the Act all Advice and Appeals Memoranda issued within the |
Justice White | 1,975 | 6 | majority | NLRB v. Sears, Roebuck & Co. | https://www.courtlistener.com/opinion/109241/nlrb-v-sears-roebuck-co/ | the Act all Advice and Appeals Memoranda issued within the previous five years on the subjects of "the propriety of withdrawals by employers or unions from multi-employer bargaining, disputes as to commencement date of negotiations, or conflicting interpretations in any other context of the Board's *143 Retail Associates () rule."[9] The letter also sought the subject-matter index or digest of Advice and Appeals Memoranda.[10] The letter urged disclosure on the theory that the Advice and Appeals Memoranda are the only source of agency "law" on some issues. By letter dated July 23, the General Counsel declined Sears' disclosure request in full. The letter stated that Advice Memoranda are simply "guides for a Regional Director" and are not final; that they are exempt from *144 disclosure under 5 U.S. C. 552 (b) (5) as "intra-agency memoranda" which reflect the thought processes of the General Counsel's staff; and that they are exempt pursuant to 5 U.S. C. 552 (b) (7) as part of the "investigative process." The letter said that Appeals Memoranda were not indexed by subject matter and, therefore, the General Counsel was "unable" to comply with Sears' request. In further explanation of his decision, with respect to Appeals Memoranda, the General Counsel wrote to Sears on August 4, and stated that Appeals Memoranda which ordered the filing of a complaint were not "final opinions."[11] The letter further stated that those Appeals Memoranda which were "final opinions, i. e., those in which an appeal was denied" and which directed that no complaint be filed, numbered several thousand, and that in the General Counsel's view they had no precedential significance. Accordingly, if disclosable at all, they were disclosable under 5 U.S. C. 552 (a) (3) relating to "identifiable records." The General Counsel then said that Sears had failed adequately to identify the material sought and that he could not justify the expenditure of time necessary for the agency to identify them. On August 4, Sears filed a complaint pursuant to the Act seeking a declaration that the General Counsel's refusal to disclose the Advice and Appeals Memoranda and indices thereof requested by Sears violated the Act, and an injunction enjoining continued violations of the Act. On August 24, the current General Counsel took office. In order to give him time to develop his own disclosure policy, the filing of his answer was postponed until February 3, The answer denied that the Act *145 required disclosure of any of the documents sought but referred to a letter of the same date in which the General Counsel informed Sears that he would make available |
Justice White | 1,975 | 6 | majority | NLRB v. Sears, Roebuck & Co. | https://www.courtlistener.com/opinion/109241/nlrb-v-sears-roebuck-co/ | the General Counsel informed Sears that he would make available the index to Advice Memoranda and also all Advice and Appeals Memoranda in cases which had been closedeither because litigation before the Board had been completed or because a decision not to file a complaint had become final. He stated, however, that he would not disclose the memoranda in open cases; that he would, in any event, delete names of witnesses and "security sensitive" matter from the memoranda he did disclose; and that he did not consider the General Counsel's Office bound to pursue this new policy "in all instances" in the future. Not wholly satisfied with the voluntary disclosures offered and made by the General Counsel, Sears moved for summary judgment and the General Counsel did likewise. Sears thus continued to seek memoranda in open cases. Moreover, Sears objected to the deletions in the memoranda in closed cases and asserted that many Appeals Memoranda were unintelligible because they incorporated by reference documents which were not themselves disclosed and also referred to "the `circumstances of the case' " which were not set out and about which Sears was ignorant. The General Counsel contended that all of the documents were exempt from disclosure as "intra-agency" memoranda within the coverage of 5 U.S. C. 552 (b) (5); and that the documents incorporated by reference were exempt from disclosure as "investigatory files" pursuant to 5 U.S. C. 552 (b) (7). The parties also did not agree as to the function of an Advice Memorandum. Sears claimed that Advice Memoranda are binding on Regional Directors. The General Counsel claimed that they are not, noting the fact that the Regional Director himself has the delegated power to issue a complaint. *146 The District Court granted Sears' motion for summary judgment and denied that of the General Counsel. The court found that, although the General Counsel had delegated to the Regional Directors the power to file complaints, an Advice Memorandum constituted a pro tanto withdrawal of the delegation of that power. Accordingly, Advice Memoranda were held to constitute "instructions to staff that affect a member of the public," which are expressly disclosable pursuant to 5 U.S. C. 552 (a) (2) (C). Appeals Memoranda were held to be "final opinions." Both were held not to be "intra-agency memorandums" protected by 5 U.S. C. 552 (b) (5), since they were not expressions "of a point of view" but the "disposition of a charge." Documents incorporated by reference in the memoranda were held to have lost whatever exempt status they had previously. See American Mail Line, The court then |
Justice White | 1,975 | 6 | majority | NLRB v. Sears, Roebuck & Co. | https://www.courtlistener.com/opinion/109241/nlrb-v-sears-roebuck-co/ | they had previously. See American Mail Line, The court then concluded that the case was a proper one for exercise of its injunctive powers under the Act, even though the General Counsel had voluntarily disclosed some of the material sought. The court noted that it had jurisdiction to enjoin the withholding of documents prospectively, in addition to ordering the production of documents already withheld. It referred to the fact that the General Counsel's Office had a longstanding policy of nondisclosure and that it still maintained that the policy was lawful and that the current one of partial disclosure could be changed, and it referred to the fact that disputes had arisen about the deletions in the documents which had been disclosed voluntarily. Accordingly, the court ordered that the General Counsel (1) make available to the public all Appeals and Advice Memoranda issued since July 4, *147[12] and any document expressly incorporated by reference (without apparently limiting the order to memoranda on the subject matter requested by Sears);[13] (2) produce, and compile if necessary, indices of the memoranda; (3) produce explanatory material, including existing documents, in those instances in which a memorandum refers to the "circumstances of the case"; and (4) cease deleting names, citations, or matter other than settlement suggestions, from the memoranda without written justification.[14] This decision was affirmed without opinion by the Court of Appeals for the District of Columbia Circuit on the basis of its decision in Grumman Aircraft Engineering rev'd, post, p. 168, and we granted certiorari, in both cases and set them for argument together to consider the important questions of the construction of the Act as they relate to documents generated by agency decisionmaking processes. III It is clear, and the General Counsel concedes, that Appeals and Advice Memoranda are at the least "identifiable records" which must be disclosed on demand, unless they fall within one of the Act's exempt categories.[15] It is also clear that, if the memoranda do fall within one of the Act's exempt categories, our inquiry is *148 at an end, for the Act "does not apply" to such documents. Thus our inquiry, strictly speaking, must be into the scope of the exemptions which the General Counsel claims to be applicableprincipally Exemption 5 relating to "intra-agency memorandums." The General Counsel also concedes, however, and we hold for the reasons set forth below, that Exemption 5 does not apply to any document which falls within the meaning of the phrase "final opinion made in the adjudication of cases." 5 U.S. C. 552 (a) (2) (A). The General Counsel argues, therefore, as |
Justice White | 1,975 | 6 | majority | NLRB v. Sears, Roebuck & Co. | https://www.courtlistener.com/opinion/109241/nlrb-v-sears-roebuck-co/ | 552 (a) (2) (A). The General Counsel argues, therefore, as he must, that no Advice or Appeals Memorandum is a final opinion made in the adjudication of a case and that all are "intra-agency" memoranda within the coverage of Exemption 5. He bases this argument in large measure on what he claims to be his lack of adjudicative authority. It is true that the General Counsel lacks any authority finally to adjudicate an unfair labor practice claim in favor of the claimant; but he does possess the authority to adjudicate such a claim against the claimant through his power to decline to file a complaint with the Board. We hold for reasons more fully set forth below that those Advice and Appeals Memoranda which explain decisions by the General Counsel not to file a complaint are "final opinions" made in the adjudication of a case and fall outside the scope of Exemption 5; but that those Advice and Appeals Memoranda which explain decisions by the General Counsel to file a complaint and commence litigation before the Board are not "final opinions" made in the adjudication of a case and do fall within the scope of Exemption 5. A The parties are in apparent agreement that Exemption 5 withholds from a member of the public documents which a private party could not discover in litigation with the agency. -86. Since *1 virtually any document not privileged may be discovered by the appropriate litigant, if it is relevant to his litigation, and since the Act clearly intended to give any member of the public as much right to disclosure as one with a special interest therein, ; Sterling Drug, ; S. Rep. No. 813, p. 5; H. R. Rep. No. 17, p. 1, it is reasonable to construe Exemption 5 to exempt those documents, and only those documents, normally privileged in the civil discovery context.[16] The privileges claimed by petitioners to be relevant to this case are (i) the "generally recognized" privilege for "confidential intra-agency advisory opinions" Kaiser Aluminum & Chemical disclosure of which "would be `injurious to the consultative functions of government' Kaiser Aluminum & Chemical at 157 F. Supp., at" and (ii) the attorney-client and attorney work-product privileges generally available to all litigants. *150 (i) That Congress had the Government's executive privilege specifically in mind in adopting Exemption 5 is clear, S. Rep. No. 813, p. 9; H. R. Rep. No. 17, p. 10; The precise contours of the privilege in the context of this case are less clear, but may be gleaned from expressions of legislative purpose and the |
Justice White | 1,975 | 6 | majority | NLRB v. Sears, Roebuck & Co. | https://www.courtlistener.com/opinion/109241/nlrb-v-sears-roebuck-co/ | may be gleaned from expressions of legislative purpose and the prior case law. The cases uniformly rest the privilege on the policy of protecting the "decision making processes of government agencies," Tennessean Newspapers, ; Carl Zeiss Stiftung v. V. E. B. Carl Zeiss, 40 F. R. D. 318 (DC 1966); see also ; International Paper 438 F.2d 13, ; Kaiser Aluminum & Chemical at 157 F. Supp., at ; and focus on documents "reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated." Carl Zeiss Stiftung v. V. E. B. Carl Zeiss, The point, plainly made in the Senate Report, is that the "frank discussion of legal or policy matters" in writing might be inhibited if the discussion were made public; and that the "decisions" and "policies formulated" would be the poorer as a result. S. Rep. No. 813, p. 9. See also H. R. Rep. No. 17, p. 10; As a lower court has pointed out, "there are enough incentives as it is for playing it safe and listing with the wind," and as we have said in an analogous context, "[h]uman experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances to the *151 detriment of the decisionmaking process." United v. Nixon,[17] Manifestly, the ultimate purpose of this long-recognized privilege is to prevent injury to the quality of agency decisions. The quality of a particular agency decision will clearly be affected by the communications received by the decisionmaker on the subject of the decision prior to the time the decision is made. However, it is difficult to see how the quality of a decision will be affected by communications with respect to the decision occurring after the decision is finally reached; and therefore equally difficult to see how the quality of the decision will be affected by forced disclosure of such communications, as long as prior communications and the ingredients of the decisionmaking process are not disclosed. Accordingly, the lower courts have uniformly drawn a distinction between predecisional communications, which are privileged,[18]e. g., Boeing Airplane ; O'Keefe v. Boeing Co., 38 F. R. D. 3 ; Walled Lake Door Co. v. United 31 F. R. D. 258 (ED Mich. 1962); Zacher v. United 227 F.2d cert. denied, ; 238 F. Supp. 5, 6 ; and communications made after the decision and designed to explain it, which are not.[19]Sterling Drug, ; ; Bannercraft Clothing rev'd on other grounds, ; Tennessean Newspapers, See also S. Rep. No. 1, 88th Cong., 2d |
Justice White | 1,975 | 6 | majority | NLRB v. Sears, Roebuck & Co. | https://www.courtlistener.com/opinion/109241/nlrb-v-sears-roebuck-co/ | Newspapers, See also S. Rep. No. 1, 88th Cong., 2d Sess., 7 and 11.[20] This distinction is supported not only by the lesser injury to the decisionmaking process flowing from disclosure of postdecisional communications, but also, in the case of those communications which explain the decision, by the increased public interest in knowing the basis for agency policy already adopted. The public is only marginally concerned with reasons supporting a policy which an agency has rejected, or with reasons which might have supplied, but did not supply, the basis for a policy which was actually adopted on a different ground. In contrast, the public is vitally concerned with the reasons which did supply the basis for an agency policy actually adopted. These reasons, if expressed *153 within the agency, constitute the "working law" of the agency and have been held by the lower courts to be outside the protection of Exemption 5. Bannercraft Clothing Co. v. Renegotiation Board, 151 U. S. App. D. C., at ; cert. denied sub nom. ; Ash Grove Cement aff'd in part and rev'd in part, 167 U. S. App. D. C. 2, Exemption 5, properly construed, calls for "disclosure of all `opinions and interpretations' which embody the agency's effective law and policy, and the withholding of all papers which reflect the agency's group thinking in the process of working out its policy and determining what its law shall be." The Information Act: A Preliminary Analysis, ; Note, Freedom of Information Act and the Exemption for Intra-Agency Memoranda, This conclusion is powerfully supported by the other provisions of the Act. The affirmative portion of the Act, expressly requiring indexing of "final opinions," "statements of policy and interpretations which have been adopted by the agency," and "instructions to staff that affect a member of the public," 5 U.S. C. 552 (a) (2), represents a strong congressional aversion to "secret [agency] law," at ; and represents an affirmative congressional purpose to require disclosure of documents which have "the force and effect of law." H. R. Rep. No. 17, p. 7. We should be reluctant, therefore, to construe Exemption 5 to apply to the documents described in 5 U.S. C. 552 (a) (2); and with respect at least to "final opinions," which not only invariably explain agency action already taken or an agency decision already made, but also constitute "final dispositions" *154 of matters by an agency, see infra, at 158-159, we hold that Exemption 5 can never apply.[21] (ii) It is equally clear that Congress had the attorney's work-product privilege specifically in mind when it adopted Exemption |
Justice White | 1,975 | 6 | majority | NLRB v. Sears, Roebuck & Co. | https://www.courtlistener.com/opinion/109241/nlrb-v-sears-roebuck-co/ | attorney's work-product privilege specifically in mind when it adopted Exemption 5 and that such a privilege had been recognized in the civil discovery context by the prior case law. The Senate Report states that Exemption 5 "would include the working papers of the agency attorney and documents which would come within the attorney-client privilege if applied to private parties," S. Rep. No. 813, p. 2; and the case law clearly makes the attorney's work-product rule of 3 U.S. 5 applicable to Government attorneys in litigation. Kaiser Aluminum & Chemical ; United v. Anderson, 34 F. R. D. 518 (Colo. 1963); Thill Securities v. New York Stock Exchange, 57 F. R. D. 133 ; J. H. Rutter Rex Mfg. Co., (CA5), cert. denied, Whatever the outer boundaries of the attorney's work-product rule are, the rule clearly applies to memoranda prepared by an attorney in contemplation of litigation which set forth the attorney's theory of the case and his litigation strategy. In re Natta, (CA3), cert. denied sub nom. Montecatini ; State ex rel. ; B Applying these principles to the memoranda sought by Sears, it becomes clear that Exemption 5 does not apply to those Appeals and Advice Memoranda which conclude that no complaint should be filed and which have the effect of finally denying relief to the charging party; but that Exemption 5 does protect from disclosure those Appeals and Advice Memoranda which direct the filing of a complaint and the commencement of litigation before the Board. (i) Under the procedures employed by the General Counsel, Advice and Appeals Memoranda are communicated to the Regional Director after the General Counsel, through his Advice and Appeals Branches, has decided whether or not to issue a complaint; and represent an explanation to the Regional Director of a legal or policy decision already adopted by the General Counsel. In the case of decisions not to file a complaint, the memoranda effect as "final" a "disposition," see discussion, infra, at 158-159, as an administrative decision canrepresenting, as it does, an unreviewable rejection of the charge filed by the private party. Disclosure of these memoranda would not intrude on predecisional processes, and protecting them would not improve the quality of agency decisions, since when the memoranda are communicated to the Regional Director, the General Counsel has already reached his decision and the Regional Director who receives them has no decision to makehe is bound to dismiss the charge. Moreover, the General Counsel's decisions not to file complaints together with the Advice *156 and Appeals Memoranda explaining them, are precisely the kind of agency law in |
Justice White | 1,975 | 6 | majority | NLRB v. Sears, Roebuck & Co. | https://www.courtlistener.com/opinion/109241/nlrb-v-sears-roebuck-co/ | explaining them, are precisely the kind of agency law in which the public is so vitally interested and which Congress sought to prevent the agency from keeping secret.[22] The Committee on Practice and Procedure of the American Bar Association's Section of Labor Relations Law (ABA Committee) has said in its 1970 report: "Where the Advice Branch directs the Regional Director to issue a complaint, or where a Regional Director's dismissal is reversed on appeal and a complaint is subsequently issued, the subject matter, theory, and interpretation will ultimately be ventilated through the course of hearing, Trial Examiner and Board decisions, and perhaps review and adjudication in the courts. It is in all the remaining cases, *157 however, where the General Counsel either through the Advice Branch or through the Office of Appeals determines that issuance of complaint is not warranted, and that such determination constitutes final agency action of precedential import. Your Committee believes that these `precedents' constitute precisely the kinds of `final opinions, statements of policy and interpretations' and `instructions to staff that affect a member of the public,' which the Freedom of Information Act contemplates should be indexed and made available to the public." 2 ABA Labor Relations Law Section, p. 7 The General Counsel contends, however, that the Appeals Memoranda represent only the first step in litigation and are not final; and that Advice Memoranda are advisory only and not binding on the Regional Director, who has the discretion to file or not to file a complaint. The contentions are without merit. Plainly, an Appeals Memorandum is the first step in litigation only when the appeal is sustained and it directs the filing of a complaint;[23] and the General Counsel's current characterization of an Advice Memorandum is at odds with his own description of the function of an Advice Memorandum in his statement to the House Committee. That statement says that the Advice Branch establishes "uniform policies" in those legal areas with respect to which Regional Directors are "required" to seek advice until a "definitive" policy is arrived at. This is so because if Regional Directors were "free" to interpret legal issues "the law could, as a practical matter and before Board decision of the issue, be one thing in one Region and conflicting in others." Statement 3075, 3076, 3077. (Emphasis *158 added.) Therefore, the Advice Memorandum is created after consideration of "prior advice determinations in similar or related cases" and contains "instructions for the final processing of the case." In light of this description, we cannot fault the District Court for concluding that the Advice Memorandum |
Justice White | 1,975 | 6 | majority | NLRB v. Sears, Roebuck & Co. | https://www.courtlistener.com/opinion/109241/nlrb-v-sears-roebuck-co/ | fault the District Court for concluding that the Advice Memorandum achieves a pro tanto withdrawal from the Regional Director of his discretion to file or not to file a complaint. Nor can we avoid the conclusion that Advice Memoranda directing dismissal of a charge represent the "law" of the agency. Accordingly, Advice and Appeals Memoranda directing that a charge be dismissed fall outside of Exemption 5 and must be disclosed.[24] For essentially the same reasons, these memoranda are "final opinions" made in the "adjudication of cases" which must be indexed pursuant to 5 U.S. C. 552 (a) (2) (A). The decision to dismiss a charge is a decision in a "case" and constitutes an "adjudication": an "adjudication" is defined under the Administrative Procedure Act, of which 5 U.S. C. 552 is a part, as "agency process for the formulation of an order," 5 U.S. C. 551 (7); an "order" is defined as "the whole or a part of a final disposition, whether affirmative [or] negative of an agency in a matter" 5 U.S. C. 551 (6) ; and the dismissal of a charge, as noted above, is a "final disposition."[25] Since an Advice or Appeals Memorandum *159 explains the reasons for the "final disposition" it plainly qualifies as an "opinion"; and falls within 5 U.S. C. 552 (a) (2) (A). This conclusion is consistent with our recent holding in that Board decisions in proceedings under U.S. C. 160 (k) ( 10 (k) proceedings) are not "final dispositions." The decision in the 10 (k) proceeding in that case did not finally decide anything and is more analogous to a decision by the General Counsel that an unfair labor practice complaint should be filed. See infra, this page and 160. (ii) Advice and Appeals Memoranda which direct the filing of a complaint, on the other hand, fall within the coverage of Exemption 5. The filing of a complaint does not finally dispose even of the General Counsel's responsibility with respect to the case. The case will be litigated before and decided by the Board; and the General Counsel will have the responsibility of advocating the position of the charging party before the Board. The Memoranda will inexorably contain the General Counsel's theory of *160 the case and may communicate to the Regional Director some litigation strategy or settlement advice. Since the Memoranda will also have been prepared in contemplation of the upcoming litigation, they fall squarely within Exemption 5's protection of an attorney's work product. At the same time, the public's interest in disclosure is substantially reduced by the fact, as pointed |
Justice White | 1,975 | 6 | majority | NLRB v. Sears, Roebuck & Co. | https://www.courtlistener.com/opinion/109241/nlrb-v-sears-roebuck-co/ | in disclosure is substantially reduced by the fact, as pointed out by the ABA Committee, see that the basis for the General Counsel's legal decision will come out in the course of litigation before the Board; and that the "law" with respect to these cases will ultimately be made not by the General Counsel but by the Board or the courts. We recognize that an Advice or Appeals Memorandum directing the filing of a complaintalthough representing only a decision that a legal issue is sufficiently in doubt to warrant determination by another bodyhas many of the characteristics of the documents described in 5 U.S. C. 552 (a) (2). Although not a "final opinion" in the "adjudication" of a "case" because it does not effect a "final disposition," the memorandum does explain a decision already reached by the General Counsel which has real operative effectit permits litigation before the Board; and we have indicated a reluctance to construe Exemption 5 to protect such documents. We do so in this case only because the decisionmakerthe General Counselmust become a litigating party to the case with respect to which he has made his decision. The attorney's work-product policies which Congress clearly incorporated into Exemption 5 thus come into play and lead us to hold that the Advice and Appeals Memoranda directing the filing of a complaint are exempt whether or not they are, as the District Court held, "instructions to staff that affect a member of the public."[26] *161 C Petitioners assert that the District Court erred in holding that documents incorporated by reference in nonexempt Advice and Appeals Memoranda lose any exemption they might previously have held as "intra-agency" memoranda.[27] We disagree. The probability that an agency employee will be inhibited from freely advising a decisionmaker for fear that his advice, if adopted, will become public is slight. First, when adopted, the reasoning becomes that of the agency and becomes its responsibility to defend. Second, agency employees will generally be encouraged rather than discouraged by public knowledge that their policy suggestions have been adopted by the agency. Moreover, the public interest in knowing the reasons for a policy actually adopted by an agency supports the District Court's decision below. Thus, we hold that, if an agency chooses expressly to adopt or incorporate by reference an intra-agency memorandum previously covered by Exemption 5 in what would otherwise be a final opinion, that memorandum may be withheld only on the ground that it falls within the coverage of some exemption other than Exemption 5. Petitioners also assert that the District Court's order erroneously requires |
Justice White | 1,975 | 6 | majority | NLRB v. Sears, Roebuck & Co. | https://www.courtlistener.com/opinion/109241/nlrb-v-sears-roebuck-co/ | Petitioners also assert that the District Court's order erroneously requires it to produce or create explanatory material in those instances in which an Appeals Memorandum refers to the "circumstances of the case." We agree. The Act does not compel agencies to write *162 opinions in cases in which they would not otherwise be required to do so. It only requires disclosure of certain documents which the law requires the agency to prepare or which the agency has decided for its own reasons to create. Sterling Drug, Thus, insofar as the order of the court below requires the agency to create explanatory material, it is baseless. Nor is the agency required to identify, after the fact, those pre-existing documents which contain the "circumstances of the case" to which the opinion may have referred, and which are not identified by the party seeking disclosure. IV Finally, petitioners argue that the Advice and Appeals Memoranda are exempt, pursuant to 5 U.S. C. 552 (b) (2) and (7) (Exemptions 2 and 7), and that the documents incorporated therein are protected by Exemption 7. With respect to the Advice and Appeals Memoranda, we decline to reach a decision on these claims for the reasons set forth below, and with respect to the documents incorporated therein, we remand for further proceedings. A Exemption 7 provided, at the time of Sears' request for documents and at the time of the decisions of the courts below, that the Act does not apply to "investigatory files compiled for law enforcement purposes except to the extent available by law to a party other than an agency." Noting support in the legislative history for the proposition that this exemption applies to the civil "enforcement" of the labor laws, H. R. Rep. No. 17, p. 11, the General Counsel asserts that the "documentation underlying advice and appeals memoranda are `investigatory files' " and that he "believes" the memoranda are themselves similarly *163 exempt in light of the "purposes"[28] of Exemption 7. The General Counsel also cites several lower court decisions[] for the proposition that once a certain type of document is determined to fall into the category of "investigatory files" the courts are not to inquire whether the disclosure of the particular document in question would contravene any of the purposes of Exemption 7. Two factors combine to convince us that we should not reach the claim that Advice and Appeals Memoranda are protected by Exemption 7. First, the General Counsel did not make this claim in the District Court; and although he did make it in the Court of Appeals, that |
Justice White | 1,975 | 6 | majority | NLRB v. Sears, Roebuck & Co. | https://www.courtlistener.com/opinion/109241/nlrb-v-sears-roebuck-co/ | he did make it in the Court of Appeals, that court affirmed without opinion on the basis of its prior decision in another case not involving Exemption 7, and it is not clear whether the Court of Appeals passed on the claim. Thus, not only are we unenlightened on the question whether Advice and Appeals Memoranda, as factual matter, contain information the disclosure of which would offend the purposes of Exemption 7, but we are *164 without a lower court opinion on the legal issue. Under such circumstances, we normally decline to consider a legal claim, ; and we adhere to that policy in this case. Second, Congress has amended Exemption 7 since petitioners filed their brief in this case. It now applies to "(7) investigatory records compiled for law enforcement purposes, but only to the extent that the production of such records would (A) interfere with enforcement proceedings, (B) deprive a person of a right to a fair trial or an impartial adjudication, (C) constitute an unwarranted invasion of personal privacy, (D) disclose the identity of a confidential source and, in the case of a record compiled by a criminal law enforcement authority in the course of a criminal investigation, or by an agency conducting a lawful national security intelligence investigation, confidential information furnished only by the confidential source, (E) disclose investigative techniques and procedures, or (F) endanger the life or physical safety of law enforcement personnel." Stat. 1563. The legislative history clearly indicates that Congress disapproves of those cases, relied on by the General Counsel, see n. which relieve the Government of the obligation to show that disclosure of a particular investigatory file would contravene the purposes of Exemption 7. S. Conf. Rep. No. 93-1200 The language of the amended Exemption 7 and the legislative history underlying it clearly reveal a congressional intent to limit application of Exemption 7 to agency records so that it would apply only to the extent that "the production of such records would interfere with enforcement proceedings, deprive a person of a right to a fair trial or *165 an impartial adjudication, constitute [an] unwarranted invasion of personal privacy, disclose the identity of an informer, or disclose investigative techniques and procedures." Any decision of the Exemption 7 issue in this case would have to be under the Act, as amended, and, apart from the General Counsel's failure to raise the issue, the lower courts have had no opportunity to pass on the applicability of the Act, as amended, to Advice and Appeals Memoranda, since the amendment occurred after the decision by the Court |
Justice White | 1,975 | 6 | majority | NLRB v. Sears, Roebuck & Co. | https://www.courtlistener.com/opinion/109241/nlrb-v-sears-roebuck-co/ | since the amendment occurred after the decision by the Court of Appeals.[30] B The General Counsel's claim that Advice and Appeals Memoranda are documents "related solely to the internal personnel rules and practices of an agency" and therefore protected by Exemption 2 was raised neither in the District Court nor in the Court of Appeals and we decline to reach it for the reasons set forth above. C Finally, the General Counsel claims that the documents, incorporated by reference in Advice and Appeals Memoranda, which were previously protected by Exemption 7, should not lose their exempt status by reason of *166 incorporation. Contrary to the District Court, we think the argument is sound. The reasons underlying Congress' decision to protect "investigatory files," both in the original Act and in the amendments, are as applicable to a document referred to in an Advice or Appeals Memorandum as they are to a document which is not. Therefore, a document protected by Exemption 7 does not become disclosable solely because it is referred to in a "final opinion." We are aware that the result of this holding will be that some "final opinions" will not be as easily understood as they would otherwise be. However, as noted above, the Act does not give the public a right to intelligible opinions in all cases. It simply gives the public a right to those "final opinions," which an agency chooses to write, and to which the Act applies. Congress has said that the Act "does not apply" to certain investigatory files. The case must accordingly be remanded to the District Court for a determination whether the documents incorporated by reference in the disclosable Advice and Appeals Memoranda are protected by Exemption 7, as amended. In summary, with respect to Advice and Appeals Memoranda which conclude that a complaint should not be filed, we affirm the judgment of the Court of Appeals subject to its decision on remand whether the Government is foreclosed from pursuing its Exemption 7 claim. With respect to documents specifically incorporated therein, we remand for a determination whether these documents are protected by Exemption 7, as amended. Insofar as the judgment of the Court of Appeals requires the General Counsel to supply documents not expressly incorporated by reference in these Advice and Appeals Memoranda, or otherwise to explain the circumstances of the case, it is reversed; and with respect to Advice and Appeals Memoranda which conclude that a complaint *167 should be filed, the judgment of the Court of Appeals is likewise reversed. So ordered. The CHIEF JUSTICE concurs in the judgment. |
Justice Rehnquist | 1,988 | 19 | majority | DH Holmes Co. v. McNamara | https://www.courtlistener.com/opinion/112066/dh-holmes-co-v-mcnamara/ | Appellant, a Louisiana corporation, challenges the State's imposition of a use tax on catalogs printed at appellant's direction outside Louisiana and shipped to prospective customers within the State. The Louisiana Court of Appeal found that this application of the use tax did not violate the Commerce Clause of the Federal Constitution. We affirm. I Appellant D. H. Holmes Company, Ltd., is a Louisiana corporation with its principal place of business and registered office in New Orleans. Holmes owns and operates 13 department stores in various locations throughout Louisiana that employ about 5,000 workers. It has approximately 500,000 credit card customers and an estimated 1,000,000 other customers within the State. In 1979-1981, Holmes contracted with several New York companies for the design and printing of merchandise catalogs. The catalogs were designed in New York, but were actually printed in Atlanta, Boston, and Oklahoma City. From these locations, 82% of the catalogs were directly mailed to residents of Louisiana; the remainder of the catalogs were mailed to customers in Alabama, Mississippi, and Florida, or were sent to Holmes for distribution at its flagship store on Canal Street in New Orleans. The catalogs were shipped free of charge to the addressee, and their entire cost (about $2 million for the 3-year period), including mailing, was borne by Holmes. Holmes did not, however, pay any sales tax where the catalogs were designed or printed. Although the merchandise catalogs were mailed to selected customers, they contained instructions to the postal carrier to leave them with the current resident if the addressee had moved, and to return undeliverable catalogs to Holmes' Canal Street store. Holmes freely concedes that the purpose of the catalogs was to promote sales at its stores and to *27 instill name recognition in future buyers. The catalogs included inserts which could be used to order Holmes' products by mail. The Louisiana Department of Revenue and Taxation, of which appellee is the current Secretary, conducted an audit of Holmes' tax returns for 1979-1981 and determined that it was liable for delinquent use taxes on the value of the catalogs. The Department of Revenue and Taxation assessed the use tax pursuant to La. Rev. Stat. Ann. 47:302 and 47:321 (West 1970 and Supp. 1988), which are set forth in the margin.[1] Together, 47:302(A)(2) and 47:321(A)(2) impose a use tax of 3% on all tangible personal property used in Louisiana. "Use," as defined elsewhere in the statute, is the exercise of any right or power over tangible personal property incident to ownership, and includes consumption, distribution, and storage. See La. Rev. Stat. Ann. 47:301(18) and |
Justice Rehnquist | 1,988 | 19 | majority | DH Holmes Co. v. McNamara | https://www.courtlistener.com/opinion/112066/dh-holmes-co-v-mcnamara/ | distribution, and storage. See La. Rev. Stat. Ann. 47:301(18) and (19) (West 1970 and Supp. 1988). The use tax is designed to *28 compensate the State for sales tax that is lost when goods are purchased out-of-state and brought for use into Louisiana, and is calculated on the retail price the property would have brought when imported. When Holmes refused to pay the use tax assessed against it, the State filed suit in Louisiana Civil District Court to collect the tax.[2] In response to the State's complaint, Holmes answered that it owed no tax under 47:302 and 47:321 as properly applied, a position Holmes claimed was reinforced by La. Rev. Stat. Ann. 47:305(5) (West 1970).[3] Holmes also contended that the use tax violated the Commerce Clause of the Federal Constitution. After a 2-day bench trial, the District Court determined that the distribution of the catalogs in Louisiana was "intended for the use of D. H. Holmes in increasing its sales to potential customers who are residents of Louisiana." No. 83-15523 (La. Civ. Dist. Ct., July 19, 1985), App. to Juris. Statement 12A, 21A. The court also found that "[o]nce the catalogs reach the residences of the prospective customers to whom they are addressed, Louisiana taxing *29 authority reaches the resting place of the catalogs," at 22A, and concluded that the application of the use tax statutes did not unconstitutionally burden interstate commerce. The court then ordered Holmes to pay the State $49,937.03, plus interest and attorney's fees, which was the amount the parties stipulated as due on the use tax. The Louisiana Court of Appeal, Fourth Circuit, affirmed the judgment of the trial court. After reviewing the Louisiana use tax statute, the Court of Appeal found that the catalog distribution was properly subjected to the tax, since once the catalogs landed in Louisiana mailboxes they left the stream of interstate commerce and became part of the property mass of the State. Furthermore, "[d]istribution of the catalogs certainly constitutes `use' by Holmes under the statute and is subject to the tax." Turning to the federal question in the case, the Court of Appeal analyzed the use tax under the test we articulated in Complete Auto Transit, and found that it did not violate the Commerce Clause. The Louisiana Supreme Court denied discretionary review. We noted probable jurisdiction, pursuant to 28 U.S. C. 1257(2). II The Commerce Clause of the Constitution, Art. I, 8, cl. 3, provides that Congress shall have the power "[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Even where Congress |
Justice Rehnquist | 1,988 | 19 | majority | DH Holmes Co. v. McNamara | https://www.courtlistener.com/opinion/112066/dh-holmes-co-v-mcnamara/ | several States, and with the Indian Tribes." Even where Congress has not acted affirmatively to protect interstate commerce, the Clause prevents States from discriminating against that commerce. The "distinction between the power of the State to shelter its people from menaces to their health or safety and from fraud, even when those dangers emanate from interstate *30 commerce, and its lack of power to retard, burden or constrict the flow of such commerce for their economic advantage, is one deeply rooted in both our history and our law." H. P. Hood & One frequent source of conflict of this kind occurs when a State seeks to tax the sale or use of goods within its borders. See, e. g., Colonial Pipeline ; Memphis Natural Gas This recurring dilemma is exemplified in what has come to be the leading case in the area, Complete Auto Transit, In Complete Auto, Mississippi imposed a tax on appellant's business of in-state transportation of motor vehicles manufactured outside the State. We found that the State's tax did not violate the Commerce Clause, because appellant's activity had a substantial nexus with Mississippi, and the tax was fairly apportioned, did not discriminate against interstate commerce, and was fairly related to benefits provided by the State. This four-part formulation has since been used to evaluate the validity of state taxes vis-a-vis the Commerce Clause in a number of contexts. Two Terms ago, for instance, we upheld a Florida tax on aviation fuel purchased within the State, finding that all four of the Complete Auto criteria were satisfied. Wardair Canada The Complete Auto test has also been employed to test the constitutionality of business and occupation taxes, Department of Revenue of ; mineral severance taxes, Commonwealth Edison ; and the taxation of income received by an out-of-state corporation from its in-state subsidiaries, Mobil Oil Complete Auto abandoned the abstract notion that interstate commerce "itself" cannot be taxed by the States. We *31 recognized that, with certain restrictions, interstate commerce may be required to pay its fair share of state taxes. Accordingly, in the present case, it really makes little difference for Commerce Clause purposes whether Holmes' catalogs "came to rest" in the mailboxes of its Louisiana customers or whether they were still considered in the stream of interstate commerce. This distinction may be of some importance for other purposes (in determining, for instance, whether a "taxable moment" has occurred, see 505 So. 2d, ), but for Commerce Clause analysis it is largely irrelevant. Holmes argues that Louisiana's assessment against its merchandise catalogs is, in essence, a tax on the |
Justice Rehnquist | 1,988 | 19 | majority | DH Holmes Co. v. McNamara | https://www.courtlistener.com/opinion/112066/dh-holmes-co-v-mcnamara/ | its merchandise catalogs is, in essence, a tax on the mere presence of goods within the State. This contention was expressly rejected by the Louisiana Court of Appeal's finding that the distribution of the catalogs constituted use under 47:302 and 47:321. We accept this construction of state law, and thus see no merit in the argument that Louisiana has attempted to tax only the existence of goods within the State. In the case before us, then, the application of Louisiana's use tax to Holmes' catalogs does not violate the Commerce Clause if the tax complies with the four prongs of Complete Auto. We have no doubt that the second and third elements of the test are satisfied. The Louisiana taxing scheme is fairly apportioned, for it provides a credit against its use tax for sales taxes that have been paid in other States. See La. Rev. Stat. Ann. 47:303(A) (West 1970) ("A credit against the use tax imposed by this Chapter shall be granted to taxpayers who have paid a similar tax upon the sale or use of the same tangible personal property in another state"); 47:302(A)(2) (instructing that "there shall be no duplication of the tax"); 47:321(A)(2) (West Supp. 1988) (same). Holmes paid no sales tax for the catalogs where they were designed or printed; if it had, it would have been eligible for a credit against the use tax exacted. Similarly, Louisiana imposed *32 its use tax only on the 82% of the catalogs distributed in-state; it did not attempt to tax that portion of the catalogs that went to out-of-state customers. The Louisiana tax structure likewise does not discriminate against interstate commerce. The use tax is designed to compensate the State for revenue lost when residents purchase out-of-state goods for use within the State. It is equal to the sales tax applicable to the same tangible personal property purchased in-state; in fact, both taxes are set forth in the same sections of the Louisiana statutes. See La. Rev. Stat. Ann. 47:302 and 47:321 (West 1970 and Supp. 1988). Complete Auto requires that the tax be fairly related to benefits provided by the State, but that condition is also met here. Louisiana provides a number of services that facilitate Holmes' sale of merchandise within the State: It provides fire and police protection for Holmes' stores, runs mass transit and maintains public roads which benefit Holmes' customers, and supplies a number of other civic services from which Holmes profits. To be sure, many others in the State benefit from the same services; but that does not alter the fact |
Justice Rehnquist | 1,988 | 19 | majority | DH Holmes Co. v. McNamara | https://www.courtlistener.com/opinion/112066/dh-holmes-co-v-mcnamara/ | the same services; but that does not alter the fact that the use tax paid by Holmes, on catalogs designed to increase sales, is related to the advantages provided by the State which aid Holmes' business. Finally, we believe that Holmes' distribution of its catalogs reflects a substantial nexus with Louisiana. To begin with, Holmes' contention that it lacked sufficient control over the catalogs' distribution in Louisiana to be subject to the use tax verges on the nonsensical. Holmes ordered and paid for the catalogs and supplied the list of customers to whom the catalogs were sent; any catalogs that could not be delivered were returned to it. Holmes admits that it initiated the distribution to improve its sales and name recognition among Louisiana residents. Holmes also has a significant presence in Louisiana, with 13 stores and over $100 million in annual sales in the State. See App. 68-69, 98. The distribution of *33 catalogs to approximately 400,000 Louisiana customers was directly aimed at expanding and enhancing its Louisiana business. There is "nexus" aplenty here. Holmes and several amici argue that Holmes' posture here closely resembles the predicament of the mail-order business we confronted in National Bellas Hess, In National Bellas Hess, we held that the State of Illinois could not, consistently with the Commerce Clause, compel an out-of-state mail-order company to collect a use tax on purchases of goods by Illinois residents when the seller's only connection with its Illinois customers was by mail or common carrier. Holmes apparently views its catalog distribution as analogous to the mail-order solicitation in National Bellas Hess. This argument ignores, however, Holmes' significant economic presence in Louisiana, its many connections with the State, and the direct benefits it receives from Louisiana in conducting its business. We thus see little similarity between the mail-order shipments in National Bellas Hess and Holmes' activities in this case. We find Holmes' activities much closer to those considered in National Geographic National Geographic involved the operation of two California offices by a national magazine devoted solely to soliciting advertising for the magazine. California nonetheless applied its use tax, which required every retailer engaged in business in the State to collect a tax from its purchasers, on the magazine's mail-order activities. We determined that the imposition of the tax did not violate the Commerce Clause, since the magazine's "maintenance of the two offices in California and activities there adequately establish[ed] a relationship or `nexus' between the [magazine] and the State" sufficient to support the tax. This conclusion applies a fortiori here, *34 since Holmes' connection with Louisiana far exceeds |
Justice White | 1,972 | 6 | dissenting | Fuentes v. Shevin | https://www.courtlistener.com/opinion/108568/fuentes-v-shevin/ | Because the Court's opinion and judgment improvidently, in my view, call into question important aspects of the statutes of almost all the States governing secured transactions and the procedure for repossessing personal property, I must dissent for the reasons that follow. First: It is my view that when the federal actions were filed in these cases and the respective District *98 Courts proceeded to judgment there were state court proceedings in progress. It seems apparent to me that the judgments should be vacated and the District Courts instructed to reconsider these cases in the light of the principles announced in ; ; ; and In No. 70-5039, the Florida statutes provide for the commencement of an action of replevin, with bond, by serving a writ summoning the defendant to answer the complaint. Thereupon the sheriff may seize the property, subject to repossession by defendant within three days upon filing of a counterbond, failing which the property is delivered to plaintiff to await final judgment in the replevin action. et seq. This procedure was attacked in a complaint filed by appellant Fuentes in the federal court, alleging that an affidavit in replevin had been filed by Firestone Tire & Rubber Co. in the Small Claims Court of Dade County; that a writ of replevin had been issued pursuant thereto and duly served, together with the affidavit and complaint; and that a trial date had been set in the Small Claims Court. Firestone's answer admitted that the replevin action was pending in the Small Claims Court and asserted that Mrs. Fuentes, plaintiff in the federal court and appellant here, had not denied her default or alleged that she had the right to possession of the property. Clearly, state court proceedings were pending, no bad faith or harassment was alleged, and no irreparable injury appeared that could not have been averted by raising constitutional objections in the pending state court proceeding. In this posture, it would appear that the case should be reconsidered under and companion cases, which were announced after the District Court's judgment. *99 In No. 70-5138, Pennsylvania Rule of Civil Procedure 1073 expressly provides that an "[a]ction of replevin with bond shall be commenced by filing with the prothonotary a praecipe for a writ of replevin with bond" When the writ issues and is served, the defendant has three days to file a counterbond and should he care to have a hearing he may file his own praecipe, in which event the plaintiff must proceed further in the action by filing and serving his complaint. In the cases before us, |
Justice White | 1,972 | 6 | dissenting | Fuentes v. Shevin | https://www.courtlistener.com/opinion/108568/fuentes-v-shevin/ | filing and serving his complaint. In the cases before us, actions in replevin were commenced in accordance with the rules, and appellee Sears, Roebuck & Co. urged in the District Court that plaintiffs had "adequate remedies at law which they could pursue in the state court proceedings which are still pending in accordance with the statutes and rules of Pennsylvania." App. 60. Under and companion cases, the District Court's judgment should be vacated and the case reconsidered. Second: It goes without saying that in the typical installment sale of personal property both seller and buyer have interests in the property until the purchase price is fully paid, the seller early in the transaction often having more at stake than the buyer. Nor is it disputed that the buyer's right to possession is conditioned upon his making the stipulated payments and that upon default the seller is entitled to possession. Finally, there is no question in these cases that if default is disputed by the buyer he has the opportunity for a full hearing, and that if he prevails he may have the property or its full value as damages. The narrow issue, as the Court notes, is whether it comports with due process to permit the seller, pending final judgment, to take possession of the property through a writ of replevin served by the sheriff without affording the buyer opportunity to insist that the seller establish at a hearing that there is reasonable *100 basis for his claim of default. The interests of the buyer and seller are obviously antagonistic during this interim period: the buyer wants the use of the property pending final judgment; the seller's interest is to prevent further use and deterioration of his security. By the Florida and Pennsylvania laws the property is to all intents and purposes placed in custody and immobilized during this time. The buyer loses use of the property temporarily but is protected against loss; the seller is protected against deterioration of the property but must undertake by bond to make the buyer whole in the event the latter prevails. In considering whether this resolution of conflicting interests is unconstitutional, much depends on one's perceptions of the practical considerations involved. The Court holds it constitutionally essential to afford opportunity for a probable-cause hearing prior to repossession. Its stated purpose is "to prevent unfair and mistaken deprivations of property." But in these typical situations, the buyer-debtor has either defaulted or he has not. If there is a default, it would seem not only "fair," but essential, that the creditor be allowed to repossess; |
Justice White | 1,972 | 6 | dissenting | Fuentes v. Shevin | https://www.courtlistener.com/opinion/108568/fuentes-v-shevin/ | "fair," but essential, that the creditor be allowed to repossess; and I cannot say that the likelihood of a mistaken claim of default is sufficiently real or recurring to justify a broad constitutional requirement that a creditor do more than the typical state law requires and permits him to do. Sellers are normally in the business of selling and collecting the price for their merchandise. I could be quite wrong, but it would not seem in the creditor's interest for a default occasioning repossession to occur; as a practical matter it would much better serve his interests if the transaction goes forward and is completed as planned. Dollar-and-cents considerations weigh heavily against false claims of default as well as against precipitate action that would allow no opportunity for mistakes to surface and be *101 corrected.[*] Nor does it seem to me that creditors would lightly undertake the expense of instituting replevin actions and putting up bonds. The Court relies on prior cases, particularly ; ; and But these cases provide no automatic test for determining whether and when due process of law requires adversary proceedings. Indeed, "[t]he very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation." "[W]hat procedures due process may require under any given set of circumstances must begin *102 with a determination of the precise nature of the government function involved as well as of the private interest that has been affected by governmental action." Cafeteria See also ; Viewing the issue before us in this light, I would not construe the Due Process Clause to require the creditors to do more than they have done in these cases to secure possession pending final hearing. Certainly, I would not ignore, as the Court does, the creditor's interest in preventing further use and deterioration of the property in which he has substantial interest. Surely under the Court's own definition, the creditor has a "property" interest as deserving of protection as that of the debtor. At least the debtor, who is very likely uninterested in a speedy resolution that could terminate his use of the property, should be required to make those payments, into court or otherwise, upon which his right to possession is conditioned. Cf. Third: The Court's rhetoric is seductive, but in end analysis, the result it reaches will have little impact and represents no more than ideological tinkering with state law. It would appear that creditors could withstand attack under today's opinion simply by making clear in the controlling credit instruments that they may retake possession without a hearing, |
Justice White | 1,972 | 6 | dissenting | Fuentes v. Shevin | https://www.courtlistener.com/opinion/108568/fuentes-v-shevin/ | credit instruments that they may retake possession without a hearing, or, for that matter, without resort to judicial process at all. Alternatively, they need only give a few days' notice of a hearing, take possession if hearing is waived or if there is default; and if hearing is necessary merely establish probable cause for asserting that default has occurred. It is very doubtful in my mind that such a hearing would in fact result in protections for the debtor substantially different from those the present laws provide. *103 On the contrary, the availability of credit may well be diminished or, in any event, the expense of securing it increased. None of this seems worth the candle to me. The procedure that the Court strikes down is not some barbaric hangover from bygone days. The respective rights of the parties in secured transactions have undergone the most intensive analysis in recent years. The Uniform Commercial Code, which now so pervasively governs the subject matter with which it deals, provides in Art. 9, 9-503, that: "Unless otherwise agreed a secured party has on default the right to take possession of the collateral. In taking possession a secured party may proceed without judicial process if this can be done without breach of the peace or may proceed by action." Recent studies have suggested no changes in Art. 9 in this respect. See Permanent Editorial Board for the Uniform Commercial Code, Review Committee for Article 9 of the Uniform Commercial Code, Final Report, 9-503 I am content to rest on the judgment of those who have wrestled with these problems so long and often and upon the judgment of the legislatures that have considered and so recently adopted provisions that contemplate precisely what has happened in these cases. |
per_curiam | 1,970 | 200 | per_curiam | Simmons v. West Haven Housing Authority | https://www.courtlistener.com/opinion/108200/simmons-v-west-haven-housing-authority/ | We noted probable jurisdiction in this case to decide whether 52-542 of the Connecticut General Statutes[1] requiring a bond for the protection of his landlord from a tenant who wished to appeal from a judgment in a summary eviction proceeding, offends either the Due Process or Equal Protection Clause of the Fourteenth Amendment if applied to foreclose appellate review for those too poor to post the bond, Because of an ambiguity in the record concerning the underlying reason these appellants were denied an opportunity to appeal the trial court's judgment ordering that they be evicted, we now conclude that this appeal should be dismissed, ; Rescue After unsuccessfully litigating in the trial court a summary eviction proceeding begun by their landlords, appellants *512 moved in the trial court for a waiver of the bond requirement so that they might appeal. The trial court, apparently of the view that it had the power to waive the statutory bond requirement in an appropriate case, denied appellants' motion on a finding that "this appeal is being taken for the purpose of delay." App. 23. Appellants sought review of the trial court's denial of their motion in the Connecticut Circuit Court, and that court denied review and dismissed appellants' appeal. It is unclear from that court's opinion, however, whether it thought the bond requirement of 52-542 left no room for a waiver,[2] or instead based its refusal to hear appellants' appeal in part on the trial court's finding cited in the Circuit Court's opinion[3]that the appeal *513 before it was taken only for purpose of delay. 5 Conn. Cir. 282, Appellants' petition to the Supreme Court of Connecticut to certify the case for review was declined. In these circumstances, we deem it inappropriate for this Court to decide the constitutional issue tendered by appellants. Dismissed. MR. JUSTICE BLACKMUN took no part in the consideration or decision of this case. MR. JUSTICE DOUGLAS, with whom MR. |
Justice Rehnquist | 1,988 | 19 | dissenting | Penson v. Ohio | https://www.courtlistener.com/opinion/112157/penson-v-ohio/ | The Sixth Amendment to the Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to have the Assistance of Counsel for his defense." The Court has construed this language to include not only the right to assistance of counsel at trial, but also to the assistance of counsel on appeal. We have also held that the right conferred is not simply to the assistance of counsel, but also to the effective assistance of counsel, both at trial, see United ; and on appeal, see *90 There is undoubtedly an equal protection component in the decisions extending the Sixth Amendment right to counsel on appeal; ; But we have also recognized that "[t]he duty of the State under our cases is not to duplicate the legal arsenal that may be privately retained by a criminal defendant in a continuing effort to reverse his conviction, but only to assure the indigent defendant an adequate opportunity to present his claims fairly in the context of the State's appellate process." The Court today loses sight of this, and instead seeks to engraft onto our decision in Anders v. a presumption of prejudice when the appellate attorney for an indigent does not exactly follow the procedure laid down in that case. Thus today's decision is added to the decision in Anders itself as a futile monument to the Court's effort to guarantee to the indigent appellant what no court can guarantee him: exactly the same sort of legal services that would be provided by suitably retained private counsel. There are doubtless lawyers admitted to practice in the State of Ohio who, for a substantial retainer, would have filed a brief on behalf of petitioner in the Ohio Court of Appeals urging, with a straight face, all of the claims which petitioner's appointed attorney decided were frivolous. But nothing in the Constitution or in any rational concept of public policy should lead us to require public financing for that sort of an effort. The Court's opinion today justifies the Anders brief because it "serves the valuable purpose of assisting the court in determining both that counsel in fact conducted the required detailed review of the case and that the appeal is indeed so frivolous that it may be decided without an adversary presentation." Ante, at 81-82 (footnote omitted). These may be desirable purposes, but it seems to me that it stretches the Sixth Amendment a good deal to say that it requires these interests to be pursued in this manner. The *91 Sixth Amendment does not confer a right to have the |
Justice Rehnquist | 1,988 | 19 | dissenting | Penson v. Ohio | https://www.courtlistener.com/opinion/112157/penson-v-ohio/ | Sixth Amendment does not confer a right to have the court supervise counsel's assistance as it is rendered, but rather a right to have counsel appointed for the purpose of pursuing the appeal. Here counsel rendered "assistance" and his performance must be reviewed for ineffectiveness and prejudice before any constitutionally mandated relief is in order. Counsel states and we have no reason to disbelieve him that he conscientiously reviewed the record and "found no errors requiring reversal, modification and/or vacation of appellant's jury trial convictions and/or the trial court's sentence in [his case]." App. 35. As it turned out, that determination was incorrect, but this fact does not mean that counsel did not employ his legal talents in the service of his client. Whether or not this evaluative process constituted "assistance" cannot be affected by its conclusion. "[T]he canons of professional ethics impose limits on permissible advocacy. It is the obligation of any lawyer whether privately retained or publicly appointed not to clog the courts with frivolous motions or appeals." See Polk This is not to say that an attorney's erroneous decision to withdraw is necessarily adequate assistance of counsel. That is to be judged under Of course, counsel may protect himself from collateral review of the effectiveness of his performance by following the safe-harbor procedures outlined in Anders. As described by the Court today, the filing of an Anders brief creates a strong presumption that counsel has diligently worked on the case and that the court was correct in assessing the frivolousness of the appeal when it allowed withdrawal. Anders may well outline a prudent course to follow for the appointed attorney who wishes to withdraw from a frivolous case. But if counsel declines to follow it, the basic constitutional guarantee of effective assistance remains the underlying standard by which his conduct should be judged. *92 In this case, petitioner was one of a group of three men who broke into a dwelling and robbed, raped, and otherwise sexually assaulted the adult inhabitants. It cannot be questioned that petitioner and his codefendants stood in substantially the same position in defending against the charges.[*] The appellate court considered the briefs of petitioner's codefendants and conducted its own review of the record. It ultimately reversed one of petitioner's convictions as a result. It also considered but decided against reversing another. Although the "coincidence of interest with a represented codefendant," ante, at 87, is not a substitute for the assistance of counsel, it certainly may eliminate the prejudice of poor representation if it brings to the court's attention |
Justice White | 1,986 | 6 | dissenting | Henderson v. United States | https://www.courtlistener.com/opinion/111670/henderson-v-united-states/ | The purpose of the Speedy Trial Act of 1974, as amended in 1979 and in 18 U.S. C. 3161 et seq. ( ed. and Supp. II), is to quantify and make effective the Sixth Amendment right to a a speedy trial. S. Rep. No. 96-212, p. 6 (1979); S. Rep. No. 93-1021, p. 1 (1974). To this end, the Act entitles a criminal defendant to dismissal of the charges pending against him if he is not brought to trial within 70 days of his initial appearance or indictment. 18 U.S. C. 3161(c), 3162. In computing the running of this 70-day period, the Act permits certain periods of time to be excluded. These exclusions are designed to take account of specific and recurring periods of delay which often occur in criminal cases; they are not to be used either to undermine the time limits established by the Act, or to subvert the very purpose the Act was designed to fulfill. Nonetheless, this is precisely the result achieved by the majority's reasoning, as it allows trial judges indefinitely to delay disposing of pretrial motions. For this reason, I dissent. As interpreted by the majority, 3161(h)(1)(F) (subsection (F)) excludes the entire period between the filing of the pretrial motion and the date on which the motion is finally taken under advisement. For motions requiring a hearing, all time *334 is excluded from the date the motion is filed through the conclusion of the hearing. Ante, at 329-330. There is no requirement that the hearing be held promptly, and the reason for the delay is irrelevant. Regardless of whether a hearing is postponed due to a stipulated continuance, the sudden illness of counsel, or the trial judge's decision to play golf, until the hearing is concluded, the 70-day clock remains at a standstill. Moreover, if at the conclusion of the hearing the trial judge determines that more information would be helpful to his resolution of the motion, or if the prosecutor simply announces his intention to file supplemental papers, the period of excludable delay continues indefinitely until the court receives all of the papers it reasonably expects. Only at that point is the motion considered to be "actually under advisement," and even then, 3161(h)(1)(J) (subsection (J)) provides for an additional 30 days before the clock begins running again. For pretrial motions that do not require a hearing, the majority reads subsection (F) to exclude the entire period of time from the filing of the motion through its "prompt disposition." Ante, at 329. As construed by the Court, however, the word "prompt" does not refer |
Justice White | 1,986 | 6 | dissenting | Henderson v. United States | https://www.courtlistener.com/opinion/111670/henderson-v-united-states/ | by the Court, however, the word "prompt" does not refer to the speed at which the trial court is required to handle the motion; instead, it merely serves to designate the "point at which time will cease to be excluded." That is to say, Congress inserted the word "prompt" simply to distinguish the time at which the motion is taken under advisement from the "final" disposition, or resolution, of the pretrial motion by the court, and thus prevent trial courts from avoiding the 30-day limitation imposed by subsection (J) by claiming that the unlimited delay sanctioned by subsection (F) applies until the court finally disposes of (i. e., decides) the pretrial motion. Ante, at 329. As I see it, the majority has misread both subsection (F) and the Act as a whole. I read subsection (F) to require all pretrial motions, regardless of whether they require a hearing, to be disposed of promptly. There is no reason to believe *335 that Congress did not intend the word "prompt" to mean exactly what it normally means, "performed readily or immediately"; "given without delay or hesitation." Webster's Third New International Dictionary, Unabridged, p. 1816 (1976). Reading the word "prompt" in subsection (F) as a synonym for "quick" rather than as an antonym for the word "final" is a far more logical reading of the statute, and is more in keeping with the overall purpose of the Speedy Trial Act. I also find no merit to the contention that the phrase "other prompt disposition" only applies to pretrial motions to be decided without a hearing. After all, there cannot be an "other prompt disposition" of a motion unless there was a prompt disposition in the first place, and the plain language of subsection (F) shows that Congress intended hearings on pretrial motions to be conducted just as promptly as any other disposition of such motions. This reading of subsection (F) is consistent with the structure of the Speedy Trial Act taken as a whole. Subsection (F) allows for the exclusion of the period of delay occurring between the making of the pretrial motion and its submission to the trial court for decision. It is this portion of the pretrial proceedings that the Act commands must be "prompt," and the reason for such a requirement is clear: it forces the parties to submit all necessary papers, and the court to hold any necessary hearings and decide what information it needs, in a timely and orderly manner. As shown above, the use of the word "prompt" in this context does more than simply distinguish this |
Justice White | 1,986 | 6 | dissenting | Henderson v. United States | https://www.courtlistener.com/opinion/111670/henderson-v-united-states/ | "prompt" in this context does more than simply distinguish this point in time from the time when the motion is finally decided (i. e., the "final" disposition of the motion); instead, it describes the pace at which both the parties and the court are to act in ensuring that the trial judge can rule on the pretrial motion as quickly as possible. The promptness requirement, in other words, expressly is designed to prevent endless and needless delays in the assembly of the relevant material necessary for the trial court to make a reasoned decision on the submitted pretrial motion. *336 Subsection (F) thus requires prompt submission of material to the court and efficient scheduling of pretrial hearings, and once the court receives all of the papers and arguments it reasonably expects, the motion is considered to be "actually under advisement by the court." Consistent with the purpose of the Act and the promptness requirement imposed by subsection (F), subsection (J) then gives the trial court no more than 30 days in which to consider the parties' contentions and finally to decide the motion. The period during which the court has the motion "under advisement" is governed by subsection (J), and contrary to the majority's holding, ante, at 328-329, its 30-day limitation period has no bearing on the speed with which the motion is submitted to the court for decision. Construing subsection (F) as mandating the prompt scheduling of hearings and submission of material in order for the trial court to take the matter under advisement is supported not only by the language of the statute and the structure of the Act, but also by the legislative history. In explaining the 1979 Amendments to the Act which established subsection (F) in its present form, the Senate Judiciary Committee noted that this portion of the Act "must be read together with the proposed change in clause (ii) of subsection (h)(8)(B) involving `preparation' for `pretrial proceedings'." S. Rep. No. 96-212, p. 33 (1979).[1] The Committee expressly rejected *337 as "unreasonable" the suggestion that "all time consumed by motions practice, from preparation through their disposition, should be excluded," finding instead that "in routine cases, preparation time should not be excluded where the questions of law are not novel and the issues of fact simple." Even in cases involving "novel questions of law or complex facts," the Committee concluded that only "reasonable preparation time for pretrial motions" would be necessary. Despite the narrow reading of the legislative history by the majority, therefore, the Senate Committee clearly meant exactly what it said when it declared that |
Justice White | 1,986 | 6 | dissenting | Henderson v. United States | https://www.courtlistener.com/opinion/111670/henderson-v-united-states/ | clearly meant exactly what it said when it declared that it did not intend that "additional time be made eligible for exclusion by postponing the hearing date or other disposition of the motions beyond what is reasonably necessary." [2] *338 Adhering to both the plain language of the statute and its legislative history, the majority of courts considering this question have held that subsection (F) permits the exclusion of only a reasonable amount of time for the trial court to take a pretrial motion under advisement, and that any other result would defeat the purposes of the Act. See United ; United ; United ; United cert. denied sub nom. ; United ; United aff'd, cert. denied, ; United Similarly, the Judicial Conference of the United States recognizes that "[i]n some circumstances, the duration of this exclusion may be subject to a reasonableness requirement." Committee on the Administration of the Criminal Law of the Judicial Conference of the United States, Guidelines to the Administration of the Speedy Trial Act of 1974, as Amended 106 F. R. D. 271, 289 *339 Finally, commentators have also noted the necessity for this construction, finding that without it, there would be no need for trial courts to process motions in a timely fashion, thus undermining the purposes of the Act. See Misner, The 1979 Amendments to the Speedy Trial Act: Death of the Planning Process, 32 Hastings L. J. 635, 654-655 (1981); Note, Speedy Trial: A Constitutional Right in Search of Definition, 61 Geo. L. J. 657, 679, and n. 136 (1973), reprinted in Hearings on S. 754 before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, 93d Cong., 1st Sess., 61, 83, and n. 136 (1973). I agree with this wealth of statutory, judicial, and scholarly authority, and would hold that the Speedy Trial Act requires a trial court to take all pretrial motions under advisement in a prompt manner, and as a result, that only that period of delay found to be reasonably necessary to such a prompt handling of the motion is properly excludable under subsection (F). By holding that the entire period of delay from the filing of a pretrial motion until that motion is taken under advisement is excludable from the 70-day speedy trial computation, the majority allows this exception to swallow the rule and in so doing, undermines the entire Act. As Judge Ferguson concluded in his dissent below, "[w]hile I sympathize with the majority's search for a per se rule I cannot agree that the desire for an `easy' rule can justify the |
Justice Blackmun | 1,974 | 11 | majority | Commissioner v. Idaho Power Co. | https://www.courtlistener.com/opinion/109082/commissioner-v-idaho-power-co/ | This case presents the sole issue whether, for federal income tax purposes, a taxpayer is entitled to a deduction from gross income, under 167 of the Internal Revenue Code of 1954, 26 U.S. C. 167[1] for depreciation on equipment the taxpayer owns and uses in the construction of its own capital facilities, or whether the capitalization provision of 263 (1) of the Code, 26 U.S. C. 263 (1),[2] bars the deduction. *4 The taxpayer claimed the deduction, but the of Internal Revenue disallowed it. The Tax Court (Scott, J., in an opinion not reviewed by the full court) upheld the 's determination. 29 T.C. M. 383 The United Court of Appeals for the Ninth Circuit, declining to follow a Court of Claims decision, Southern Natural reversed. We granted certiorari in order to resolve the apparent conflict between the Court of Claims and the Court of Appeals. I Nearly all the relevant facts are stipulated. The taxpayer-respondent, Idaho Power Company, is a Maine corporation organized in 1915, with its principal place of business at Boise, Idaho. It is a public utility engaged in the production, transmission, distribution, and sale of electric energy. The taxpayer keeps its books and files its federal income tax returns on the calendar year accrual basis. The tax years at issue are 12 and 13. For many years, the taxpayer has used its own equipment and employees in the construction of improvements and additions to its capital facilities.[3] The major work has consisted of transmission lines, transmission switching stations, distribution lines, distribution stations, and connecting facilities. *5 During 12 and 13, the tax years in question, taxpayer owned and used in its business a wide variety of automotive transportation equipment, including passenger cars, trucks of all descriptions, power-operated equipment, and trailers. Radio communication devices were affixed to the equipment and were used in its daily operations. The transportation equipment was used in part for operation and maintenance and in part for the construction of capital facilities having a useful life of more than one year. On its books, the taxpayer used various methods of charging costs incurred in connection with its transportation equipment either to current expense or to capital accounts. To the extent the equipment was used in construction, the taxpayer charged depreciation of the equipment, as well as all operating and maintenance costs (other than pension contributions and social security and motor vehicle taxes) to the capital assets so constructed. This was done either directly or through clearing accounts in accordance with procedures prescribed by the Federal Power Commission and adopted by the Idaho Public |
Justice Blackmun | 1,974 | 11 | majority | Commissioner v. Idaho Power Co. | https://www.courtlistener.com/opinion/109082/commissioner-v-idaho-power-co/ | the Federal Power Commission and adopted by the Idaho Public Utilities Commission. For federal income tax purposes, however, the taxpayer treated the depreciation on transportation equipment differently. It claimed as a deduction from gross income all the year's depreciation on such equipment, including that portion attributable to its use in constructing capital facilities. The depreciation was computed on a composite life of 10 years and under straight-line and declining-balance methods. The other operating and maintenance costs the taxpayer had charged on its books to capital were not claimed as current expenses and were not deducted. To summarize: On its books, in accordance with Federal Power Commission-Idaho Public Utilities Commission *6 prescribed methods, the taxpayer capitalized the construction-related depreciation, but for income tax purposes that depreciation increment was claimed as a deduction under 167[4] Upon audit, the of Internal Revenue disallowed the deduction for the construction-related depreciation. He ruled that that depreciation was a nondeductible capital expenditure to which 263 (1) had application. He added the amount of the depreciation so disallowed to the taxpayer's adjusted basis in its capital facilities, and then allowed a deduction for an appropriate amount of depreciation on the addition, computed over the useful life (30 years or more) of the property constructed. A deduction for depreciation of the transportation equipment to the extent of its use in day-to-day operation and maintenance was also allowed. The result of these adjustments was the disallowance of depreciation, as claimed by the taxpayer on its returns, in the net amounts of $140,429.75 and $,811.95 for 12 and 13, respectively. This gave rise to asserted deficiencies in taxpayer's income taxes for those two years of $73,023.47 and $50,342.21. The Tax Court agreed with the decision of the Court of Claims in Southern Natural and described that holding as one to the effect that "depreciation allocable to the use of the equipment in the construction of capital improvements was not deductible in the year the *7 equipment was so used but should be capitalized and recovered over the useful life of the assets constructed." 29 T.C. M., at 386. The Tax Court, accordingly, held that the "properly disallowed as a deduction. this allocable portion of depreciation and that such amount should be capitalized as part of [taxpayer's] basis in the permanent improvements in the construction of which the equipment was used." The Court of Appeals, on the other hand, perceived in the Internal Revenue Code of 1954 the presence of a liberal congressional policy toward depreciation, the underlying theory of which is that capital assets used in business should not be |
Justice Blackmun | 1,974 | 11 | majority | Commissioner v. Idaho Power Co. | https://www.courtlistener.com/opinion/109082/commissioner-v-idaho-power-co/ | is that capital assets used in business should not be exhausted without provision for -693. The court concluded that a deduction expressly enumerated in the Code, such as that for depreciation, may properly be taken and that "no exception is made should it relate to a capital item." Section 263 (1) of the Code was found not to be applicable because depreciation is not an "amount paid out," as required by that section. The court found Southern Natural unpersuasive and felt "constrained to distinguish" it in reversing the Tax Court -6. The taxpayer asserts that its transportation equipment is used in its "trade or business" and that depreciation thereon is therefore deductible under 167 (1) of the Code. The concedes that 167 may be said to have a literal application to depreciation on equipment used in capital construction,[5] Brief for Petitioner *8 16, but contends that the provision must be read in light of 263 (1) which specifically disallows any deduction for an amount "paid out for new buildings or for *9 permanent improvements or betterments." He argues that 263 takes precedence over 167 by virtue of what he calls the "priority-ordering" terms (and what the taxpayer describes as "housekeeping" provisions) of 161 of the Code, 26 U.S. C. 161,[6] and that sound principles of accounting and taxation mandate the capitalization of this depreciation. It is worth noting the various items that are not at issue here. The mathematics, as such, is not in dispute. The taxpayer has capitalized, as part of its cost of acquisition of capital assets, the operating and maintenance costs (other than depreciation, pension contributions, and social security and motor vehicle taxes) of the transportation equipment attributable to construction. This is not contested. The does not dispute that the portion of the transportation equipment's depreciation allocable to operation and maintenance of facilities, in contrast with construction thereof, qualifies as a deduction from gross income. There is no disagreement *10 as to the allocation of depreciation between construction and maintenance. The issue, thus comes down primarily to a question of timing, as the Court of Appeals that is, whether the construction-related depreciation is to be amortized and deducted over the shorter life of the equipment or, instead, is to be amortized and deducted over the longer life of the capital facilities constructed. II Our primary concern is with the necessity to treat construction-related depreciation in a manner that comports with accounting and taxation realities. Over a period of time a capital asset is consumed and, correspondingly over that period, its theoretical value and utility are thereby reduced. |
Justice Blackmun | 1,974 | 11 | majority | Commissioner v. Idaho Power Co. | https://www.courtlistener.com/opinion/109082/commissioner-v-idaho-power-co/ | that period, its theoretical value and utility are thereby reduced. Depreciation is an accounting device which recognizes that the physical consumption of a capital asset is a true cost, since the asset is being depleted.[7] As the process of consumption continues, and depreciation is claimed and allowed, the asset's adjusted income tax basis is reduced to reflect the distribution of its cost over the accounting periods affected. The Court stated in Hertz : "[T]he purpose of depreciation accounting is to allocate the expense of using an asset to the various periods *11 which are benefited by that asset." See also United ; Massey Motors, ; Fribourg Navigation (16). When the asset is used to further the taxpayer's day-to-day business operations, the periods of benefit usually correlate with the production of income. Thus, to the extent that equipment is used in such operations, a current depreciation deduction is an appropriate offset to gross income currently produced. It is clear, however, that different principles are implicated when the consumption of the asset takes place in the construction of other assets that, in the future, will produce income themselves. In this latter situation, the cost represented by depreciation does not correlate with production of current income. Rather, the cost, although certainly presently incurred, is related to the future and is appropriately allocated as part of the cost of acquiring an income-producing capital asset. The Court of Appeals opined that the purpose of the depreciation allowance under the Code was to provide a means of cost recovery, and that this Court's decisions, e. g., Detroit Edison endorse a theory of replacement through "a fund to restore the property." Although tax-free replacement of a depreciating investment is one purpose of depreciation accounting, it alone does not require the result claimed by the taxpayer here. Only last Term, in United we rejected replacement as the strict and sole purpose of depreciation: "Whatever may be the desirability of creating a depreciation reserve under these circumstances, as a matter of good business and accounting practice, *12 the answer is [d]epreciation reflects the cost of an existing capital asset, not the cost of a potential ' " Even were we to look to replacement, it is the replacement of the constructed facilities, not the equipment used to build them, with which we would be concerned. If the taxpayer now were to decide not to construct any more capital facilities with its own equipment and employees, it, in theory, would have no occasion to replace its equipment to the extent that it was consumed in prior construction. Accepted accounting practice[8] |
Justice Blackmun | 1,974 | 11 | majority | Commissioner v. Idaho Power Co. | https://www.courtlistener.com/opinion/109082/commissioner-v-idaho-power-co/ | that it was consumed in prior construction. Accepted accounting practice[8] and established tax principles require the capitalization of the cost of acquiring a capital asset. In the Court observed: "It has long been as a general matter, that costs incurred in the acquisition of a capital asset are to be treated as capital expenditures." This principle has obvious application to the acquisition of a capital asset by purchase, but it has been applied, as well, to the costs incurred in a taxpayer's construction of capital facilities. See, e. g., Southern Natural Great Northern R. (CA8), cert. denied, ; ; Norfolk Shipbuilding & Drydock ; Producers Chemical (18); (18), rev'd on other grounds,[9] There can be little question that other construction-related expense items, such as tools, materials, and wages paid construction workers, are to be treated as part of the cost of acquisition of a capital asset. The taxpayer does not dispute this. Of course, reasonable wages paid in the carrying on of a trade or business qualify as a deduction from gross income. 162 (1) of the 1954 Code, 26 U.S. C. 162 (1). But when wages are paid in connection with the construction or acquisition of a capital asset, they must be capitalized and are then entitled to be amortized over the life of the capital asset so acquired. Briarcliff Candy ; (15), aff'd, (CA10 17); Jaffa v. United (ND Ohio 11). See Treas. Reg. 1.266-1 Construction-related depreciation is not unlike expenditures for wages for construction workers. The significant fact is that the exhaustion of construction equipment does not represent the final disposition of the taxpayer's investment *14 in that equipment; rather, the investment in the equipment is assimilated into the cost of the capital asset constructed. Construction-related depreciation on the equipment is not an expense to the taxpayer of its day-to-day business. It is, however, appropriately as a part of the taxpayer's cost or investment in the capital asset. The taxpayer's own accounting procedure reflects this treatment, for on its books the construction-related depreciation was capitalized by a credit to the equipment account and a debit to the capital facility account. By the same token, this capitalization prevents the distortion of income that would otherwise occur if depreciation properly allocable to asset acquisition were deducted from gross income currently realized. See, e. g., Coors v. 60 T. C., at ; Southern Natural 412 F.2d, at 5. An additional pertinent factor is that capitalization of construction-related depreciation by the taxpayer who does its own construction work maintains tax parity with the taxpayer who has its construction work done by |
Justice Blackmun | 1,974 | 11 | majority | Commissioner v. Idaho Power Co. | https://www.courtlistener.com/opinion/109082/commissioner-v-idaho-power-co/ | with the taxpayer who has its construction work done by an independent contractor. The depreciation on the contractor's equipment incurred during the performance of the job will be an element of cost charged by the contractor for his construction services, and the entire cost, of course, must be capitalized by the taxpayer having the construction work performed. The Court of Appeals' holding would lead to disparate treatment among taxpayers because it would allow the firm with sufficient resources to construct its own facilities and to obtain a current deduction, whereas another firm without such resources would be required to capitalize its entire cost including depreciation charged to it by the contractor. Some, although not controlling, weight must be given to the fact that the Federal Power Commission and the Idaho Public Utilities Commission required the taxpayer *15 to use accounting procedures that capitalized construction-related depreciation. Although agency-imposed compulsory accounting practices do not necessarily dictate tax consequences, Old Colony R. they are not irrelevant and may be accorded some significance. v. Lincoln Savings & Loan Assn., The opinions in American Automobile Assn. v. United (11), and Schlude v. (13), urged upon us by the taxpayer here, are not to the contrary. In the former case it was observed that merely because the method of accounting a taxpayer employs is in accordance with generally accepted accounting procedures, this "is not to hold that for income tax purposes it so clearly reflects income as to be binding on the Treasury." 367 U.S., See also Cincinnati, N. O. & T. P. R. Nonetheless, where a taxpayer's generally accepted method of accounting is made compulsory by the regulatory agency and that method clearly reflects income,[10] it is almost presumptively controlling of federal income tax consequences. *16 The presence of 263 (1) in the Code is of significance. Its literal language denies a deduction for "[a]ny amount paid out" for construction or permanent improvement of facilities. The taxpayer contends, and the Court of Appeals held, that depreciation of construction equipment represents merely a decrease in value and is not an amount "paid out," within the meaning of 263 (1). We disagree. The purpose of 263 is to reflect the basic principle that a capital expenditure may not be deducted from current income. It serves to prevent a taxpayer from utilizing currently a deduction properly attributable, through amortization, to later tax years when the capital asset becomes income producing. The regulations state that the capital expenditures to which 263 extends include the "cost of acquisition, construction, or erection of buildings." Treas. Reg. 1.263 -2 This manifests an |
Justice Blackmun | 1,974 | 11 | majority | Commissioner v. Idaho Power Co. | https://www.courtlistener.com/opinion/109082/commissioner-v-idaho-power-co/ | erection of buildings." Treas. Reg. 1.263 -2 This manifests an administrative understanding that for purposes of 263 (1), "amount paid out" equates with "cost incurred." The Internal Revenue Service for some time has taken the position that construction-related depreciation is to be capitalized. Rev. Rul. 59-380, 1959-2 Cum. Bull. 87; Rev. Rul. 55-252, 1955-1 Cum. Bull. 319. There is no question that the cost of the transportation equipment was "paid out" in the same manner as the cost of supplies, materials, and other equipment, and the wages of construction workers.[11] The taxpayer does not *17 question the capitalization of these other items as elements of the cost of acquiring a capital asset. We see no reason to treat construction-related depreciation differently. In acquiring the transportation equipment, taxpayer "paid out" the equipment's purchase price; depreciation is simply the means of allocating the payment over the various accounting periods affected. As the Tax Court stated in "depreciationinasmuch as it represents a using up of capitalis as much an `expenditure' as the using up of labor or other items of direct cost." Finally, the priority-ordering directive of 161or for that matter, 261 of the Code, 26 U.S. C. 261[12]requires that the capitalization provision of 263 take precedence, on the facts here, over 167 Section 161 provides that deductions specified in Part VI of Subchapter B of the Income Tax Subtitle of the Code are "subject to the exceptions provided in part IX." Part VI includes 167 and Part IX includes 263. The clear import of 161 is that, with stated exceptions set forth either in 263 itself or provided for elsewhere (as, for example, in relating to pension contributions), none of which is applicable here, an expenditure incurred in acquiring capital assets must be capitalized even when the expenditure otherwise might be deemed deductible under Part VI. The Court of Appeals concluded, without reference to 161, that 263 did not apply to a deduction, such as that for depreciation of property used in a trade or business, *18 allowed by the Code even though incurred in the construction of capital assets.[13] We think that the court erred in espousing so absolute a rule, and it obviously overlooked the contrary direction of 161. To the extent that reliance was placed on the congressional intent, in the evolvement of the 1954 Code, to provide for "liberalization of depreciation," H. R. Rep. No. 1337, 83d Cong., 2d Sess., 22 (1954), that reliance is misplaced. The House Report also states that the depreciation provisions would "give the economy added stimulus and resilience without departing from realistic standards |
Justice Blackmun | 1,991 | 11 | majority | Stevens v. Department of Treasury | https://www.courtlistener.com/opinion/112582/stevens-v-department-of-treasury/ | This case concerns a claim of age discrimination said to be in violation of 15 (the federal employees' component) of the Age Discrimination in Employment Act of 1967 (ADEA), as added by the Fair Labor Standards Amendments of 1974, and amended, 29 U.S. C. 633a. I Petitioner Charles Z. Stevens III is an employee of the United States Internal Revenue Service (Service). In August 1986, when he was 63 years of age, Stevens was accepted into the Service's Revenue Officer Training Program at Austin, Tex., and assumed probationary status as a civil service employee. On April 27, 1987, he was advised that his performance in the program was not satisfactory. He then requested a transfer out of the program and a demotion, rather than face separation from the Service. Believing that he had been the victim of age discrimination, Stevens on May 21 wrote his Congressman for assistance. See App. 8. That inquiry proved to be nonproductive. In September 1987, petitioner attempted to invoke his agency's administrative procedure for resolving age discrimination complaints through an initial meeting with an Equal Employment Opportunity Counselor. This, however, *4 was long after the expiration of the 30-day period prescribed for such an application by 29 CFR 1613.511, 1613.512, and 1613.214(a)(1)(i) On October 19, petitioner filed a formal administrative complaint of age discrimination with the Department of the Treasury. App. 11. At the end of that complaint was the following statement: "This is also my notice of intention to sue in U. S. Civil District Court if the matter is not satisfactorily resolved." The complaint was rejected, it was said, because of the delay in seeking a meeting with the counselor and because there was no showing of good cause for not complying with the 30-day requirement. This action was described by the Director of the Regional Complaints Center as "a final agency decision." On petitioner's appeal to the Equal Employment Opportunity Commission (EEOC) Office of Review and Appeals, the rejection for untimeliness was affirmed on March 30, On May 3, petitioner filed pro se his complaint against the Department of the Treasury and its Secretary in the United States District Court for the Western District of Texas. At an ensuing hearing, petitioner was represented by counsel. The defense moved to dismiss the action on the ground that petitioner had failed to establish any basis for tolling the 30-day period. 2. The District Court granted the motion and dismissed the case with prejudice. App. to Pet. for Cert. A-1. It noted: "[A]n employee who believes that he has been discriminated against because of age |
Justice Blackmun | 1,991 | 11 | majority | Stevens v. Department of Treasury | https://www.courtlistener.com/opinion/112582/stevens-v-department-of-treasury/ | believes that he has been discriminated against because of age has two avenues of relief under the ADEA": he either "may proceed directly to federal court and initiate an action no later than 180 days from the unlawful action and notify the EEOC within 30 days prior to commencing suit," at A-3, citing 29 U.S. C. 633a(d), or he "may file an administrative complaint with the employing federal agency and appeal an adverse finding to the" EEOC, in which case he "may bring a federal civil action only after exhausting his administrative remedies," App. to Pet. for Cert. A-3, *5 citing 29 U.S. C. 633a(b). The court reasoned that the alternative administrative procedure, which petitioner had attempted, had not properly been invoked because of the untimeliness of Stevens' complaint and the absence of a satisfactory explanation for the delay. The court therefore concluded that it was "without jurisdiction" to apply the ADEA "to the circumstances of Stevens' demotion in April, 1987." App. to Pet. for Cert. A-3 to A-4. Petitioner appealed to the United States Court of Appeals for the Fifth Circuit. In an unpublished per curiam opinion, that court disagreed with the District Court's statement that the employee could go directly to federal court "no later than 180 days from the unlawful action." It said that Stevens had to file a notice of intent to sue within 180 days of the allegedly discriminatory action but that he did not have to initiate his federal suit within that period. at A-7. The court went on to say: "However, Stevens did not initiate the present action in federal court until May [3], [;] therefore Stevens' notice to the EEOC, of October 19, 1987 was not effective." The court concluded: "Although the district court did not state the applicable law correctly, ultimately the correct result was reached since Stevens failed to meet the requirements set forth in 29 U.S. C. 633a(d)." at A-8. The District Court's dismissal was affirmed. Judgt. order reported at We granted certiorari over respondents' opposition because of what appeared to us to be a clear misreading by the lower courts of the applicable and important federal statute. II As the District Court noted in its opinion, App. to Pet. for Cert. A-3, 15 of the ADEA provides two alternative routes for pursuing a claim of age discrimination. An individual may invoke the EEOC's administrative process and then file a civil action in federal district court if he is not satisfied with his administrative remedies. See 29 U.S. C. 633a(b) and *6 (c). A federal employee complaining of age |
Justice Blackmun | 1,991 | 11 | majority | Stevens v. Department of Treasury | https://www.courtlistener.com/opinion/112582/stevens-v-department-of-treasury/ | 633a(b) and *6 (c). A federal employee complaining of age discrimination, however, does not have to seek relief from his employing agency or the EEOC at all. He can decide to present the merits of his claim to a federal court in the first instance. See 633a(d). Both routes to court are implicated in this case. We address the direct route first. Section 15(d) of the Act, 29 U.S. C. 633a(d), reads: "When the individual has not filed a complaint concerning age discrimination with the Commission, no civil action may be commenced by any individual under this section until the individual has given the Commission not less than thirty days' notice of an intent to file such action. Such notice shall be filed within one hundred and eighty days after the alleged unlawful practice occurred." (Emphasis added.) The District Court obviously misread this statute when it said that the federal employee "may proceed directly to federal court and initiate an action no later than 180 days from the unlawful action and notify the EEOC within 30 days prior to commencing suit." App. to Pet. for Cert. A-3 (emphasis added). The court thus imposed a requirement that the federal court action be instituted within the 180-day period and an additional requirement that the EEOC be notified within 30 days prior to the commencement of the suit. But the statute reads otherwise as to both requirements. It calls for a notice of not less than 30 days to the Commission of an intent to sue (not notification within 30 days), and it provides that the notice shall be filed with the Commission within 180 days of the alleged unlawful practice (not filed within 180 days of the notice). Clearly, petitioner Stevens met both requirements. The EEOC was notified on October 19, 1987, the 176th day after the alleged discriminatory actionpetitioner's transfer and demotion of April 27, 1987had occurred.[1]*7 And suit was not filed until May 3, a date more than 30 days after the notice was given. The Court of Appeals corrected one of the District Court's two errors: "Contrary to what the district court stated, Stevens had to file a notice of intent to sue with the EEOC within 180 days of the alleged discriminatory action. Stevens did not have to initiate his federal action within 180 days of the alleged action, but merely give notice to the EEOC of his intention to initiate a civil action." at A-7. But the Court of Appeals then added the sentence already noted: "However, Stevens did not initiate the present action in federal court |
Justice Blackmun | 1,991 | 11 | majority | Stevens v. Department of Treasury | https://www.courtlistener.com/opinion/112582/stevens-v-department-of-treasury/ | Stevens did not initiate the present action in federal court until May 4, [;] therefore Stevens' notice to the EEOC, of October 19, 1987 was not effective." This enigmatic sentence surely implies, even if it does not say so directly, that the court was not in disagreement with the District Court's second errorthat the federal litigation had to be commenced within 30 days of the notice, instead of after 30 days from the notice. We note, at this point, that the District Court's and Court of Appeals' error in their reading of the statute has also been replicated by two other courts. See ; The applicable regulations are positive as to the absence of such a "within 30 days" requirement under the ADEA, in marked contrast with the situation concerning the assertion of a Title VII claim. See 29 CFR 1613.514 Respondents concede all this, for they say that "the statute is clear." Brief for Respondents 29. There is no foundation that we can discern for any conclusion that the suit was not filed within the applicable period of limitations. The statute does not expressly impose any additional limitations period for a complaint of age discrimination. We therefore assume, as we have before, that Congress intended to impose an appropriate period borrowed either from a state statute or from an analogous federal one. Agency Holding Corp. v. Malley-Duff & Associates, Inc., 483 U. S. *8 143, 146-148 (1987). In this case, we need not decide which limitations period is applicable to a civil action under 29 U.S. C. 633a(c). Stevens filed his suit on May 3, only one year and six days after the allegedly discriminatory event of April 27, 1987. That, as respondents acknowledge, Brief for Respondents 30, "is well within whatever statute of limitations might apply to the action."[2] III The Solicitor General, however, submits that the petition for certiorari should be dismissed as having been improvidently granted. He rests this submission on the argument that petitioner did not properly present the merits of the timeliness issue to the Court of Appeals, and that this Court should not address that question for the first time. He made the same argument in his opposition to the petition for certiorari. Brief in Opposition 5-7. We rejected that argument in granting certiorari, and we reject it again now because the Court of Appeals, like the District Court before it, decided the substantive issue presented. The District Court heard the case on the merits. Tr. 83-176. The Court of Appeals in its turn specifically referred to Stevens' notice of intention to file |
Justice Blackmun | 1,991 | 11 | majority | Stevens v. Department of Treasury | https://www.courtlistener.com/opinion/112582/stevens-v-department-of-treasury/ | turn specifically referred to Stevens' notice of intention to file a civil suit, App. to Pet. for Cert. A-7, and, as we have explained, answered the timeliness question incorrectly. We thus are satisfied that the issue is properly before us. IV Answering the timeliness question in petitioner's favor, as we have, brings us to an issue involving the administrative *9 route to federal court. Once petitioner had filed an EEOC complaint, was he required to exhaust his administrative remedies in order to file a civil action in district court? The Court of Appeals expressly stated its Circuit rule on exhaustion just eight days after it issued the opinion below. In (CA5), cert. denied, the court said: "[A]n ADEA plaintiff who chooses to appeal the employer's determination to the Equal Employment Opportunity Commission must await final action by that agency before filing an action in federal district court." The exhaustion issue has divided the Circuits. Compare, e. g., with cert. denied, Although the issue is an important one, it is here that we encounter procedural difficulty. Respondents in direct contradiction of their position before the Court of Appeals, now fully agree with petitioner on the merits of the exhaustion issue. According to the Solicitor General, a federal employee who elects agency review of an age discrimination claim need not exhaust his administrative remedies before bringing a civil action. Respondents have thus abandoned the position that they took before the Court of Appeals when, in their brief there, they said: "If an employee files an administrative claim with his agency, the employee must properly exhaust his administrative remedies like employees alleging other types of discrimination. "It is well established that a federal employee must timely exhaust any administrative remedies available to him before he can bring suit. Therefore, Judge Bunton properly dismissed Mr. Stevens' cause of action because Mr. Stevens did not meet the administrative requirements." *10 Brief for Appellees in No. 89-1432 (CA5), pp. 6-7. Respondents, of course, acknowledge this, Tr. of Oral Arg. 17, and concede that they indeed "took a different position," 2. They candidly say that "we have reconsidered our position." It is all well and good for respondents to rethink their position. Their choice, however, has meant that on the merits there is no one before us who stands in a position adverse to petitioner. Neither is there anyone before us who defends the results reached in those decided cases where Courts of Appeals have found an exhaustion requirement when administrative relief is sought before a court action is instituted. See, e. g., ; ; Those cases |
Justice Blackmun | 1,991 | 11 | majority | Stevens v. Department of Treasury | https://www.courtlistener.com/opinion/112582/stevens-v-department-of-treasury/ | action is instituted. See, e. g., ; ; Those cases stand in conflict with the Sixth Circuit's decision in In each of these cited cases, the United States put forward the exhaustion requirement. We must assume, in view of the Solicitor General's concession here, that the Government no longer will defend its earlier litigation position. Under these circumstances we are disinclined to rule on the merits of the exhaustion issue. We feel that our only proper course is to reverse the judgment of the Court of Appeals and to remand the case for further proceedings. On remand, the defense presumably (and it is a strong presumption) will submit to the Court of Appeals its altered positions that there is no exhaustion issue at all in this case because petitioner did not institute his court action until after a final decision of the agency had been made and, if that submission is not accepted by the court, that respondents now have withdrawn from the stance they took before the Court of Appeals on the merits. In either event, petitioner Stevens finally should gain his day in court and will not have all avenues to relief completely blocked. *11 Meanwhile, to be sure, the rulings in McGinty, Castro, and Purtill, and any other ruling to the same effect will remain outstanding and in conflict with Langford. There is little or nothing, by way of disagreement or agreement with those cases, that this Court should do in the present litigation. The cases may be respectively challenged or supported by some future litigant in a way that will lead to a definitive resolution of the existing conflict in authority. If this does not come about, then, because of the Government's change of mind and new position, any legal significance of the conflict may simply fade away with the passage of time. Reversed and remanded. JUSTICE STEVENS, concurring in part and dissenting in part. While I join the remainder of the Court's opinion, I disagree with Part IV. In my view, the Government is quite right in its present position that the statute contains no requirement that a federal employee exhaust administrative remedies before instituting a court action. The case is not moot, because the Government's position as petitioner's employer is adverse to petitioner. The adversary posture that the Court finds lacking as to the exhaustion issue is equally lacking as to the issue that the Court does decide. Compare ante, at 9-10, with ante, at 7-8. Moreover, because 29 U.S. C. 633a, the statutory provision at issue, applies only to federal employees, the |
Justice Blackmun | 1,991 | 11 | majority | Stevens v. Department of Treasury | https://www.courtlistener.com/opinion/112582/stevens-v-department-of-treasury/ | statutory provision at issue, applies only to federal employees, the adversary posture the Court awaits will never arise unless the Government once again reverses its position. The Court acknowledges that the exhaustion question is an important issue on which the lower courts are divided. See ante, at 9. The issue is also straightforward and capable of swift resolution. The Government in its argument before the Court of Appeals based its contention that exhaustion is required solely on an analogy to Title VII. See Brief for Appellees in No. 89-1432 (CA5), pp. 6-7. Unlike Title *12 VII, however, the Age Discrimination in Employment Act (ADEA) contains no express requirement that a federal employee complainant seek administrative relief. There is therefore no basis from which to infer that a complainant who has voluntarily sought administrative relief must exhaust all administrative remedies before proceeding to court. The Equal Employment Opportunity Commission, charged with interpretation of the ADEA, does not read the statute to require exhaustion by federal employees. See 29 CFR 1613.513 The only language of the ADEA relied on by those Courts of Appeals that have required exhaustion is the omission from 633a of a provision like that in Title VII allowing an employee to abandon the administrative complaint route if there has been no administrative action within 180 days.[*] This provision, however, is unnecessary in 633a because, as I have explained, the ADEA contains no requirement for federal employees equivalent to Title VII's command that a complainant first seek administrative relief. I would therefore resolve the exhaustion issue as well as the timeliness question. To that extent, I respectfully dissent from the Court's disposition. |
Justice Rehnquist | 1,979 | 19 | second_dissenting | Steelworkers v. Weber | https://www.courtlistener.com/opinion/110135/steelworkers-v-weber/ | I a very real sese, the Court's opiio is ahead of its time: it could more appropriately have bee haded dow five years from ow, i 194, a year coicidig with the title of a book from which the Court's opiio borrows, perhaps subcosciously, at least oe idea. Orwell describes i his book a govermetal official of Oceaia, oe of the three great world powers, deoucig the curret eemy, Eurasia, to a assembled crowd: "It was almost impossible to liste to him without beig first coviced ad the maddeed. The speech had bee proceedig for perhaps twety miutes whe a messeger hurried oto the platform ad a scrap of paper was slipped ito the speaker's had. He urolled ad read it without pausig i his speech. Nothig altered i his voice or maer, or i the cotet of what he was sayig, but suddely the ames were differet. Without words *0 said, a wave of uderstadig rippled through the crowd. Oceaia was at war with Eastasia! The baers ad posters with which the square was decorated were all wrog! "[T]he speaker had switched from oe lie to the other actually i mid-setece, ot oly without a pause, but without eve breakig the sytax." G. Orwell, Nietee Eighty-Four 11-1 (1949). Today's decisio represets a equally dramatic ad equally uremarked switch i this Court's iterpretatio of Title VII. The operative sectios of Title VII prohibit racial discrimiatio i employmet simpliciter. Take i its ormal meaig, ad as uderstood by all Members of Cogress who spoke to the issue durig the legislative debates, see ifra, at 31-51, this laguage prohibits a covered employer from cosiderig race whe makig a employmet decisio, whether the race be black or white. Several years ago, however, a Uited States District Court held that "the dismissal of white employees charged with misappropriatig compay property while ot dismissig a similarly charged Negro employee does ot raise a claim upo which Title VII relief may be grated." This Court uaimously reversed, cocludig from the "ucotradicted legislative history" that "Title VII prohibits racial discrimiatio agaist the white petitioers i this case upo the same stadards as would be applicable were they Negroes" We have ever wavered i our uderstadig that Title VII "prohibits all racial discrimiatio i employmet, without exceptio for ay group of particular employees." I our first occasio to iterpret Title VII, a uaimous Court observed that "[d]iscrimiatory preferece, for ay group, miority or majority, is precisely ad oly what Cogress has proscribed." Ad i our most *1 recet discussio of the issue, we uttered words seemigly dispositive of |
Justice Rehnquist | 1,979 | 19 | second_dissenting | Steelworkers v. Weber | https://www.courtlistener.com/opinion/110135/steelworkers-v-weber/ | discussio of the issue, we uttered words seemigly dispositive of this case: "It is clear beyod cavil that the obligatio imposed by Title VII is to provide a equal opportuity for each applicat regardless of race, without regard to whether members of the applicat's race are already proportioately represeted i the work force." Furco Costructio[1] Today, however, the Court behaves much like the Orwellia speaker earlier described, as if it had bee haded a ote idicatig that Title VII would lead to a result uacceptable to the Court if iterpreted here as it was i our prior decisios. Accordigly, without eve a break i sytax, the Court rejects "a literal costructio of 703 (a)" i favor of ewly discovered "legislative history," which leads it to a coclusio directly cotrary to that compelled by the "ucotradicted legislative history" uearthed i McDoald ad our other prior decisios. Now we are told that the legislative history of Title VII shows that employers are free to discrimiate o the basis of race: a employer may, i the Court's words, "trammel the iterests of the white employees" i favor of black employees i order to elimiate "racial imbalace." Ate, at 0. Our earlier iterpretatios of Title VII, like the baers ad posters decoratig the square i Oceaia, were all wrog. As if this were ot eough to make a reasoable observer questio this Court's adherece to the oft-stated priciple that our duty is to costrue rather tha rewrite legislatio, Uited the Court also seizes upo 703 (j) of Title VII as a idepedet, or at least partially idepedet, basis for its holdig. Totally igorig the wordig of that sectio, which is obviously addressed to those charged with the resposibility of iterpretig * the law rather tha those who are subject to its proscriptios, ad totally igorig the moths of legislative debates precedig the sectio's itroductio ad passage, which demostrate clearly that it was eacted to prevet precisely what occurred i this case, the Court ifers from 703 (j) that "Cogress chose ot to forbid all volutary race-coscious affirmative actio." Ate, at 06. Thus, by a tour de force remiiscet ot of jurists such as Hale, Holmes, ad Hughes, but of escape artists such as Houdii, the Court eludes clear statutory laguage, "ucotradicted" legislative history, ad uiform precedet i cocludig that employers are, after all, permitted to cosider race i makig employmet decisios. It may be that oe or more of the pricipal sposors of Title VII would have preferred to see a provisio allowig preferetial treatmet of miorities writte ito the bill. Such a provisio, |
Justice Rehnquist | 1,979 | 19 | second_dissenting | Steelworkers v. Weber | https://www.courtlistener.com/opinion/110135/steelworkers-v-weber/ | treatmet of miorities writte ito the bill. Such a provisio, however, would have to have bee expressly or impliedly excepted from Title VII's explicit prohibitio o all racial discrimiatio i employmet. There is o such exceptio i the Act. Ad a readig of the legislative debates cocerig Title VII, i which propoets ad oppoets alike uiformly deouced discrimiatio i favor of, as well as discrimiatio agaist, Negroes, demostrates clearly that ay legislator harborig a uspoke desire for such a provisio could ot possibly have succeeded i eactig it ito law. I Kaiser opeed its Gramercy, La., plat i 195. Because the Gramercy facility had o appreticeship or i-plat craft traiig program, Kaiser hired as craftworkers oly persos with prior craft experiece. Despite Kaiser's efforts to locate ad hire traied black craftsme, few were available i the Gramercy area, ad as a cosequece, Kaiser's craft positios were maed almost exclusively by whites. I February 1974, uder pressure from the Office of Federal Cotract Compliace to icrease miority represetatio i craft positios *3 at its various plats,[] ad hopig to deter the filig of employmet discrimiatio claims by miorities, Kaiser etered ito a collective-bargaiig agreemet with the Uited Steelworkers of America (Steelworkers) which created a ew o-the-job craft traiig program at 15 Kaiser facilities, icludig the Gramercy plat. The agreemet required that o less tha oe miority applicat be admitted to the traiig program for every omiority applicat util the percetage of blacks i craft positios equaled the percetage of blacks i the local work force.[3] Eligibility for the craft traiig programs *4 was to be determied o the basis of plat seiority, with black ad white applicats to be selected o the basis of their relative seiority withi their racial group. Bria Weber is white. He was hired at Kaiser's Gramercy plat i 196. I April 1974, Kaiser aouced that it was offerig a total of ie positios i three o-the-job traiig programs for skilled craft jobs. Weber applied for all three programs, but was ot selected. The successful cadidates five black ad four white applicatswere chose i accordace *5 with the 50% miority admissio quota madated uder the 1974 collective-bargaiig agreemet. Two of the successful black applicats had less seiority tha Weber.[4] Weber brought the istat class actio[5] i the Uited States District Court for the Easter District of Louisiaa, allegig that use of the 50% miority admissio quota to fill vacacies i Kaiser's craft traiig programs violated Title VII's prohibitio o racial discrimiatio i employmet. The District Court ad the Court of Appeals for the Fifth Circuit agreed, ejoiig |
Justice Rehnquist | 1,979 | 19 | second_dissenting | Steelworkers v. Weber | https://www.courtlistener.com/opinion/110135/steelworkers-v-weber/ | the Court of Appeals for the Fifth Circuit agreed, ejoiig further use of race as a criterio i admittig applicats to the craft traiig programs.[6] *6 II Were Cogress to act today specifically to prohibit the type of racial discrimiatio suffered by Weber, it would be hard pressed to draft laguage better tailored to the task tha that foud i 703 (d) of Title VII: "It shall be a ulawful employmet practice for ay employer, labor orgaizatio, or joit labor-maagemet committee cotrollig appreticeship or other traiig or retraiig, icludig o-the-job traiig programs to discrimiate agaist ay idividual because of his race, color, religio, sex, or atioal origi i admissio to, or employmet i, ay program established to provide appreticeship or other traiig." 4 U.S. C. 000e- (d). *7 Equally suited to the task would be 703 (a) (), which makes it ulawful for a employer to classify his employees "i ay way which would deprive or ted to deprive ay idividual of employmet opportuities or otherwise adversely affect his status as a employee, because of such idividual's race, color, religio, sex, or atioal origi." 4 U.S. C. 000e- (a) ().[7] Etirely cosistet with these two express prohibitios is the laguage of 703 (j) of Title VII, which provides that the Act is ot to be iterpreted "to require ay employer to grat preferetial treatmet to ay idividual or to ay group because of the race of such idividual or group" to correct a racial imbalace i the employer's work force. 4 U.S. C. 000e- (j).[] Seizig o the word "require," the Court * ifers that Cogress must have iteded to "permit" this type of racial discrimiatio. Not oly is this readig of 703 (j) outladish i the light of the flat prohibitios of 703 (a) ad (d), but, as explaied i Part III, it is also totally belied by the Act's legislative history. Quite simply, Kaiser's racially discrimiatory admissio quota is flatly prohibited by the plai laguage of Title VII. This ormally dispositive fact,[9] however, gives the Court oly mometary pause. A "iterpretatio" of the statute upholdig Weber's claim would, accordig to the Court, "`brig about a ed completely at variace with the purpose of the statute.'" Ate, at 0, quotig Uited To support this coclusio, the Court calls upo the "spirit" of the Act, which it divies from passages i Title VII's legislative history idicatig that eactmet of the statute was prompted by Cogress' desire "`to ope employmet opportuities for Negroes i occupatios which [had] bee traditioally closed to them.'" Ate, at 03, quotig 110 Cog. Rec. 654 (1964) |
Justice Rehnquist | 1,979 | 19 | second_dissenting | Steelworkers v. Weber | https://www.courtlistener.com/opinion/110135/steelworkers-v-weber/ | them.'" Ate, at 03, quotig 110 Cog. Rec. 654 (1964) (remarks of Se. Humphrey).[10] But the legislative history ivoked by *9 the Court to avoid the plai laguage of 703 (a) ad (d) simply misses the poit. To be sure, the reality of employmet discrimiatio agaist Negroes provided the primary impetus for passage of Title VII. But this fact by o meas supports the propositio that Cogress iteded to leave employers free to discrimiate agaist white persos.[11] I most *30 cases, "[l]egislative history is more vague tha the statute we are called upo to iterpret." Uited Here, however, the legislative history of Title VII is as clear as the laguage of 703 (a) ad (d), ad it irrefutably demostrates that Cogress meat precisely what it said i 703 (a) ad (d)that o racial discrimiatio i employmet is permissible uder Title VII, ot eve preferetial treatmet of miorities to correct racial imbalace. III I udertakig to review the legislative history of Title VII, I am midful that the topic hardly makes for light readig, *31 but I am also fearful that othig short of a thorough examiatio of the cogressioal debates will fully expose the magitude of the Court's misiterpretatio of Cogress' itet. A Itroduced o the floor of the House of Represetatives o Jue 0, 1963, the billH. R. 715that ultimately became the Civil Rights Act of 1964 cotaied o compulsory provisios directed at private discrimiatio i employmet. The bill was promptly referred to the Committee o the Judiciary, where it was ameded to iclude Title VII. With two exceptios, the bill reported by the House Judiciary Committee cotaied 703 (a) ad (d) as they were ultimately eacted. Amedmets subsequetly adopted o the House floor added 703's prohibitio agaist sex discrimiatio ad 703 (d)'s coverage of "o-the-job traiig." After otig that "[t]he purpose of [Title VII] is to elimiate. discrimiatio i employmet based o race, color, religio, or atioal origi," the Judiciary Committee's Report simply paraphrased the provisios of Title VII without elaboratio. H. R. Rep., pt. 1, p. 6. I a separate Miority Report, however, oppoets of the measure o the Committee advaced a lie of attack which was reiterated throughout the debates i both the House ad Seate ad which ultimately led to passage of 703 (j). Notig that the word "discrimiatio" was owhere defied i H. R. 715, the Miority Report charged that the absece from Title VII of ay referece to "racial imbalace" was a "public relatios" ruse ad that "the admiistratio iteds to rely upo its ow costructio of `discrimiatio' as icludig the lack of |
Justice Rehnquist | 1,979 | 19 | second_dissenting | Steelworkers v. Weber | https://www.courtlistener.com/opinion/110135/steelworkers-v-weber/ | its ow costructio of `discrimiatio' as icludig the lack of racial balace" H. R. Rep., pt. 1, pp. 67-6. To demostrate how the bill would operate i practice, the Miority Report posited a umber of hypothetical employmet situatios, cocludig i each example that the employer "may be forced to hire accordig to race to `racially balace' those who work for *3 him i every job classificatio or be i violatio of Federal law."[1] Whe H. R. 715 reached the House floor, the opeig speech i support of its passage was delivered by Represetative Celler, Chairma of the House Judiciary Committee ad the Cogressma resposible for itroducig the legislatio. A portio of that speech respoded to criticism "seriously misrepreset[ig] *33 what the bill would do ad grossly distort[ig] its effects": "[T]he charge has bee made that the Equal Employmet Opportuity Commissio to be established by title VII of the bill would have the power to prevet a busiess from employig ad promotig the people it wished, ad that a `Federal ispector' could the order the hirig ad promotio oly of employees of certai races or religious groups. This descriptio of the bill is etirely wrog. "Eve [a] court could ot order that ay preferece be give to ay particular race, religio or other group, but would be limited to orderig a ed of discrimiatio. The statemet that a Federal ispector could order the employmet ad promotio oly of members of a specific racial or religious group is therefore patetly erroeous. ". The Bill would do o more tha prevet employers from discrimiatig agaist or i favor of workers because of their race, religio, or atioal origi. "It is likewise ot true that the Equal Employmet Opportuity Commissio would have power to rectify existig `racial or religious imbalace' i employmet by requirig the hirig of certai people without regard to their qualificatios simply because they are of a give race or religio. Oly actual discrimiatio could be stopped." 110 Cog. Rec. 151 (1964) Represetative Celler's costructio of Title VII was repeated by several other supporters durig the House debate.[13] *34 Thus, the battle lies were draw early i the legislative struggle over Title VII, with oppoets of the measure chargig that agecies of the Federal Govermet such as the Equal Employmet Opportuity Commissio (EEOC), by iterpretig the word "discrimiatio" to mea the existece of "racial imbalace," would "require" employers to grat preferetial treatmet to miorities, ad supporters respodig that the EEOC would be grated o such power ad that, ideed, Title VII prohibits discrimiatio "i favor of workers because of their race." |
Justice Rehnquist | 1,979 | 19 | second_dissenting | Steelworkers v. Weber | https://www.courtlistener.com/opinion/110135/steelworkers-v-weber/ | prohibits discrimiatio "i favor of workers because of their race." Supporters of H. R. 715 i the House ultimately prevailed by a vote of 90 to 130,[14] ad the measure was set to the Seate to begi what became the logest debate i that body's history. *35 B The Seate debate was broke ito three phases: the debate o sedig the bill to Committee, the geeral debate o the bill prior to ivocatio of cloture, ad the debate followig cloture. 1 Whe debate o the motio to refer the bill to Committee opeed, oppoets of Title VII i the Seate immediately echoed the fears expressed by their couterparts i the House, as is demostrated by the followig colloquy betwee Seators Hill ad Ervi: "Mr. ERVIN. I ivite attetio to Sectio [703 (a)] "I ask the Seator from Alabama if the Commissio could ot tell a employer that he had too few employees, that he had limited his employmet, ad eter a order, uder [Sectio 703 (a)], requirig him to hire more persos, ot because the employer thought he eeded more persos, but because the Commissio wated to compel him to employ persos of a particular race. "Mr. HILL. The Seator is correct. That power is writte ito the bill. The employer could be forced to hire additioal persos" 110 Cog. Rec. 4764 (1964).[15] *36 Seator Humphrey, perhaps the primary movig force behid H. R. 715 i the Seate, was the first to state the propoets' uderstadig of Title VII. Respodig to a political advertisemet chargig that federal agecies were at liberty to iterpret the word "discrimiatio" i Title VII to require racial balace, Seator Humphrey stated: "[T]he meaig of racial or religious discrimiatio is perfectly clear. [I]t meas a distictio i treatmet give to differet idividuals because of their differet race, religio, or atioal origi."[16] Stressig that Title VII "does ot limit the employer's freedom to hire, fire, promote or demote for ay reasosor o reasosso log as his actio is ot *37 based o race," Seator Humphrey further stated that "othig i the bill would permit ay official or court to require ay employer or labor uio to give preferetial treatmet to ay miority group." [17] After 17 days of debate, the Seate voted to take up the bill directly, without referrig it to a committee. Cosequetly, there is o Committee Report i the Seate. Formal debate o the merits of H. R. 715 bega o March 30, 1964. Supporters of the bill i the Seate had made elaborate preparatios for this secod roud. Seator Humphrey, the majority whip, |
Justice Rehnquist | 1,979 | 19 | second_dissenting | Steelworkers v. Weber | https://www.courtlistener.com/opinion/110135/steelworkers-v-weber/ | preparatios for this secod roud. Seator Humphrey, the majority whip, ad Seator Kuchel, the miority whip, were selected as the bipartisa floor maagers o the etire civil rights bill. Resposibility for explaiig ad defedig each importat title of the bill was placed o bipartisa "captais." Seators Clark ad Case were selected as the bipartisa captais resposible for Title VII. Vaas, Title VII: Legislative History, 7 Barb. C. Id. & Com. L. Rev. 444-445 (1966) (hereiafter Title VII: Legislative History). I the opeig speech of the formal Seate debate o the bill, Seator Humphrey addressed the mai cocer of Title *3 VII's oppoets, advisig that ot oly does Title VII ot require use of racial quotas, it does ot permit their use. "The truth," stated the floor leader of the bill, "is that this title forbids discrimiatig agaist ayoe o accout of race. This is the simple ad complete truth about title VII." 110 Cog. Rec. 6549 (1964). Seator Humphrey cotiued: "Cotrary to the allegatios of some oppoets of this title, there is othig i it that will give ay power to the Commissio or to ay court to require hirig, firig, or promotio of employees i order to meet a racial `quota' or to achieve a certai racial balace. "That bugaboo has bee brought up a doze times; but it is oexistet. I fact, the very opposite is true. Title VII prohibits discrimiatio. I effect, it says that race, religio ad atioal origi are ot to be used as the basis for hirig ad firig. Title VII is desiged to ecourage hirig o the basis of ability ad qualificatios, ot race or religio." At the close of his speech, Seator Humphrey retured briefly to the subject of employmet quotas: "It is claimed that the bill would require racial quotas for all hirig, whe i fact it provides that race shall ot be a basis for makig persoel decisios." Seator Kuchel delivered the secod major speech i support of H. R. 715. I addressig the cocers of the oppositio, he observed that "[]othig could be further from the truth" tha the charge that "Federal ispectors" would be empowered uder Title VII to dictate racial balace ad preferetial advacemet of miorities. Seator Kuchel emphasized that seiority rights would i o way be affected by Title VII: "Employers ad labor orgaizatios could ot discrimiate i favor of or agaist a perso because of his race, his religio, or his atioal origi. I such matters. the bill ow before us is color-blid." *39 A few days later the Seate's attetio focused exclusively o Title |
Justice Rehnquist | 1,979 | 19 | second_dissenting | Steelworkers v. Weber | https://www.courtlistener.com/opinion/110135/steelworkers-v-weber/ | few days later the Seate's attetio focused exclusively o Title VII, as Seators Clark ad Case rose to discuss the title of H. R. 715 o which they shared floor "captai" resposibilities. I a iterpretative memoradum submitted joitly to the Seate, Seators Clark ad Case took pais to refute the oppositio's charge that Title VII would result i preferetial treatmet of miorities. Their words were clear ad uequivocal: "There is o requiremet i title VII that a employer maitai a racial balace i his work force. O the cotrary, ay deliberate attempt to maitai a racial balace, whatever such a balace may be, would ivolve a violatio of title VII because maitaiig such a balace would require a employer to hire or to refuse to hire o the basis of race. It must be emphasized that discrimiatio is prohibited as to ay idividual."[1] *40 Of particular relevace to the istat litigatio were their observatios regardig seiority rights. As if directig their commets at Bria Weber, the Seators said: "Title VII would have o effect o established seiority rights. Its effect is prospective ad ot retrospective. Thus, for example, if a busiess has bee discrimiatig i the past ad as a result has a all-white workig force, whe the title comes ito effect the employer's obligatio would be simply to fill future vacacies o a odiscrimiatory basis. He would ot be obligedor ideed permitted to fire whites i order to hire Negroes, or to prefer Negroes for future vacacies, or, oce Negroes are hired, to give them special seiority rights at the expese of the white workers hired earlier."[19] *41 Thus, with virtual clairvoyace the Seate's leadig supporters of Title VII aticipated precisely the circumstaces of this case ad advised their colleagues that the type of miority preferece employed by Kaiser would violate Title VII's ba o racial discrimiatio. To further accetuate the poit, Seator Clark itroduced aother memoradum dealig with commo criticisms of the bill, icludig the charge that racial quotas would be imposed uder Title VII. The aswer was simple ad to the poit: "Quotas are themselves discrimiatory." Despite these clear statemets from the bill's leadig ad most kowledgeable propoets, the fears of the oppoets *4 were ot put to rest. Seator Robertso reiterated the view that "discrimiatio" could be iterpreted by a federal "bureaucrat" to require hirig quotas.[0] Seators Smathers ad Sparkma, while cocedig that Title VII does ot i so may words require the use of hirig quotas, repeated the oppositio's view that employers would be coerced to grat preferetial hirig treatmet to miorities by agecies of |
Justice Rehnquist | 1,979 | 19 | second_dissenting | Steelworkers v. Weber | https://www.courtlistener.com/opinion/110135/steelworkers-v-weber/ | to grat preferetial hirig treatmet to miorities by agecies of the Federal Govermet.[1] Seator Williams was quick to respod: "Those opposed to H. R. 715 should realize that to hire a Negro solely because he is a Negro is racial discrimiatio, just as much as a `white oly' employmet policy. Both forms of discrimiatio are prohibited by title VII of this bill. The laguage of that title simply states that race is ot a qualificatio for employmet. Some people charge that H. R. 715 favors the Negro, at the expese of the white majority. But how ca the laguage of equality favor oe race or oe religio over aother? Equality ca have oly oe meaig, ad that meaig is self-evidet to reasoable me. Those who say that equality meas favoritism do violece to commo sese." *43 Seator Williams cocluded his remarks by otig that Title VII's oly purpose is "the elimiatio of racial ad religious discrimiatio i employmet." [] O May 5, Seator Humphrey agai took the floor to defed the bill agaist "the well-fiaced drive by certai oppoets to cofuse ad mislead the America people." Turig oce agai to the issue of preferetial treatmet, Seator Humphrey remaied faithful to the view that he had repeatedly expressed: "The title does ot provide that ay preferetial treatmet i employmet shall be give to Negroes or to ay other persos or groups. It does ot provide that ay quota systems may be established to maitai racial balace i employmet. I fact, the title would prohibit preferetial treatmet for ay particular group, ad ay perso, whether or ot a member of ay miority group, would be permitted to file a complait of discrimiatory employmet practices." While the debate i the Seate raged, a bipartisa coalitio uder the leadership of Seators Dirkse, Masfield, Humphrey, ad Kuchel was workig with House leaders ad represetatives of the Johso admiistratio o a umber of amedmets to H. R. 715 desiged to ehace its prospects of passage. The so-called "Dirkse-Masfield" amedmet was itroduced o May 6 by Seator Dirkse as a substitute for the etire House-passed bill. The substitute bill, which ultimately became law, left uchaged the basic prohibitory laguage of 703 (a) ad (d), as well as the remedial provisios i 706 (g). It added, however, several provisios defiig ad clarifyig the scope of Title VII's substative prohibitios. *44 Oe of those clarifyig amedmets, 703 (j), was specifically directed at the oppositio's cocers regardig racial balacig ad preferetial treatmet of miorities, providig i pertiet part: "Nothig cotaied i [Title VII] shall be iterpreted to require ay employer |
Justice Rehnquist | 1,979 | 19 | second_dissenting | Steelworkers v. Weber | https://www.courtlistener.com/opinion/110135/steelworkers-v-weber/ | i [Title VII] shall be iterpreted to require ay employer to grat preferetial treatmet to ay idividual or to ay group because of the race of such idividual or group o accout of" a racial imbalace i the employer's work force. 4 U.S. C. 000e- (j); quoted i full i The Court draws from the laguage of 703 (j) primary support for its coclusio that Title VII's blaket prohibitio o racial discrimiatio i employmet does ot prohibit preferetial treatmet of blacks to correct racial imbalace. Allegig that oppoets of Title VII had argued (1) that the Act would be iterpreted to require employers with racially imbalaced work forces to grat preferetial treatmet to miorities ad () that "employers with racially imbalaced work forces would grat preferetial treatmet to racial miorities, eve if ot required to do so by the Act," ate, at 05, the Court cocludes that 703 (j) is resposive oly to the oppoets' first objectio ad that Cogress therefore must have iteded to permit volutary, private discrimiatio agaist whites i order to correct racial imbalace. Cotrary to the Court's aalysis, the laguage of 703 (j) is precisely tailored to the objectio voiced time ad agai by Title VII's oppoets. Not oce durig the 3 days of debate i the Seate did a speaker, propoet or oppoet, suggest that the bill would allow employers volutarily to prefer racial miorities over white persos.[3] I light of Title VII's flat *45 prohibitio o discrimiatio "agaist ay idividual because of such idividual's race," 703 (a), 4 U.S. C. 000e- (a), such a cotetio would have bee, i ay evet, too preposterous to warrat respose. Ideed, speakers o both sides of the issue, as the legislative history makes clear, recogized that Title VII would tolerate o volutary racial preferece, whether i favor of blacks or whites. The complait cosistetly voiced by the oppoets was that Title VII, particularly the word "discrimiatio," would be iterpreted by federal agecies such as the EEOC to require the *46 correctio of racial imbalace through the gratig of preferetial treatmet to miorities. Verbal assuraces that Title VII would ot requireideed, would ot permitpreferetial treatmet of blacks havig failed, supporters of H. R. 715 respoded by proposig a amedmet carefully worded to meet, ad put to rest, the oppositio's charge. Ideed, ulike 703 (a) ad (d), which are by their terms directed at etitiese. g., employers, labor uioswhose actios are restricted by Title VII's prohibitios, the laguage of 703 (j) is specifically directed at etitiesfederal agecies ad courtscharged with the resposibility of iterpretig Title VII's provisios.[4] I light of |
Justice Rehnquist | 1,979 | 19 | second_dissenting | Steelworkers v. Weber | https://www.courtlistener.com/opinion/110135/steelworkers-v-weber/ | the resposibility of iterpretig Title VII's provisios.[4] I light of the backgroud ad purpose of 703 (j), the iroy of ivokig the sectio to justify the result i this case is obvious. The Court's frequet refereces to the "volutary" ature of Kaiser's racially discrimiatory admissio quota bear o relatioship to the facts of this case. Kaiser ad the Steelworkers acted uder pressure from a agecy of the Federal Govermet, the Office of Federal Cotract Compliace, which foud that miorities were beig "uderutilized" at Kaiser's plats. See That is, Kaiser's work force was racially imbalaced. Bowig to that pressure, Kaiser istituted a admissios quota preferrig blacks over whites, thus cofirmig that the fears of Title VII's oppoets were well fouded. Today, 703 (j), adopted to allay those fears, is ivoked by the Court to uphold impositio of a racial quota uder the very circumstaces that the sectio was iteded to prevet.[5] *47 Sectio 703 (j) apparetly calmed the fears of most of the oppoets; after its itroductio, complaits cocerig racial balace ad preferetial treatmet died dow cosiderably.[6] Propoets of the bill, however, cotiued to reassure the oppositio that its cocers were ufouded. I a legthy defese of the etire civil rights bill, Seator Muskie emphasized that the oppositio's "torret of words caot obscure this basic, simple truth: Every America citize has the right to equal treatmetot favored treatmet, ot complete *4 idividual equalityjust equal treatmet." 110 Cog. Rec. 1614 (1964). With particular referece to Title VII, Seator Muskie oted that the measure "seeks to afford to all Americas equal opportuity i employmet without discrimiatio. Not equal pay Not `racial balace.' Oly equal opportuity." at 1617.[7] Seator Saltostall, Chairma of the Republica Coferece of Seators participatig i the draftig of the Dirkse-Masfield amedmet, spoke at legth o the substitute bill. He advised the Seate that the Dirkse-Masfield substitute, which icluded 703 (j), "provides o preferetial treatmet for ay group of citizes. I fact, it specifically prohibits such treatmet." 110 Cog. Rec. 1691 (1964)[] *49 O Jue 9, Seator Ervi offered a amedmet that would etirely delete Title VII from the bill. I aswer to Seator Ervi's cotetio that Title VII "would make the members of a particular race special favorites of the laws," Seator Clark retorted: "The bill does ot make ayoe higher tha ayoe else. It establishes o quotas. It leaves a employer free to select whomever he wishes to employ. "All this is subject to oe qualificatio, ad that qualificatio, is to state: `I your activity as a employer you must ot discrimiate because of the color of a ma's |
Justice Rehnquist | 1,979 | 19 | second_dissenting | Steelworkers v. Weber | https://www.courtlistener.com/opinion/110135/steelworkers-v-weber/ | must ot discrimiate because of the color of a ma's ski.' "That is all this provisio does. "It merely says, `Whe you deal i iterstate commerce, you must ot discrimiate o the basis of race'" at 1300. The Ervi amedmet was defeated, ad the Seate tured its attetio to a amedmet proposed-by Seator Cotto to limit applicatio of Title VII to employers of at least 100 employees. Durig the course of the Seate's deliberatios o the amedmet, Seator Cotto had a revealig discussio with Seator Curtis, also a oppoet of Title VII. Both me expressed dismay that Title VII would prohibit preferetial hirig of "members of a miority race i order to ehace their opportuity": "Mr. CURTIS. Is it ot the opiio of the Seator that ay idividuals who provide jobs for a class of people who have perhaps ot had sufficiet opportuity for jobs should be commeded rather tha outlawed? *50 "Mr. COTTON. Ideed it is." at 1306.[9] Thus, i the oly exchage o the Seate floor raisig the possibility that a employer might wish to reserve jobs for miorities i order to assist them i overcomig their employmet disadvatage, both speakers cocluded that Title VII prohibits such, i the words of the Court, "volutary, private, race-coscious efforts to abolish traditioal patters of racial *51 segregatio ad hierarchy." Ate, at 04. Immediately after this discussio, both Seator Dirkse ad Seator Humphrey took the floor i defese of the 5-employee limit cotaied i the Dirkse-Masfield substitute bill, ad either Seator disputed the coclusios of Seators Cotto ad Curtis. The Cotto amedmet was defeated. 3 O Jue 10, the Seate, for the secod time i its history, imposed cloture o its Members. The limited debate that followed cetered o proposed amedmets to the Dirkse-Masfield substitute. Of some 4 proposed amedmets, oly 5 were adopted. As the civil rights bill approached its fial vote, several supporters rose to urge its passage. Seator Muskie adverted briefly to the issue of preferetial treatmet: "It has bee said that the bill discrimiates i favor of the Negro at the expese of the rest of us. It seeks to do othig more tha to lift the Negro from the status of iequality to oe of equality of treatmet." 110 Cog. Rec. 143 (1964) Seator Moss, i a speech delivered o the day that the civil rights bill was fially passed, had this to say about quotas: "The bill does ot accord to ay citize advatage or prefereceit does ot fix quotas of employmet or school populatioit does ot force persoal associatio. What it does is to |
Justice Rehnquist | 1,979 | 19 | second_dissenting | Steelworkers v. Weber | https://www.courtlistener.com/opinion/110135/steelworkers-v-weber/ | does ot force persoal associatio. What it does is to prohibit public officials ad those who ivite the public geerally to patroize their busiesses or to apply for employmet, to utilize the offesive, humiliatig, ad cruel practice of discrimiatio o the basis of race. I short, the bill does ot accord special cosideratio; it establishes equality." at 1444 Later that day, Jue 19, the issue was put to a vote, ad the Dirkse-Masfield substitute bill was passed. *5 C The Act's retur egagemet i the House was brief. The House Committee o Rules reported the Seate versio without amedmets o Jue 30, 1964. By a vote of 9 to 16, the House adopted H. Res. 79, thus agreeig to the Seate's amedmets of H. R. 715.[30] Later that same day, July the Presidet siged the bill ad the Civil Rights Act of 1964 became law. IV Readig the laguage of Title VII, as the Court purports to do, "agaist the backgroud of [its] legislative history ad the historical cotext from which the Act arose," ate, at 01, oe is led iescapably to the coclusio that Cogress fully uderstood what it was sayig ad meat precisely what it said. Oppoets of the civil rights bill did ot argue that employers would be permitted uder Title VII volutarily to grat preferetial treatmet to miorities to correct racial imbalace. The plai laguage of the statute too clearly prohibited such racial discrimiatio to admit of ay doubt. They argued, tirelessly, that Title VII would be iterpreted by federal agecies ad their agets to require uwillig employers to racially balace their work forces by gratig preferetial treatmet to miorities. Supporters of H. R. 715 *53 respoded, equally tirelessly, that the Act would ot be so iterpreted because ot oly does it ot require preferetial treatmet of miorities, it also does ot permit preferetial treatmet of ay race for ay reaso. It caot be doubted that the propoets of Title VII uderstood the meaig of their words, for "[s]eldom has similar legislatio bee debated with greater cosciousess of the eed for `legislative history,' or with greater care i the makig thereof, to guide the courts i iterpretig ad applyig the law." Title VII: Legislative History, at 444. To put a ed to the dispute, supporters of the civil rights bill drafted ad itroduced 703 (j). Specifically addressed to the oppositio's charge, 703 (j) simply ejois federal agecies ad courts from iterpretig Title VII to require a employer to prefer certai racial groups to correct imbalaces i his work force. The sectio says othig about volutary preferetial |
Justice Rehnquist | 1,979 | 19 | second_dissenting | Steelworkers v. Weber | https://www.courtlistener.com/opinion/110135/steelworkers-v-weber/ | his work force. The sectio says othig about volutary preferetial treatmet of miorities because such racial discrimiatio is plaily proscribed by 703 (a) ad (d). Ideed, had Cogress iteded to except volutary, race-coscious preferetial treatmet from the blaket prohibitio of racial discrimiatio i 703 (a) ad (d), it surely could have drafted laguage better suited to the task tha 703 (j). It kew how. Sectio 703 (i) provides: "Nothig cotaied i [Title VII] shall apply to ay busiess or eterprise o or ear a Idia reservatio with respect to ay publicly aouced employmet practice of such busiess or eterprise uder which a preferetial treatmet is give to ay idividual because he is a Idia livig o or ear a reservatio." 7 Stat. 57, 4 U.S. C. 000e- (i). V Our task i this case, like ay other case ivolvig the costructio of a statute, is to give effect to the itet of Cogress. To divie that itet, we traditioally look first to the *54 words of the statute ad, if they are uclear, the to the statute's legislative history. Fidig the desired result hopelessly foreclosed by these covetioal sources, the Court turs to a third sourcethe "spirit" of the Act. But close examiatio of what the Court proffers as the spirit of the Act reveals it as the spirit aimatig the preset majority, ot the th Cogress. For if the spirit of the Act eludes the cold words of the statute itself, it rigs out with umistakable clarity i the words of the elected represetatives who made the Act law. It is equality. Seator Dirkse, I thik, captured that spirit i a speech delivered o the floor of the Seate just momets before the bill was passed: ". [T]oday we come to grips fially with a bill that advaces the ejoymet of livig; but, more tha that, it advaces the equality of opportuity. "I do ot emphasize the word `equality' stadig by itself. It meas equality of opportuity i the field of educatio. It meas equality of opportuity i the field of employmet. It meas equality of opportuity i the field of participatio i the affairs of govermet "That is it. "Equality of opportuity, if we are goig to talk about cosciece, is the mass cosciece of makid that speaks i every geeratio, ad it will cotiue to speak log after we are dead ad goe." 110 Cog. Rec. 14510 (1964). There is perhaps o device more destructive to the otio of equality tha the umerus claususthe quota. Whether described as "beig discrimiatio" or "affirmative actio," the racial quota is |
Justice Rehnquist | 1,972 | 19 | dissenting | Gelbard v. United States | https://www.courtlistener.com/opinion/108596/gelbard-v-united-states/ | Disposition of these cases depends on the sorting of admittedly conflicting implications from different sections of the principal statute involved. The Court's conclusion, while supportable if regard be had only for the actual language of the sections, is by no means compelled by that language. Its conclusion is reached in utter disregard of the relevant legislative history, and quite with consideration of the sharp break that it represents with the historical modus operandi of the grand jury. It is, in my opinion, wrong. The Court states the question to be whether witnesses threatened with contempt under 28 U.S. C. 1826 (a) "are entitled to invoke this prohibition of 2515 as a defense to contempt charges brought against them for refusing to testify." Ante, at 43. The question as thus framed by the Court has been so abstracted and refined, and divorced from the particulars of these two cases, as to virtually invite the erroneous answer that the opinion of the Court gives. Nor is it accurate to "assume," as the Court does, that the Government's overhearing of these witnesses was in violation of the applicable statute. Petitioner Gelbard contended in the trial court that the United States planned to use his electronically overheard conversations as one basis for questioning him before the grand jury, and so stated in a presentation to that court. The Government in a reply affidavit stated that whatever information had been gathered as a result of electronic overhearing had been obtained from wiretaps conducted *72 pursuant to court order as provided in 18 U.S. C. 2518.[1] Parnas, so far as this record shows, made no similar allegation in the trial court. The Court of Appeals in its opinion described the position taken by these witnesses in the following language: "When cited for contempt in the district court, each attacked the constitutional validity of Section 2518, and additionally urged that he should not be required to testify until and unless first allowed to inspect all applications, orders, tapes and transcripts relating to such electronic surveillance and afforded an opportunity to suppress the use before the grand jury of any evidence so secured" Thus what was presented to the trial court in this proceeding under 18 U.S. C. 1826 (a) was not a neatly stipulated question of law, but a demand by the petitioners that they be permitted to roam at will among the prosecutor's records in order to see whether they might be able to turn up any evidence indicating that the Government's overhearing of their conversations had been unauthorized by statute. In order to determine whether |
Justice Rehnquist | 1,972 | 19 | dissenting | Gelbard v. United States | https://www.courtlistener.com/opinion/108596/gelbard-v-united-states/ | had been unauthorized by statute. In order to determine whether this particular type of remedy is open to these petitioners at this particular stage of potential criminal proceedings it is not enough to recite, as the Court does, that 18 U.S. C. 2515 prohibits the use of illegally overheard wire communications before grand juries as well as before other governmental bodies. This *73 proposition is not disputed. The far more difficult inquiry posed by these facts is whether the granting to these petitioners, at this particular stage of these proceedings, of sweeping discovery as a prelude to a full hearing on the issue of alleged unlawful surveillance can fairly be inferred from the enactment by Congress of the two statutes relied on in the Court's opinion. I It may be helpful at the set to treat briefly the background of 28 U.S. C. 1826 (a). As the Court notes, this provision was enacted as a part of the Organized Crime Control Act of 1970, and the Senate Report states that it was intended to codify the "present practice" of the federal courts. S. Rep. No. 91-617, p. 148 The existing practice of the federal courts prior to the enactment of this section was based on Fed. Rule Crim. Proc. 42 and on 18 U.S. C. 401, both of which dealt generally with the power of courts to punish for contempt. The enactment of 1826 (a) appears to have resulted from a desire on the part of Congress to treat separately from the general contempt power of courts their authority to deal with recalcitrant witnesses in court or grand jury proceedings. Since, as the Senate Report states, the enactment of this provision was designed to "codify present practice" it is instructive to note the types of claims litigated in connection with grand jury matters under Rule 42 and 18 U.S. C. 401 prior to the enactment of this new section. So far as the reported decisions of this Court and of the lower federal courts reveal, prior litigation with respect to grand juries has dealt almost exclusively with questions of privilege, and most of these cases have dealt with issues of the privilege against self-incrimination. While it is plain that the respondent in such proceedings was entitled to a hearing and to adduce evidence, it is equally plain that the *74 typical hearing was short in duration and largely devoted to the arguments of counsel on an agreed statement of facts.[2] Some of the flavor of the type of proceeding contemplated under the prior practice is gleaned from the following passage |
Justice Rehnquist | 1,972 | 19 | dissenting | Gelbard v. United States | https://www.courtlistener.com/opinion/108596/gelbard-v-united-states/ | under the prior practice is gleaned from the following passage in the Court's opinion in : "There can be no question that courts have inherent power to enforce compliance with their lawful orders through civil contempt And it is essential that courts be able to compel the appearance and testimony of witnesses A grand jury subpoena must command the same respect Where contempt consists of a refusal to obey a court order to testify at any stage in judicial proceedings, the witness may be confined until compliance." These proceedings seem almost invariably to have been short and summary in nature, not because the defendant was to be denied a fair hearing, but because the type of issue that could be raised at such a proceeding was one which did not generally permit extensive factual development. Even where a court of appeals reversed a contempt adjudication because of the district court's failure to allow the defendant to testify on his own behalf with respect to material issues, there was no hint of either the right to, or the necessity for, any discovery proceedings against the Government. Congress was, of course, free to expand the scope of inquiry in these proceedings, to enlarge the issues to *75 be tried, and to alter past practice in any other way that it chose consistently with the Constitution. But in view of the stated congressional intent to "codify present practice" by the enactment of 1826 (a), we should require rather strong evidence of congressional purpose to conclude that Congress intended to engraft on the traditional and rather summary contempt hearings a new type of hearing in which a grand jury witness is accorded carte blanche discovery of all of the Government's "applications, orders, tapes, and transcripts relating to such electronic surveillance" before he may be required to testify. 443 F.2d, at II Just as Congress was not writing on a clean slate in the area of contempt hearings, it was not writing on a clean slate with respect to the nature of grand jury proceedings. These petitioners were called before a grand jury that had been convened to investigate violations of federal laws. We deal, therefore, not with the rights of a criminal defendant in the traditional adversary context of a trial, but with the status of witnesses summoned to testify before a body devoted to sifting evidence that could result in the presentment of criminal charges. Just as the cases arising under the antecedents of 28 U.S. C. 1826 (a) suggest a limitation on the type of issue which may be litigated in such |
Justice Rehnquist | 1,972 | 19 | dissenting | Gelbard v. United States | https://www.courtlistener.com/opinion/108596/gelbard-v-united-states/ | the type of issue which may be litigated in such a proceeding, cases dealing with the role of the grand jury stress the unique breadth of its scope of inquiry. In this Court defined the vital investigatory function of the grand jury: "It is a grand inquest, a body with powers of investigation and inquisition, the scope of whose inquiries is not to be limited narrowly by questions of propriety or forecasts of the probable result of *76 the investigation, or by doubts whether any particular individual will be found properly subject to an accusation of crime. As has been said before, the identity of the offender, and the precise nature of the offense, if there be one, normally are developed at the conclusion of the grand jury's labors, not at the beginning." Another passage from Blair pointed the citizen's obligation to obey the process of the grand jury: "[I]t is clearly recognized that the giving of testimony and the attendance upon court or grand jury in order to testify are public duties which every person within the jurisdiction of the Government is bound to perform upon being properly summoned." In the Court traced the development of the English grand jury and concluded that the probable intent of the Framers of our Constitution was to parallel that institution as it had existed in England where "[g]rand jurors were selected from the body of the people and their work was not hampered by rigid procedural or evidential rules." 350 U.S., at The Court in Costello was at pains to point the necessity of limiting the nature of challenges to evidence adduced before a grand jury if that body were to retain its traditional comprehensive investigative authority: "If indictments were to be held open to challenge on the ground that there was inadequate or incompetent evidence before the grand jury, the resulting delay would be great indeed. The result of such a rule would be that before trial on the merits a defendant could always insist on the kind of preliminary trial to determine the competency and *77 adequacy of the evidence before the grand jury." While this general statement applied by its terms only to one who was ultimately indicted by the grand jury, its reasoning applies with like force to one who seeks to make an evidentiary challenge to grand jury proceedings on the basis of his status as a prospective witness. Indeed, time-consuming challenges by witnesses during the course of a grand jury investigation would be far more inimical to the function of that body than would a motion |
Justice Rehnquist | 1,972 | 19 | dissenting | Gelbard v. United States | https://www.courtlistener.com/opinion/108596/gelbard-v-united-states/ | to the function of that body than would a motion to dismiss an indictment after it had concluded its deliberations. In the Court refused to accord to petitioners the hearing, prior to trial, on the issue of whether or not a grand jury which indicted them had made direct or derivative use of materials the use of which by an earlier grand jury had been held to violate the petitioners' privilege against self-incrimination. In supporting its conclusion that the petitioners should not even be accorded a hearing to sustain these contentions, the Court quoted a passage from Costello describing the grand jury as " `[an] institution, in which laymen conduct their inquiries unfettered by technical rules. Neither justice nor the concept of a fair trial requires such a change. In a trial on the merits, defendants are entitled to a strict observance of all the rules designed to bring ab a fair verdict. Defendants are not entitled, however, to a rule which would result in interminable delay but add nothing to the assurance of a fair trial.' " It seems to me to be clear beyond cavil from these cases that prior to the enactment of the Omnibus Crime Control and Safe Streets Act of 1968, a hearing such as *78 that which the Court awards these petitioners was not only unauthorized by law, but completely contrary to the ingrained principles which have long governed the functioning of the grand jury. III When Congress set to enact the two statutes on which the Court relies, it was certainly not with any announced intent to change the nature of contempt hearings relating to grand jury proceedings, or to change the modus operandi of the grand jury. Instead, largely in response to the decisions of this Court in and Congress undertook to draft comprehensive legislation both authorizing the use of evidence obtained by electronic surveillance on specified conditions, and prohibiting its use otherwise. S. Rep. No. 1097, 90th Cong., 2d Sess., 66 (1968). The ultimate result was the 1968 Act. Critical to analysis of the issue involved here are 2515 and 2518 (10) (a) of that Act, which provide in pertinent part as follows: "Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority if the disclosure of that information would be in violation of this chapter." 2515. "Any aggrieved person |
Justice Rehnquist | 1,972 | 19 | dissenting | Gelbard v. United States | https://www.courtlistener.com/opinion/108596/gelbard-v-united-states/ | be in violation of this chapter." 2515. "Any aggrieved person in any trial, hearing, or proceeding in or before any court, department, officer, agency, regulatory body, or other authority of the United States, a State, or a political subdivision thereof, may move to suppress the contents of any *79 intercepted wire or oral communication, or evidence derived therefrom, on the grounds that "(i) the communication was unlawfully intercepted; "(ii) the order of authorization or approval under which it was intercepted is insufficient on its face; or "(iii) the interception was not made in conformity with the order of authorization or approval." 2518 (10) (a). Here is presented at the very least an implied conflict between two separate sections of the same Act. Section 2515 proscribes generally the use of unlawfully intercepted communications as evidence before a number of specified bodies, including a grand jury. Section 2518 (10) (a) provides for the type of hearing that petitioners sought and were denied by the District Court; it provides such hearings in connection with a number of specified legal proceedings, but it conspicuously omits proceedings before a grand jury. The method by which the Court solves this dilemma is to state that if petitioners succeed after their discovery in establishing their claim of unlawful electronic surveillance, their questioning before the grand jury on the basis of such electronic surveillance would violate 2515 as, of course, it presumptively would. Therefore, says the Court, petitioners must be entitled to the discovery and factual hearing which they seek, even though 2518 (10) (a) rather clearly denies it to them by implication. A construction which I believe at least equally plausible, based simply on the juxtaposition of the various sections of the statute, is that 2515 contains a basic proscription of certain conduct, but does not attempt to specify remedies or rights arising from a breach of that proscription; the specification of remedies is left *80 to other sections. Other sections provide several remedies; criminal and civil sanctions are imposed by 2511 and 2520, whereas 2518 (10) (a) accords a right to a suppression hearing in specified cases. Thus the fact that one who may be the victim of alleged unlawful surveillance on the part of the Government is not accorded an -type suppression hearing ) under the provisions of 2518 (10) (a) is not left remediless to such a degree that it must be presumed to have been an oversight; he is remitted to the institution of civil proceedings, or the filing of a complaint leading to the institution of a criminal prosecution. While the latter |
Justice Rehnquist | 1,972 | 19 | dissenting | Gelbard v. United States | https://www.courtlistener.com/opinion/108596/gelbard-v-united-states/ | to the institution of a criminal prosecution. While the latter two remedies may not be as efficacious in many situations as a suppression hearing, the remission of an aggrieved party to those remedies certainly does not render nugatory the general proscription contained in 2515. The omission of "grand jury" from the designated forums in 2518 (10) (a) is not explainable on the basis that though the testimony is sought to be adduced before a grand jury, the motion to suppress would actually be made in a court, which is one of the forums designated in 2518 (10) (a). The language "in any trial, hearing, or proceeding in or before" quite clearly refers to the forum in which the testimony is sought to be adduced. But even more significant is the inclusion among the designated forums of "department," "officer," "agency," and "regulatory body." Congress has almost with exception provided that issues as to the legality and propriety of subpoenas issued by either agencies or executive departments should be resolved by the courts. It has accomplished this result by requiring the agency to bring an independent judicial action to enforce obedience to its subpoena. See, e. g., 15 U.S. C. 79r, Public Utility Holding Company Act of 1935; 15 U.S. C. 78u, Securities Exchange Act of 1934; 41 U.S. C. 35-45. Walsh-Healey *81 Act; 50 U.S. C. App. 2155, Defense Production Act of 1950; 47 U.S. C. 409 (f) and (g), Communications Act of 1934; 46 U.S. C. 1124, Merchant Marine Act, 1936; 26 U.S. C. 7604, Internal Revenue Code of ; 16 U.S. C. 825f (c), Electric Utility Companies Act; 15 U.S. C. 717m (d), Natural Gas Act; 7 U.S. C. 511n, Tobacco Inspection Act. This general mode of enforcement of agency investigative subpoenas was discussed in the context of the Fair Labor Standards Act in Oklahoma Press Publishing Thus, if Congress in 2518 had intended to focus on the forum in which the hearing as to the legality of the subpoena is to be determined, rather than the forum in which the testimony is sought to be adduced, it would have omitted not only grand juries, but departments, officers, agencies, and regulatory bodies as well from the coverage of 2518 (10) (a). For questions as to the legality of subpoenas issued by all these bodies are resolved in the courts. By omitting only grand juries in 2518, Congress indicated that it was dealing with the forum in which the testimony was sought to be adduced, and that the suppression hearing authorized by the section was not to be available to |
Justice Rehnquist | 1,972 | 19 | dissenting | Gelbard v. United States | https://www.courtlistener.com/opinion/108596/gelbard-v-united-states/ | authorized by the section was not to be available to grand jury witnesses. In the light of these conflicting implications from the statutory language itself, resort to the legislative history is appropriate. Passages from the legislative history cited by the Court in its opinion do not focus at all on the availability of a suppression hearing in grand jury proceedings; they simply speak in general terms of the congressional intent to prohibit and penalize unlawful electronic surveillance, of which intent there can, of course, be no doubt. But several parts of the legislative history address themselves, far more particularly than any relied upon by the Court in its opinion, to the actual issue before us. The Senate Report, for example, *82 indicates as plainly as possible that the exclusion of grand juries from the language of 2518 (10) (a) was deliberate: "This provision [ 2518 (10) (a)] must be read in connection with sections 2515 and 2517, discussed above, which it limits. It provides the remedy for the right created by section 2515. Because no person is a party as such to a grand jury proceeding, the provision does not envision the making of a motion to suppress in the context of such a proceeding itself. Normally, there is no limitation on the character of evidence that may be presented to a grand jury, which is enforcible by an individual. [United] There is no intent to change this general rule. It is the intent of the provision only that when a motion to suppress is granted in another context, its scope may include use in a future grand jury proceeding." S. Rep. No. 1097, 90th Cong., 2d Sess., 106 (1968). (Emphasis added.) There is an intimation in the opinion of the Court that the reason this language was used may have been that grand juries do not pass upon motions to suppress, while courts do. This intimation is not only inconsistent with the language of the section itself, as pointed but it attributes to the drafters of the report a lower level of understanding of the subject matter with which they were dealing than I believe is justified. It is also rather squarely contradicted by the statement that there is no limitation on the character of evidence that may be presented to a grand jury "which is enforcible by an individual." Had the report meant to stress the presumably well-known fact that grand juries do not themselves grant motions to suppress, it would not have *83 used that language, nor would it have cited United The fact that the report |
Justice Rehnquist | 1,972 | 19 | dissenting | Gelbard v. United States | https://www.courtlistener.com/opinion/108596/gelbard-v-united-states/ | would it have cited United The fact that the report states the reason for the policy adopted in terms of the rights of an "individual," rather than in terms of the rights of a "defendant," makes the Court's discussion of the doctrine of various cases, ante, at 60, of doubtful help in construing the statute. Whatever United may be said to "hold" after careful analysis by this Court, the drafters of the Senate Report undoubtedly took it to stand for the proposition for which they cited it. As stated by Mr. Justice Frankfurter, concurring in 189: "The fact that scholarship has shown that historical assumptions regarding the procedure for punishment of contempt of court were ill-founded, hardly wipes a century and a half of the legislative and judicial history of federal law based on such assumptions." Not only does the report dealing with 2518 (10) (a) make clear that it is to be construed in connection with 2515, which it limits, but the section of the same report dealing with 2515 re-emphasizes this conclusion. Speaking of the latter section, the report says: "The provision must, of course, be read in light of section 2518 (10) (a) discussed below, which defines the class entitled to make a motion to suppress. It largely reflects existing law. Nor generally [is there any intention] to press the scope of the suppression rule beyond present search and seizure law. See The provision thus forms an integral part of the system of limitations designed to protect privacy. Along with the criminal and *84 civil remedies, it should serve to guarantee that the standards of the new chapter will sharply curtail the unlawful interception of wire and oral communications." S. Rep. No. 1097, 90th Cong., 2d Sess., 96 (1968). The conclusion that 2518 (10) (a) is the exclusive source of the right to move to suppress is further fortified by the Senate Report's comment on 2510 (11) of the Act, which defines an "aggrieved person" as one who is a party to an "intercepted wire or oral communication or a person against whom the interception was directed." The Senate Report, p. 91, states: "This definition defines the class of those who are entitled to invoke the suppression sanction of section 2515 discussed below, through the motion to suppress provided for by section 2518 (10) (a), also discussed below. It is intended to reflect existing law" (Citations omitted.) (Emphasis added.) Finally, 2518 (9) requires the Government to provide to each party to "any trial, hearing or other proceeding" a copy of the court order authorizing surveillance if the |
Justice Rehnquist | 1,972 | 19 | dissenting | Gelbard v. United States | https://www.courtlistener.com/opinion/108596/gelbard-v-united-states/ | a copy of the court order authorizing surveillance if the Government intends to use the fruits thereof. The Senate Report, p. 105, states: " `Proceeding' is intended to include all adversary type hearings. It would not include a grand jury hearing. Compare [United If 2515 of the Omnibus Crime Control and Safe Streets Act of 1968 stood alone with any informative legislative history, the Court's conclusion with respect to the rights of these petitioners would be plainly correct. If the conflicting implications from two sections of the same statute were present in a regulatory scheme which was to stand by itself, rather than to be super-imposed on procedures such as contempt hearings and *85 institutions such as the grand jury, the Court's conclusion would at least be tenable. But when the Court concludes that Congress, almost in a fit of absentmindedness, has drastically enlarged the right of potential grand jury witnesses to avoid testifying, and when such a conclusion is based upon one of two ambiguous implications from the language of the statute, and is contrary to virtually every whit of legislative history addressed to the point in issue, I think its conclusion is plainly wrong. IV The Court seeks to bolster its reasoning by reliance upon 18 U.S. C. 3504 (a) (1), which was a part of the Organized Crime Control Act of 1970. That section provides in pertinent part as follows: "(a) In any proceeding before any grand jury "(1) upon a claim by a party aggrieved that evidence is inadmissible because it is the primary product of an unlawful act or because it was obtained by the exploitation of an unlawful act, the opponent of the claim shall affirm or deny the occurrence of the alleged unlawful act." Assuming, arguendo, that this section does apply to petitioners in No. 71-110, the record in the District Court and the opinion of the Court of Appeals clearly show that only Gelbard made what might be called a "claim" within the language of the section, and that the Government in its response did "affirm or deny" the occurrence of the alleged unlawful act; in fact, the Government denied the occurrence of the unlawful act. This should be sufficient for disposition of the case as to these petitioners. The Court, with giving much guidance to those who would seek to follow the path by which it reaches the conclusion, concludes that this section "confirms that *86 Congress meant that grand jury witnesses might defend contempt charges by invoking the prohibition of 2515 against the compelled disclosure of evidence obtained in violation |
Justice Rehnquist | 1,972 | 19 | dissenting | Gelbard v. United States | https://www.courtlistener.com/opinion/108596/gelbard-v-united-states/ | 2515 against the compelled disclosure of evidence obtained in violation of Title III." If the Court means to say any more than that, under the circumstances specified in 3504, the Government must affirm or deny, I am at a loss how it extracts additional requirements from the language used by Congress in that section. But even if the Court were correct in deciding that 3504 (a) (1) requires more than it says of the Government, I believe the Court errs in deciding that this section applies at all to these petitioners. Title VII as enacted actually consists of two parts, A and B. Part A is a series of findings by Congress, reading as follows: "The Congress finds that claims that evidence offered in proceedings was obtained by the exploitation of unlawful acts, and is therefore inadmissible in evidence, (1) often cannot reliably be determined when such claims concern evidence of events occurring years after the allegedly unlawful act, and (2) when the allegedly unlawful act has occurred more than five years prior to the event in question, there is virtually no likelihood that the evidence offered to prove the event has been obtained by the exploitation of that allegedly unlawful act." 701, The House Report (to accompany S. 30) contains this comment on Part A: "This section contains a special finding relating, as do the following sections of the title, to certain evidentiary problems created by electronic surveillance conducted by the Government prior to the enactment of on June 19, 1968, which provided statutory authority for obtaining surveillance warrants in certain types of criminal *87 investigations." H. R. Rep. No. 91-1549, p. 50 (1970). (Emphasis supplied.) The same report, in its introductory discussion of Title VII, contains the following statement: "Title VII intends to limit disclosure of information illegally obtained by the Government to defendants who seek to challenge the admissibility of evidence because it is either the primary or indirect production [sic] of such an illegal act. The title also prohibits any challenge to the admissibility of evidence based on its being the fruit of an unlawful governmental act, if such act occurred 5 years or more before the event sought to be proved. As amended by the committee, the application of title VII is limited to Federal judicial and administrative proceedings, and to electronic or mechanical surveillance which occurred prior to June 19, 1968, the date of enactment of the Federal wiretapping and electronic surveillance law (chapter 119, title 18, United States Code)." (Emphasis supplied.) The Senate Report, too, casts 3504 (a) (1) in quite a different |
Justice Rehnquist | 1,972 | 19 | dissenting | Gelbard v. United States | https://www.courtlistener.com/opinion/108596/gelbard-v-united-states/ | Report, too, casts 3504 (a) (1) in quite a different light from that in which the Court puts it: "Lastly, it should be noted that nothing in section 3504 (a) (1) is intended to codify or change present law defining illegal conduct or prescribing requirements for standing to object to such conduct or to use of evidence given under an immunity grant. See, e. g., ; Nevertheless, since it requires a pending claim as a predicate to disclosure, it sets aside the present wasteful practice of the Department of Justice in searching files with a motion from a defendant." *88 S. Rep. No. 91-617, p. 154 (Emphasis supplied.) These conclusions in the Senate Report are supported by statements of the bill's managers in the House during the time it was being debated. Congressman Poff explained Title VII as follows: "Title VII of S. 30 would, first, reverse the Supreme Court's decision in requiring, under its supervisory power, the disclosure of Government files in criminal trials, and would, second, set a 5-year `statute of limitations' on inserting issues dealing with the `fruit of the poisonous tree' in similar cases." 116 Cong. Rec. 35192. Congressman Celler explained the amendments incorporating the pre-June 19, 1968, time limitation into subsections (a) (2) and (a) (3) of 3504 that had been made by a subcommittee of the House Judiciary Committee in these words: "As amended by the committee, the application of title VII is limited to Federal judicial and administrative proceedings, and to electronic or mechanical surveillance which occurred prior to June 19, 1968, the date of enactment of the Federal wiretapping and electronic surveillance lawchapter 119, title XVIII, United States Code." Even more specific was the explanation of the amendment made by Congressman Poff on the floor of the House after the time provisions had been included: "TITLE VII LITIGATION CONCERNING SOURCES OF EVIDENCE. "Mr. Chairman, title VII of the Organized Crime Control Act is designed to regulate motions to suppress evidence in certain limited situations where *89 the motion is based upon unlawful electronic eavesdropping or wiretapping which occurred prior to the enactment of the Federal electronic surveillance laws on June 19, 1968 "Where there was in fact an unlawful overhearing prior to June 19, 1968, the title provides for an in camera examination of the Government's transcripts and records to determine whether they may be relevant to the claim of inadmissibility. To the extent that the court is permitted to determine relevancy in an ex parte proceeding, the title will modify the procedure established by the Supreme Court in [citation omitted]. |
Justice Rehnquist | 1,972 | 19 | dissenting | Gelbard v. United States | https://www.courtlistener.com/opinion/108596/gelbard-v-united-states/ | the procedure established by the Supreme Court in [citation omitted]. "As I have indicated, the title applies only to disclosures where the electronic surveillance occurred prior to June 19, 1968. It is not necessary that it apply to disclosure where an electronic surveillance occurred after that date, because such disclosure will be mandated, not by but by section 2518 of title 18, United States Code, added by title III of the Omnibus Crime Control and Safe Streets Act of 1968. Section 2518 (10) [(a)] provides a specific procedure for motions to suppress the contents of any intercepted wire or oral communication, or evidence derived therefrom, on the grounds that the communication was unlawfully intercepted, that the authorization for the interception was insufficient, or that the interception was not made in conformity with the authorization obtained. It provides, insofar as the disclosure of intercepted communications is concerned, that upon the filing of a motion to suppress by an aggrieved person the trial judge may in his discretion make available to such person and his counsel for inspection *90 such portions of an intercepted communication, or evidence derived therefrom, as the judge determines to be in the interest of justicesee Senate Report No. 1097, 90th Congress, 2d Session 106, 1968. The provisions of this title will, therefore control the disclosure of transcripts of electronic surveillances conducted prior to June 19, 1968. Thereafter, existing statutory law, not will control. Consequently, in view of these amendments to title VII, its enactment, in conjunction with the provisions of title III of the 1968 act, provides the Federal Government with a comprehensive and integrated set of procedural rules governing suppression litigation concerning electronic surveillance." (Emphasis added.) The weight of the findings actually enacted by Congress in Part A and the uniform tenor of the legislative history weigh, in my opinion, the ambiguity arising from the failure to actually include a cutoff date in 3504 (a) (1). Section 3504 (a) (1) by its terms, even if read totally of its context and background, as the Court seeks to do, affords these petitioners no help because the Government has complied with its requirements in these cases. But more importantly, the entire thrust of the findings actually adopted by Congress, and of the reports of both Houses, makes it as plain as humanly possible that this section was intended as a limitation on existing rights of criminal defendants, not as an enlargement of them. Congress, displeased with the effect of this Court's decision in desired to put a statute of limitations type cutoff beyond which the Government would not |
Justice Rehnquist | 1,972 | 19 | dissenting | Gelbard v. United States | https://www.courtlistener.com/opinion/108596/gelbard-v-united-states/ | of limitations type cutoff beyond which the Government would not be required to go in time in order to disprove taint. Equally displeased with the policy adopted by the Government of searching its files for evidence of taint even when none had been alleged *91 by the defendant, it sought to put a stop to that practice by requiring the Government to "affirm or deny" only where there is "a claim by a party aggrieved that evidence is inadmissible." Understanding of this background not only affords a complete explanation of the language used by Congress in this section, but illustrates the palpable error into which the Court has fallen in construing it. The Court has at least figuratively stood on its head both the language and the legislative history of this section in order to conclude that it was intended to expand the rights of criminal defendants. V Neither the Omnibus Crime Control and Safe Streets Act of 1968 nor the Organized Crime Control Act of 1970, when construed in accordance with the canons of statutory construction traditionally followed by this Court, supports the expansive and novel claims asserted by these petitioners. The Court having reached a contrary conclusion, I respectfully dissent. |
Justice Thomas | 2,013 | 1 | majority | Association for Molecular Pathology v. Myriad Genetics, Inc. | https://www.courtlistener.com/opinion/902772/association-for-molecular-pathology-v-myriad-genetics-inc/ | Respondent Myriad Genetics, Inc. (Myriad), discovered the precise location and sequence of two human genes, mutations of which can substantially increase the risks of breast and ovarian cancer. Myriad obtained a number of patents based upon its discovery. This case involves claims from three of them and requires us to resolve whether a naturally occurring segment of deoxyribonucleic acid (DNA) is patent eligible under 35 U.S. C. by virtue of its isolation from the rest of the human genome. We also address the patent eligibility of synthetically created DNA known as complementary DNA (cDNA), which contains the same protein-coding information found in a segment of natural DNA but omits portions within the DNA segment that do not code for proteins. For the rea- sons that follow, we hold that a naturally occurring DNA segment is a product of nature and not patent eligible merely because it has been isolated, but that cDNA is patent eligible because it is not naturally occurring. We, therefore, affirm in part and reverse in part the decision of 2 ASSOCIATION FOR MOLECULAR PATHOLOGY v. MYRIAD GENETICS, INC. Opinion of the Court the United States Court of Appeals for the Federal Circuit. I A Genes form the basis for hereditary traits in living organisms. See generally Association for Molecular Pa- thology v. United States Patent and Trademark Office, 702 F. Supp. 2d 181, 192–211 (SDNY 2010). The human ge- nome consists of approximately 22,000 genes packed into 23 pairs of chromosomes. Each gene is encoded as DNA, which takes the shape of the familiar “double helix” that Doctors James Watson and Francis Crick first de- scribed in 1953. Each “cross-bar” in the DNA helix con- sists of two chemically joined nucleotides. The possible nucleotides are adenine (A), thymine (T), cytosine (C), and guanine (G), each of which binds naturally with another nucleotide: A pairs with T; C pairs with G. The nucleotide cross-bars are chemically connected to a sugar-phosphate backbone that forms the outside framework of the DNA helix. Sequences of DNA nucleotides contain the infor- mation necessary to create strings of amino acids, which in turn are used in the body to build proteins. Only some DNA nucleotides, however, code for amino acids; these nucleotides are known as “exons.” Nucleotides that do not code for amino acids, in contrast, are known as “introns.” Creation of proteins from DNA involves two principal steps, known as transcription and translation. In tran- scription, the bonds between DNA nucleotides separate, and the DNA helix unwinds into two single strands. A single strand is used as a template to create |
Justice Thomas | 2,013 | 1 | majority | Association for Molecular Pathology v. Myriad Genetics, Inc. | https://www.courtlistener.com/opinion/902772/association-for-molecular-pathology-v-myriad-genetics-inc/ | A single strand is used as a template to create a complemen- tary ribonucleic acid (RNA) strand. The nucleotides on the DNA strand pair naturally with their counterparts, with the exception that RNA uses the nucleotide base uracil (U) instead of thymine (T). Transcription results in a single strand RNA molecule, known as pre-RNA, whose nucleo- tides form an inverse image of the DNA strand from which Cite as: 569 U. S. (2013) 3 Opinion of the Court it was created. Pre-RNA still contains nucleotides corre- sponding to both the exons and introns in the DNA mole- cule. The pre-RNA is then naturally “spliced” by the physical removal of the introns. The resulting product is a strand of RNA that contains nucleotides corresponding only to the exons from the original DNA strand. The exons-only strand is known as messenger RNA (mRNA), which creates amino acids through translation. In trans- lation, cellular structures known as ribosomes read each set of three nucleotides, known as codons, in the mRNA. Each codon either tells the ribosomes which of the 20 possible amino acids to synthesize or provides a stop signal that ends amino acid production. DNA’s informational sequences and the processes that create mRNA, amino acids, and proteins occur naturally within cells. Scientists can, however, extract DNA from cells using well known laboratory methods. These meth- ods allow scientists to isolate specific segments of DNA— for instance, a particular gene or part of a gene—which can then be further studied, manipulated, or used. It is also possible to create DNA synthetically through processes similarly well known in the field of genetics. One such method begins with an mRNA molecule and uses the natural bonding properties of nucleotides to create a new, synthetic DNA molecule. The result is the inverse of the mRNA’s inverse image of the original DNA, with one important distinction: Because the natural creation of mRNA involves splicing that removes introns, the synthetic DNA created from mRNA also contains only the exon sequences. This synthetic DNA created in the laboratory from mRNA is known as complementary DNA (cDNA). Changes in the genetic sequence are called mutations. Mutations can be as small as the alteration of a single nucleotide—a change affecting only one letter in the genetic code. Such small-scale changes can produce an entirely different amino acid or can end protein production alto- 4 ASSOCIATION FOR MOLECULAR PATHOLOGY v. MYRIAD GENETICS, INC. Opinion of the Court gether. Large changes, involving the deletion, rearrange- ment, or duplication of hundreds or even millions of nu- cleotides, can result in the elimination, misplacement, or |
Justice Thomas | 2,013 | 1 | majority | Association for Molecular Pathology v. Myriad Genetics, Inc. | https://www.courtlistener.com/opinion/902772/association-for-molecular-pathology-v-myriad-genetics-inc/ | of nu- cleotides, can result in the elimination, misplacement, or duplication of entire genes. Some mutations are harmless, but others can cause disease or increase the risk of dis- ease. As a result, the study of genetics can lead to valu- able medical breakthroughs. B This case involves patents filed by Myriad after it made one such medical breakthrough. Myriad discovered the precise location and sequence of what are now known as the BRCA1 and BRCA2 genes. Mutations in these genes can dramatically increase an individual’s risk of develop- ing breast and ovarian cancer. The average American woman has a 12- to 13-percent risk of developing breast cancer, but for women with certain genetic mutations, the risk can range between 50 and 80 percent for breast can- cer and between 20 and 50 percent for ovarian cancer. Before Myriad’s discovery of the BRCA1 and BRCA2 genes, scientists knew that heredity played a role in estab- lishing a woman’s risk of developing breast and ovarian cancer, but they did not know which genes were associated with those cancers. Myriad identified the exact location of the BRCA1 and BRCA2 genes on chromosomes 17 and 13. Chromosome 17 has approximately 80 million nucleotides, and chro- mosome 13 has approximately 114 million. Association for Molecular Within those chromosomes, the BRCA1 and BRCA2 genes are each about 80,000 nucleotides long. If just exons are counted, the BRCA1 gene is only about 5,500 nucleotides long; for the BRCA2 gene, that number is about 10,200. Knowledge of the location of the BRCA1 and BRCA2 genes allowed Myriad to determine their typical nucleotide Cite as: 569 U. S. (2013) 5 Opinion of the Court sequence.1 That information, in turn, enabled Myriad to develop medical tests that are useful for detecting muta- tions in a patient’s BRCA1 and BRCA2 genes and thereby assessing whether the patient has an increased risk of cancer. Once it found the location and sequence of the BRCA1 and BRCA2 genes, Myriad sought and obtained a number of patents. Nine composition claims from three of those patents are at issue in this case.2 See and n. 1 (noting composition claims). Claims 1, 2, 5, and 6 from the ’282 patent are representative. The first claim asserts a patent on “[a]n isolated DNA coding for a BRCA1 polypeptide,” which has “the amino acid sequence set forth in SEQ ID NO:2.” App. 822. SEQ ID NO:2 sets forth a list of 1,863 amino acids that the typical BRCA1 gene encodes. See at 785–790. Put differently, claim 1 asserts a patent claim on the DNA code that tells |
Justice Thomas | 2,013 | 1 | majority | Association for Molecular Pathology v. Myriad Genetics, Inc. | https://www.courtlistener.com/opinion/902772/association-for-molecular-pathology-v-myriad-genetics-inc/ | asserts a patent claim on the DNA code that tells a cell to produce the string of BRCA1 amino acids listed in SEQ ID NO:2. Claim 2 of the ’282 patent operates similarly. It claims “[t]he isolated DNA of claim 1, wherein said DNA has the nucleotide sequence set forth in SEQ ID NO:1.” at 822. Like SEQ ID NO:2, SEQ ID NO:1 sets forth a long list of data, in this instance the sequence of cDNA that codes for the BRCA1 amino acids listed in claim 1. Im- portantly, SEQ ID NO:1 lists only the cDNA exons in the BRCA1 gene, rather than a full DNA sequence contain- ing both exons and introns. See (stating that SEQ ID NO:1’s “MOLECULE TYPE:” is “cDNA”). As a re- sult, the Federal Circuit recognized that claim 2 asserts a patent on the cDNA nucleotide sequence listed in SEQ ID —————— 1 Technically, there is no “typical” gene because nucleotide sequences vary between individuals, sometimes dramatically. Geneticists refer to the most common variations of genes as “wild types.” 2 At issue are claims 1, 2, 5, 6, and 7 of U. S. Patent 5,747,282 (the ’282 patent), claim 1 of U. S. Patent 5,693,473 (the ’473 patent), and claims 1, 6, and 7 of U. S. Patent 5,837,492 (the ’492 patent). 6 ASSOCIATION FOR MOLECULAR PATHOLOGY v. MYRIAD GENETICS, INC. Opinion of the Court NO:1, which codes for the typical BRCA1 gene. 689 F. 3d, n. 9; ; (Bryson, J., concurring in part and dissenting in part). Claim 5 of the ’282 patent claims a subset of the data in claim 1. In particular, it claims “[a]n isolated DNA having at least 15 nucleotides of the DNA of claim 1.” App. 822. The practical effect of claim 5 is to assert a patent on any series of 15 nucleotides that exist in the typical BRCA1 gene. Because the BRCA1 gene is thousands of nucleo- tides long, even BRCA1 genes with substantial mutations are likely to contain at least one segment of 15 nucleotides that correspond to the typical BRCA1 gene. Similarly, claim 6 of the ’282 patent claims “[a]n isolated DNA hav- ing at least 15 nucleotides of the DNA of claim 2.” This claim operates similarly to claim 5, except that it references the cDNA-based claim 2. The remaining claims at issue are similar, though several list common mutations rather than typical BRCA1 and BRCA2 sequences. See ; (claim 1 of the ’473 patent); (claims 1, 6, and 7 of the ’492 patent). C Myriad’s patents would, if valid, give it the |
Justice Thomas | 2,013 | 1 | majority | Association for Molecular Pathology v. Myriad Genetics, Inc. | https://www.courtlistener.com/opinion/902772/association-for-molecular-pathology-v-myriad-genetics-inc/ | patent). C Myriad’s patents would, if valid, give it the exclusive right to isolate an individual’s BRCA1 and BRCA2 genes (or any strand of 15 or more nucleotides within the genes) by breaking the covalent bonds that connect the DNA to the rest of the individual’s genome. The patents would also give Myriad the exclusive right to synthetically create BRCA cDNA. In Myriad’s view, manipulating BRCA DNA in either of these fashions triggers its “right to exclude others from making” its patented composition of matter under the Patent Act. 35 U.S. C. see also (“[W]hoever without authority makes any patented invention infringes the patent”). Cite as: 569 U. S. (2013) 7 Opinion of the Court But isolation is necessary to conduct genetic testing, and Myriad was not the only entity to offer BRCA testing after it discovered the genes. The University of Pennsylvania’s Genetic Diagnostic Laboratory (GDL) and others provided genetic testing services to women. Petitioner Dr. Harry Ostrer, then a researcher at New York University School of Medicine, routinely sent his patients’ DNA samples to GDL for testing. After learning of GDL’s testing and Ostrer’s activities, Myriad sent letters to them asserting that the genetic testing infringed Myriad’s patents. App. 94–95 (Ostrer letter). In response, GDL agreed to stop testing and informed Ostrer that it would no longer accept patient samples. Myriad also filed patent infringement suits against other entities that performed BRCA testing, resulting in settlements in which the defendants agreed to cease all allegedly infringing Myriad, thus, solidified its position as the only entity providing BRCA testing. Some years later, petitioner Ostrer, along with medical patients, advocacy groups, and other doctors, filed this lawsuit seeking a declaration that Myriad’s patents are invalid under 35 U.S. C. Citing this Court’s decision in MedImmune, the District Court denied Myriad’s motion to dismiss for lack of Associa- tion for Molecular 385–392 (SDNY 2009). The District Court then granted summary judg- ment to petitioners on the composition claims at issue in this case based on its conclusion that Myriad’s claims, including claims related to cDNA, were invalid because they covered products of – 237. The Federal Circuit reversed, Association for Molecu- lar and this Court granted the petition for certiorari, vacated the judgment, and re- 8 ASSOCIATION FOR MOLECULAR PATHOLOGY v. MYRIAD GENETICS, INC. Opinion of the Court manded the case in light of Mayo Collaborative Services v. Prometheus Laboratories, Inc., 566 U.S. See Association for Molecular Pathology v. Myriad Genet- ics, Inc., 566 U.S. On remand, the Federal Circuit affirmed the District Court in part and reversed in part, with |
Justice Thomas | 2,013 | 1 | majority | Association for Molecular Pathology v. Myriad Genetics, Inc. | https://www.courtlistener.com/opinion/902772/association-for-molecular-pathology-v-myriad-genetics-inc/ | the District Court in part and reversed in part, with each member of the panel writing separately. All three judges agreed that only petitioner Ostrer had They reasoned that Myriad’s actions against him and his stated ability and willingness to begin BRCA1 and BRCA2 testing if Myr- iad’s patents were invalidated were sufficient for Article III ; (opinion of Moore, J.); With respect to the merits, the court held that both isolated DNA and cDNA were patent eligible under The central dispute among the panel members was whether the act of isolating DNA—separating a specific gene or sequence of nucleotides from the rest of the chromosome—is an inventive act that entitles the individ- ual who first isolates it to a patent. Each of the judges on the panel had a different view on that question. Judges Lourie and Moore agreed that Myriad’s claims were patent eligible under but disagreed on the rationale. Judge Lourie relied on the fact that the entire DNA molecule is held together by chemical bonds and that the covalent bonds at both ends of the segment must be severed in order to isolate segments of DNA. This process technically creates new molecules with unique chemical compositions. See at (“Isolated DNA is a free-standing portion of a larger, natural DNA molecule. Isolated DNA has been cleaved (i.e., had covalent bonds in its backbone chemically severed) or synthesized to consist of just a fraction of a naturally occurring DNA molecule”). Judge Lourie found this chemical alteration to be dispositive, because isolating a particular strand of DNA creates a nonnaturally occurring molecule, even though the Cite as: 569 U. S. (2013) 9 Opinion of the Court chemical alteration does not change the information- transmitting quality of the DNA. See (“The claimed isolated DNA molecules are distinct from their natural existence as portions of larger entities, and their informational content is irrelevant to that fact. We recog- nize that biologists may think of molecules in terms of their uses, but genes are in fact materials having a chemi- cal nature”). Accordingly, he rejected petitioners’ argument that isolated DNA was ineligible for patent protection as a product of Judge Moore concurred in part but did not rely exclu- sively on Judge Lourie’s conclusion that chemically break- ing covalent bonds was sufficient to render isolated DNA patent eligible. (“To the extent the majority rests its conclusion on the chemical differences between [naturally occurring] and isolated DNA (breaking the covalent bonds), I cannot agree that this is sufficient to hold that the claims to human genes are directed to pa- tentable subject matter”). |
Justice Thomas | 2,013 | 1 | majority | Association for Molecular Pathology v. Myriad Genetics, Inc. | https://www.courtlistener.com/opinion/902772/association-for-molecular-pathology-v-myriad-genetics-inc/ | to human genes are directed to pa- tentable subject matter”). Instead, Judge Moore also relied on the United States Patent and Trademark Office’s (PTO) practice of granting such patents and on the reli- ance interests of patent holders. However, she acknowledged that her vote might have come out differently if she “were deciding this case on a blank can- vas.” Finally, Judge Bryson concurred in part and dissented in part, concluding that isolated DNA is not patent eli- gible. As an initial matter, he emphasized that the break- ing of chemical bonds was not dispositive: “[T]here is no magic to a chemical bond that requires us to recognize a new prod- uct when a chemical bond is created or broken.” at 1351. Instead, he relied on the fact that “[t]he nucleo- tide sequences of the claimed molecules are the same as the nucleotide sequences found in naturally occurring human genes.” Judge Bryson then concluded that genetic “structural similarity dwarfs the significance 10 ASSOCIATION FOR MOLECULAR PATHOLOGY v. MYRIAD GENETICS, INC. Opinion of the Court of the structural differences between isolated DNA and naturally occurring DNA, especially where the structural differences are merely ancillary to the breaking of covalent bonds, a process that is itself not inventive.” More- over, Judge Bryson gave no weight to the PTO’s position on patentability because of the Federal Circuit’s position that “the PTO lacks substantive rulemaking authority as to issues such as patentability.” Although the judges expressed different views concern- ing the patentability of isolated DNA, all three agreed that patent claims relating to cDNA met the patent eligibility requirements of and n. 9 (recognizing that some patent claims are limited to cDNA and that such claims are patent eligible under ); ; (Bryson, J., concurring in part and dissenting in part) (“cDNA cannot be isolated from nature, but instead must be created in the laboratory because the introns that are found in the native gene are removed from the cDNA segment”).3 We granted certiorari. 568 U. S. II A Section 101 of the Patent Act provides: “Whoever invents or discovers any new and useful composition of matter, or any new and useful im- provement thereof, may obtain a patent therefor, sub- ject to the conditions and requirements of this title.” —————— 3 Myriad continues to challenge Dr. Ostrer’s Declaratory Judgment Act standing in this Court. Brief for Respondents 17–22. But we find that, under the Court’s decision in MedImmune, Inc. v. Genentech, Inc., Dr. Ostrer has alleged sufficient facts “under all the circumstances, [to] show that there is a substantial controversy, between parties having |
Justice Thomas | 2,013 | 1 | majority | Association for Molecular Pathology v. Myriad Genetics, Inc. | https://www.courtlistener.com/opinion/902772/association-for-molecular-pathology-v-myriad-genetics-inc/ | show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” (internal quotation marks omitted). Cite as: 569 U. S. (2013) 11 Opinion of the Court 35 U.S. C. We have “long held that this provision contains an im- portant implicit exception[:] Laws of nature, natural phe- nomena, and abstract ideas are not patentable.” Mayo, 566 U. S., at (slip op., at 1) (internal quotation marks and brackets omitted). Rather, “ ‘they are the basic tools of scientific and technological work’ ” that lie beyond the domain of patent protection. at (slip op., at 2). As the Court has explained, without this exception, there would be considerable danger that the grant of patents would “tie up” the use of such tools and thereby “inhibit future innovation premised upon them.” at (slip op., at 17). This would be at odds with the very point of patents, which exist to promote creation. Diamond v. Chakrabarty, (Products of na- ture are not created, and “ ‘manifestations of nature [are] free to all men and reserved exclusively to none’ ”). The rule against patents on naturally occurring things is not without limits, however, for “all inventions at some level embody, use, reflect, rest upon, or apply laws of nature, natural phenomena, or abstract ideas,” and “too broad an interpretation of this exclusionary principle could eviscerate patent law.” 566 U. S., at (slip op., at 2). As we have recognized before, patent protection strikes a delicate balance between creating “incentives that lead to creation, invention, and discovery” and “imped[ing] the flow of information that might permit, indeed spur, in- vention.” at (slip op., at 23). We must apply this well-established standard to determine whether Myr- iad’s patents claim any “new and useful composition of matter,” or instead claim naturally occurring phenomena. B It is undisputed that Myriad did not create or alter any of the genetic information encoded in the BRCA1 and 12 ASSOCIATION FOR MOLECULAR PATHOLOGY v. MYRIAD GENETICS, INC. Opinion of the Court BRCA2 genes. The location and order of the nucleotides existed in nature before Myriad found them. Nor did Myr- iad create or alter the genetic structure of DNA. In- stead, Myriad’s principal contribution was uncovering the precise location and genetic sequence of the BRCA1 and BRCA2 genes within chromosomes 17 and 13. The question is whether this renders the genes patentable. Myriad recognizes that our decision in Chakrabarty is central to this inquiry. Brief for Respondents 14, 23–27. In Chakrabarty, scientists added four plasmids to |
Justice Thomas | 2,013 | 1 | majority | Association for Molecular Pathology v. Myriad Genetics, Inc. | https://www.courtlistener.com/opinion/902772/association-for-molecular-pathology-v-myriad-genetics-inc/ | Respondents 14, 23–27. In Chakrabarty, scientists added four plasmids to a bacte- rium, which enabled it to break down various components of crude and n. 1. The Court held that the modified bacterium was patentable. It explained that the patent claim was “not to a hitherto unknown natural phenomenon, but to a nonnaturally occurring manufacture or composition of matter—a product of hu- man ingenuity ‘having a distinctive name, character [and] use.’ ” at –310 ; alteration in original). The Chakrabarty bacterium was new “with markedly different characteristics from any found in nature,” 447 U. S., at 310, due to the additional plasmids and resultant “capac- ity for degrading ” In this case, by contrast, Myriad did not create anything. To be sure, it found an important and useful gene, but separating that gene from its surrounding genetic material is not an act of invention. Groundbreaking, innovative, or even brilliant discovery does not by itself satisfy the inquiry. In Funk Broth- ers Seed 333 U.S. this Court considered a composition patent that claimed a mixture of naturally occurring strains of bacteria that helped leguminous plants take nitrogen from the air and fix it in the s at 128–129. The ability of the bacte- ria to fix nitrogen was well known, and farmers commonly “inoculated” their crops with them to improve soil nitrogen Cite as: 569 U. S. (2013) 13 Opinion of the Court levels. But farmers could not use the same inoculant for all crops, both because plants use different bacteria and because certain bacteria inhibit each other. at 129– 130. Upon learning that several nitrogen-fixing bacteria did not inhibit each other, however, the patent applicant combined them into a single inoculant and obtained a patent. The Court held that the composition was not patent eligible because the patent holder did not alter the bacteria in any way. (“There is no way in which we could call [the bacteria mixture a product of invention] unless we borrowed invention from the dis- covery of the natural principle itself ”). His patent claim thus fell squarely within the law of nature exception. So do Myriad’s. Myriad found the location of the BRCA1 and BRCA2 genes, but that discovery, by itself, does not render the BRCA genes “new composition[s] of matter,” that are patent eligible. Indeed, Myriad’s patent descriptions highlight the problem with its claims. For example, a section of the ’282 patent’s Detailed Description of the Invention indicates that Myriad found the location of a gene associated with increased risk of breast cancer and identified mutations of that gene that increase the risk. |
Justice Thomas | 2,013 | 1 | majority | Association for Molecular Pathology v. Myriad Genetics, Inc. | https://www.courtlistener.com/opinion/902772/association-for-molecular-pathology-v-myriad-genetics-inc/ | and identified mutations of that gene that increase the risk. See App. 748–749.4 In —————— 4 The full relevant text of the Detailed Description of the Patent is as follows: “It is a discovery of the present invention that the BRCA1 locus which predisposes individuals to breast cancer and ovarian cancer, is a gene encoding a BRCA1 protein, which has been found to have no significant homology with known protein or DNA sequences. It is a discovery of the present invention that mutations in the BRCA1 locus in the germline are indicative of a predisposition to breast cancer and ovarian cancer. Finally, it is a discovery of the present invention that somatic mutations in the BRCA1 locus are also associated with breast cancer, ovarian cancer and other cancers, which represents an indicator of these cancers or of the prognosis of these cancers. The mutational events of the BRCA1 locus can involve deletions, insertions and point mutations.” App. 749. 14 ASSOCIATION FOR MOLECULAR PATHOLOGY v. MYRIAD GENETICS, INC. Opinion of the Court subsequent language Myriad explains that the location of the gene was unknown until Myriad found it among the approximately eight million nucleotide pairs contained in a subpart of chromosome 17. See 5 The ’473 and ’492 patents contain similar language as well. See 947. Many of Myriad’s patent descriptions simply detail the “iterative process” of discovery by which Myriad nar- rowed the possible locations for the gene sequences that it sought.6 See, e.g., Myriad seeks to import these extensive research efforts into the patent- eligibility inquiry. Brief for Respondents 8–10, 34. But extensive effort alone is insufficient to satisfy the demands of Nor are Myriad’s claims saved by the fact that isolating DNA from the human genome severs chemical bonds and thereby creates a nonnaturally occurring molecule. Myr- iad’s claims are simply not expressed in terms of chemical composition, nor do they rely in any way on the chemi- cal changes that result from the isolation of a particular section of DNA. Instead, the claims understandably focus on the genetic information encoded in the BRCA1 and —————— Notwithstanding Myriad’s repeated use of the phrase “present invention,” it is clear from the text of the patent that the various discoveries are the “invention.” 5 “Starting from a region on the long arm of human chromosome 17 of the human genome, 17q, which has a size estimated at about 8 million base pairs, a region which contains a genetic locus, BRCA1, which causes susceptibility to cancer, including breast and ovarian cancer, has been identified.” 6 Myriad first identified groups of relatives |
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