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Justice Breyer | 1,995 | 2 | majority | Heintz v. Jenkins | https://www.courtlistener.com/opinion/117919/heintz-v-jenkins/ | who debated the legislation, for litigating, at first blush, seems simply one way of collecting a debt. For another thing, when Congress considered the Act, other Congressmen expressed fear that repeal would limit lawyers' "ability to contact third parties in order to facilitate settlements" and "could very easily interfere with a client's right to pursue judicial remedies." H. R. Rep. No. 99-405, p. 11 *298 (1985) (dissenting views of Rep. Hiler). They proposed alternative language designed to keep litigation activities outside the Act's scope, but that language was not enacted. Further, Congressman Annunzio made his statement not during the legislative process, but after the statute became law. It therefore is not a statement upon which other legislators might have relied in voting for or against the Act, but it simply represents the views of one informed person on an issue about which others may (or may not) have thought differently. Finally, Heintz points to a "Commentary" on the Act by the FTC's staff. It says: "Attorneys or law firms that engage in traditional debt collection activities (sending dunning letters, making collection calls to consumers) are covered by the [Act], but those whose practice is limited to legal activities are not covered. " Federal Trade CommissionStatements of General Policy or Interpretation Staff Commentary on the Fair Debt Collection Practices Act, 50100 (1988) (emphasis added; footnote omitted). We cannot give conclusive weight to this statement. The Commentary of which this statement is a part says that it "is not binding on the Commission or the public." More importantly, we find nothing either in the Act or elsewhere indicating that Congress intended to authorize the FTC to create this exception from the Act's coverage an exception that, for the reasons we have set forth above, falls outside the range of reasonable interpretations of the Act's express language. See, e. g., ; see also ; *299 For these reasons, we agree with the Seventh Circuit that the Act applies to attorneys who "regularly" engage in consumer-debt-collection activity, even when that activity consists of litigation. Its judgment is therefore Affirmed. |
Justice Stevens | 1,988 | 16 | dissenting | Doe v. United States | https://www.courtlistener.com/opinion/112123/doe-v-united-states/ | A defendant can be compelled to produce material evidence that is incriminating. Fingerprints, blood samples, voice exemplars, handwriting specimens, or other items of physical evidence may be extracted from a defendant against his will. But can he be compelled to use his mind to assist the prosecution in convicting him of a crime? I think not. He may in some cases be forced to surrender a key to a strongbox containing incriminating documents, but I do not believe he can be compelled to reveal the combination to his wall safe by word or deed. The document the Government seeks to extract from John Doe purports to order third parties to take action that will lead to the discovery of incriminating evidence. The directive itself may not betray any knowledge petitioner may have about the circumstances of the offenses being investigated by the grand jury, but it nevertheless purports to evidence a reasoned decision by Doe to authorize action by others. The forced execution of this document differs from the forced production of physical evidence just as human beings differ from other animals.[1] *220 If John Doe can be compelled to use his mind to assist the Government in developing its case, I think he will be forced "to be a witness against himself." The fundamental purpose of the Fifth Amendment was to mark the line between the kind of inquisition conducted by the Star Chamber and what we proudly describe as our accusatorial system of justice. It *221 reflects "our respect for the inviolability of the human personality," "[I]t is an explicit right of a natural person, protecting the realm of human thought and expression." Braswell v. United States, ante, at 119 (KENNEDY, J., dissenting). In my opinion that protection gives John Doe the right to refuse to sign the directive authorizing access to the records of any bank account that he may control.[2] Accordingly, I respectfully dissent. |
Justice Stevens | 2,002 | 16 | dissenting | Federal Maritime Comm'n v. South Carolina Ports Authority | https://www.courtlistener.com/opinion/118511/federal-maritime-commn-v-south-carolina-ports-authority/ | Justice Breyer has explained why the Court's recent sovereign immunity jurisprudence does not support today's decision. I join his opinion without reservation, but add these words to emphasize the weakness of the two predicates for the majority's holding. Those predicates are, first, the Court's recent decision in and second, the "preeminent" interest in according States the "dignity" that is their due. Ante, at 760. Justice Souter has already demonstrated that Alden' s creative "conception of state sovereign immunity is true neither to history nor to the structure of the Constitution." And I have previously explained that the "dignity" rationale is "`embarrassingly insufficient,' " Seminole Tribe of in part because "Chief Justice Marshall early on laid to rest the view that the purpose of the Eleventh Amendment was to protect a State's dignity," at 96- ). This latter point is reinforced by the legislative history of the Eleventh Amendment. It is familiar learning that the Amendment was a response to this Court's decision in Less recognized, however, is that Chisholm necessarily decided two jurisdictional issues: that the Court had personal jurisdiction over the state defendant, and that it had subject-matter jurisdiction over the case.[1] The first proposed draft of a constitutional amendment responding to Chisholm introduced in the House of Representatives in February 1793, on the day after Chisholm was decidedwould have overruled the first *771 holding, but not the second.[2] That proposal was not adopted. Rather, a proposal introduced the following day in the Senate,[3] which was "cast in terms that we associate with subject matter jurisdiction,"[4] provided the basis for the present text of the Eleventh Amendment. This legislative history suggests that the Eleventh Amendment is best understood as having overruled Chisholm `s subject-matter jurisdiction holding, thereby restricting the federal courts' diversity jurisdiction. However, the Amendment left intact Chisholm `s personal jurisdiction holding: that the Constitution does not immunize States from a federal court's process. If the paramount concern of the Eleventh Amendment's framers had been protecting the so-called "dignity" interest of the States, surely Congress would have endorsed the first proposed amendment *772 granting the States immunity from process, rather than the later proposal that merely delineates the subjectmatter jurisdiction of courts. Moreover, as Chief Justice Marshall recognized, a subject-matter reading of the Amendment makes sense, considering the States' interest in avoiding their creditors. See 6 Wheat., at The reasons why the majority in Chisholm concluded that the "dignity" interests underlying the sovereign immunity of English Monarchs had not been inherited by the original 13 States remain valid today. See, e. g., Seminole Tribe of - By extending |
Justice Breyer | 1,996 | 2 | dissenting | Behrens v. Pelletier | https://www.courtlistener.com/opinion/117996/behrens-v-pelletier/ | I do not agree with the Court's holding that those asserting a defense of qualified immunity are entitled, as a matter of course, to more than one interlocutory appeal. Rather, in my view, the law normally permits a single interlocutory appeal, and not more than one such appeal, from denials of a defendant's pretrial motions to dismiss a case on grounds of qualified immunity. The "collateral order" doctrine's basic rationale, this Court's precedents, and several practical considerations lead to this conclusion. I This Court's basic rationale for permitting an interlocutory appeal of a "collateral order" recognizes that interlocutory appeals are the exception, not the rule. Congress, with statutory exceptions not directly relevant here, has authorized appeals from "final" orders. 28 U.S. C. 1291. In that way, "Congress by forbidding piecemeal disposition on appeal of what for practical purposes is a single controversy, set itself against enfeebling judicial administration [and] the obstruction to just claims that would come from permitting the harassment and cost of a succession of separate appeals from the various rulings to which a litigation may give rise, from its initiation to entry of judgment." Judges have nonetheless created what is, in effect, a nonstatutory exception, authorizing a special set of interlocutory *315 appeals, where a trial court's interlocutory order is a "collateral order" that satisfies the statutory term "final" for purposes of 1291. See The trial court's interlocutory order is "collateral" (and "final"), however, only where it meets certain requirements. It must (1) "conclusively determine [a] disputed question," (2) "resolve an important issue completely separate from the merits of the action," and (3) "be effectively unreviewable on appeal from a final judgment." Coopers & These requirements explain why the courts have created the "collateral order" exception. The "effective unreviewability" requirement means that failure to review the order on appeal now may cause a litigant permanent harm. The "conclusive determination" requirement means that appellate review now is likely needed to avoid that harm. The "separability" requirement means that review now will not likely force an appellate court to consider the same (or quite similar) questions more than once. Taken together, these requirements, as set forth in the Court's cases, see, e. g., ib; Midland Asphalt ; Gulfstream Aerospace help pick out a class of orders where the error-correcting benefits of immediate appeal likely outweigh the costs, delays, diminished litigation coherence, and waste of appellate court time potentially associated with multiple appeals. See, e. g., at 309-; R. Posner, Economic Analysis of Law 585-587 In the Court applied this rationale to a District Court order denying a claim of |
Justice Breyer | 1,996 | 2 | dissenting | Behrens v. Pelletier | https://www.courtlistener.com/opinion/117996/behrens-v-pelletier/ | rationale to a District Court order denying a claim of qualified immunity. The Court concluded that the District Court order, by sending the case to trial, could cause the litigant what (in terms of the immunity doctrine's basic trial-avoiding purpose) would amount to an important harm. *316 See at 526-527. Post-trial appellate review would come too late to avoid that harm. Ib And, the legal issue (where purely legal, see ) would often prove "separate" enough from the more basic substantive issues in the case to avoid significant duplication of appellate court time and effort. See -529; but see Hence, the "collateral order" doctrine's basic rationale supported interlocutory appeal. That same rationale, however, does not support two pretrial interlocutory appeals, the first from a denial of a motion to dismiss a complaint, the second from a later, postappeal, denial of a motion for summary judgment. Consider the "separability" requirement. Both orders satisfy the literal terms of that requirement because the qualified immunity issues they resolve are both "separate," in equal measure, from the merits of the plaintiff's claim. See ante, at 309-310, n. 3. But the reasoned principles and purposes underlying the "separability" requirement are not served by a rule that permits both orders to be appealed because the issues they raise are not normally "separate" one from the other. Rather, they will often involve quite similar issues, likely presented to different appellate court panels, thereby risking the very duplication and waste of appellate resources that the courts intended the "separability" requirement to avo See 15A C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure 3911, pp. 333-334 (hereinafter Wright & Miller). Similarly, given the law's promise of one pretrial interlocutory appeal, a litigant's need for a second is much less pressing. The single interlocutory appeal can avoid much of, though not all of, the harm that Mitchell found. And, the remaining harm, as I shall next discuss, is not of a kind that the law considers important enough to justify an interlocutory appeal. *317 II This Court's precedents justify one interlocutory appeal, but not more, in the ordinary qualified immunity case. When it initially set forth the "collateral order" exception, the Court said that it applied to "that small class" of orders that determine claims of right "too important to be denied [immediate] review." In subsequent cases, and again today, the Court has reiterated that, to qualify for interlocutory appeal, the interest being asserted must be an important one. See, e. g., ante, at 308; Digital Equipment ( inquiry "simply cannot be answered without a judgment about |
Justice Breyer | 1,996 | 2 | dissenting | Behrens v. Pelletier | https://www.courtlistener.com/opinion/117996/behrens-v-pelletier/ | ( inquiry "simply cannot be answered without a judgment about the value of the interests that would be lost through rigorous application of a final judgment requirement"); Coopers & at ; Richardson-Merrell ; see also Lauro ("The importance of the right asserted has always been a significant part of our collateral order doctrine"). Because one pretrial appeal would normally prove sufficient to protect a government defendant's qualified immunity interest in not standing trial, the right to take multiple interlocutory appeals will normally protect only the defendant's additional interest in avoiding such pre trial burdens as discovery. Thus, the question, as Justice Scalia has pointed out, is whether this antidiscovery interest is "sufficiently important to overcome the policies militating against interlocutory appeals." The relevant precedent indicates that, in the context of qualified immunity, it is not. For one thing, the Court, when considering the kinds of orders that warrant interlocutory appeal, has identified as "sufficiently important" interests that are considerably more important than the ordinary interest in avoiding discovery. * See, e. g., ; ; (interest in avoiding trial; Speech or Debate Clause, U. S. Const., Art. I, 6); Puerto Rico Aqueduct and Sewer For another thing, the Court has often said that the trouble, expense, and possible embarrassment associated with unnecessary litigation (interests rather like the qualified immunity antidiscovery interest) do not justify interlocutory appeal. See, e. g., Digital Equipment ; Lauro ; Van Further, until now litigants have not been able routinely to vindicate, through immediate appeal, a legal right to avoid discovery, 15B Wright & Miller 3914.23, at 123-130, even where the Constitution provides that antidiscovery right, see, e. g., Although a litigant can sometimes appeal an adverse discovery ruling, to do so, the litigant typically must disobey the discovery order and then appeal a resulting citation for contempt of court. Church of Scientology of ; ; United *319 ; -330; 15B Wright & Miller 3914.23, at 140-155. But see United v. Nixon, This "disobedience and contempt" requirement (somewhat analogous to a one-appeal limitation here) works, in part, because it "encourages reconsideration both by the party resisting discovery and by the party seeking discovery, and in part because it tends to limit appeals to issues that are both important and reasonably likely to lead to reversal." 15B Wright & Miller 3914.23, at 154; see also It seems highly anomalous for the law to deny a routine interlocutory appeal where the Constitution of the United protects an antidiscovery interest, but to permit a routine appeal where the legal doctrine of qualified immunity protects a similar interest. Yet, today's holding |
Justice Breyer | 1,996 | 2 | dissenting | Behrens v. Pelletier | https://www.courtlistener.com/opinion/117996/behrens-v-pelletier/ | of qualified immunity protects a similar interest. Yet, today's holding will either create just such an anomaly, or, as is more likely, it will generate many new interlocutory appeals as lower courts apply its principle wherever the Constitution, or other important legal doctrine, offers a litigant special antidiscovery protection. The majority suggests that the importance of the antidiscovery interest protected by qualified immunity has already been "settled" by such precedents as and See ante, at 308. These cases do say that the qualified immunity defense, in its modern formulation, *320 was meant, in part, "to protect public officials from the `broad-ranging discovery' that can be `peculiarly disruptive of effective government.' " (quoting ). But the Court's decision in Mitchell (that district court orders denying qualified immunity are immediately appealable) was concerned primarily with preserving defendants' immunity from trial, not discovery. See ; see also Van at The Court has never before suggested, much less "settled," that the government defendant's antidiscovery interestindependent of his interest in avoiding trialis so important that it must be safeguarded by interlocutory appellate review. Finally, this Court and its individual Members have, in recent years, cautioned against expanding the class of orders eligible for interlocutory appeal. See, e. g., Digital Equipment ("[T]he `narrow' exception should stay that way and never be allowed to swallow the general rule"); Gulfstream Aerospace ("[The Court's] finality jurisprudence is sorely in need of further limiting principles, so that appeals will be, as we originally announced they would be, a `small class [of decisions] too important to be denied review' "); Richardson-Merrell ("[W]e decline to `transform the limited exception carved out in into a license for broad disregard of the finality rule imposed by Congress in 1291' ") ). Caution would seem especially appropriate where the Court is considering not one interlocutory appeal in a single case, but two. *321 III Several important practical considerations also favor limiting the number of interlocutory qualified immunity appeals to one. The majority finds the necessary special harm in the fact that the qualified immunity doctrine protects public officials against discovery as well as trial; and it finds "separability" in the fact that a postdiscovery summary judgment motion likely asks a legal question that is conceptually distinct from the legal question posed by a prediscovery motion to dismiss a complaint. But, given this rationale, can one limit the number of appeals to just one or two? Would it not, in principle, justify several appeals where discovery, proceeding in stages, continuously turns up new facts, or where, after the close of the plaintiff's case, an immediate appeal |
Justice Breyer | 1,996 | 2 | dissenting | Behrens v. Pelletier | https://www.courtlistener.com/opinion/117996/behrens-v-pelletier/ | after the close of the plaintiff's case, an immediate appeal would avoid the litigation burden of presenting an entire defense case. Still, even two pretrial appeals risk what Justice Story called "very great delays, and oppressive expenses," which can "ossify civil rights litigation," The defendant in the present case, for example, so far has spent more than four years (of seven since the complaint's filing) fighting, through interlocutory appeal, a case that he might well have won more quickly and easily either in the trial court or on appeal from an initially adverse judgment on the merits. Cf. I concede that every added interlocutory appeal will serve the interests that underlie qualified immunity to some extent, for each will help a government defendant terminate meritless litigation. But each added appeal likely would serve those interests to an ever-diminishing degree while posing an ever-increasing threat to the appearance of evenhanded justice in civil rights cases. See Coopers & *322 (no immediate appeal of prejudgment order denying class certification, in part because such appeals would "operat[e] only in favor of plaintiffs"). Further, as mentioned above, the majority's rationale threatens added appeals, not simply in qualified immunity cases, but wherever an immunity-type doctrine (or any other important legal rule) seeks to protect litigants from trial. See, e. g., Puerto Rico Aqueduct and Sewer ; ; It thereby threatens busy appellate courts with added numbers of essentially similar, if not repetitive, appeals, at a time when overloaded dockets threaten the federal appellate system. See Remarks of Chief Justice William H. Rehnquist, Tenth Annual Judicial Conference of the United Court of Appeals for the Federal Circuit, 146 F. R. D. 256, 257 ("One of the chief needs of our generation is to deal with the current appellate capacity crisis in the Federal Courts of Appeals. Few could argue about the existence of such a crisis, born of spiraling federal filings and an increased tendency to appeal District Court decisions"); Judicial Conference of the United Long Range Plan for the Federal Courts 132 ("[I]f conditions seriously deteriorate in the courts of appeals, it may be necessary to consider some limitations on the right to appeal"). See generally T. Baker, Rationing Justice on Appeal: The Problems of the U. S. Courts of Appeals 31-51 Finally, as a practical matter, where the benefits of immediate appellate review predominate in an individual case, a party still can seek court leave to appeal immediately under 28 U.S. C. 1292(b) (permitting immediate review of nonfinal orders that involve a controlling and controversial question of law, the appellate resolution of which "may |
Justice Breyer | 1,996 | 2 | dissenting | Behrens v. Pelletier | https://www.courtlistener.com/opinion/117996/behrens-v-pelletier/ | controversial question of law, the appellate resolution of which "may materially *323 advance the ultimate termination of the litigation"). This Court has frequently observed that the availability of 1292(b) review counsels against expanding other judicial exceptions to the rule against piecemeal appeals. See, e. g., ; Digital Equipment ; Van -530; RichardsonMerrell ; Firestone Tire & Rubber 449 U. S., at n. 13; Coopers & at 474 475, and n. 27; see also Parkinson v. April Industries, We should be especially reluctant to identify new categories of "collateral orders" now that Congress has, by adding 28 U.S. C. 2072(c) to the Rules Enabling Act, "designat[ed] the rulemaking process as the way to define or refine when a district court ruling is `final' and when an interlocutory order is appealable." IV In sum, purpose, precedent, and practicality all argue for one interlocutory qualified immunity appeal per case and no more. I believe that the Court, following Mitchell, should simply hold that qualified immunity interests, while important enough to justify one interlocutory appeal, are not important enough to justify two. It is not necessary to argue about whether the defendant "waived" a second appeal, see ; nor, since the matter turns on "importance," not conclusiveness, need the Court decide just how the timing of an interlocutory appeal affects the "finality" of the trial court's denial of a motion to dismiss the complaint. See ante, at 307-308. Rather, a defendant asserting qualified immunity would remain free, as at present, to appeal from a denial of a motion to dismiss the complaint, or the defendant could wait, move for summary judgment, and appeal the motion's denial, but he could not do botheither because the interest asserted *324 in a first pretrial appeal is insufficiently important if the possibility remains of a second pretrial appeal, or because the interest asserted in a second pretrial appeal is insufficiently important if there has already been a first pretrial appeal. As I said, precedent permits this result because, under that precedent, the importance of the interest (an interlocutory appeal is needed to protect) is one necessary requirement for application of the technical legal labels "final" or "collateral order." More importantly, meaning in law depends upon an understanding of purpose. Law's words, however technical they may sound, are not magic formulas; they must be read in light of their purposes, if we are to avoid essentially arbitrary applications and harmful results. For the reasons I have set forth, precedent, read in this way, does more than permitit requiresa single interlocutory appeal. I therefore dissent. |
Justice Stevens | 2,003 | 16 | dissenting | Ewing v. California | https://www.courtlistener.com/opinion/127897/ewing-v-california/ | JUSTICE BREYER has cogently explained why the sentence imposed in this case is both cruel and unusual.[1] The concurrences *33 prompt this separate writing to emphasize that proportionality review is not only capable of judicial application but also required by the Eighth Amendment. "The Eighth Amendment succinctly prohibits `excessive' sanctions." ; see also U. S. Const., Amdt. 8 ("Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted"). Faithful to the Amendment's text, this Court has held that the Constitution directs judges to apply their best judgment in determining the proportionality of fines, see, e. g., United bail, see, e. g., and other forms of punishment, including the imposition of a death sentence, see, e. g., 433 U.S. 84, 92 It "would be anomalous indeed" to suggest that the Eighth Amendment makes proportionality review applicable in the context of bail and fines but not in the context of other forms of punishment, such as imprisonment. Rather, by broadly prohibiting excessive sanctions, the Eighth Amendment directs judges to exercise their wise judgment in assessing the proportionality of all forms of punishment. The absence of a black-letter rule does not disable judges from exercising their discretion in construing the outer limits on sentencing authority that the Eighth Amendment imposes. After all, judges are "constantly called upon to draw lines in a variety of contexts," and to exercise their judgment to give meaning to the Constitution's broadly phrased protections. For example, the Due Process Clause directs judges to employ proportionality review *34 in assessing the constitutionality of punitive damages awards on a case-by-case basis. See, e. g., BMW of North America, 17 U.S. 9, 62 Also, although the Sixth Amendment guarantees criminal defendants the right to a speedy trial, the courts often are asked to determine on a case-by-case basis whether a particular delay is constitutionally permissible or not. See, e. g., 0 U.S. 647[2] Throughout most of the Nation's history before guideline sentencing became so prevalent federal and state trial judges imposed specific sentences pursuant to grants of authority that gave them uncabined discretion within broad ranges. See K. Stith & J. Cabranes, Fear of Judging: Sentencing Guidelines in the Federal Courts 9 (hereinafter Stith & Cabranes) ("From the beginning of the Republic, federal judges were entrusted with wide sentencing discretion"); see also It was not unheard of for a statute to authorize a sentence ranging from one year to life, for example. See, e. g., 7 ; In re Southard, 298 Mich. 7, 298 N.W. 47 ("The offense of `robbery armed' is punishable |
Justice Stevens | 1,991 | 16 | concurring | Air Courier Conference of America v. American Postal Workers Union | https://www.courtlistener.com/opinion/112538/air-courier-conference-of-america-v-american-postal-workers-union/ | There is no ambiguity in the text of 39 U.S. C. 410(a). That section of the Postal Reorganization Act provides that the judicial review provisions of the Administrative Procedure Act (APA) do not apply to the exercise of the powers of the Postal Service. See ante, at 522, n. 1. It is therefore not only unnecessary, but also unwise, for the Court to issue an opinion on the entirely hypothetical question whether, if the APA did authorize judicial review of actions of the Postal Service, its employees would have standing to invoke such review to challenge a regulation that may curtail their job opportunities. I therefore do not join the opinion discussing this hypothetical standing question. Nor do I consider it necessary to decide whether this objection to judicial review may be waived by the Postal Service, because it is surely a matter that we may notice on our own motion.[*] Faithful adherence to the doctrine of judicial restraint provides a fully adequate justification for deciding this case on the best and narrowest ground available. I would do *532 so. Accordingly, relying solely on 39 U.S. C. 410(a), I concur in the Court's judgment that the Unions' challenge must be dismissed. |
Justice Ginsburg | 2,016 | 5 | concurring | Whole Woman's Health v. Hellerstedt | https://www.courtlistener.com/opinion/3217332/whole-womans-health-v-hellerstedt/ | The Texas law called H. B. 2 inevitably will reduce the number of clinics and doctors allowed to provide abortion services. Texas argues that H. B. 2’s restrictions are constitutional because they protect the health of women who experience complications from abortions. In truth, “complications from an abortion are both rare and rarely dangerous.” Planned Parenthood of See Brief for American College of Obstetricians and Gynecologists et al. as Amici Curiae 6–10 (collecting studies and concluding “[a]bortion is one of the safest medical procedures performed in the United States”); Brief for Social Science Researchers as Amici Curiae 5–9 (compiling studies that show “[c]omplication rates from abortion are very low”). Many medical procedures, including childbirth, are far more dangerous to patients, yet are not subject to ambulatory- surgical-center or hospital admitting-privileges require- ments. See ante, at 31; Planned Parenthood of 806 F.3d, at 921–922. See also Brief for Social Science Re- searchers 9–11 (comparing statistics on risks for abortion with tonsillectomy, colonoscopy, and in-office dental sur- gery); Brief for American Civil Liberties Union et al. as Amici Curiae 7 (all District Courts to consider admitting- 2 WHOLE WOMAN’S HEALTH v. HELLERSTEDT GINSBURG, J., concurring privileges requirements found abortion “is at least as safe as other medical procedures routinely performed in outpa- tient settings”). Given those realities, it is beyond rational belief that H. B. 2 could genuinely protect the health of women, and certain that the law “would simply make it more difficult for them to obtain abortions.” Planned Parenthood of When a State se- verely limits access to safe and legal procedures, women in desperate circumstances may resort to unlicensed rogue practitioners, faute de mieux, at great risk to their health and safety. See Brief for Ten Pennsylvania Abortion Care Providers as Amici Curiae 17–22. So long as this Court adheres to and Planned Parenthood of Southeastern (1992), Targeted Regulation of Abortion Providers laws like H. B. 2 that “do little or nothing for health, but rather strew impediments to abortion,” Planned Parenthood of cannot survive judicial inspection. Cite as: 579 U. S. (2016) 1 THOMAS, J., dissenting SUPREME COURT OF THE UNITED STATES No. 15–274 WHOLE WOMAN’S HEALTH, ET AL., PETITIONERS v. JOHN HELLERSTEDT, COMMISSIONER, TEXAS DEPARTMENT OF STATE HEALTH SERVICES, ET AL. |
Justice Blackmun | 1,983 | 11 | majority | Olim v. Wakinekona | https://www.courtlistener.com/opinion/110921/olim-v-wakinekona/ | The issue in this case is whether the transfer of a prisoner from a state prison in Hawaii to one in California implicates a liberty interest within the meaning of the Due Process Clause of the Fourteenth Amendment. I A Respondent Delbert Kaahanui Wakinekona is serving a sentence of life imprisonment without the possibility of parole as a result of his murder conviction in a Hawaii state court. He also is serving sentences for various other crimes, including rape, robbery, and escape. At the Hawaii State Prison outside Honolulu, respondent was classified as a maximum security risk and placed in the maximum control unit. Petitioner Antone Olim is the Administrator of the Hawaii State Prison. The other petitioners constituted a prison "Program Committee." On August 2, 976, the Committee held hearings to determine the reasons for a breakdown in discipline and the failure of certain programs within the prison's maximum control unit. Inmates of the unit appeared at these hearings. The Committee singled out respondent and another inmate as troublemakers. On August 5, respondent received notice that the Committee, at a hearing to be held on August 0, would review his correctional program to determine whether his classification within the system should be changed and whether he should be transferred to another Hawaii facility or to a mainland institution. *24 The August 0 hearing was conducted by the same persons who had presided over the hearings on August 2. Respondent retained counsel to represent him. The Committee recommended that respondent's classification as a maximum security risk be continued and that he be transferred to a prison on the mainland. He received the following explanation from the Committee: "The Program Committee, having reviewed your entire file, your testimony and arguments by your counsel, concluded that your control classification remains at Maximum. You are still considered a security risk in view of your escapes and subsequent convictions for serious felonies. The Committee noted the progress you made in vocational training and your expressed desire to continue in this endeavor. However your relationship with staff, who reported that you threaten and intimidate them, raises grave concerns regarding your potential for further disruptive and violent behavior. Since there is no other Maximum security prison in Hawaii which can offer you the correctional programs you require and you cannot remain at [the maximum control unit] because of impending construction of a new facility, the Program Committee recommends your transfer to an institution on the mainland." App. 7-8. Petitioner Olim, as Administrator, accepted the Committee's recommendation, and a few days later respondent was transferred to Folsom |
Justice Blackmun | 1,983 | 11 | majority | Olim v. Wakinekona | https://www.courtlistener.com/opinion/110921/olim-v-wakinekona/ | and a few days later respondent was transferred to Folsom State Prison in California. B Rule IV of the Supplementary Rules and Regulations of the Corrections Division, Department of Social Services and Housing, State of Hawaii, approved in June 976, recites that the inmate classification process is not concerned with punishment. Rather, it is intended to promote the best interests *242 of the inmate, the State, and the prison community.[] Paragraph 3 of Rule IV requires a hearing prior to a prison transfer involving "a grievous loss to the inmate," which the Rule defines "generally" as "a serious loss to a reasonable man." App. 2.[2] The Administrator, under ¶ 2 of the Rule, is required to establish "an impartial Program Committee" to conduct such a hearing, the Committee to be "composed of at least three members who were not actively involved in the process by which the inmate was brought before the Committee." App. 20. Under ¶ 3, the Committee must give the inmate written notice of the hearing, permit him, with certain stated exceptions, to confront and cross-examine witnesses, afford him an opportunity to be heard, and apprise him of the Committee's findings. App. 2-24.[3] The Committee is directed to make a recommendation to the Administrator, who then decides what action to take: "[The Administrator] may, as the final decisionmaker: "(a) Affirm or reverse, in whole or in part, the recommendation; or "(b) hold in abeyance any action he believes jeopardizes the safety, security, or welfare of the staff, inmate *243. other inmates institution, or community and refer the matter back to the Program Committee for further study and recommendation." Rule IV, ¶ 3d(3), App. 24. The regulations contain no standards governing the Administrator's exercise of his discretion. See C Respondent filed suit under 42 U.S. C. 983 against petitioners as the state officials who caused his transfer. He alleged that he had been denied procedural due process because the Committee that recommended his transfer consisted of the same persons who had initiated the hearing, this being in specific violation of Rule IV, ¶ 2, and because the Committee was biased against him. The United States District Court for the District of Hawaii dismissed the complaint, holding that the Hawaii regulations governing prison transfers do not create a substantive liberty interest protected by the Due Process Clause.[4] The United States Court of Appeals for the Ninth Circuit, by a divided vote, reversed. It held that Hawaii had created a constitutionally protected liberty interest by promulgating Rule IV. In so doing, the court declined to follow cases from other Courts |
Justice Blackmun | 1,983 | 11 | majority | Olim v. Wakinekona | https://www.courtlistener.com/opinion/110921/olim-v-wakinekona/ | doing, the court declined to follow cases from other Courts of Appeals holding that certain procedures mandated by prison transfer regulations do not create a liberty interest. See, e. g., ; The court reasoned that Rule IV gives Hawaii prisoners a justifiable expectation that they will not be transferred to the mainland absent a hearing, before an impartial committee, concerning the facts alleged in the *244 prehearing notice.[5] Because the Court of Appeals' decision created a conflict among the Circu, and because the case presents the further question whether the Due Process Clause in and of elf protects against interstate prison transfers, we granted certiorari. II In and this Court held that an intrastate prison transfer does not directly implicate the Due Process Clause of the Fourteenth Amendment. In inmates at a Massachusetts medium security prison had been transferred to a maximum security prison in that Commonwealth. In Montanye, a companion case, an inmate had been transferred from one maximum security New York prison to another as punishment for a breach of prison rules. This Court rejected "the notion that any grievous loss visited upon a person by the State is sufficient to invoke the procedural protections of the Due Process Clause." It went on to state: "The initial decision to assign the convict to a particular institution is not subject to audit under the Due Process Clause, although the degree of confinement in one prison may be quite different from that in another. The conviction has sufficiently extinguished the defendant's liberty *245 interest to empower the State to confine him in any of prisons. "Neither, in our view, does the Due Process Clause in and of elf protect a duly convicted prisoner against transfer from one institution to another within the state prison system. Confinement in any of the State's institutions is within the normal lim or range of custody which the conviction has authorized the State to impose." The Court observed that, although prisoners retain a residuum of liberty, see a holding that "any substantial deprivation imposed by prison authorities triggers the procedural protections of the Due Process Clause would subject to judicial review a wide spectrum of discretionary actions that traditionally have been the business of prison administrators rather than of the federal courts." Applying the and Montanye principles in this Court held that the transfer of an inmate from a prison to a mental hospital did implicate a liberty interest. Placement in the mental hospital was "not within the range of conditions of confinement to which a prison sentence subjects an individual," because it brought about |
Justice Blackmun | 1,983 | 11 | majority | Olim v. Wakinekona | https://www.courtlistener.com/opinion/110921/olim-v-wakinekona/ | a prison sentence subjects an individual," because it brought about "consequences qualitatively different from the punishment characteristically suffered by a person convicted of crime." Respondent argues that the same is true of confinement of a Hawaii prisoner on the mainland, and that Vitek therefore controls. We do not agree. Just as an inmate has no justifiable expectation that he will be incarcerated in any particular prison within a State, he has no justifiable expectation that he will be incarcerated in any particular State.[6] Often, confinement *246 in the inmate's home State will not be possible. A person convicted of a federal crime in a State without a federal correctional facility usually will serve his sentence in another State. Overcrowding and the need to separate particular prisoners may necessitate interstate transfers. For any number of reasons, a State may lack prison facilities capable of providing appropriate correctional programs for all offenders. Statutes and interstate agreements recognize that, from time to time, it is necessary to transfer inmates to prisons in other States. On the federal level, 8 U.S. C. 5003(a) authorizes the Attorney General to contract with a State for the transfer of a state prisoner to a federal prison, whether in that State or another. See[7] Title 8 U.S. C. 4002 (976 ed. and Supp. V) perm the Attorney General to contract with any State for the placement of a federal prisoner in state custody for up to three years. Neither statute requires that the prisoner remain in the State in which he was convicted and sentenced. On the state level, many States have statutes providing for the transfer of a state prisoner to a federal prison, e. g., Haw. Rev. Stat. 353-8 or another State's prison, e. g., Alaska Stat. Ann. 33.30.00 Corrections compacts between States, implemented by statutes, authorize incarceration of a prisoner of one State in another State's prison. See, e. g., Cal. Penal Code Ann. 89 ; 90 ; Conn. Gen. *247 Stat. 8-02 (codifying New England Interstate Corrections Compact); 8-06 ; Haw. Rev. Stat. 355- ; Idaho Code 20-70 ; Ky. Rev. Stat. 96.60 (same). And prison regulations such as Hawaii's Rule IV anticipate that inmates sometimes will be transferred to prisons in other States. In short, it is neither unreasonable nor unusual for an inmate to serve practically his entire sentence in a State other than the one in which he was convicted and sentenced, or to be transferred to an out-of-state prison after serving a portion of his sentence in his home State. Confinement in another State, unlike confinement in a mental institution, |
Justice Blackmun | 1,983 | 11 | majority | Olim v. Wakinekona | https://www.courtlistener.com/opinion/110921/olim-v-wakinekona/ | Confinement in another State, unlike confinement in a mental institution, is "within the normal lim or range of custody which the conviction has authorized the State to impose."[8] Even when, as here, the transfer involves long distances and an ocean crossing, the confinement remains within constitutional lim. The difference between such a transfer and an intrastate or interstate transfer of *248 shorter distance is a matter of degree, not of kind,[9] and instructs that "the determining factor is the nature of the interest involved rather than weight." The reasoning of and Montanye compels the conclusion that an interstate prison transfer, including one from Hawaii to California, does not deprive an inmate of any liberty interest protected by the Due Process Clause in and of elf. III The Court of Appeals held that Hawaii's prison regulations create a constitutionally protected liberty interest. In however, the State had "conferred no right on the *249 prisoner to remain in the prison to which he was initially assigned, defeasible only upon proof of specific acts of misconduct," and "ha[d] not represented that transfers [would] occur only on the occurrence of certain events," Because the State had retained "discretion to transfer [the prisoner] for whatever reason or for no reason at all," ib the Court found that the State had not created a constitutionally protected liberty interest. Similarly, because the state law at issue in Montanye "impose[d] no conditions on the discretionary power to transfer," there was no basis for invoking the protections of the Due Process Clause. These cases demonstrate that a State creates a protected liberty interest by placing substantive limitations on official discretion. An inmate must show "that particularized standards or criteria guide the State's decisionmakers." Connecticut Board of If the decisionmaker is not "required to base decisions on objective and defined criteria," but instead "can deny the requested relief for any constitutionally permissible reason or for no reason at all," ib the State has not created a constitutionally protected liberty interest. See at 466- ; see also -49 Hawaii's prison regulations place no substantive limitations on official discretion and thus create no liberty interest entitled to protection under the Due Process Clause. As Rule IV elf makes clear, and as the Supreme Court of Hawaii has held in 63 Haw., at 62 P.2d, at the prison Administrator's discretion to transfer an inmate is completely unfettered. No standards govern or restrict the Administrator's determination. Because the Administrator is the only decisionmaker under Rule IV, we need not decide whether the introductory paragraph *250 of Rule IV, see n. places any substantive limitations |
Justice Blackmun | 1,983 | 11 | majority | Olim v. Wakinekona | https://www.courtlistener.com/opinion/110921/olim-v-wakinekona/ | *250 of Rule IV, see n. places any substantive limitations on the purely advisory Program Committee.[0] The Court of Appeals thus erred in attributing significance to the fact that the prison regulations require a particular kind of hearing before the Administrator can exercise his unfettered discretion.[] As the United States Court of Appeals for the Seventh Circuit recently stated in 68 F.2d 09, 00-0 "[a] liberty interest is of course a substantive interest of an individual; it cannot be the right to demand needless formality."[2] Process is not an end in elf. Its constitutional purpose is to protect a substantive interest to which the individual has a legitimate claim of entitlement. See generally Simon, Liberty and Property in the Supreme Court: A Defense of Roth and Perry, 7 Calif. L. Rev. 46, 86 (983). If officials may transfer a prisoner "for whatever reason or for no reason at all," 427 U. S., there is no such interest for process to protect. The State may choose to require procedures for reasons other than protection against deprivation of substantive *25 rights, of course,[3] but in making that choice the State does not create an independent substantive right. See 47 (983). IV In sum, we hold that the transfer of respondent from Hawaii to California did not implicate the Due Process Clause directly, and that Hawaii's prison regulations do not create a protected liberty interest.[4] Accordingly, the judgment of the Court of Appeals is Reversed. |
Justice Stevens | 1,983 | 16 | majority | Briscoe v. LaHue | https://www.courtlistener.com/opinion/110885/briscoe-v-lahue/ | This case presents a question of statutory construction: whether 42 U.S. C. 1983 (6 ed., Supp. V) authorizes a convicted person to assert a claim for damages against a police officer for giving perjured testimony at his criminal trial. The Court of Appeals for the Seventh Circuit held that witnesses are absolutely immune from damages liability based on their testimony, and rejected the petitioners' contention that government officials who testify about the performance of their official duties may be held liable under 1983 even if other witnesses may not. We agree with that conclusion. The Court of Appeals heard argument in three separate cases raising the absolute immunity issue and decided them in a single opinion. Two of these cases are before us on a writ of certiorari. Petitioner Briscoe was convicted in state court of burglarizing a house trailer. He then filed a 1983 complaint against respondent LaHue, a member of the Bloomington, Indiana, police force, alleging that LaHue had violated his constitutional right to due process by committing perjury in the criminal proceedings leading to his conviction.[1]*327 LaHue had testified that in his opinion Briscoe was one of no more than 50 to 100 people in Bloomington whose prints would match a partial thumbprint on a piece of glass found at the scene of the crime. According to Briscoe, the testimony was false because the Federal Bureau of Investigation and the state police considered the partial print too incomplete to be of value, and without the print there was no evidence identifying him as the burglar. He sought $100,000 in damages. The District Court granted LaHue's motion for summary judgment on four separate grounds: (1) the facts alleged in the complaint did not suggest that LaHue had testified falsely; (2) allegations of perjury alone are insufficient to state a constitutional claim; (3) LaHue had not testified "under color of law"; and (4) Briscoe's claim was collaterally estopped by his criminal conviction. Petitioners Vickers and Ballard were jointly tried and convicted of sexual assault in state court. They subsequently brought a civil action under 1983 against respondent Hunley, a member of the Cedar Lake, Indiana, police force, alleging that he had deprived them of their constitutional rights to due process and a fair trial. They alleged that, by giving false testimony suggesting that they had been able to harmonize their stories before making exculpatory statements to police, he had prejudicially diminished the credibility of those statements. Each plaintiff sought $150,000 in compensatory and $50,000 in punitive damages. The Federal Magistrate granted a motion to dismiss the complaint on alternative |
Justice Stevens | 1,983 | 16 | majority | Briscoe v. LaHue | https://www.courtlistener.com/opinion/110885/briscoe-v-lahue/ | Magistrate granted a motion to dismiss the complaint on alternative grounds: (1) Hunley had not testified "under color of law"; (2) he was entitled to absolute witness immunity; and (3) petitioners had failed to state a claim under 1983 because they did not allege that the prosecutor had knowingly used false testimony. The District Court affirmed the dismissal on the first ground. Both cases were appealed to the United States Court of Appeals for the Seventh Circuit.[2] *328 Although other issues were argued in the Court of Appeals, its holding in both cases was predicated squarely on the ground that, in litigation brought under 42 U.S. C. 1983 (6 ed., Supp. V), all witnesses police officers as well as lay witnesses are absolutely immune from civil liability based on their testimony in judicial proceedings.[3] Because of the importance of the immunity question, which has given rise to divergent conclusions in the Courts of Appeals,[4] we granted certiorari.[5] *329 Before confronting the precise question that this case presents whether 1983 creates a damages remedy against police officers for their testimony as witnesses we begin by considering the potential liability of lay witnesses on the one hand, and of judges and prosecutors who perform integral functions in judicial proceedings on the other hand. The unavailability of a damages remedy against both of these categories sheds considerable light on petitioners' claim that Congress intended police officer witnesses to be treated differently. I There are two reasons why 1983 does not allow recovery of damages against a private party for testimony in a judicial proceeding. First, 1983 does not create a remedy for all conduct that may result in violation of "rights, privileges, or immunities secured by the Constitution and laws." Its reach is limited to actions taken "under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory."[6] It is beyond question that, when a private *330 party gives testimony in open court in a criminal trial, that act is not performed "under color of law."[7] Second, since 1951, when this Court decided it has been settled that the all-encompassing language of 1983, referring to "[e]very person" who, under color of law, deprives another of federal constitutional or statutory rights, is not to be taken literally.[8] "It is by now well settled that the tort liability created by 1983 cannot be understood in a historical vacuum. One important assumption underlying the Court's decisions in this area is that members of the 42d Congress were familiar with common-law principles, including defenses previously recognized in ordinary tort |
Justice Stevens | 1,983 | 16 | majority | Briscoe v. LaHue | https://www.courtlistener.com/opinion/110885/briscoe-v-lahue/ | with common-law principles, including defenses previously recognized in ordinary tort litigation, and that they likely intended these common-law principles to obtain, absent specific provisions to the contrary." City of See The immunity of parties and witnesses from subsequent damages liability for their testimony in judicial proceedings[9]*331 was well established in English common law. Cutler v. Dixon, 4 Co. Rep. 14b, 76 Eng. Rep. 886 (Q. B. 1585); Anfield v. Feverhill, 2 Bulst. 269, 80 Eng. Rep. 1113 (K. B. 1614); Henderson v. 4 H. & N. 569, 578, 157 Eng. Rep. 964, 968 (Ex. 1859);[10] see Dawkins v. Lord Rokeby, 4 F. & F. 806, 833-834, 176 Eng. Rep. 800, 812 (C. P. 1866). Some American decisions required a showing that the witness' allegedly defamatory statements were relevant to the judicial proceeding, but once this threshold showing had been made, the witness had an absolute privilege.[11] The *332 plaintiff could not recover even if the witness knew the statements were false and made them with malice.[12] In the words of one 19th-century court, in damages suits against witnesses, "the claims of the individual must yield to *333 the dictates of public policy, which requires that the paths which lead to the ascertainment of truth should be left as free and unobstructed as possible." A witness' apprehension of subsequent damages liability might induce two forms of self-censorship. First, witnesses might be reluctant to come forward to testify. See Henderson v. 157 Eng. Rep., at 968. And once a witness is on the stand, his testimony might be distorted by the fear of subsequent liability. See Even within the constraints of the witness' oath there may be various ways to give an account or to state an opinion. These alternatives may be more or less detailed and may differ in emphasis and certainty. A witness who knows that he might be forced to defend a subsequent lawsuit, and perhaps to pay damages, might be inclined to shade his testimony in favor of the potential plaintiff, to magnify uncertainties, and thus to deprive the finder of fact of candid, objective, and undistorted evidence. See Veeder, Absolute Immunity in Defamation: Judicial Proceedings,[13] But the truthfinding process is better *334 served if the witness' testimony is submitted to "the crucible of the judicial process so that the factfinder may consider it, after cross-examination, together with the other evidence in the case to determine where the truth lies." (6)[14] At least with respect to private witnesses, it is clear that 1983 did not abrogate the absolute immunity existing at common law, and petitioners do not contend |
Justice Stevens | 1,983 | 16 | majority | Briscoe v. LaHue | https://www.courtlistener.com/opinion/110885/briscoe-v-lahue/ | immunity existing at common law, and petitioners do not contend otherwise. Like the immunity for legislators at issue in the common law's protection for witnesses is "a tradition so well grounded in history and reason" that we cannot believe that Congress impinged on it "by covert inclusion in the general language before us." II The Court has already addressed the question whether 1983 permits damages recoveries from judges, prosecutors, and other persons acting "under color of law" who perform official functions in the judicial process. Again, we have found that, in light of common-law immunity principles, 1983 did not impose liability on these officials. We have held that state judges are absolutely immune from liability for their judicial acts, ; (8), and that state prosecutors have absolute immunity from liability for their actions in initiating prosecutions, The central focus of our analysis has been the nature of the judicial proceeding itself. Thus, in his opinion concurring in the judgment in JUSTICE WHITE explained that the absolute immunity of public prosecutors was "based on the policy of protecting the judicial process." * He explained that this protection extended equally to other participants, including counsel and witnesses. "The reasons for this rule are also substantial. It is precisely the function of a judicial proceeding to determine where the truth lies. The ability of courts, under carefully developed procedures, to separate truth from falsity, and the importance of accurately resolving factual disputes in criminal (and civil) cases are such that those involved in judicial proceedings should be `given every encouragement to make a full disclosure of all pertinent information within their knowledge.' " The common law's protection for judges and prosecutors formed part of a "cluster of immunities protecting the various participants in judge-supervised trials," which stemmed "from the characteristics of the judicial process." (8); cf. King v. Skinner, Lofft 54, 56, 98 Eng. Rep. 529 (K. B. 1772) ("[N]either party, witness, counsel, jury, or judge can be put to answer, civilly or criminally, for words spoken in office"). The common law recognized that "controversies sufficiently intense to erupt in litigation are not easily capped by a judicial decree. The loser in one forum will frequently seek another Absolute immunity is thus necessary to assure that judges, advocates, and witnesses can perform their respective functions without harassment or intimidation." Butz, at In short, the common law provided absolute immunity from subsequent damages liability for all persons governmental or otherwise who were integral parts of the judicial process. It is equally clear that 1983 does not authorize a damages claim against private |
Justice Stevens | 1,983 | 16 | majority | Briscoe v. LaHue | https://www.courtlistener.com/opinion/110885/briscoe-v-lahue/ | that 1983 does not authorize a damages claim against private witnesses on the one hand, or against judges or prosecutors in the performance of their respective duties on the other. When a police officer appears as a witness, he may reasonably be viewed as acting like any *336 other witness sworn to tell the truth in which event he can make a strong claim to witness immunity;[15] alternatively, he may be regarded as an official performing a critical role in the judicial process, in which event he may seek the benefit afforded to other governmental participants in the same proceeding. Nothing in the language of the statute suggests that such a witness belongs in a narrow, special category lacking protection against damages suits. We must ask, however, whether anything in the legislative history of 1983 points to a different conclusion. III Petitioners point to a number of references throughout the debates on the 1871 Act to widespread perjury by Ku Klux Klan witnesses in state criminal trials.[16] They urge that, because perjury was one of the specific evils with which Congress was concerned, recognizing an absolute immunity for witnesses would conflict with congressional intent. We find this argument unpersuasive. The Act consisted of several sections establishing different remedies for disorder and violence in the Southern States.[17] The legislative history and statutory language indicate that Congress intended perjury *337 leading to unjust acquittals of Klan conspirators to be prohibited by 2, the civil and criminal conspiracy section of the statute, now codified in relevant part at 42 U.S. C. 1985(3) (6 ed., Supp. V) and 18 U.S. C. 241. But the language of 1 now codified as 1983 differs from that of 2 in essential respects, and we find no evidence that Congress intended to abrogate the traditional common-law witness immunity in 1983 actions. The Ku Klux Act, was enacted on April 20, 1871, less than a month after President Grant sent a dramatic message to Congress describing the breakdown of law and order in the Southern States. Cong. 42d Cong., 1st Sess., 236, 244 (1871). During the debates, supporters of the bill repeatedly described the reign of terror imposed by the Klan upon black citizens and their white sympathizers in the Southern States. Hours of oratory were devoted to the details of Klan outrages arson, robbery, whippings, shootings, murders, and other forms of violence and intimidation often committed in disguise and under cover of night. These acts of lawlessness went unpunished, legislators asserted, because Klan members and sympathizers controlled or influenced the administration of state |
Justice Stevens | 1,983 | 16 | majority | Briscoe v. LaHue | https://www.courtlistener.com/opinion/110885/briscoe-v-lahue/ | members and sympathizers controlled or influenced the administration of state criminal justice. In particular, it was alleged that Klan members were obligated, by virtue of membership in the organization, to protect fellow members who were charged with criminal activity. They had a duty to offer themselves for service on grand and petit juries, and to violate their jurors' oaths by refusing to indict or to convict regardless of the strength of the evidence. They also were bound to appear as witnesses, and again to violate their oaths by committing perjury, if necessary, to exculpate their Klan colleagues.[18] Perjury was thus one of the *338 means by which the Klan prevented state courts from gaining convictions of Klan members for crimes against blacks and Republicans. It is clear from the legislative debates that, in the view of the Act's sponsors, the victims of Klan outrages were deprived of "equal protection of the laws" if the perpetrators systematically went unpunished.[19] Proponents of the measure repeatedly argued that, given the ineffectiveness of state law enforcement and the individual's federal right to "equal protection of the laws," an independent federal remedy was necessary and Congress had the power to provide it.[20] See Section 2 was designed specifically to provide criminal and civil remedies in federal court for the conspiratorial activities of the Klan. Indeed the provision singles out those who "go in disguise upon the public highway." Earlier versions of the section enumerated precisely the activities that had been attributed to the Klan murder, manslaughter, mayhem, robbery, assault and battery, perjury, subornation of perjury, criminal obstruction of legal process or resistance of officers *339 in discharge of official duty, arson, or larceny. Cong. The more general language in the final version of 2 was also intended to apply to the abuses that had been described repeatedly in congressional debate.[21] Part of the provision is particularly well tailored to reach conspiracies to commit perjury in order to prevent punishment of fellow Klansmen. It provides penalties whenever two or more persons shall "conspire together for the purpose of preventing or hindering the constituted authorities of any State from giving or securing to all persons within such State the equal protection of the laws, or shall conspire together for the purpose of in any manner impeding, hindering, obstructing, or defeating the due course of justice in any State or Territory, with intent to deny to any citizen of the United States the due and equal protection of the laws"[22] This evidence does not, however, tend to show that Congress intended to abrogate witness immunity in civil |
Justice Stevens | 1,983 | 16 | majority | Briscoe v. LaHue | https://www.courtlistener.com/opinion/110885/briscoe-v-lahue/ | show that Congress intended to abrogate witness immunity in civil actions under 1, which applied to wrongs committed "under color of. law." The bill's proponents were exclusively concerned with perjury resulting in unjust acquittals perjury likely to be committed by private parties acting in furtherance of a conspiracy and not with perjury committed "under color of *340 law" that might lead to unjust convictions. In hundreds of pages of debate there is no reference to the type of alleged constitutional deprivation at issue in this case: perjury by a government official leading to an unjust conviction. Indeed, the legislative history is virtually silent even with regard to perjury by private persons leading to convictions of innocent defendants.[23] There is a simple enough reason for this lacuna: the Klan had other, more direct, means of dealing with its victims. A "reign of terrorism and bloodshed" did not require the formal processes of law; at most, drumhead tribunals were convened at dead of night.[24] Even when the organization's intended victims had been taken into custody and charged with crimes, the evidence before Congress suggested that the Klan resorted to vigilante justice rather than courtroom perjury.[25] In summary, the legislative history supports criminal punishment under 2 for a witness who conspired to give perjured testimony favorable to a defendant, with the effect of preventing effective enforcement of the laws, and liability in a civil suit against the perjured witness by the defendant's victim. But these are not the issues before us today. We are asked to extrapolate from pro-defendant perjury to proprosecution perjury, and if willing to make that step, we are further invited to apply legislative history relating to 2 a section specifically directed toward private conspiracies to 1 a section designed to provide remedies for abuses under *341 color of law. We decline the invitation. The debates of the 42d Congress do not support petitioners' contention that Congress intended to provide a 1 damages remedy against police officers or any other witnesses.[26] IV Petitioners, finally, urge that we should carve out an exception to the general rule of immunity in cases of alleged perjury by police officer witnesses.[27] They assert that the reasons supporting common-law immunity the need to *342 avoid intimidation and self-censorship apply with diminished force to police officers. Policemen often have a duty to testify about the products of their investigations, and they have a professional interest in obtaining convictions which would assertedly counterbalance any tendency to shade testimony in favor of potentially vindictive defendants. In addition, they are subject to |
Justice Stevens | 1,983 | 16 | majority | Briscoe v. LaHue | https://www.courtlistener.com/opinion/110885/briscoe-v-lahue/ | of potentially vindictive defendants. In addition, they are subject to 1983 lawsuits for the performance of their other duties, as to which they have only qualified immunity, and their defense is generally undertaken by their governmental employers. Further, petitioners urge that perjured testimony by police officers is likely to be more damaging to constitutional rights than such testimony by ordinary citizens, because the policeman in uniform carries special credibility in the eyes of jurors. And, in the case of police officers, who cooperate regularly with prosecutors in the enforcement of criminal law, prosecution for perjury is alleged to be so unlikely that it is not an effective substitute for civil damages. These contentions have some force. But our cases clearly indicate that immunity analysis rests on functional categories, not on the status of the defendant.[28] A police officer on the witness stand performs the same functions as any other witness; he is subject to compulsory process, takes an oath, responds to questions on direct examination and cross-examination, and may be prosecuted subsequently for perjury. Moreover, to the extent that traditional reasons for witness immunity are less applicable to governmental witnesses, *343 other considerations of public policy support absolute immunity more emphatically for such persons than for ordinary witnesses. Subjecting government officials, such as police officers, to damages liability under 1983 for their testimony might undermine not only their contribution to the judicial process but also the effective performance of their other public duties. Section 1983 lawsuits against police officer witnesses, like lawsuits against prosecutors, "could be expected with some frequency." Cf. Police officers testify in scores of cases every year, and defendants often will transform resentment at being convicted into allegations of perjury by the State's official witnesses. As the files in this case show, even the processing of a complaint that is dismissed before trial consumes a considerable amount of time and resources.[29] This category of 1983 litigation might well impose significant burdens on the judicial system and on law enforcement resources. As this Court noted when it recognized absolute immunity for prosecutors in Imbler, if the defendant official "could be made to answer in court each time [a disgruntled defendant] charged him with wrongdoing, his energy and attention *344 would be diverted from the pressing duty of enforcing the criminal law." To some degree the individual's burden might be alleviated by the government's provision of counsel, but a case that goes to trial always imposes significant emotional and other costs on every party litigant. It is not sufficient to assert that the burdens on defendants and the courts |
Justice Stevens | 1,983 | 16 | majority | Briscoe v. LaHue | https://www.courtlistener.com/opinion/110885/briscoe-v-lahue/ | to assert that the burdens on defendants and the courts could be alleviated by limiting the cause of action to those former criminal defendants who have already vindicated themselves in another forum, either on appeal or by collateral attack. We rejected a similar contention in Imbler. Petitioner contended that "his suit should be allowed, even if others would not be, because the District Court's issuance of the writ of habeas corpus shows that his suit has substance." We declined to carve out such an exception to prosecutorial immunity, noting that petitioner's success in a collateral proceeding did not necessarily establish the merits of his civil rights action. Moreover, we noted that "using the habeas proceeding as a `door-opener' for a subsequent civil rights action would create the risk of injecting extraneous concerns into that proceeding." We emphasized that, in determining whether to grant postconviction relief, the tribunal should focus solely on whether there was a fair trial under law. "This focus should not be blurred by even the subconscious knowledge that a post-trial decision in favor of the accused might result in the prosecutor's being called upon to respond in damages for his error or mistaken judgment." The same danger exists in the case of potential liability for police officer witnesses.[30] *345 There is, of course, the possibility that, despite the truthfinding safeguards of the judicial process, some defendants might indeed be unjustly convicted on the basis of knowingly false testimony by police officers.[31] The absolute immunity for prosecutors recognized in Imbler bars one possible avenue of redress for such defendants. Similarly, in this case, the absolute witness immunity bars another possible path to recovery for these defendants. But we have recognized, again and again, that in some situations, the alternative of limiting the official's immunity would disserve the broader public interest. As Judge Learned Hand wrote years ago: "As is so often the case, the answer must be found in a balance between the evils inevitable in either alternative. In this instance it has been thought in the end better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation." cert. denied,[32] In short, the rationale of our prior absolute immunity cases governs the disposition of this case. In 1871, common-law immunity for witnesses was well settled. The principles set forth in to protect judges and in to protect prosecutors also apply to witnesses, who perform a somewhat different function in the trial process but whose participation in bringing the litigation to a *346A |
Justice Stevens | 1,985 | 16 | dissenting | Garcia v. United States | https://www.courtlistener.com/opinion/111287/garcia-v-united-states/ | When the literal application of a statute would produce a result "demonstrably at odds with the intentions of its drafters," the actual legislative intent must control our disposition. See I believe a similar rule should apply to the literal application of a federal criminal statute that is dramatically broader than the coverage that its draftsmen intended. I A fair reading of the entire history of 18 U.S. C. 2114 convinces me that Congress never intended it to apply outside of the postal context. As the Court correctly notes, ante, at 75, 2114 "had its genesis as a law to protect mail carriers from assault and robbery of mail matter." The deterrent purpose of such a law justifies the imposition of especially severe sanctions. For that reason, heavy penalties have always been authorized, and sometimes mandated, for assaults upon mail carriers. The Second Congress, recognizing the importance of the delivery of the mails, enacted the earliest predecessor to 2114 in 1792. That enactment, entitled "An Act to establish the Post-Office and Post Roads within the United States,"[1] stated in part that death was the penalty for any *81 person who robbed "any carrier of the mail of the United States."[2] The penalty for robbery of a carrier of the mail remained the same when the Third Congress passed the Act of May 8, 1794.[3] Almost three years later, Congress made aiding and abetting the robbery of a mail carrier an offense also subject to a penalty of death.[4] Repeatedly in subsequent years Congress enacted special legislation dealing with mail-robbery offenses. Such statutes were enacted in 1799,[5] 1810,[6] 1825,[7] 1872,[8] and *82 1909.[9] In the 1909 statute, Congress established a mandatory minimum sentence of incarceration of 25 years for attempted robbery if the mail carrier was wounded or had his life put in danger. As it had done consistently for over a century, Congress thus ensured that the law would provide special protection for a person within the postal setting by making it clear that a crime upon such a person was an unusually serious matter, not only because it was a federal offense, but also because of the severity of the mandated penalty.[10] *83 The history through the 1909 codification and in the immediate years thereafter unequivocally demonstrates that 2114's predecessors were always intended for postal offenses. This case, of course, involves an interpretation of the amendment of 320 of Title 18 that Congress adopted in 1935. The question is whether Congress intended to abandon the postal nexus that had characterized this legislation throughout its long history. II A review of |
Justice Stevens | 1,985 | 16 | dissenting | Garcia v. United States | https://www.courtlistener.com/opinion/111287/garcia-v-united-states/ | this legislation throughout its long history. II A review of the circumstances leading to the 1935 amendment persuades me that Congress merely intended to broaden the protection of postal workers. In 1934 two bills containing the amendatory language that was enacted in the following year were introduced in the House of Representatives and referred to the Committee on the Judiciary.[11] Neither of those bills was reported out of that Committee which, of course, is the Committee that would normally process a significant change in the general coverage of the Criminal Code. In 1935, the highest postal official, the Postmaster General, wrote a letter to Representative James M. Mead, Chairman of the House Committee on the Post Office and Post Roads, requesting an amendment to cover assaults *84 on custodians of Government funds.[12] In both the House and the Senate it was the Committee on the Post Office and Post Roads that processed the requested legislation. See H. R. Rep. No. 582, 74th Cong., 1st Sess. (1935); S. Rep. No. 1440, 74th Cong., 1st Sess. (1935). The 1935 amendment that was referred to the House Committee on the Post Office and Post Roads was a noncontroversial measure that Congressman Dobbins, a Member of that Committee, managed on the floor of the House. In response to a query, he stated that "[t]he only purpose of *85 the pending bill is to extend the protection of the present law to property of the United States in the custody of its postal officials, the same as it now extends that protection to mail matter in the custody of its postal officials."[13] When a *86 relatively minor piece of legislation of this sort is processed with almost no debate on the floor of either House, the unambiguous comment of a spokesman for the Committee that reported the bill is particularly illuminating. In my opinion it is entitled to greater weight than a general statement in the Committee Reports that is little more than a paraphrase of the statutory language itself. As Judge Friendly succinctly wrote in United : "[T]he 1935 amendment was to a statute which stood in the chapter of the Criminal Code dealing with offenses against the postal service. No Congressman could have supposed that, in passing an amendment to that section proposed by the Postmaster General and recommended by the committees dealing with the postal service, he was creating a new crime with respect to government property generally." n. 3a. III Even after Congress enacted the 1935 amendment, thus structuring the statute to read[14] in much the same form as it *87 |
Justice Stevens | 1,985 | 16 | dissenting | Garcia v. United States | https://www.courtlistener.com/opinion/111287/garcia-v-united-states/ | to read[14] in much the same form as it *87 exists today, the statute remained in the chapter dealing with crimes against the Postal Service until the general revision of the Judicial Code in 1948. No one contends that the 1948 revision changed the meaning of the statute.[15] Apparently it never occurred to any federal prosecutor that this statute had any application outside the postal context until several decades after it was amended.[16] Indeed, in 1973, when the question was first considered at the top executive level of the Department of Justice in United vacated and remanded, Solicitor General Bork carefully examined the question, concluding that it covered only postal crimes. The Solicitor General's explanation of that conclusion merits quotation: "In 1935 Congress added the more encompassing phrase `money or other property of the United States.' On its face the statute covers the crime for which petitioner was convicted, as one involving a `person having lawful charge, control, or custody of any money or other property of the United States We agree with petitioner, however, that the legislative history plainly shows that the statute was intended to apply only to postal crimes. "The bill amending the statute was designed to remedy the anomalous situation which existed under the old statute. Before the amendments the statute imposed a severe penalty on one who robbed mail matter from the Postal Office but imposed no penalty on one who *88 robbed money or other valuable property from the Post Office. "The change in the law had been advocated by the Post Office Department and only that Department submitted a report on the bill to the House and Senate Committees on Post Office and Post Roads. We therefore concede that Section 2114, as amended, was designed only to cover robberies of post offices or postal employees."[17] IV Even if I am correct in my appraisal of the actual intent of Congress, it is arguable that the statutory language is sufficiently plain that it should nevertheless be given effect. There are, however, three special concerns that lead me to the contrary conclusion. First is the relationship between this statute and other parts of the Criminal Code. The general statute proscribing thefts of Government property, 18 U.S. C. 2112, carries a lesser penalty even if violence accompanies the theft.[18] The more severe penalty in 2114 is only explicable if we assume that Congress wanted to provide a special deterrent to crimes against an identifiable class of federal employees. Moreover, that special deterrent is consistent with the congressional decision in 1868 that mail carriers should wear special |
Justice Stevens | 1,985 | 16 | dissenting | Garcia v. United States | https://www.courtlistener.com/opinion/111287/garcia-v-united-states/ | congressional decision in 1868 that mail carriers should wear special uniforms that the Postmaster General prescribed. See Act of July 27, 1868, ch. 246, 20, Robbery of a uniformed postal worker fits squarely into the rationale for 2114. The assault in this case, however, was upon an undercover agent not known to have any connection with *89 the Federal Government. This type of robbery is not appropriately prosecuted under 2114.[19] Second, the severity of the mandatory minimum sentences 10 years if no actual or threatened violence is involved and 25 years in a case of this kind is rather plainly disproportionate to the offense if it covers every conceivable theft of Government property even the attempted robbery of a Government-owned hammer.[20] The Government responds by noting that it is for Congress to decide if a penalty is too harsh.[21] This is quite true. But this response identifies my final and most important concern. It is Congress, rather than the Executive, that must define the dimensions of the federal law enforcement program. Law enforcement remains, and should remain, the primary responsibility of the several States. Every increase in the power of the federal prosecutor moves us a step closer to a national police force with its attendant threats to individual liberty. For that reason, I believe we have a special obligation to make sure that Congress intended to authorize a novel assertion of federal criminal jurisdiction. Cf. ; ; United There is, of course, no doubt that Congress has the authority to enact a law with the meaning the Court finds in 2114 today. I am not, however, convinced that Congress actually intended to do so. I therefore respectfully dissent. |
Justice Blackmun | 1,975 | 11 | second_dissenting | United States v. American Bldg. Maint. Industries | https://www.courtlistener.com/opinion/109294/united-states-v-american-bldg-maint-industries/ | I believe that the scope of the Clayton Act should be held to extend to acquisitions and sales having a substantial effect on interstate commerce. I therefore dissent. For me, the reach of 7 of the Clayton Act, as amended, 15 U.S. C. 18, is as broad as that of the Sherman Act, and should not be given the narrow construction we properly have given, just this Term, to the Robinson-Patman Act. Gulf Oil For more than a quarter of a century the Court has held that the Sherman Act should be construed broadly to reach the full extent of the commerce power, and to proscribe those restraints that substantially affect interstate commerce. See, e. g., Mandeville Island Farms, ; United The Clayton Act was enacted to supplement the Sherman Act, and to "arrest in its incipiency" any restraint or substantial lessening of competition. United To ascribe *288 to Congress the intent to exercise less than its full commerce power in the Clayton Act, which has as its purpose the supplementation of the protections afforded by the Sherman Act, is both highly anomalous and, it seems to me, unwarranted. Section 7 should not be limited, as the Court limits it today, to corporations engaged in interstate commerce, but should be held to include those intrastate activities substantially affecting interstate commerce. |
Justice Rehnquist | 1,992 | 19 | dissenting | Forsyth County v. Nationalist Movement | https://www.courtlistener.com/opinion/112767/forsyth-county-v-nationalist-movement/ | We granted certiorari in this case to consider the following question: "Whether the provisions of the First Amendment to the United States Constitution limit the amount of a license fee assessed pursuant to the provisions of a county parade ordinance to a nominal sum or whether the amount of the license fee may take into account the actual expense incident to the administration of the ordinance and the maintenance of public order in the matter licensed, up to the sum of $1,000.00 per day of the activity." Pet. for Cert. i. The Court's discussion of this question is limited to an ambiguous and noncommittal paragraph toward the very end of the this page. The rest of the opinion *138 takes up and decides other perceived unconstitutional defects in the Forsyth County ordinance. None of these claims were passed upon by the Court of Appeals; that court decided only that the First Amendment forbade the charging of more than a nominal fee for a permit to parade on public streets. Since that was the question decided by the Court of Appeals below, the question which divides the Courts of Appeals, and the question presented in the petition for certiorari, one would have thought that the Court would at least authoritatively decide, if not limit itself to, that question. I The answer to this question seems to me quite simple, because it was authoritatively decided by this Court more than half a century ago in There we confronted a state statute which required payment of a license fee of up to $300 to local governments for the right to parade in the public streets. The Supreme Court of New had construed the provision as requiring that the amount of the fee be adjusted based on the size of the parade, as the fee "for a circus parade or a celebration procession of length, each drawing crowds of observers, would take into account the greater public expense of policing the spectacle, compared with the slight expense of a less expansive and attractive parade or procession." Under the state court's construction, the fee provision was "not a revenue tax, but one to meet the expense incident to the administration of the Act and to the maintenance of public order in the matter licensed." This Court, in a unanimous opinion by Chief Justice Hughes, upheld the statute, saying: "There is nothing contrary to the Constitution in the charge of a fee limited to the purpose stated. The suggestion that a flat fee should have been charged fails to take account of the difficulty of framing |
Justice Rehnquist | 1,992 | 19 | dissenting | Forsyth County v. Nationalist Movement | https://www.courtlistener.com/opinion/112767/forsyth-county-v-nationalist-movement/ | charged fails to take account of the difficulty of framing a fair schedule *139 to meet all circumstances, and we perceive no constitutional ground for denying to local governments that flexibility of adjustment of fees which in the light of varying conditions would tend to conserve rather than impair the liberty sought. "There is no evidence that the statute has been administered otherwise than in the fair and nondiscriminatory manner which the state court has construed it to require." Two years later, in this Court confronted a municipal ordinance that required payment of a flat license fee for the privilege of canvassing door-to-door to sell one's wares. Pursuant to that ordinance, the city had levied the flat fee on a group of Jehovah's Witnesses who sought to distribute religious literature door-to-door for a small price. The Court held that the flat license tax, as applied against the hand distribution of religious tracts, was unconstitutional on the ground that it was "a flat tax imposed on the exercise of a privilege granted by the Bill of Rights." In making this ruling, the Court distinguished Cox by stating that "the fee is not a nominal one, imposed as a regulatory measure and calculated to defray the expense of protecting those on the streets and at home against the abuses of solicitors." This language, which suggested that the fee involved in Cox was only nominal, led the Court of Appeals for the Eleventh Circuit in the present case to conclude that a city is prohibited from charging any more than a nominal fee for a parade permit. But the clear holding of Cox is to the contrary. In that case, the Court expressly recognized that the New state statute allowed a city to levy much more than a nominal parade fee, as it stated that the fee provision "had a permissible range from $300 to a nominal amount." The use of the word "nominal" in Murdock was thus unfortunate, as *140 it represented a mistaken characterization of the fee statute in Cox. But a mistaken allusion in a later case to the facts of an earlier case does not by itself undermine the holding of the earlier case. The situations in Cox and Murdock were clearly different; the first involved a sliding fee to account for administrative and security costs incurred as a result of a parade on public property, while the second involved a flat tax on protected religious expression. I believe that the decision in Cox squarely controls the disposition of the question presented in this case, and I therefore would |
Justice Rehnquist | 1,992 | 19 | dissenting | Forsyth County v. Nationalist Movement | https://www.courtlistener.com/opinion/112767/forsyth-county-v-nationalist-movement/ | the question presented in this case, and I therefore would explicitly hold that the Constitution does not limit a parade license fee to a nominal amount. II Instead of deciding the particular question on which we granted certiorari, the Court concludes that the county ordinance is facially unconstitutional because it places too much discretion in the hands of the county administrator and forces parade participants to pay for the cost of controlling those who might oppose their speech. Ante, at 130-137. But, because the lower courts did not pass on these issues, the Court is forced to rely on its own interpretation of the ordinance in making these rulings. The Court unnecessarily reaches out to interpret the ordinance on its own at this stage, even though there are no lower court factual findings on the scope or administration of the ordinance. Because there are no such factual findings, I would not decide at this point whether the ordinance fails for lack of adequate standards to guide discretion or for incorporation of a "heckler's veto," but would instead remand the case to the lower courts to initially consider these issues. The Court first finds fault with the alleged standardless discretion possessed by the county administrator. The ordinance provides that the administrator "shall adjust the amount to be paid in order to meet the expense incident to the administration of the Ordinance and to the maintenance of public order in the matter licensed." App. to Pet. for *141 Cert. 119. In this regard, the ordinance clearly parallels the construction of the statute we upheld in Cox. 312 U. S., (statute did not impose "a revenue tax, but one to meet the expense incident to the administration of the Act and to the maintenance of public order in the matter licensed" ). The Court worries, however, about the possibility that the administrator has the discretion to set fees based upon his approval of the message sought to be conveyed, and concludes that "the county's authoritative constructio[n] of the ordinance" allows for such a possibility. Ante, at 131. The Court apparently envisions a situation where the administrator would impose a $1,000 parade fee on a group whose message he opposed, but would waive the fee entirely for a similarly situated group with whom he agreed. But the county has never rendered any "authoritative construction" indicating that officials have "unbridled discretion," ante, at 133, in setting parade fees, nor has any lower court so found. In making its own factual finding that the ordinance does allow for standardless fee setting, this Court simply cites four |
Justice Rehnquist | 1,992 | 19 | dissenting | Forsyth County v. Nationalist Movement | https://www.courtlistener.com/opinion/112767/forsyth-county-v-nationalist-movement/ | allow for standardless fee setting, this Court simply cites four situations in which the administrator set permit feestwo fees of $100, one of $25, and one of $5. Ante, at 132. On the basis of this evidence, the Court finds that the administrator has unbridled discretion to set permit fees. The mere fact that the permit fees differed in amount does not invalidate the ordinance, however, as our decision in Cox clearly allows a governmental entity to adopt an adjustable permit fee scheme. See It is true that the Constitution does not permit a system in which the county administrator may vary fees at his pleasure, but there has been no lower court finding that that is what this fledgling ordinance creates. And, given the opportunity, the District Court might find that the county has a policy that precludes the administrator from arbitrarily imposing fees. Of course, the District *142 Court might find that the administrator does possess too much discretion. In either case, I believe findings by the District Court on the issue would be preferable. The Court relies on for the proposition that the county's interpretation of the ordinance must be considered. In that case, however, we relied upon District Court findings concerning New York City's limiting interpretation of a noise regulation. I would prefer to remand this case so that the Court might rely on such express findings here as well. The Court's second reason for invalidating the ordinance is its belief that any fee imposed will be based in part on the cost of security necessary to control those who oppose the message endorsed by those marching in a parade. Assuming 100 people march in a parade and 10,000 line the route in protest, for example, the Court worries that, under this ordinance, the county will charge a premium to control the hostile crowd of 10,000, resulting in the kind of "heckler's veto" we have previously condemned. Ante, at 133-136. But there have been no lower court findings on the question whether or not the county plans to base parade fees on anticipated hostile crowds. It has not done so in any of the instances where it has so far imposed fees. Ante, at 132. And it most certainly did not do so in this case. The District Court below noted that: "[T]he instant ordinance alternatively permits fees to be assessed based upon `the expense incident to the maintenance of public order.' If the county had applied this portion of the statute, the phrase might run afoul of constitutional concerns. "However, in the instant case, plaintiff |
Justice Blackmun | 1,984 | 11 | concurring | McDonough Power Equipment, Inc. v. Greenwood | https://www.courtlistener.com/opinion/111065/mcdonough-power-equipment-inc-v-greenwood/ | I agree with the Court that the proper inquiry in this case is whether the plaintiffs had the benefit of an impartial trier of fact. I also agree that, in most cases, the honesty or dishonesty of a juror's response is the best initial indicator of whether the juror in fact was impartial. I therefore join the Court's opinion, but I write separately to state that I understand the Court's holding not to foreclose the normal avenue of relief available to a party who is asserting that he did not have the benefit of an impartial jury. Thus, regardless of whether a juror's answer is honest or dishonest, it remains within a trial court's option, in determining whether a jury was biased, to order a post-trial hearing at which the movant has the opportunity to demonstrate actual bias or, in exceptional *557 circumstances, that the facts are such that bias is to be inferred. See ; JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, concurring in the judgment. I agree with the Court that the Court of Appeals employed an erroneous legal standard to determine whether a new trial was required in this case, and that the Court of Appeals compounded that error by failing to remand the case to the District Court for a hearing and decision on the motion for new trial in the first instance. I concur only in the judgment, however, because I have difficulty understanding the import of the legal standard adopted by the Court. The Court of Appeals ordered a new trial because Ronald Payton, who later was chosen as jury foreman, incorrectly answered an important question posed to prospective jurors on voir dire. Specifically, although asked whether any family members had "sustained any injuries that resulted in any disability or prolonged pain or suffering," Payton failed to disclose a previous injury his son had incurred in a trucktire explosion. The court concluded that, because the information available to counsel during voir dire was erroneous, Payton's failure to respond "prejudiced the Greenwoods' right to peremptory challenge." It therefore held that the Greenwoods' motion for a new trial should have been granted, and entered judgment granting the motion. I agree with the Court that a finding that less than complete information was available to counsel conducting voir dire does not by itself require a new trial. I cannot join, however, in the legal standard asserted by the Court's opinion. In my view, the proper focus when ruling on a motion for new trial in this situation should be on the bias of the juror and the |
Justice Blackmun | 1,984 | 11 | concurring | McDonough Power Equipment, Inc. v. Greenwood | https://www.courtlistener.com/opinion/111065/mcdonough-power-equipment-inc-v-greenwood/ | should be on the bias of the juror and the resulting prejudice to the litigant. More specifically, to be awarded a new trial, a litigant should be required to demonstrate that the juror incorrectly responded to *558 a material question on voir dire, and that, under the facts and circumstances surrounding the particular case, the juror was biased against the moving litigant. See, e. g., When applying this standard, a court should recognize that "[t]he bias of a prospective juror may be actual or implied; that is, it may be bias in fact or bias conclusively presumed as [a] matter of law." United See also Because the bias of a juror will rarely be admitted by the juror himself, "partly because the juror may have an interest in concealing his own bias and partly because the juror may be unaware of it," it necessarily must be inferred from surrounding facts and circumstances. Therefore, for a court to determine properly whether bias exists, it must consider at least two questions: are there any facts in the case suggesting that bias should be conclusively presumed; and, if not, is it more probable than not that the juror was actually biased against the litigant. Whether the juror answered a particular question on voir dire honestly or dishonestly, or whether an inaccurate answer was inadvertent or intentional, are simply factors to be considered in this latter determination of actual bias.[*] I therefore cannot agree with the Court when it *559 asserts that a new trial is not warranted whenever a prospective juror provides an honest answer to the question posed. Cf. ante, at 556. One easily can imagine cases in which a prospective juror provides what he subjectively believes to be an honest answer, yet that same answer is objectively incorrect and therefore suggests that the individual would be a biased juror in the particular case. Given the nature of this legal standard, and given that no claim is raised in this case that bias should be conclusively presumed, the Court of Appeals clearly erred by deciding the issue of juror bias itself rather than remanding the issue to the District Court for a hearing and decision in the first instance. Motions for new trial on the basis of juror bias are left to the sound discretion of the trial court, and its determination should not be lightly disturbed by an appellate court. This is especially true when decision on the motion turns, as it does here, on the particular facts and circumstances involved. See ante, at 551-552, n. 3, and 556. The trial |
Justice Scalia | 2,006 | 9 | majority | Rapanos v. United States | https://www.courtlistener.com/opinion/145642/rapanos-v-united-states/ | In April 1989, petitioner John A Rapanos backfilled wetlands on a parcel of land in Michigan that he owned and *720 sought to develop This parcel included 54 acres of land with sometimes-saturated soil conditions The nearest body of navigable water was 11 to 20 miles away Regulators had informed Mr Rapanos that his saturated fields were "waters of the United States," 33 US C 1362(7), that could not be filled *721 without a permit Twelve years of criminal and civil litigation ensued The burden of federal regulation on those who would deposit fill material in locations denominated "waters of the United States" is not trivial In deciding whether to grant or deny a permit, the U S Army Corps of Engineers (Corps) exercises the discretion of an enlightened despot, relying on such factors as "economics," "aesthetics," "recreation," and "in general, the needs and welfare of the people," 33 CFR 3204(a) [1] The average applicant for an individual permit spends 788 days and $271,596 in completing the process, and the average applicant for a nationwide permit spends 313 days and $28,915not counting costs of mitigation or design changes Sunding & Zilberman, The Economics of Environmental Regulation by Licensing: An Assessment of Recent Changes to the Wetland Permitting Process, 42 Natural Resources J 59, 74-76 "[O]ver $17 billion is spent each year by the private and public sectors obtaining wetlands permits" These costs cannot be avoided, because the Clean Water Act "impose[s] criminal liability," as well as steep civil fines, "on a broad range of ordinary industrial and commercial activities" In this litigation, for example, for backfilling his own wet fields, Mr Rapanos faced 63 months in prison and hundreds of thousands of dollars in criminal and civil fines See United *722 The enforcement proceedings against Mr Rapanos are a small part of the immense expansion of federal regulation of land use that has occurred under the Clean Water Actwithout any change in the governing statuteduring the past five Presidential administrations In the last three decades, the Corps and the Environmental Protection Agency (EPA) have interpreted their jurisdiction over "the waters of the United States" to cover 270-to-300 million acres of swampy lands in the United Statesincluding half of Alaska and an area the size of California in the lower 48 States And that was just the beginning The Corps has asserted jurisdiction over virtually any parcel of land containing a channel or conduitwhether man-made or natural, broad or narrow, permanent or ephemeralthrough which rainwater or drainage may occasionally or intermittently flow On this view, the federally regulated "waters of the |
Justice Scalia | 2,006 | 9 | majority | Rapanos v. United States | https://www.courtlistener.com/opinion/145642/rapanos-v-united-states/ | flow On this view, the federally regulated "waters of the United States" include storm drains, roadside ditches, ripples of sand in the desert that may contain water once a year, and lands that are covered by floodwaters once every 100 years Because they include the land containing storm sewers and desert washes, the statutory "waters of the United States" engulf entire cities and immense arid wastelands In fact, the entire land area of the United States lies in some drainage basin, and an endless network of visible channels furrows the entire surface, containing water ephemerally wherever the rain falls Any plot of land containing such a channel may potentially be regulated as a "water of the United States" I Congress passed the Clean Water Act (CWA or Act) in 1972 The Act's stated objective is "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters" 33 US C 1251(a) The Act states that "[i]t is the policy of Congress to recognize, preserve, and protect the primary responsibilities and rights of States to prevent, reduce, and eliminate pollution, to plan *723 the development and use (including restoration, preservation, and enhancement) of land and water resources, and to consult with the Administrator in the exercise of his authority under this chapter" 1251(b) One of the statute's principal provisions is 33 US C 1311(a), which provides that "the discharge of any pollutant by any person shall be unlawful" "The discharge of a pollutant" is defined broadly to include "any addition of any pollutant to navigable waters from any point source," 1362(12), and "pollutant" is defined broadly to include not only traditional contaminants but solids such as "dredged spoil, rock, sand, [and] cellar dirt," 1362(6) And, most relevant here, the CWA defines "navigable waters" as "the waters of the United States, including the territorial seas" 1362(7) The Act provides certain exceptions to its prohibition of "the discharge of any pollutant by any person" 1311(a) Section 1342(a) authorizes the Administrator of the EPA to "issue a permit for the discharge of any pollutant, notwithstanding section 1311(a) of this title" Section 13 authorizes the Secretary of the Army, acting through the Corps, to "issue permits for the discharge of dredged or fill material into the navigable waters at specified disposal sites" 13(a), (d) It is the discharge of "dredged or fill material"which, unlike traditional water pollutants, are solids that do not readily wash downstreamthat we consider today For a century prior to the CWA, we had interpreted the phrase "navigable waters of the United States" in the Act's predecessor statutes to refer |
Justice Scalia | 2,006 | 9 | majority | Rapanos v. United States | https://www.courtlistener.com/opinion/145642/rapanos-v-united-states/ | the United States" in the Act's predecessor statutes to refer to interstate waters that are "navigable in fact" or readily susceptible of being rendered so The Daniel Ball, ; see United After passage of the CWA, the Corps initially adopted this traditional judicial definition for the Act's term "navigable waters" See codified at 33 CFR 209120(d)(1) (1974); see Solid Waste Agency of *724 Northern Cook After a District Court enjoined these regulations as too narrow, Natural Resources Defense Council, the Corps adopted a far broader definition See -31325 ; (1977) The Corps' new regulations deliberately sought to extend the definition of "the waters of the United States" to the outer limits of Congress's commerce power See The Corps' current regulations interpret "the waters of the United States" to include, in addition to traditional interstate navigable waters, 33 CFR 3283(a)(1) "[a]ll interstate waters including interstate wetlands," 3283(a)(2); "[a]ll other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce," 3283(a)(3); "[t]ributaries of [such] waters," 3283(a)(5); and "[w]etlands adjacent to [such] waters [and tributaries] (other than waters that are themselves wetlands)," 3283(a)(7) The regulation defines "adjacent" wetlands as those "bordering, contiguous [to], or neighboring" waters of the United States 3283(c) It specifically provides that "[w]etlands separated from other waters of the United States by manmade dikes or barriers, natural river berms, beach dunes and the like are `adjacent wetlands'" We first addressed the proper interpretation of 33 US C 1362(7)'s phrase "the waters of the United States" in United That case concerned a wetland that "was adjacent to a body of navigable water," because "the area characterized by saturated soil conditions and wetland vegetation extended beyond the boundary of respondent's property to a navigable waterway" ; see 33 CFR 3283(b) Noting that "the transition from water to solid *725 ground is not necessarily or even typically an abrupt one," and that "the Corps must necessarily choose some point at which water ends and land begins," we upheld the Corps' interpretation of "the waters of the United States" to include wetlands that "actually abut[ted] on" traditional navigable waters Following our decision in Riverside the Corps adopted increasingly broad interpretations of its own regulations under the Act For example, in 1986, to "clarify" the reach of its jurisdiction, the Corps announced the so-called "Migratory Bird Rule," which purported to extend its jurisdiction to any intrastate waters "[w]hich are or would be used as habitat" by migratory birds ; |
Justice Scalia | 2,006 | 9 | majority | Rapanos v. United States | https://www.courtlistener.com/opinion/145642/rapanos-v-united-states/ | or would be used as habitat" by migratory birds ; see In addition, the Corps interpreted its own regulations to include "ephemeral streams" and "drainage ditches" as "tributaries" that are part of the "waters of the United States," see 33 CFR 3283(a)(5), provided that they have a perceptible "ordinary high water mark" as defined in 3283(e) This interpretation extended "the waters of the United States" to virtually any land feature over which rainwater or drainage passes and leaves a visible mark even if only "the presence of litter and debris" 33 CFR 3283(e) See U S General Accounting Office, Report to the Chairman, Subcommittee on Energy Policy, Natural Resources and Regulating Affairs, Committee on Government Reform, House of Representatives, Waters and Wetlands: Corps of Engineers Needs to Evaluate Its District Office Practices in Determining Jurisdiction, GAO-04-297, pp 20-22 (hereinafter GAO Report), http://wwwgaogov/newitems/d04297pdf (all Internet materials as visited June 9, 2006, and available in Clerk of Court's case file) Prior to our decision in lower courts upheld the application of this expansive definition of "tributaries" to such entities as storm sewers that contained flow to covered waters during heavy rainfall, United and dry arroyos connected to remote waters through the flow of groundwater over "centuries," Quivira Mining In we considered the application of the Corps' "Migratory Bird Rule" to "an abandoned sand and gravel pit in northern Illinois" Observing that "[i]t was the significant nexus between the wetlands and `navigable waters' that informed our reading of the CWA in Riverside" we held that Riverside did not establish "that the jurisdiction of the Corps extends to ponds that are not adjacent to open water," 531 US, at On the contrary, we held that "nonnavigable, isolated, intrastate waters," 1which, unlike the wetlands at issue in Riverside did not "actually abu[t] on a navigable waterway," 531 US, were not included as "waters of the United States" Following our decision in the Corps did not significantly revise its theory of federal jurisdiction under 13(a) The Corps provided notice of a proposed rule-making in light of but ultimately did not amend its published regulations Because did not directly address tributaries, the Corps notified its field staff that they "should continue to assert jurisdiction over traditional navigable waters and, generally speaking, their tributary systems (and adjacent wetlands)" In addition, because did not overrule Riverside the Corps continues to assert jurisdiction over waters "`neighboring'" traditional navigable waters and their tributaries 68 Fed Reg ( 33 CFR 3283(c) ) Even after the lower courts have continued to uphold the Corps' sweeping assertions of jurisdiction over ephemeral channels and drains |
Justice Scalia | 2,006 | 9 | majority | Rapanos v. United States | https://www.courtlistener.com/opinion/145642/rapanos-v-united-states/ | Corps' sweeping assertions of jurisdiction over ephemeral channels and drains as "tributaries" For example, courts have held that jurisdictional "tributaries" include *727 the "intermittent flow of surface water through approximately 24 miles of natural streams and manmade ditches (paralleling and crossing under I-64)," ; a "roadside ditch" whose water took "a winding, thirty-two-mile path to the Chesapeake Bay," United ; irrigation ditches and drains that intermittently connect to covered waters, Community Assn for Restoration of ; Headwaters, ; and (most implausibly of all) the "washes and arroyos" of an "arid development site," located in the middle of the desert, through which "water courses during periods of heavy rain," Save Our Sonoran, [2] These judicial constructions of "tributaries" are not outliers Rather, they reflect the breadth of the Corps' determinations in the field The Corps' enforcement practices vary somewhat from district to district because "the definitions used to make jurisdictional determinations" are deliberately left "vague" GAO Report 26; see But district offices of the Corps have treated, as "waters of the United States," such typically dry land features as "arroyos, coulees, and washes," as well as other "channels that might have little water flow in a given year" They have applied that definition to such man-made, intermittently *728 flowing features as "drain tiles, storm drains systems, and culverts" In addition to "tributaries," the Corps and the lower courts have continued to define "adjacent" wetlands broadly after For example, some of the Corps' district offices have concluded that wetlands are "adjacent" to covered waters if they are hydrologically connected "through directional sheet flow during storm events," GAO Report 18, or if they lie within the "100-year floodplain" of a body of waterthat is, they are connected to the navigable water by flooding, on average, once every 100 years, and n 16 Others have concluded that presence within 200 feet of a tributary automatically renders a wetland "adjacent" and jurisdictional And the Corps has successfully defended such theories of "adjacency" in the courts, even after 's excision of "isolated" waters and wetlands from the Act's coverage One court has held since that wetlands separated from flood control channels by 70-foot-wide berms, atop which ran maintenance roads, had a "significant nexus" to covered waters because, inter alia, they lay "within the 100 year floodplain of tidal waters" Baccarat Fremont Developers, In one of the cases before us today, the Sixth Circuit held, in agreement with "[t]he majority of courts," that "while a hydrological connection between the non-navigable and navigable waters is required, there is no `direct abutment' requirement" under for "`adjacency'" And even the |
Justice Scalia | 2,006 | 9 | majority | Rapanos v. United States | https://www.courtlistener.com/opinion/145642/rapanos-v-united-states/ | no `direct abutment' requirement" under for "`adjacency'" And even the most insubstantial hydrologic connection may be held to constitute a "significant nexus" One court distinguished on the ground that "a molecule of water residing in one of these pits or ponds [in ] could not mix with molecules from other bodies of water"whereas, in the case before it, "water molecules currently present in the wetlands will inevitably flow towards and mix with water from connecting bodies," *729 and "[a] drop of rainwater landing in the Site is certain to intermingle with water from the [nearby river]" United In these consolidated cases, we consider whether four Michigan wetlands, which lie near ditches or man-made drains that eventually empty into traditional navigable waters, constitute "waters of the United States" within the meaning of the Act Petitioners in No 04-1034, the Rapanos and their affiliated businesses, deposited fill material without a permit into wetlands on three sites near Midland, Michigan: the "Salzburg site," the "Hines Road site," and the "Pine River site" The wetlands at the Salzburg site are connected to a man-made drain, which drains into Hoppler Creek, which flows into the Kawkawlin River, which empties into Saginaw Bay and Lake Huron See Brief for United States in No 04-1034, p 11; 339 F3d, at The wetlands at the Hines Road site are connected to something called the "Rose Drain," which has a surface connection to the Tittabawassee River App to Pet for Cert in No 04-1034, pp A23, B20 And the wetlands at the Pine River site have a surface connection to the Pine River, which flows into Lake Huron at A23-A24, B26 It is not clear whether the connections between these wetlands and the nearby drains and ditches are continuous or intermittent, or whether the nearby drains and ditches contain continuous or merely occasional flows of water The United States brought civil enforcement proceedings against the Rapanos petitioners The District Court found that the three described wetlands were "within federal jurisdiction" because they were "`adjacent to other waters of the United States,'" and held petitioners liable for violations of the CWA at those sites at B32-B35 On appeal, the United States Court of Appeals for the Sixth Circuit affirmed, holding that there was federal jurisdiction over the *730 wetlands at all three sites because "there were hydrological connections between all three sites and corresponding adjacent tributaries of navigable waters" Petitioners in No 04-1384, the Carabells, were denied a permit to deposit fill material in a wetland located on a triangular parcel of land about one mile from Lake St Clair |
Justice Scalia | 2,006 | 9 | majority | Rapanos v. United States | https://www.courtlistener.com/opinion/145642/rapanos-v-united-states/ | parcel of land about one mile from Lake St Clair A man-made drainage ditch runs along one side of the wetland, separated from it by a 4-foot-wide man-made berm The berm is largely or entirely impermeable to water and blocks drainage from the wetland, though it may permit occasional overflow to the ditch The ditch empties into another ditch or a drain, which connects to Auvase Creek, which empties into Lake St Clair See App to Pet for Cert in No 04-1384, pp 2a-3a After exhausting administrative appeals, the Carabell petitioners filed suit in the District Court, challenging the exercise of federal regulatory jurisdiction over their site The District Court ruled that there was federal jurisdiction because the wetland "is adjacent to neighboring tributaries of navigable waters and has a significant nexus to `waters of the United States'" at 49a Again the Sixth Circuit affirmed, holding that the Carabell wetland was "adjacent" to navigable waters We granted certiorari and consolidated the cases, to decide whether these wetlands constitute "waters of the United States" under the Act, and if so, whether the Act is constitutional I The Rapanos petitioners contend that the terms "navigable waters" and "waters of the United States" in the Act must be limited to the traditional definition of The Daniel Ball, which required that the "waters" be navigable in fact, or susceptible of being rendered so See 10 Wall, at But this definition cannot be applied wholesale to the CWA The Act uses the phrase "navigable waters" as a defined term, and the definition is simply "the waters of the United *731 States" 33 US C 1362(7) Moreover, the Act provides, in certain circumstances, for the substitution of state for federal jurisdiction over "navigable waters other than those waters which are presently used, or are susceptible to use in their natural condition or by reasonable improvement as a means to transport interstate or foreign commerce including wetlands adjacent thereto" 13(g)(1) This provision shows that the Act's term "navigable waters" includes something more than traditional navigable waters We have twice stated that the meaning of "navigable waters" in the Act is broader than the traditional understanding of that term, 531 U S, ; Riverside [3] We have emphasized, however, that the qualifier "navigable" is not devoid of significance, 2 We need not decide the precise extent to which the qualifiers "navigable" and "of the United States" restrict the coverage of the Act Whatever the scope of these qualifiers, the CWA authorizes federal jurisdiction only over "waters" 33 US C 1362(7) The only natural definition of the term "waters," |
Justice Scalia | 2,006 | 9 | majority | Rapanos v. United States | https://www.courtlistener.com/opinion/145642/rapanos-v-united-states/ | C 1362(7) The only natural definition of the term "waters," our prior and subsequent judicial constructions of it, clear evidence from other provisions of the statute, and this Court's canons of construction all confirm that "the waters *732 of the United States" in 1362(7) cannot bear the expansive meaning that the Corps would give it The Corps' expansive approach might be arguable if the CWA defined "navigable waters" as "water of the United States" But "the waters of the United States" is something else The use of the definite article ("the") and the plural number ("waters") shows plainly that 1362(7) does not refer to water in general In this form, "the waters" refers more narrowly to water "[a]s found in streams and bodies forming geographical features such as oceans, rivers, [and] lakes," or "the flowing or moving masses, as of waves or floods, making up such streams or bodies" Webster's New International Dictionary 2882 (2d ed 1954) (hereinafter Webster's Second)[4] On this definition, "the waters of the United States" include only relatively permanent, standing or flowing bodies of water[5] The definition refers to water *733 as found in "streams," "oceans," "rivers," "lakes," and "bodies" of water "forming geographical features" All of these terms connote continuously present, fixed bodies of water, as opposed to ordinarily dry channels through which water occasionally or intermittently flows Even the least substantial of the definition's terms, namely, "streams," connotes a continuous flow of water in a permanent channel especially when used in company with other terms such as "rivers," "lakes," and "oceans" [6] None of these terms encompasses transitory puddles or ephemeral flows of water The restriction of "the waters of the United States" to exclude channels containing merely intermittent or ephemeral *734 flow accords with the commonsense understanding of the term In applying the definition to "ephemeral streams," "wet meadows," storm sewers and culverts, "directional sheet flow during storm events," drain tiles, manmade drainage ditches, and dry arroyos in the middle of the desert, the Corps has stretched the term "waters of the United States" beyond parody The plain language of the statute simply does not authorize this "Land Is Waters" approach to federal jurisdiction In addition, the Act's use of the traditional phrase "navigable waters" (the defined term) further confirms that it confers jurisdiction only over relatively permanent bodies of water The Act adopted that traditional term from its predecessor statutes See On the traditional understanding, "navigable waters" included only discrete bodies of water For example, in The Daniel Ball, we used the terms "waters" and "rivers" 10 Wall, at And in Appalachian |
Justice Scalia | 2,006 | 9 | majority | Rapanos v. United States | https://www.courtlistener.com/opinion/145642/rapanos-v-united-states/ | terms "waters" and "rivers" 10 Wall, at And in Appalachian Electric, we consistently referred to the "navigable waters" as "waterways" -409 Plainly, because such "waters" had to be navigable in fact or susceptible of being rendered so, the term did not include ephemeral flows As we noted in the traditional term "navigable waters"even though defined as "the waters of the United States"carries some of its original substance: "[I]t is one thing to give a word limited effect and quite another to give it no effect whatever" 531 US, 2 That limited effect includes, at bare minimum, the ordinary presence of water Our subsequent interpretation of the phrase "the waters of the United States" in the CWA likewise confirms this limitation of its scope In Riverside we stated that the phrase in the Act referred primarily to "rivers, streams, and other hydrographic features more conventionally identifiable as `waters'" than the wetlands adjacent to such features *735 474 U S, We thus echoed the dictionary definition of "waters" as referring to "streams and bodies forming geographical features such as oceans, rivers, [and] lakes" Webster's Second 2882 Though we upheld in that case the inclusion of wetlands abutting such a "hydrographic featur[e]"principally due to the difficulty of drawing any clear boundary between the two, see ; Part IV, infranowhere did we suggest that "the waters of the United States" should be expanded to include, in their own right, entities other than "hydrographic features more conventionally identifiable as `waters,'" Likewise, in both Riverside and we repeatedly described the "navigable waters" covered by the Act as "open water" and "open waters" See Riverside and n 8, 134; 172 Under no rational interpretation are typically dry channels described as "open waters" Most significant of all, the CWA itself categorizes the channels and conduits that typically carry intermittent flows of water separately from "navigable waters," by including them in the definition of "`point source'" The Act defines "`point source'" as "any discernible, confined and discrete conveyance, including but not limited to any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged" 33 US C 1362(14) It defines "`discharge of a pollutant'" as "any addition of any pollutant to navigable waters from any point source" 1362(12)(A) The definitions thus conceive of "point sources" and "navigable waters" as separate and distinct categories The definition of "discharge" would make little sense if the two categories were significantly overlapping The separate classification of "ditch[es], channel[s], and conduit[s]" *736 which are terms |
Justice Scalia | 2,006 | 9 | majority | Rapanos v. United States | https://www.courtlistener.com/opinion/145642/rapanos-v-united-states/ | classification of "ditch[es], channel[s], and conduit[s]" *736 which are terms ordinarily used to describe the watercourses through which intermittent waters typically flowshows that these are, by and large, not "waters of the United States" [7] *737 Moreover, only the foregoing definition of "waters" is consistent with the CWA's stated "policy of Congress to recognize, preserve, and protect the primary responsibilities and rights of the States to prevent, reduce, and eliminate pollution, [and] to plan the development and use (including restoration, preservation, and enhancement) of land and water resources " 1251(b) This statement of policy was included in the Act as enacted in 1972, see prior to the addition of the optional state administration program in the 1977 amendments, see Thus the policy plainly referred to something beyond the subsequently added state administration program of 33 US C 13(g)(l) But the expansive theory advanced by the Corps, rather than "preserv[ing] the primary rights and responsibilities of the States," would have brought virtually all "plan[ning of] the development and use of land and water resources" by the States under federal control It is therefore an unlikely reading of the phrase "the waters of the United States"[8] Even if the phrase "the waters of the United States" were ambiguous as applied to intermittent flows, our own canons of construction would establish that the Corps' interpretation of the statute is impermissible As we noted in *738 the Government's expansive interpretation would "result in a significant impingement of the States' traditional and primary power over land and water use" 531 US, 4 Regulation of land use, as through the issuance of the development permits sought by petitioners in both of these cases, is a quintessential state and local power See ; The extensive federal jurisdiction urged by the Government would authorize the Corps to function as a de facto regulator of immense stretches of intrastate landan authority the agency has shown its willingness to exercise with the scope of discretion that would befit a local zoning board See 33 CFR 3204(a)(1) We ordinarily expect a "clear and manifest" statement from Congress to authorize an unprecedented intrusion into traditional state authority See 5 The phrase "the waters of the United States" hardly qualifies Likewise, just as we noted in the Corps' interpretation stretches the outer limits of Congress's commerce power and raises difficult questions about the ultimate scope of that power See 531 US, 3 (In developing the current regulations, the Corps consciously sought to extend its authority to the farthest reaches of the commerce power See (1977)) Even if the term "the waters of the |
Justice Scalia | 2,006 | 9 | majority | Rapanos v. United States | https://www.courtlistener.com/opinion/145642/rapanos-v-united-states/ | See (1977)) Even if the term "the waters of the United States" were ambiguous as applied to channels that sometimes host ephemeral flows of water (which it is not), we would expect a clearer statement from Congress to authorize an agency theory of jurisdiction that presses the envelope of constitutional validity See Edward J DeBartolo [9] *739 In sum, on its only plausible interpretation, the phrase "the waters of the United States" includes only those relatively permanent, standing or continuously flowing bodies of water "forming geographic features" that are described in ordinary parlance as "streams[,] oceans, rivers, [and] lakes" See Webster's Second 2882 The phrase does not include channels through which water flows intermittently or ephemerally, or channels that periodically provide drainage for rainfall The Corps' expansive interpretation of the "the waters of the United States" is thus not "based on a permissible construction of the statute" Chevron U S A IV In Carabell, the Sixth Circuit held that the nearby ditch constituted a "tributary" and thus a "water of the United States" under 33 CFR 3283(a)(5) See 391 F3d, at -709 Likewise in Rapanos the Sixth Circuit held that the nearby ditches were "tributaries" under 3283(a)(5) But Rapanos stated that, even if the ditches were not "waters of the United States," the wetlands were "adjacent" to remote traditional navigable waters in virtue of the wetlands' "hydrological connection" to them See at -640 This statement reflects the practice of *740 the Corps' district offices, which may "assert jurisdiction over a wetland without regulating the ditch connecting it to a water of the United States" GAO Report 23 We therefore address in this Part whether a wetland may be considered "adjacent to" remote "waters of the United States," because of a mere hydrologic connection to them In Riverside we noted the textual difficulty in including "wetlands" as a subset of "waters": "On a purely linguistic level, it may appear unreasonable to classify `lands,' wet or otherwise, as `waters'" We acknowledged, however, that there was an inherent ambiguity in drawing the boundaries of any "waters": "[T]he Corps must necessarily choose some point at which water ends and land begins Our common experience tells us that this is often no easy task: the transition from water to solid ground is not necessarily or even typically an abrupt one Rather, between open waters and dry land may lie shallows, marshes, mudflats, swamps, bogsin short, a huge array of areas that are not wholly aquatic but nevertheless fall far short of being dry land Where on this continuum to find the limit of `waters' is |
Justice Scalia | 2,006 | 9 | majority | Rapanos v. United States | https://www.courtlistener.com/opinion/145642/rapanos-v-united-states/ | on this continuum to find the limit of `waters' is far from obvious" Because of this inherent ambiguity, we deferred to the agency's inclusion of wetlands "actually abut[ting]" traditional navigable waters: "Faced with such a problem of defining the bounds of its regulatory authority," we held, the agency could reasonably conclude that a wetland that "adjoin[ed]" waters of the United States is itself a part of those waters 135, and n 9 The difficulty of delineating the boundary between water and land was central to our reasoning in the case: "In view of the breadth of federal regulatory authority contemplated by the Act itself and the inherent difficulties of defining precise bounds to regulable waters, the Corps' ecological judgment about the relationship between waters and their adjacent wetlands provides *741 an adequate basis for a legal judgment that adjacent wetlands may be defined as waters under the Act" [10] When we characterized the holding of Riverside in we referred to the close connection between waters and the wetlands that they gradually blend into: "It was the significant nexus between the wetlands and `navigable waters' that informed our reading of the CWA in Riverside Homes" 531 US, In particular, rejected the notion that the ecological considerations upon which the Corps relied in Riverside and upon which the dissent repeatedly relies today, see post, at 796, 797-798, 798-799, 800, 803, 806, 807, 809-810provided an independent basis for including entities like "wetlands" (or "ephemeral streams") within the phrase "the waters of the United States" found such ecological considerations irrelevant to the question *742 whether physically isolated waters come within the Corps' jurisdiction It thus confirmed that Riverside rested upon the inherent ambiguity in defining where water ends and abutting ("adjacent") wetlands begin, permitting the Corps' reliance on ecological considerations only to resolve that ambiguity in favor of treating all abutting wetlands as waters Isolated ponds were not "waters of the United States" in their own right, see 531 US, 171, and presented no boundary-drawing problem that would have justified the invocation of ecological factors to treat them as such Therefore, only those wetlands with a continuous surface connection to bodies that are "waters of the United States" in their own right, so that there is no clear demarcation between "waters" and wetlands, are "adjacent to" such waters and covered by the Act Wetlands with only an intermittent, physically remote hydrologic connection to "waters of the United States" do not implicate the boundary-drawing problem of Riverside and thus lack the necessary connection to covered waters that we described as a "significant nexus" in 531 |
Justice Scalia | 2,006 | 9 | majority | Rapanos v. United States | https://www.courtlistener.com/opinion/145642/rapanos-v-united-states/ | waters that we described as a "significant nexus" in 531 U S, Thus, establishing that wetlands such as those at the Rapanos and Carabell sites are covered by the Act requires two findings: first, that the adjacent channel contains a "wate[r] of the United States," (i e, a relatively permanent body of water connected to traditional interstate navigable waters); and second, that the wetland has a continuous surface connection with that water, making it difficult to determine where the "water" ends and the "wetland" begins V Respondents and their amici urge that such restrictions on the scope of "navigable waters" will frustrate enforcement against traditional water polluters under 33 US C 1311 and 1342 Because the same definition of "navigable waters" applies to the entire statute, respondents contend that water polluters will be able to evade the permitting requirement *743 of 1342(a) simply by discharging their pollutants into noncovered intermittent watercourses that lie upstream of covered waters See Tr of Oral Arg 74-75 That is not so Though we do not decide this issue, there is no reason to suppose that our construction today significantly affects the enforcement of 1342, inasmuch as lower courts applying 1342 have not characterized intermittent channels as "waters of the United States" The Act does not forbid the "addition of any pollutant directly to navigable waters from any point source," but rather the "addition of any pollutant to navigable waters" 1362(12)(A) ; 1311(a) Thus, from the time of the CWA's enactment, lower courts have held that the discharge into intermittent channels of any pollutant that naturally washes downstream likely violates 1311(a), even if the pollutants discharged from a point source do not emit "directly into" covered waters, but pass "through conveyances" in between United States v Velsicol Chemical Corp, 438 F Supp 945, See Sierra Club v El Paso Gold Mines, Inc, 421 F3d 1133, (25 miles of tunnel separated the "point source" and "navigable waters") In fact, many courts have held that such upstream, intermittently flowing channels themselves constitute "point sources" under the Act The definition of "point source" includes "any pipe, ditch, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, concentrated animal feeding operation, or vessel or other floating craft, from which pollutants are or may be discharged" 33 US C 1362(14) We have held that the Act "makes plain that a point source need not be the original source of the pollutant; it need only convey the pollutant to `navigable waters'" South Fla Water Management Dist v Miccosukee Tribe, 541 US 95, Cases holding the intervening channel to be a point |
Justice Scalia | 2,006 | 9 | majority | Rapanos v. United States | https://www.courtlistener.com/opinion/145642/rapanos-v-united-states/ | 95, Cases holding the intervening channel to be a point source include United States v Ortiz, 427 F3d 1278, (a storm drain that carried *7 flushed chemicals from a toilet to the Colorado River was a "point source"), and Dague v Burlington, 935 F2d 1343, rev'd on other grounds, 505 US 557 Some courts have even adopted both the "indirect discharge" rationale and the "point source" rationale in the alternative, applied to the same facts See, e g, Concerned Area Residents for Environment v Southview 34 F3d 114, On either view, however, the lower courts have seen no need to classify the intervening conduits as "waters of the United States" In contrast to the pollutants normally covered by the permitting requirement of 1342(a), "dredged or fill material," which is typically deposited for the sole purpose of staying put, does not normally wash downstream,[11] and thus does not normally constitute an "addition to navigable waters" when deposited in upstream isolated wetlands 13(a), *745 1362(12) The Act recognizes this distinction by providing a separate permitting program for such discharges in 13(a) It does not appear, therefore, that the interpretation we adopt today significantly reduces the scope of 1342 Respondents urge that the narrower interpretation of "waters" will impose a more difficult burden of proof in enforcement proceedings under 1311(a) and 1342(a), by requiring the agency to demonstrate the downstream flow of the pollutant along the intermittent channel to traditional "waters" See Tr of Oral Arg 57 But, as noted above, the lower courts do not generally rely on characterization of intervening channels as "waters of the United States" in applying 1311 to the traditional pollutants subject to 1342 Moreover, the proof of downstream flow of pollutants required under 1342 appears substantially similar, if not identical, to the proof of a hydrologic connection that would be required, on the Sixth Circuit's theory of jurisdiction, to prove that an upstream channel or wetland is a "wate[r] of the United States" See Rapanos 376 F 3d, at Compare, e g, App to Pet for Cert in No 04-1034, at B11, B20, B26 (testimony of hydrologic connections based on observation of surface water connections), with Southview In either case, the agency must prove that the contaminant-laden waters ultimately reach covered waters Finally, respondents and many amici admonish that narrowing the definition of "the waters of the United States" will hamper federal efforts to preserve the Nation's wetlands It is not clear that the state and local conservation efforts that the CWA explicitly calls for, see 33 US C 1251(b), are in any way inadequate for the |
Justice Scalia | 2,006 | 9 | majority | Rapanos v. United States | https://www.courtlistener.com/opinion/145642/rapanos-v-united-states/ | US C 1251(b), are in any way inadequate for the goal of preservation In any event, a Comprehensive National Wetlands Protection Act is not before us, and the "wis[dom]" of such a statute, post, at 805 (opinion of Stevens, J), is beyond our *746 ken What is clear, however, is that Congress did not enact one when it granted the Corps jurisdiction over only "the waters of the United States" VI In an opinion long on praise of environmental protection and notably short on analysis of the statutory text and structure, the dissent would hold that "the waters of the United States" include any wetlands "adjacent" (no matter how broadly defined) to "tributaries" (again, no matter how broadly defined) of traditional navigable waters For legal support of its policy-laden conclusion, the dissent relies exclusively on two sources: "[o]ur unanimous opinion in Riverside" post, at 792; and "Congress' deliberate acquiescence in the Corps' regulations in 1977," post, at 797 Each of these is demonstrably inadequate to support the apparently limitless scope that the dissent would permit the Corps to give to the Act A The dissent's assertion that Riverside "squarely controls these cases," post, at 792, is wholly implausible First, Riverside could not possibly support the dissent's acceptance of the Corps' inclusion of dry beds as "tributaries," post, at 804, because the definition of tributaries was not at issue in that case Riverside addressed only the Act's inclusion of wetlands abutting navigable-infact waters, and said nothing at all about what nonnavigable tributaries the Act might cover Riverside likewise provides no support for the dissent's complacent acceptance of the Corps' definition of "adjacent," which (as noted above) has been extended beyond reason to include, inter alia, the 100-year floodplain of covered waters See The dissent notes that Riverside quoted without comment the Corps' description of "adjacent" wetlands as those "`that form the border of or are in reasonable proximity to other waters' of *747 the United States" Post, at 793 (citing 474 US, ( 42 Fed Reg 37128)) As we have already discussed, this quotation provides no support for the inclusion of physically unconnected wetlands as covered "waters" See at 741, n 10 The dissent relies principally on a footnote in Riverside recognizing that "`not every adjacent wetland is of great importance to the environment of adjoining bodies of water,'" and that all "`adjacent'" wetlands are nevertheless covered by the Act, post, at 793 ( 474 US, n 9) Of course, this footnote says nothing to support the dissent's broad definition of "adjacent"quite the contrary, the quoted sentence uses "adjacent" and "adjoining" |
Justice Scalia | 2,006 | 9 | majority | Rapanos v. United States | https://www.courtlistener.com/opinion/145642/rapanos-v-united-states/ | "adjacent"quite the contrary, the quoted sentence uses "adjacent" and "adjoining" interchangeably, and the footnote qualifies a sentence holding that the wetland was covered "[b]ecause" it "actually abut[ted] on a navigable waterway" Moreover, that footnote's assertion that the Act may be interpreted to include even those adjoining wetlands that are "lacking in importance to the aquatic environment," n 9, confirms that the scope of ambiguity of "the waters of the United States" is determined by a wetland's physical connection to covered waters, not its ecological relationship thereto The dissent reasons (1) that Riverside held that "the waters of the United States" include "adjacent wetlands," and (2) we must defer to the Corps' interpretation of the ambiguous word "adjacent" Post, at 805-806 But this is mere legerdemain The phrase "adjacent wetlands" is not part of the statutory definition that the Corps is authorized to interpret, which refers only to "the waters of the United States," 33 US C 1362(7)[12] In expounding the *748 term "adjacent" as used in Riverside we are explaining our own prior use of that word to interpret the definitional phrase "the waters of the United States" However ambiguous the term may be in the abstract, as we have explained earlier, "adjacent" as used in Riverside is not ambiguous between "physically abutting" and merely "nearby" See The dissent would distinguish on the ground that it "had nothing to say about wetlands," post, at 794 i e, it concerned "isolated ponds" rather than isolated wetlands This is the ultimate distinction without a difference If isolated "permanent and seasonal ponds of varying size and depth," 531 US, at 163which, after all, might at least be described as "waters" in their own rightdid not constitute "waters of the United States," a fortiori, isolated swampy lands do not constitute "waters of the United States" See As the author of today's dissent has written, "[i]f, as I believe, actually navigable waters lie at the very heart of Congress' commerce power and `isolated,' nonnavigable waters lie closer to the margin, `isolated wetlands,' which are themselves only marginally `waters,' are the most marginal category of `waters of the United States' potentially covered by the statute" 531 US, at 187, n 13 The only other ground that the dissent offers to distinguish is that, unlike the ponds in the wetlands in these cases are "adjacent to navigable bodies of water and their tributaries"where "adjacent" may be interpreted who-knows-how broadly It is not clear why roughly defined physical proximity should make such a differencewithout actual abutment, it raises no boundary *749 drawing ambiguity, and it is undoubtedly a |
Justice Scalia | 2,006 | 9 | majority | Rapanos v. United States | https://www.courtlistener.com/opinion/145642/rapanos-v-united-states/ | no boundary *749 drawing ambiguity, and it is undoubtedly a poor proxy for ecological significance In fact, though the dissent is careful to restrict its discussion to wetlands "adjacent" to tributaries, its reasons for including those wetlands are strictly ecologicalsuch wetlands would be included because they "serve important water quality roles," post, at 796, and "play important roles in the watershed," post, at 803 This reasoning would swiftly overwhelm altogether; after all, the ponds at issue in could, no less than the wetlands in these cases, "offer `nesting, spawning, rearing and resting sites for aquatic or land species,'" and "`serve as valuable storage areas for storm and flood waters,'" post, at 796 The dissent's exclusive focus on ecological factors, combined with its total deference to the Corps' ecological judgments, would permit the Corps to regulate the entire country as "waters of the United States" B Absent a plausible ground in our case law for its sweeping position, the dissent relies heavily on "Congress' deliberate acquiescence in the Corps' regulations in 1977," post, at 797noting that "[w]e found [this acquiescence] significant in Riverside" and even "acknowledged in " that we had done so, ibid "acknowledged" that Riverside had relied on congressional acquiescence only to criticize that reliance It reasserted in no uncertain terms our oft-expressed skepticism toward reading the tea leaves of congressional inaction: "Although we have recognized congressional acquiescence to administrative interpretations of a statute in some situations, we have done so with extreme care Failed legislative proposals are a particularly dangerous ground on which to rest an interpretation of a prior statute The relationship between the actions and inactions of the 95th Congress and the intent of the 92d Congress in passing [ 13(a)] is considerably attenuated *750 Because subsequent history is less illuminating than the contemporaneous evidence, respondents face a difficult task in overcoming the plain text and import of [ 13(a)]" 531 US, at 169-170 Congress takes no governmental action except by legislation What the dissent refers to as "Congress' deliberate acquiescence" should more appropriately be called Congress's failure to express any opinion We have no idea whether the Members' failure to act in 1977 was attributable to their belief that the Corps' regulations were correct, or rather to their belief that the courts would eliminate any excesses, or indeed simply to their unwillingness to confront the environmental lobby To be sure, we have sometimes relied on congressional acquiescence when there is evidence that Congress considered and rejected the "precise issue" presented before the Court, Bob Jones Univ v United States, 461 US 574, However, "[a]bsent such |
Justice Scalia | 2,006 | 9 | majority | Rapanos v. United States | https://www.courtlistener.com/opinion/145642/rapanos-v-united-states/ | Univ v United States, 461 US 574, However, "[a]bsent such overwhelming evidence of acquiescence, we are loath to replace the plain text and original understanding of a statute with an amended agency interpretation" at 169-170, n 5 The dissent falls far short of producing "overwhelming evidence" that Congress considered and failed to act upon the "precise issue" before the Court todaynamely, what constitutes an "adjacent" wetland covered by the Act Citing Riverside 's account of the 1977 debates, the dissent claims nothing more than that Congress "conducted extensive debates about the Corps' regulatory jurisdiction over wetlands [and] rejected efforts to limit that jurisdiction" Post, at 797 In fact, even that vague description goes too far As recounted in Riverside the 1977 debates concerned a proposal to "limi[t] the Corps' authority under [ 13] to waters navigable in fact and their adjacent wetlands (defined as wetlands periodically inundated by contiguous navigable waters)," 474 US, at 136 In rejecting this *751 proposal, Congress merely failed to enact a limitation of "waters" to include only navigable-in-fact watersan interpretation we affirmatively reject today, see at 731and a definition of wetlands based on "periodi[c] inundat[ion]" that appears almost nowhere in the briefs or opinions of these cases[13] No plausible interpretation of this legislative inaction can construe it as an implied endorsement of every jot and tittle of the Corps' 1977 regulations In fact, Riverside itself relied on this legislative inaction only as "at least some evidence of the reasonableness" of the agency's inclusion of adjacent wetlands under the Act, 474 US, at 137, and for the observation that "even those who would have *752 restricted the reach of the Corps' jurisdiction" would not have excised adjacent wetlands, ibid Both of these conclusions are perfectly consistent with our interpretation, and neither illuminates the disputed question of what constitutes an "adjacent" wetland C In a curious appeal to entrenched executive error, the dissent contends that "the appropriateness of the Corps' 30-year implementation of the Clean Water Act should be addressed to Congress or the Corps rather than to the Judiciary" Post, at 799; see post, at 787-788, 807 Surely this is a novel principle of administrative lawa sort of 30-year adverse possession that insulates disregard of statutory text from judicial review It deservedly has no precedent in our jurisprudence We did not invoke such a principle in when we invalidated one aspect of the Corps' implementation The dissent contends that "[b]ecause there is ambiguity in the phrase `waters of the United States' and because interpreting it broadly to cover such ditches and streams advances the purpose of |
Justice Scalia | 2,006 | 9 | majority | Rapanos v. United States | https://www.courtlistener.com/opinion/145642/rapanos-v-united-states/ | to cover such ditches and streams advances the purpose of the Act, the Corps' approach should command our deference" Post, at 804 Two defects in a single sentence: "[W]aters of the United States" is in some respects ambiguous The scope of that ambiguity, however, does not conceivably extend to whether storm drains and dry ditches are "waters," and hence does not support the Corps' interpretation And as for advancing "the purpose of the Act": We have often criticized that last resort of extravagant interpretation, noting that no law pursues its purpose at all costs, and that the textual limitations upon a law's scope are no less a part of its "purpose" than its substantive authorizations See, e g, Director, Office of Workers' Compensation Programs v Newport News Shipbuilding & Dry Dock Co, 514 US 122, Finally, we could not agree more with the dissent's statement, post, at 799, that "[w]hether the benefits of particular *753 conservation measures outweigh their costs is a classic question of public policy that should not be answered by appointed judges" Neither, however, should it be answered by appointed officers of the Corps of Engineers in contradiction of congressional direction It is the dissent's opinion, and not ours, which appeals not to a reasonable interpretation of enacted text, but to the great environmental benefits that a patently unreasonable interpretation can achieve We have begun our discussion by mentioning, to be sure, the high costs imposed by that interpretationbut they are in no way the basis for our decision, which rests, plainly and simply, upon the limited meaning that can be borne by the phrase "waters of the United States" V Justice Kennedy's opinion concludes that our reading of the Act "is inconsistent with its text, structure, and purpose" Post, at 776 His own opinion, however, leaves the Act's "text" and "structure" virtually unaddressed, and rests its case upon an interpretation of the phrase "significant nexus," ib which appears in one of our opinions To begin with, Justice Kennedy's reading of "significant nexus" bears no easily recognizable relation to either the case that used it or to the earlier case that that case purported to be interpreting (Riverside ) To establish a "significant nexus," JUSTICE KENNEDY would require the Corps to "establish on a case-by-case basis" that wetlands adjacent to nonnavigable tributaries "significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as `navigable'" Post, at 782, 780 This standard certainly does not come from Riverside which explicitly rejected such case-by-case determinations of ecological significance for the jurisdictional question whether a wetland |
Justice Scalia | 2,006 | 9 | majority | Rapanos v. United States | https://www.courtlistener.com/opinion/145642/rapanos-v-united-states/ | of ecological significance for the jurisdictional question whether a wetland is covered, holding instead that all physically connected wetlands are covered 474 US, n 9 It is true enough that one *754 reason for accepting that physical-connection criterion was the likelihood that a physically connected wetland would have an ecological effect upon the adjacent waters But case-by-case determination of ecological effect was not the test Likewise, that test cannot be derived from 's characterization of Riverside which emphasized that the wetlands which possessed a "significant nexus" in that earlier case "actually abutted on a navigable waterway," 531 US, and which specifically rejected the argument that physically unconnected ponds could be included based on their ecological connection to covered waters In fact, Justice Kennedy acknowledges that neither Riverside nor required, for wetlands abutting navigable-in-fact waters, the case-by-case ecological determination that he proposes for wetlands that neighbor nonnavigable tributaries See post, at 780 Thus, Justice Kennedy misreads 's "significant nexus" statement as mischaracterizing Riverside to adopt a case-by-case test of ecological significance; and then transfers that standard to a context that Riverside expressly declined to address (namely, wetlands nearby nonnavigable tributaries); while all the time conceding that this standard does not apply in the context that Riverside did address (wetlands abutting navigable waterways) Truly, this is "turtles all the way down"[14] But misreading our prior decisions is not the principal problem The principal problem is reading them in utter isolation from the text of the Act One would think, after *755 reading JUSTICE KENNEDY's exegesis, that the crucial provision of the text of the CWA was a jurisdictional requirement of "significant nexus" between wetlands and navigable waters In fact, however, that phrase appears nowhere in the Act, but is taken from 's cryptic characterization of the holding of Riverside Our interpretation of the phrase is both consistent with those opinions and compatible with what the Act does establish as the jurisdictional criterion: "waters of the United States" Wetlands are "waters of the United States" if they bear the "significant nexus" of physical connection, which makes them as a practical matter indistinguishable from waters of the United States What other nexus could conceivably cause them to be "waters of the United States"? Justice Kennedy's test is that they, "either alone or in combination with similarly situated lands in the region, significantly affect the chemical, physical, and biological integrity of other covered waters more readily understood as `navigable,'" post, at 780 But what possible linguistic usage would accept that whatever (alone or in combination) affects waters of the United States is waters of the |
Justice Scalia | 2,006 | 9 | majority | Rapanos v. United States | https://www.courtlistener.com/opinion/145642/rapanos-v-united-states/ | affects waters of the United States is waters of the United States? Only by ignoring the text of the statute and by assuming that the phrase of ("significant nexus") can properly be interpreted in isolation from that text does Justice Kennedy reach the conclusion he has arrived at Instead of limiting its meaning by reference to the text it was applying, he purports to do so by reference to what he calls the "purpose" of the statute Its purpose is to clean up the waters of the United States, and therefore anything that might "significantly affect" the purity of those waters bears a "significant nexus" to those waters, and thus (he never says this, but the text of the statute demands that he mean it) is those waters This is the familiar tactic of substituting the purpose of the statute for its text, freeing the Court to write a different statute that achieves the same purpose To begin with, as we have discussed earlier, clean water is not the *756 only purpose of the statute So is the preservation of primary state responsibility for ordinary land-use decisions 33 US C 1251(b) Justice Kennedy's test takes no account of this purpose More fundamentally, however, the test simply rewrites the statute, using for that purpose the gimmick of "significant nexus" It would have been an easy matter for Congress to give the Corps jurisdiction over all wetlands (or, for that matter, all dry lands) that "significantly affect the chemical, physical, and biological integrity of" waters of the United States It did not do that, but instead explicitly limited jurisdiction to "waters of the United States" JUSTICE KENNEDY's disposition would disallow some of the Corps' excesses, and in that respect is a more moderate flouting of statutory command than Justice Stevens'[15] In another respect, however, it is more extreme At least Justice Stevens can blame his implausible reading of the statute upon the Corps His error consists of giving that agency more deference than reason permits Justice Kennedy, however, has devised his new statute all on his own It purports to be, not a grudging acceptance of an agency's close-to-the-edge expansion of its own powers, but rather the *757 most reasonable interpretation of the law It is far from that, unless whatever affects waters is waters VI Because the Sixth Circuit applied the wrong standard to determine if these wetlands are covered "waters of the United States," and because of the paucity of the record in both of these cases, the lower courts should determine, in the first instance, whether the ditches or |
Justice Rehnquist | 1,987 | 19 | majority | Colorado v. Bertine | https://www.courtlistener.com/opinion/111788/colorado-v-bertine/ | On February 10, 1984, a police officer in Boulder, Colorado, arrested respondent Steven Lee Bertine for driving while under the influence of alcohol. After Bertine was taken into custody and before the arrival of a tow truck to take Bertine's van to an impoundment lot,[1] a backup officer *369 inventoried the contents of the van. The officer opened a closed backpack in which he found controlled substances, cocaine paraphernalia, and a large amount of cash. Bertine was subsequently charged with driving while under the influence of alcohol, unlawful possession of cocaine with intent to dispense, sell, and distribute, and unlawful possession of methaqualone. We are asked to decide whether the Fourth Amendment prohibits the State from proving these charges with the evidence discovered during the inventory of Bertine's van. We hold that it does not. The backup officer inventoried the van in accordance with local police procedures, which require a detailed inspection and inventory of impounded vehicles. He found the back-pack directly behind the frontseat of the van. Inside the pack, the officer observed a nylon bag containing metal canisters. Opening the canisters, the officer discovered that they contained cocaine, methaqualone tablets, cocaine paraphernalia, and $700 in cash. In an outside zippered pouch of the backpack, he also found $210 in cash in a sealed envelope. After completing the inventory of the van, the officer had the van towed to an impound lot and brought the backpack, money, and contraband to the police station. After Bertine was charged with the offenses described above, he moved to suppress the evidence found during the inventory search on the ground, inter alia, that the search of the closed backpack and containers exceeded the permissible scope of such a search under the Fourth Amendment. The Colorado trial court ruled that probable cause supported Bertine's arrest and that the police officers had made the decisions to impound the vehicle and to conduct a thorough inventory search in good faith. Although noting that the inventory of the vehicle was performed in a "somewhat slipshod" manner, the District Court concluded that "the search of the backpack was done for the purpose of protecting the *370 owner's property, protection of the police from subsequent claims of loss or stolen property, and the protection of the police from dangerous instrumentalities." App. 81-83. The court observed that the standard procedures for impounding vehicles mandated a "detailed inventory involving the opening of containers and the listing of [their] contents." Based on these findings, the court determined that the inventory search did not violate Bertine's rights under the Fourth Amendment of the |
Justice Rehnquist | 1,987 | 19 | majority | Colorado v. Bertine | https://www.courtlistener.com/opinion/111788/colorado-v-bertine/ | not violate Bertine's rights under the Fourth Amendment of the United States Constitution. The court, nevertheless, granted Bertine's motion to suppress, holding that the inventory search violated the Colorado Constitution. On the State's interlocutory appeal, the Supreme Court of Colorado affirmed. In contrast to the District Court, however, the Colorado Supreme Court premised its ruling on the United States Constitution. The court recognized that in South we had held inventory searches of automobiles to be consistent with the Fourth Amendment, and that in we had held that the inventory search of personal effects of an arrestee at a police station was also permissible under that Amendment. The Supreme Court of Colorado felt, however, that our decisions in and United holding searches of closed trunks and suitcases to violate the Fourth Amendment, meant that and did not govern this case.[2] We granted certiorari to consider the important and recurring question of federal law decided by the Colorado Supreme *371 Court.[3] As that court recognized, inventory searches are now a well-defined exception to the warrant requirement of the Fourth Amendment. See ; The policies behind the warrant requirement are not implicated in an inventory search, n. 5, nor is the related concept of probable cause: "The standard of probable cause is peculiarly related to criminal investigations, not routine, noncriminal procedures. The probable-cause approach is unhelpful when analysis centers upon the reasonableness of routine administrative caretaking functions, particularly when no claim is made that the protective procedures are a subterfuge for criminal investigations." See also United For these reasons, the Colorado Supreme Court's reliance on and United was incorrect. Both of these cases concerned searches solely for the purpose of investigating criminal conduct, with the validity of the searches therefore dependent on the application of the probable-cause and warrant requirements of the Fourth Amendment. By contrast, an inventory search may be "reasonable" under the Fourth Amendment even though it is not conducted pursuant to a warrant based upon probable cause. In *372 this Court assessed the reasonableness of an inventory search of the glove compartment in an abandoned automobile impounded by the police. We found that inventory procedures serve to protect an owner's property while it is in the custody of the police, to insure against claims of lost, stolen, or vandalized property, and to guard the police from danger. In light of these strong governmental interests and the diminished expectation of privacy in an automobile, we upheld the search. In reaching this decision, we observed that our cases accorded deference to police caretaking procedures designed to secure and protect vehicles and their |
Justice Rehnquist | 1,987 | 19 | majority | Colorado v. Bertine | https://www.courtlistener.com/opinion/111788/colorado-v-bertine/ | caretaking procedures designed to secure and protect vehicles and their contents within police custody. See ; ;[4] In our more recent decision, a police officer conducted an inventory search of the contents of a shoulder bag in the possession of an individual being taken into custody. In deciding whether this search was reasonable, we recognized that the search served legitimate governmental interests similar to those identified in We determined that those interests outweighed the individual's Fourth Amendment interests and upheld the search. In the present case, as in and there was no showing that the police, who were following standardized procedures, acted in bad faith or for the sole purpose of investigation. In addition, the governmental interests justifying the inventory searches in and are *373 nearly the same as those which obtain here. In each case, the police were potentially responsible for the property taken into their custody. By securing the property, the police protected the property from unauthorized interference. Knowledge of the precise nature of the property helped guard against claims of theft, vandalism, or negligence. Such knowledge also helped to avert any danger to police or others that may have been posed by the property.[5] The Supreme Court of Colorado opined that was not controlling here because there was no danger of introducing contraband or weapons into a jail facility. Our opinion in however, did not suggest that the station-house setting of the inventory search was critical to our holding in that case. Both in the present case and in the common governmental interests described above were served by the inventory searches. The Supreme Court of Colorado also expressed the view that the search in this case was unreasonable because Bertine's van was towed to a secure, lighted facility and because Bertine himself could have been offered the opportunity to make other arrangements for the safekeeping of his property. But the security of the storage facility does not completely eliminate the need for inventorying; the police may still wish to protect themselves or the owners of the lot against false claims of theft or dangerous instrumentalities. And while giving Bertine an opportunity to make alternative *374 arrangements would undoubtedly have been possible, we said in : "[T]he real question is not what `could have been achieved,' but whether the Fourth Amendment requires such steps "The reasonableness of any particular governmental activity does not necessarily or invariably turn on the existence of alternative `less intrusive' means." See ; United We conclude that here, as in reasonable police regulations relating to inventory procedures administered in good faith satisfy the Fourth |
Justice Rehnquist | 1,987 | 19 | majority | Colorado v. Bertine | https://www.courtlistener.com/opinion/111788/colorado-v-bertine/ | to inventory procedures administered in good faith satisfy the Fourth Amendment, even though courts might as a matter of hindsight be able to devise equally reasonable rules requiring a different procedure.[6] The Supreme Court of Colorado also thought it necessary to require that police, before inventorying a container, weigh the strength of the individual's privacy interest in the container against the possibility that the container might serve as a repository for dangerous or valuable items. We think that such a requirement is contrary to our decisions in *375 and and by analogy to our decision in United : "Even if less intrusive means existed of protecting some particular types of property, it would be unreasonable to expect police officers in the everyday course of business to make fine and subtle distinctions in deciding which containers or items may be searched and which must be sealed as a unit." "When a legitimate search is under way, and when its purpose and its limits have been precisely defined, nice distinctions between closets, drawers, and containers, in the case of a home, or between glove compartments, upholstered seats, trunks, and wrapped packages, in the case of a vehicle, must give way to the interest in the prompt and efficient completion of the task at hand." United We reaffirm these principles here: " `[a] single familiar standard is essential to guide police officers, who have only limited time and expertise to reflect on and balance the social and individual interests involved in the specific circumstances they confront.' " ). Bertine finally argues that the inventory search of his van was unconstitutional because departmental regulations gave the police officers discretion to choose between impounding his van and parking and locking it in a public parking place. The Supreme Court of Colorado did not rely on this argument in reaching its conclusion, and we reject it. Nothing in or prohibits the exercise of police discretion so long as that discretion is exercised according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity. Here, the discretion afforded the Boulder police was exercised in light to *376 standardized criteria, related to the feasibility and appropriateness of parking and locking a vehicle rather than impounding it.[7] There was no showing that the police chose to impound Bertine's van in order to investigate suspected criminal activity. While both and are distinguishable from the present case on their facts, we think that the principles enunciated in those cases govern the present one. The judgment of the Supreme Court of Colorado is therefore Reversed. |
Justice Stevens | 2,009 | 16 | dissenting | Travelers Indemnity Co. v. Bailey | https://www.courtlistener.com/opinion/145858/travelers-indemnity-co-v-bailey/ | The Court holds that the plain terms of an injunction entered by the Bankruptcy Court as part of the 1986 reorganization of Johns-Manville Corporation (Manville) bar actions against Manville’s insurers for their own wrongdoing. I disagree. In my view, the injunction bars only those claims against Manville’s insurers seeking to recover from the bankruptcy estate for Manville’s miscon duct, not those claims seeking to recover against the in surers for their own misconduct. This interpretation respects the limits of the Bankruptcy Court’s power; it is consistent with the Court of Appeals’ understanding when it upheld the 1986 injunction on direct review and with Congress’ codification of the Manville bankruptcy ap proach for future asbestos proceedings in 11 U.S. C. and it makes sense of Travelers’ payment of $445 2 TRAVELERS INDEMNITY CO. v. BAILEY STEVENS, J., dissenting million in in exchange for a Bankruptcy Court order that supposedly “clarified” an unambiguous injunction. Because the 1986 injunction has never meant what the Court today assumes, respondents’ challenge is not an impermissible collateral attack. The Court of Appeals correctly concluded that the Bankruptcy Court’s order improperly enjoined the state-law claims at issue in this proceeding. I At the heart of the dispute in this litigation is the dis tinction between two types of lawsuits seeking recovery from Manville’s primary insurer, The Travelers Indemnity Company, and its affiliates (together, Travelers). The first class, which I shall call “insurer actions,” comprises suits in which the plaintiff is asserting that Travelers, as an insurer of Manville, has a duty to satisfy the plaintiff’s claim against Manville. Plaintiffs in that class include not only members of the public exposed to asbestos but also Manville factory workers and vendors of Manville prod ucts. The second class, which I shall call “independent actions,” comprises suits in which the plaintiff is asserting that Travelers is liable for its own misconduct. The plain tiffs in these suits have alleged both violations of state consumer-protection laws and breaches of common-law duties. See ante, at 4. Suits that are called “direct actions” in the proceedings below and in the Court’s opinion may fall in either cate gory, but as the Court acknowledges the “true” definition of that term describes only insurer actions. Ante, at 4–5, n. 2; see Black’s Law Dictionary 4 True direct actions are lawsuits in which a plaintiff claims that she was injured by Manville and seeks recovery directly from its insurer without first obtaining a judgment against Manville. The global settlement that made the 1986 reorganization of Manville possible clearly encom Cite as: 557 U. S. (2009) 3 |
Justice Stevens | 2,009 | 16 | dissenting | Travelers Indemnity Co. v. Bailey | https://www.courtlistener.com/opinion/145858/travelers-indemnity-co-v-bailey/ | possible clearly encom Cite as: 557 U. S. (2009) 3 STEVENS, J., dissenting passed all such direct actions; Manville’s insurers paid $770 million, including $80 million from Travelers, into the Manville Personal Injury Settlement Trust (Manville Trust) to which these actions would be channeled. But many of the claims that gave rise to the instant litigation allege no breach of duty by Manville and seek no recovery from the Manville Trust. See ante, at 4–5, n. 2. They are claims against Travelers based on its own alleged viola tions of state statutes and common-law rules. Thus, even though the Court calls these claims “direct actions,” they are nothing of the sort. They are independent actions. Some of the independent actions are based on facts concerning Travelers’ insurance relationship with Man ville. A number of suits, for example, allege that Travel ers acquired information about asbestos-related hazards from Manville that it had a duty to disclose to third par ties.1 This sort of factual nexus does not, however, trans form an independent action into an insurer action. In stead, the question remains whether a suit seeks to recover from Travelers for Manville’s wrongdoing or in stead seeks to recover from Travelers for its own wrongdo ing, making no claim on Manville’s insurance policy pro ceeds or other assets of the Manville bankruptcy estate. Recognizing the distinction between insurer actions and independent actions, the Court of Appeals held that the Bankruptcy Court had improperly enjoined the latter in its order.2 Without ruling on the extent of the Bank ruptcy Court’s power, see ante, at 17, the Court today —————— 1 The theories asserted in many of the state-law actions are novel, and, as the Court of Appeals noted, these claims “have met with almost universal failure in the state courts.” In re Johns-Manville Corp., 517 F.3d 52, 68 2 The Court of Appeals noted that the Bankruptcy Court had not con sidered whether the various actions at issue were properly classified as insurer actions or independent actions, and it remanded for the Bank ruptcy Court to undertake this assessment. 4 TRAVELERS INDEMNITY CO. v. BAILEY STEVENS, J., dissenting concludes that the 1986 injunction unambiguously barred independent actions and that the Bankruptcy Court’s order simply clarified, and did not enlarge, the scope of that injunction. Based on that premise, the Court holds that respondents are challenging the Bankruptcy Court’s authority to have issued the injunction in 1986, and it deems the challenge an impermissible collateral attack. I disagree with both the Court’s understanding of the 1986 injunction and its attendant res judicata analysis. |
Justice Stevens | 2,009 | 16 | dissenting | Travelers Indemnity Co. v. Bailey | https://www.courtlistener.com/opinion/145858/travelers-indemnity-co-v-bailey/ | of the 1986 injunction and its attendant res judicata analysis. II The 1986 order of the Bankruptcy Court approving the insurance settlement agreements (Insurance Settlement Order), which was incorporated by reference in the order confirming Manville’s plan of reorganization, includes three related protections for Manville’s insurers, each focused on the company’s insurance policies. It releases the insurers from all “Policy Claims,” channels these claims to the Manville Trust, and permanently enjoins all persons from commencing or continuing a proceeding for “Policy Claims” against a settling insurer. App. to Pet. for Cert. 445a–446a. The Insurance Settlement Order defines “Policy Claims” as: “any and all claims, demands, allegations, duties, li abilities and obligations (whether or not presently known) which have been, or could have been, or might be, asserted by any Person against any or all members of the [Manville] Group or against any or all members of the Settling Insurer Group based upon, arising out of or relating to any or all of the Policies.” at 439a (emphasis added).3 —————— 3 As the Court notes, the order confirming Manville’s reorganization plan contains an additional injunction barring claims against the settling insurance companies. Ante, at 4, n. 1. The language in that order enjoins only insurer actions. See App. to Pet. for Cert. 286a–288a Cite as: 557 U. S. (2009) 5 STEVENS, J., dissenting Focusing on the italicized phrase, and particularly the term “relating to,” the Court declares that this language “is not even remotely amenable” to a construction that excludes independent actions and “clearly reaches factual assertions that relate in a more comprehensive way to Travelers’ dealings with Manville.” Ante, at 10–11. Thus, it concludes that “the plain terms of [the] court order unambiguously” bar independent actions. Ante, at 12. The Court doth protest too much. Indeed, despite its insistence that the definition of “Policy Claims” is unam biguous, the Court quickly concludes that it cannot apply the “based upon, arising out of or relating to” language literally because there is a “cutoff at some point, where the connection between the insurer’s action complained of and the insurance coverage would be thin to the point of ab surd.” Ante, at 11. Presumably, for instance, the Court would not deem enjoined a state-law claim for personal injuries caused by a Travelers’ agent’s reckless driving while en route to the courthouse to defend Manville even though, in a literal sense, this suit relates to (perhaps even arises out of) Travelers’ performance of its policy obligations to Manville. The Court determines that it need not “stake out the ultimate bounds of the injunction” because |
Justice Stevens | 2,009 | 16 | dissenting | Travelers Indemnity Co. v. Bailey | https://www.courtlistener.com/opinion/145858/travelers-indemnity-co-v-bailey/ | not “stake out the ultimate bounds of the injunction” because it can rely on the Bankruptcy Court’s “uncon tested factual findings” that the particular independent actions at issue fall within the category that it had in tended to enjoin. If the definition of the term “Policy Claims” is not ame nable to a purely literal construction and the Court must look beyond the four corners of the Insurance Settlement —————— (enjoining actions against settling insurance companies seeking, directly or indirectly, to recover on or with respect to a “Claim, Interest, or Other Asbestos Obligation”); at 56a, n. 6 (defining “Other Asbes tos Obligation” as an obligation arising directly or indirectly from acts or omissions of a debtor). The parties accordingly focus on whether the Insurance Settlement Agreement enjoins independent actions. 6 TRAVELERS INDEMNITY CO. v. BAILEY STEVENS, J., dissenting Order to ascertain its meaning, however, the Bankruptcy Court’s factual findings in are not the best guide. I would instead construe the order with reference to the limits of the Bankruptcy Court’s authority—limits that were well understood by the insurers during the original settlement negotiations—and with reference to the Court of Appeals’ interpretation of the Insurance Settlement Order when it upheld it against a jurisdictional challenge in 1988. We should not lightly assume that the Bankruptcy Court entered an order that exceeded its authority. When a bankruptcy proceeding is commenced, the bankruptcy court acquires control of the debtor’s assets and the power to discharge its debts. A bankruptcy court has no author ity, however, to adjudicate, settle, or enjoin claims against nondebtors that do not affect the debtor’s estate. Because Travelers’ insurance policies were a significant asset of the Manville bankruptcy estate, the Bankruptcy Court had the power to channel claims to the insurance proceeds to the Manville Trust. But this by no means gave it the power to enjoin claims against nondebtors like Travelers that had no impact on the bankruptcy estate. Thus, even accepting the Bankruptcy Court’s representation in that it had “meant to provide the broadest protection possible” to the settling insurers, App. to Pet. for Cert. 172a, such relief could not include protection from inde pendent actions. That the Bankruptcy Court was without authority to enjoin independent actions was well understood by both Manville and Travelers during their settlement negotia tions. In Manville’s memorandum in support of the Insur ance Settlement Agreement, it clarified that it did “not seek to have [the Bankruptcy] Court release its Settling Insurers from claims by third parties based on the In surer’s own tortious misconduct towards the third party” but rather |
Justice Stevens | 2,009 | 16 | dissenting | Travelers Indemnity Co. v. Bailey | https://www.courtlistener.com/opinion/145858/travelers-indemnity-co-v-bailey/ | surer’s own tortious misconduct towards the third party” but rather sought only to release the insurers “from the Cite as: 557 U. S. (2009) 7 STEVENS, J., dissenting rights Manville might itself have against them or rights derivative of Manville’s rights under the policies being compromised and settled.” App. for Respondent Chubb Indemnity Insurance Co. 5a. This understanding reflected not only the basic fact that the settlement was between Manville and its insurers (and not third parties), but also the parties’ knowledge that the “Second Circuit [had held] that the bankruptcy courts lack power to discharge ‘inde pendent’ claims of third parties against nondebtors.” at 5a–6a. Travelers similarly acknowledged the limits of the Bankruptcy Court’s power. Noting that “[t]he court has in rem jurisdiction over the Policies and thus the power to enter appropriate orders to protect that jurisdiction,” it stated that “the injunction is intended only to restrain claims against the res (i.e., the Policies) which are or may be asserted, against the Settling Insurers.” at 13a– 14a;4 see also at 10a (memorandum of the legal repre sentative of the Bankruptcy Court noting that “[a]ll par ties seem to agree that any injunction, channeling order and release is limited to this Court’s jurisdiction over the res”). In short, it was apparent to the settling parties, and no doubt also to the Bankruptcy Court, that the court lacked the power to enjoin third-party claims against nondebtors that did not affect the debtor’s estate. When the Court of Appeals upheld the injunction bar ring the assertion of “Policy Claims” against Manville’s insurers it, too, understood these limits of the Bankruptcy Court’s authority. MacArthur Corporation, a Manville asbestos distributor, claimed to be a coinsured under Manville’s insurance policies by virtue of “vendor en —————— 4 This statement of Travelers’ intent belies the Bankruptcy Court’s suggestion that enjoining independent actions was a necessary condi tion of Travelers’ contribution to the Manville estate. See App. to Pet. for Cert. 170a–173a. 8 TRAVELERS INDEMNITY CO. v. BAILEY STEVENS, J., dissenting dorsements” in those policies entitling distributors to insurance coverage for claims arising from their sale of Manville products. MacArthur argued that the Bank ruptcy Court lacked authority to issue the Insurance Settlement Order, which prevented it from suing the insurers, because this order constituted a de facto dis charge in bankruptcy of nondebtor parties not entitled to Chapter 11 protection. In rejecting MacArthur’s argu ment, the Court of Appeals did not hold that the Bank ruptcy Court possessed the authority to enjoin all actions against the insurers bearing some factual connection to Manville. Rather, it |
Justice Stevens | 2,009 | 16 | dissenting | Travelers Indemnity Co. v. Bailey | https://www.courtlistener.com/opinion/145858/travelers-indemnity-co-v-bailey/ | the insurers bearing some factual connection to Manville. Rather, it held that MacArthur had miscon strued the scope of the Bankruptcy Court’s order, which precluded “only those suits against the settling insurers that arise out of or relate to Manville’s insurance policies.” MacArthur (CA2 1988). The Court of Appeals reasoned that this language en joined MacArthur’s claims because “MacArthur’s rights as an insured vendor are completely derivative of Manville’s rights as the primary insured.” Just as asbes tos victims were “barred from asserting direct actions against the insurers,” so too was MacArthur barred be cause “in both instances, third parties seek to collect out of the proceeds of Manville’s insurance policies on the basis of Manville’s conduct.” –93 (emphasis added). The Court of Appeals further held that, because Manville’s policies were property of the bankruptcy estate, the Bank ruptcy Court had “properly issued the orders pursuant to its equitable and statutory powers to dispose of the debtor’s property free and clear of third-party interests and to channel those interests to the proceeds thereby created.” at As the Court of Appeals recognized in the instant pro ceedings, its earlier interpretation of the Insurance Set tlement Order in MacArthur did not and does not extend Cite as: 557 U. S. (2009) 9 STEVENS, J., dissenting to the independent actions at issue in the instant suit: “Travelers candidly admits that both the statutory and common law claims seek damages from Travelers that are unrelated to the policy proceeds, quite unlike the claims in MacArthur where plaintiffs sought indemnification or compensation for the tortious wrongs of Manville to be paid out of the proceeds of Manville’s insurance policies.” In re Johns-Manville Corp., Also in contrast to MacArthur, “the claims at issue here do not seek to collect on the basis of Manville’s conduct. Instead, the Plaintiffs seek to recover directly from Trav elers, a non-debtor insurer, for its own alleged miscon duct.” The Court of Appeals’ interpretation of the 1986 Insur ance Settlement Order as enjoining only insurer actions and not independent actions is further supported by a statutory provision patterned after the Manville settle ment. In the Bankruptcy Reform Act of 1994, Congress adopted 11 U.S. C. to expressly authorize the approach of the Manville bankruptcy in future asbestos related bankruptcies. In granting bankruptcy courts the power to provide injunctive relief to nondebtors, Congress stated that courts may bar an action directed against a third party who “is alleged to be directly or indirectly liable for the conduct of, claims against, or demands on the debtor to the extent such alleged liability of |
Justice Stevens | 2,009 | 16 | dissenting | Travelers Indemnity Co. v. Bailey | https://www.courtlistener.com/opinion/145858/travelers-indemnity-co-v-bailey/ | on the debtor to the extent such alleged liability of such third party arises by reason of the third party’s provision of insurance to the debtor or a related party.” (4)(A)(ii) (emphasis added). As the italicized lan guage makes clear, the statute permits a bankruptcy court to enjoin actions seeking to proceed against a nondebtor insurer for a debtor’s wrongdoing, but it does not confer power to enjoin independent actions arising out of the insurer’s own wrongdoing. See generally In re Combustion Engineering, Inc., 3 F.3d 190, (explaining that like the Manville injunction, is 10 TRAVELERS INDEMNITY CO. v. BAILEY STEVENS, J., dissenting limited to insurer actions). Had Congress interpreted “Policy Claims” in the manner the Court does today, and had it sought to codify that definition, it would have used broader language. Finally, it is worth asking why Travelers paid more than $400 million in to three new settlement funds in exchange for the Bankruptcy Court’s order “clarifying” that the independent actions “are—and always have been—permanently barred” by the 1986 injunction. App. to Pet. for Cert. 170a. If the 1986 injunction were as clear as the Court assumes, surely Travelers would not have paid $445 million—more than five times the amount of its initial contribution to the Manville Trust—to obtain a redundant piece of paper. In sum, I believe the 1986 Insurance Settlement Order did not enjoin independent actions of the sort giving rise to these proceedings. A contrary conclusion ignores the limits of the Bankruptcy Court’s authority, the Court of Appeals’ interpretation of the order upheld on direct re view in 1988, Congress’ approval of the Manville reorgani zation, and Travelers’ own conduct during both the 1986 and settlement negotiations. III The Court’s holding that respondents’ challenge is an impermissible collateral attack is predicated on its deter mination that the 1986 Insurance Settlement Order plainly enjoined their independent actions. See ante, at 13–14. Because I disagree with this premise, I also dis agree with the Court’s preclusion analysis. In challenging the Bankruptcy Court’s order “clarifying” the scope of the Insurance Settlement Order, respondents were in fact timely appealing an order that rewrote the scope of the 1986 injunctions. Their objection could not have been raised on direct appeal of the 1986 order because it was not an objection to anything in that order. And, of course, Cite as: 557 U. S. (2009) 11 STEVENS, J., dissenting the Court of Appeals did not rule on a challenge to the enjoining of independent actions during direct review, as the Court acknowledges. See ante, at 14, n. 5. To the contrary, |
Justice Stevens | 2,009 | 16 | dissenting | Travelers Indemnity Co. v. Bailey | https://www.courtlistener.com/opinion/145858/travelers-indemnity-co-v-bailey/ | acknowledges. See ante, at 14, n. 5. To the contrary, it interpreted the 1986 order as reaching only insurer actions. Thus, there neither was nor reasonably could have been a prior challenge that the 1986 order impermissibly enjoined independent actions. Because the Court regards respondents’ challenge as a collateral attack, it brushes aside their jurisdictional objection to the Bankruptcy Court’s order on the ground that “the Bankruptcy Court plainly had jurisdic tion to interpret and enforce its own prior orders.” Ante, at 13. But neither respondents nor the Court of Appeals contested that point. Rather, respondents argued that the Bankruptcy Court was not merely interpreting and enforc ing its prior orders and that it had no jurisdiction to enjoin the independent actions when it approved the set tlements. The Court of Appeals accordingly examined whether the order improperly expanded the scope of the 1986 injunction and concluded that it did, thereby enjoining claims that were beyond the Bankruptcy Court’s power to enjoin. In my view, the judgment of the Court of Appeals was correct. The 1986 Insurance Settlement Order did not bar independent actions, and the Bankruptcy Court lacked any basis for enjoining those actions in The inde pendent actions have no effect on the bankruptcy estate, and “bankruptcy courts have no jurisdiction over proceed ings that have no effect on the debtor.” Celotex Corp. v. Edwards, The Court of Appeals thus correctly concluded that the Bankruptcy Court had impermissibly enjoined “claims against Travel ers that were predicated, as a matter of state law, on Travelers’ own alleged misconduct and were unrelated to Manville’s insurance policy proceeds and the res of the Manville estate.” 12 TRAVELERS INDEMNITY CO. v. BAILEY STEVENS, J., dissenting IV Because I am persuaded that the 1986 Insurance Set tlement Order did not encompass independent actions and that that Bankruptcy Court improperly enjoined such actions in I respectfully dissent |
Justice Blackmun | 1,993 | 11 | majority | Darby v. Cisneros | https://www.courtlistener.com/opinion/112891/darby-v-cisneros/ | [*] This case presents the question whether federal courts have the authority to require that a plaintiff exhaust available administrative remedies before seeking judicial review under the Administrative Procedure Act (APA), 5 U.S. C. 70 et seq., where neither the statute nor agency rules specifically mandate exhaustion as a prerequisite to judicial review. At issue is the relationship between the judicially created doctrine of exhaustion of administrative remedies and the statutory requirements of 0(c) of the APA.[] *39 I Petitioner R. Gordon Darby[2] is a self-employed South Carolina real estate developer who specializes in the development and management of multifamily rental projects. In the early 90's, he began working with Lonnie Garvin, Jr., a mortgage banker, who had developed a plan to enable multifamily developers to obtain single-family mortgage insurance from respondent Department of Housing and Urban Development (HUD). Respondent Secretary of HUD (Secretary) is authorized to provide single-family mortgage insurance under 203(b) of the National Housing Act, as amended, 2 U.S. C. 709(b).[3] Although HUD also provides mortgage insurance for multifamily projects under 207 of the National Housing Act, 2 U.S. C. 73, the greater degree of oversight and control over such projects makes it less attractive for investors than the singlefamily mortgage insurance option. The principal advantage of Garvin's plan was that it promised to avoid HUD's "Rule of Seven." This rule prevented rental properties from receiving single-family mortgage insurance if the mortgagor already had financial interests in seven or more similar rental properties in the same project *40 or subdivision. See 24 CFR 203.42(a)[4] Under Garvin's plan, a person seeking financing would use straw purchasers as mortgage insurance applicants. Once the loans were closed, the straw purchasers would transfer title back to the development company. Because no single purchaser at the time of purchase would own more than seven rental properties within the same project, the Rule of Seven appeared not to be violated. HUD employees in South Carolina apparently assured Garvin that his plan was lawful and that he thereby would avoid the limitation of the Rule of Seven. Darby obtained financing for three separate multiunit projects, and, through Garvin's plan, Darby obtained singlefamily mortgage insurance from HUD. Although Darby successfully rented the units, a combination of low rents, falling interest rates, and a generally depressed rental market forced him into default in 9. HUD became responsible for the payment of over $6.6 million in insurance claims. HUD had become suspicious of Garvin's financing plan as far back as 93. In 96, HUD initiated an audit but concluded that neither Darby nor Garvin had done anything |
Justice Blackmun | 1,993 | 11 | majority | Darby v. Cisneros | https://www.courtlistener.com/opinion/112891/darby-v-cisneros/ | but concluded that neither Darby nor Garvin had done anything wrong or misled HUD personnel. Nevertheless, in June 99, HUD issued a limited denial ofparticipation (LDP) that prohibited petitioners for one year from participating in any program in South Carolina administered by respondent Assistant Secretary of Housing.[5] Two months later, the Assistant Secretary notified petitioners that HUD was also proposing to debar them from further participation in all HUD *4 procurement contracts and in any nonprocurement transaction with any federal agency. See 24 CFR 24.200 Petitioners' appeals of the LDP and of the proposed debarment were consolidated, and an Administrative Law Judge (ALJ) conducted a hearing on the consolidated appeals in December 99. The judge issued an "Initial Decision and Order" in April 990, finding that the financing method used by petitioners was "a sham which improperly circumvented the Rule of Seven." App. to Pet. for Cert. 69a. The ALJ concluded, however, that most of the relevant facts had been disclosed to local HUD employees, that petitioners lacked criminal intent, and that Darby himself "genuinely cooperated with HUD to try [to] work out his financial dilemma and avoid foreclosure." at a. In light of these mitigating factors, the ALJ concluded that an indefinite debarment would be punitive and that it would serve no legitimate purpose; [6] good cause existed, however, to debar petitioners for a period of months.[7] at 90a. Under HUD regulations, "The hearing officer's determination shall be final unless, pursuant to 24 CFR part 26, the Secretary or the Secretary's designee, within 30 days of receipt of a request decides as a matter of discretion to review the finding of the hearing officer. The 30 day period for deciding whether to review a determination may be extended upon written notice of such extension by the Secretary or his designee. Any party may request such a review in writing within 5 days of receipt of the hearing officer's determination." 24 CFR 24.34(c) *42 Neither petitioners nor respondents sought further administrative review of the ALJ's "Initial Decision and Order." On May 3, 990, petitioners filed suit in the United States District Court for the District of South Carolina. They sought an injunction and a declaration that the administrative sanctions were imposed for purposes of punishment, in violation of HUD's own debarment regulations, and therefore were "not in accordance with law" within the meaning of 0(e)(B)() of the APA, 5 U.S. C. 706(2)(A). Respondents moved to dismiss the complaint on the ground that petitioners, by forgoing the option to seek review by the Secretary, had failed to exhaust administrative remedies. The |
Justice Blackmun | 1,993 | 11 | majority | Darby v. Cisneros | https://www.courtlistener.com/opinion/112891/darby-v-cisneros/ | by the Secretary, had failed to exhaust administrative remedies. The District Court denied respondents' motion to dismiss, reasoning that the administrative remedy was inadequate and that resort to that remedy would have been futile. App. to Pet. for Cert. 29a. In a subsequent opinion, the District Court granted petitioners' motion for summary judgment, concluding that the "imposition of debarment in this case encroached too heavily on the punitive side of the line, and for those reasons was an abuse of discretion and not in accordance with the law." at 9a. The Court of Appeals for the Fourth Circuit reversed. It recognized that neither the National Housing Act nor HUD regulations expressly mandate exhaustion of administrative remedies prior to filing suit. The court concluded, however, that the District Court had erred in denying respondents' motion to dismiss, because there was no evidence to suggest that further review would have been futile or that the Secretary would have abused his discretion by indefinitely extending the time limitations for review. The court denied petitioners' petition for rehearing with suggestion for rehearing en banc. See App. to Pet. for Cert. 93a. In order to resolve the tension between this and the APA, as well as to settle a perceived conflict among the *43 Courts of Appeals,[] we granted certiorari. II Section 0(c) of the APA bears the caption "Actions reviewable." It provides in its first two sentences that judicial review is available for "final agency action for which there is no other adequate remedy in a court," and that "preliminary, procedural, or intermediate agency action is subject to review on the review of the final agency action." The last sentence of 0(c) reads: "Except as otherwise expressly required by statute, agency action otherwise final is final for the purposes of this section whether or not there has been presented or determined an application for a declaratory order, for any form of reconsideration [see n. ], or, unless the agency otherwise requires by rule and provides that the action meanwhile is inoperative, for an appeal to superior agency authority." -393, 5 U.S. C. 704. Petitioners argue that this provision means that a litigant seeking judicial review of a final agency action under the APA need not exhaust available administrative remedies unless such exhaustion is expressly required by statute or agency rule. According to petitioners, since 0(c) contains an explicit exhaustion provision, federal courts are not free to require further exhaustion as a matter of judicial discretion. *44 Respondents contend that 0(c) is concerned solely with timing, that is, when agency actions become "final," and that |
Justice Blackmun | 1,993 | 11 | majority | Darby v. Cisneros | https://www.courtlistener.com/opinion/112891/darby-v-cisneros/ | timing, that is, when agency actions become "final," and that Congress had no intention to interfere with the courts' ability to impose conditions on the timing of their exercise of jurisdiction to review final agency actions. Respondents concede that petitioners' claim is "final" under 0(c), for neither the National Housing Act nor applicable HUD regulations require that a litigant pursue further administrative appeals prior to seeking judicial review. However, even though nothing in 0(c)precludes judicial review of petitioners' claim, respondents argue that federal courts remain free under the APA to impose appropriate exhaustion requirements.[9] We have recognized that the judicial doctrine of exhaustion of administrative remedies is conceptually distinct from the doctrine of finality: "[T]he finality requirement is concerned with whether the initial decisionmaker has arrived at a definitive position on the issue that inflicts an actual, concrete injury; the exhaustion requirement generally refers to administrative and judicial procedures by which an injured party may seek review of an adverse decision and obtain a remedy if the decision is found to be unlawful or otherwise inappropriate." Williamson County Regional Planning 473 U.S. 72, 93 (95). Whether courts are free to impose an exhaustion requirement as a matter of judicial discretion depends, at least in part, on whether Congress has provided otherwise, for "[o]f *45 `paramount importance' to any exhaustion inquiry is congressional intent," 503 U.S. 40, 44 quoting 50 (92). We therefore must consider whether 0(c), by providing the conditions under which agency action becomes "final for the purposes of" judicial review, limits the authority of courts to impose additional exhaustion requirements as a prerequisite to judicial review. It perhaps is surprising that it has taken over 45 years since the passage of the APA for this Court definitively to address this question. Professor Davis noted in 95 that 0(c) had been almost completely ignored in judicial opinions, see 3 K. Davis, Administrative Law Treatise 20.0, p.0 (95); he reiterated that observation 25 years later, noting that the "provision is relevant in hundreds of cases and is customarily overlooked." 4 K. Davis, Administrative Law Treatise 26.2, pp. 46-469 (2d ed. 93). Only a handful of opinions in the Courts of Appeals have considered the effect of 0(c) on the general exhaustion doctrine. See n. This Court has had occasion, however, to consider 0(c) in other contexts. For example, in 42 U.S. 270 (97), we recognized that the plain language of 0(c), which provides that an agency action is final "whether or not there has been presented or determined an application" for any form of reconsideration, could be read to suggest |
Justice Blackmun | 1,993 | 11 | majority | Darby v. Cisneros | https://www.courtlistener.com/opinion/112891/darby-v-cisneros/ | for any form of reconsideration, could be read to suggest that the agency action is final regardless whether a motion for reconsideration has been filed. We noted, however, that 0(c) "has long been construed by this and other courts merely to relieve parties from the requirement of petitioning for rehearing before seeking judicial review (unless, of course, specifically required to do so by statutesee, e. g., 5 U.S. C. 77r, 346(a)), but not to prevent petitions for reconsideration that are actually filed from rendering the orders under reconsideration nonfinal" (emphasis in original). at 24-25. *46 In 47 U.S. 79 (9), we were concerned with whether relief available in the Claims Court was an "adequate remedy in a court" so as to preclude review in Federal District Court of a final agency action under the first sentence of 0(c). We concluded that "although the primary thrust of [ 0(c)] was to codify the exhaustion requirement," Congress intended by that provision simply to avoid duplicating previously established special statutory procedures for review of agency actions. While some dicta in these cases might be claimed to lend support to respondents' interpretation of 0(c), the text of the APA leaves little doubt that petitioners are correct. Under 0(a) of the APA, "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. " 5 U.S. C. 702 Although 0(a) provides the general right to judicial review of agency actions under the APA, 0(c) establishes when such review is available. When an aggrieved party has exhausted all administrative remedies expressly prescribed by statute or agency rule, the agency action is "final for the purposes of this section" and therefore "subject to judicial review" under the first sentence. While federal courts may be free to apply, where appropriate, other prudential doctrines of judicial administration to limit the scope and timing of judicial review, 0(c), by its very terms, has limited the availability of the doctrine of exhaustion of administrative remedies to that which the statute or rule clearly mandates. The last sentence of 0(c)refers explicitly to "any form of reconsideration" and "an appeal to superior agency authority." Congress clearly was concerned with making the exhaustion requirement unambiguous so that aggrieved parties would know precisely what administrative steps were required before judicial review would be available. If courts were able to impose additional exhaustion requirements beyond *47 those provided by Congress or the agency, the last sentence of 0(c) would make no sense. To adopt respondents' reading would |
Justice Blackmun | 1,993 | 11 | majority | Darby v. Cisneros | https://www.courtlistener.com/opinion/112891/darby-v-cisneros/ | 0(c) would make no sense. To adopt respondents' reading would transform 0(c) from a provision designed to "`remove obstacles to judicial review of agency action,' " 47 U. S., at 904, quoting 349 U.S. 4, 5 (955), into a trap for unwary litigants. Section 0(c) explicitly requires exhaustion of all intra-agency appeals mandated either by statute or by agency rule; it would be inconsistent with the plain language of 0(c)for courts to require litigants to exhaust optional appeals as well. III Recourse to the legislative history of 0(c) is unnecessary in light of the plain meaning of the statutory text. Nevertheless, we consider that history briefly because both sides have spent much of their time arguing about its implications. In its report on the APA, the Senate Judiciary Committee explained that the last sentence of 0(c) was "designed to implement the provisions of section (a)." Section (a),now codified, as amended, as 5 U.S. C. 557(b), provides, unless the agency requires otherwise, that an initial decision made by a hearing officer "becomes the decision of the agency without further proceedings unless there is an appeal to, or review on motion of, the agency within time provided by rule." The Judiciary Committee explained: "[A]n agency may permit an examiner to make the initial decision in a case, which becomes the agency's decision in the absence of an appeal to or review by the agency. If there is such review or appeal, the examiner's initial decision becomes inoperative until the agency determines the matter. For that reason this subsection [ 0(c)] permits an agency also to require by rule that, if any party is not satisfied with the initial decision of a subordinate hearing officer, the party must first appeal to the agency (the decision meanwhile being in operative) *4 before resorting to the courts. In no case may appeal to `superior agency authority' be required by rule unless the administrative decision meanwhile is inoperative, because otherwise the effect of such a requirement would be to subject the party to the agency action and to repetitious administrative process without recourse. There is a fundamental inconsistency in requiring a person to continue `exhausting' administrative processes after administrative action has become, and while it remains, effective." S. Rep. No. 752, 79th Cong., st Sess., 27 (945); Administrative Procedure Act: Legislative History 944-946, S. Doc. No. 24, 79th Cong., 2d Sess., 23 (946) (hereinafter Leg. Hist.). In a statement appended to a letter dated October 9, 945, to the Judiciary Committee, Attorney General Tom C. Clark set forth his understanding of the effect of 0(c): "This |
Justice Blackmun | 1,993 | 11 | majority | Darby v. Cisneros | https://www.courtlistener.com/opinion/112891/darby-v-cisneros/ | set forth his understanding of the effect of 0(c): "This subsection states (subject to the provisions of section 0(a)) the acts which are reviewable under section 0. It is intended to state existing law. The last sentence makes it clear that the doctrine of exhaustion of administrative remedies with respect to finality of agency action is intended to be applied only () where expressly required by statute or (2) where the agency's rules require that decisions by subordinate officers must be appealed to superior agency authority before the decision may be regarded as final for purposes of judicial review." Leg. Hist. 230.[0] *49 Respondents place great weight on the Attorney General's statement that 0(c) "is intended to state existing law." That law, according to respondents, "plainly permitted federal courts to require exhaustion of adequate administrative remedies." Brief for Respondents 9-20. We cannot agree with this categorical pronouncement. With respect to the exhaustion of motions for administrative reconsideration or rehearing, the trend in pre-APA cases was in the opposite direction. In Vandalia R. (96), for example, this Court invoked the "general rule" that "one aggrieved by the rulings of such an administrative tribunal may not complain that the Constitution of the United States has been violated if he has not availed himself of the remedies prescribed by the state law for a rectification of such rulings." at 26. The state law provided only that the Railroad Commission had the authority to grant a rehearing; it did not require that a rehearing be sought. Nevertheless, "since the record shows that plaintiff in error and its associates were accorded a rehearing upon the very question of modification, but abandoned it, nothing more need be said upon that point." Seven years later, in 4 (923), without even mentioning the Vandalia case, the Court stated: "It was not necessary that the Company should apply to the Commission for a rehearing before resorting to the court. While under the Public Service Commission Law any person interested in an order of the Commission has the right to apply for a rehearing, the Commission is not required to grant such rehearing unless in its judgment sufficient reasons therefor appear As the law does not require an application for a rehearing *50 to be made and its granting is entirely within the discretion of the Commission, we see no reason for requiring it to be made as a condition precedent to the bringing of a suit to enjoin the enforcement of the order." Accord, 26 U.S. 43, 46-47 (925) Shortly before Congress adopted the APA, the Court, in 326 |
Justice Blackmun | 1,993 | 11 | majority | Darby v. Cisneros | https://www.courtlistener.com/opinion/112891/darby-v-cisneros/ | Shortly before Congress adopted the APA, the Court, in 326 U.S. 29 (945), held that where a federal statute provides that a district supervisor of the Alcohol Tax Unit of the Bureau of Internal Revenue "may hear the application" for a rehearing of an order denying certain liquor permits, such an application was not a prerequisite to judicial review. Nothing "persuades us that the `may' means must, or that the Supervisors were required to hear oral argument." Despite the fact that the regulations permitted a stay pending the motion for reconsideration, the Court concluded that "the motion is in its effect so much like the normal, formal type of motion for rehearing that we cannot read into the Act an intention to make it a prerequisite to the judicial review specifically provided by Congress." Respondents in effect concede that the trend in the law prior to the enactment of the APA was to require exhaustion of motions for administrative reconsideration or rehearing only when explicitly mandated by statute. Respondents argue, however, that the law governing the exhaustion of administrative appeals prior to the APA was significantly different from 0(c) as petitioners would have us interpret it. Brief for Respondents 23. Respondents rely on United 94 U.S. 6 (904), in which the Court considered whether, under the relevant statute, an aggrieved party had to appeal an adverse decision by the Inspector of Immigration to the Secretary of Commerce and Labor before *5 judicial review would be available.[] It recognized that the relevant statute "points out a mode of procedure which must be followed before there can be a resort to the courts," at 67, and that a party must go through "the preliminary sifting process provided by the statutes," at 70. Accord, Chicago, M., St. P. & P. R. (92).[2] Nothing in this pre-APA history, however, supports respondents' argument that initial decisions that were "final" for purposes of judicial review were nonetheless unreviewable unless and until an administrative appeal was taken. The pre-APA cases concerning judicial review of federal agency action stand for the simple proposition that, until an administrative appeal was taken, the agency action was unreviewable because it was not yet "final." This is hardly surprising, given the fact that few, if any, administrative agencies authorized hearing officers to make final agency decisions prior to the enactment of the APA. See Federal Administrative Law Developments97, 972 Duke L. J. 5, 295, n. 22 ("[P]rior to the passage of the APA, the existing agencies ordinarily lacked the authority to make binding determinations *52 at a level below that of the |
Justice Blackmun | 1,993 | 11 | majority | Darby v. Cisneros | https://www.courtlistener.com/opinion/112891/darby-v-cisneros/ | binding determinations *52 at a level below that of the agency board or commission, so that section 0(c) would be expected to affect the exhaustion doctrine in only a very limited number of instances"). The purpose of 0(c) was to permit agencies to require an appeal to "superior agency authority" before an examiner's initial decision became final. This was necessary because, under (a), initial decisions could become final agency decisions in the absence of an agency appeal. See 5 U.S. C. 557(b). Agencies may avoid the finality of an initial decision, first, by adopting a rule that an agency appeal be taken before judicial review is available, and, second, by providing that the initial decision would be "inoperative" pending appeal. Otherwise, the initial decision becomes final and the aggrieved party is entitled to judicial review. Respondents also purport to find support for their view in the text and legislative history of the 976 amendments of the APA. After eliminating the defense of sovereign immunity in APA cases, Congress provided: "Nothing herein affects other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground," Pub. L. 94-574, 90 Stat. 272 (codified as 5 U.S. C. 702). According to respondents, Congress intended by this proviso to ensure that the judicial doctrine of exhaustion of administrative remedies would continue to apply under the APA to permit federal courts to refuse to review agency actions that were nonetheless final under 0(c). See S. Rep. No. 94-996, p. (976) (among the limitations on judicial review that remained unaffected by the 976 amendments was the "failure to exhaust administrative remedies").[3] *53 Putting to one side the obvious problems with relying on postenactment legislative history, see, e. g., United (993); Pension Benefit Guaranty (990), the proviso was added in 976 simply to make clear that "[a]ll other than the law of sovereign immunity remain unchanged," S. Rep. No. 94-996, at The elimination of the defense of sovereign immunity did not affect any other limitation on judicial review that would otherwise apply under the APA. As already discussed, the exhaustion doctrine continues to exist under the APA to the extent that it is required by statute or by agency rule as a prerequisite to judicial review. Therefore, there is nothing inconsistent between the 976 amendments to the APA and our reading of 0(c). IV We noted just last Term in a non-APA case that "appropriate deference to Congress' power to prescribe the basic procedural scheme under which a claim may be |
Justice Blackmun | 1,993 | 11 | majority | Darby v. Cisneros | https://www.courtlistener.com/opinion/112891/darby-v-cisneros/ | the basic procedural scheme under which a claim may be heard in a federal court requires fashioning of exhaustion principles in a manner consistent with congressional intent and any applicable statutory scheme." 503 U. S., Appropriate deference in this case requires the recognition that, with respect to actions brought under the APA, Congress effectively codified the doctrine of exhaustion of administrative remedies in 0(c). Of course, the exhaustion *54 doctrine continues to apply as a matter of judicial discretion in cases not governed by the APA. But where the APA applies, an appeal to "superior agency authority" is a prerequisite to judicial review only when expressly required by statute or when an agency rule requires appeal before review and the administrative action is made inoperative pending that review. Courts are not free to impose an exhaustion requirement as a rule of judicial administration where the agency action has already become "final" under 0(c). The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. |
Justice Burger | 1,973 | 12 | dissenting | Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations | https://www.courtlistener.com/opinion/108848/pittsburgh-press-co-v-pittsburgh-commn-on-human-relations/ | Despite the Court's efforts to decide only the narrow question presented in this case, the holding represents, for me, a disturbing enlargement of the "commercial speech" doctrine, and a serious encroachment on the freedom of press guaranteed by the First Amendment. It also launches the courts on what I perceive to be a treacherous path of defining what layout and organizational decisions of newspapers are "sufficiently associated" with the "commercial" parts of the papers as to be constitutionally unprotected and therefore subject to governmental regulation. Assuming, arguendo, that the First Amendment permits the States to place restrictions on the content of commercial advertisements, I would not enlarge that power to reach the layout and organizational decisions of a newspaper. Pittsburgh Press claims to have decided to use sex-designated column headings in the classified advertising section of its newspapers to facilitate the use of classified ads by its readers. Not only is this purpose conveyed to the readers in plain terms, but the newspaper also explicitly cautions readers against interpreting the column headings as indicative of sex discrimination. Thus, *394 before each column heading the newspaper prints the following "Notice to Job Seekers": "Jobs are arranged under Male and Female classifications for the convenience of our readers. This is done because most jobs generally appeal more to persons of one sex than the other. Various laws and ordinanceslocal, state and federal, prohibit discrimination in employment because of sex unless sex is a bona fide occupational requirement. Unless the advertisement itself specifies one sex or the other, job seekers should assume that the advertiser will consider applicants of either sex in compliance with the laws against discrimination." To my way of thinking, Pittsburgh Press has clearly acted within its protected journalistic discretion in adopting this arrangement of its classified advertisements. Especially in light of the newspaper's "Notice to Job Seekers," it is unrealistic for the Court to say, as it does, that the sex-designated column headings are not "sufficiently dissociate [d]" from the "want ads placed beneath [them] to make the placement severable for First Amendment purposes from the want ads themselves."[1]Ante, at 388. In any event, I believe the First Amendment *395 freedom of press includes the right of a newspaper to arrange the content of its paper, whether it be news items, editorials, or advertising, as it sees fit.[2] In the final analysis, the readers are the ultimate "controllers" no matter what excesses are indulged in by even a flamboyant or venal press; that it often takes a long time for these influences to bear fruit is inherent in our |
Justice Burger | 1,973 | 12 | dissenting | Pittsburgh Press Co. v. Pittsburgh Comm'n on Human Relations | https://www.courtlistener.com/opinion/108848/pittsburgh-press-co-v-pittsburgh-commn-on-human-relations/ | for these influences to bear fruit is inherent in our system. The Court's conclusion that the Commission's cease-and-desist order does not constitute a prior restraint gives me little reassurance. That conclusion is assertedly based on the view that the order affects only a "continuing course of repetitive conduct." Ante, at 390. Even if that were correct, I would still disagree since the Commission's order appears to be in effect an outstanding injunction against certain publicationsthe essence of a prior restraint. In any event, my understanding of the effects of the Commission's order differs from that of the Court. As noted in the Court's opinion, the Commonwealth Court narrowed the injunction to permit Pittsburgh Press to use sex-designated column headings for want ads dealing with jobs exempt under the Ordinance. The Ordinance does not apply, for example, "to employers of fewer than five persons, to employers outside the city of Pittsburgh, or to religious, fraternal, charitable or sectarian organizations, nor does it apply to employment in domestic service or in jobs for which the Commission has certified a bona fide occupational exception." Ante, at 380. *396 If Pittsburgh Press chooses to continue using its column headings for advertisements submitted for publication by exempted employers, it may well face difficult legal questions in deciding whether a particular employer is or is not subject to the Ordinance. If it makes the wrong decision and includes a covered advertisement under a sex-designated column heading, it runs the risk of being held in summary contempt for violating the terms of the order.[3] In practical effect, therefore, the Commission's order in this area may have the same inhibiting effect as the injunction in which permanently enjoined the publishers of a newspaper from printing a "malicious, scandalous or defamatory newspaper, as defined by law." We struck down the injunction in Near as a prior restraint. In 1971, we reaffirmed the principle of presumptive unconstitutionality of prior restraint in Organization for a Better Indeed, in New York Times every member of the Court, tacitly or explicitly, accepted the Near and Keefe condemnation of prior restraint as presumptively unconstitutional. In this case, the respondents have, in my view, failed to carry their burden. I would therefore hold the Commission's order to be impermissible prior restraint. At the very least, we ought to make clear that a newspaper may not be subject to summary punishment for contempt for having made an *397 "unlucky" legal guess on a particular advertisement or for having failed to secure advance Commission approval of a decision to run an advertisement under a sex-designated column. MR. |
Justice Breyer | 2,018 | 2 | majority | Lagos v. United States | https://www.courtlistener.com/opinion/4501696/lagos-v-united-states/ | The Mandatory Victims Restitution Act of 1996 requires defendants convicted of a listed range of offenses to “reimburse the victim for lost income and necessary child care, transportation, and other expenses in- curred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense.” 18 U.S. C. (em- phasis added). We must decide whether the words “investigation” and “proceedings” are limited to government investigations and criminal proceedings, or whether they include private investigations and civil proceedings. In our view, they are limited to government investigations and criminal proceedings. I The petitioner, Sergio Fernando Lagos, was convicted of using a company that he controlled (Dry Van Logistics) to defraud a lender (General Electric Capital Corporation, or GE) of tens of millions of dollars. The fraud involved 2 LAGOS v. UNITED STATES Opinion of the Court generating false invoices for services that Dry Van Logis- tics had not actually performed and then borrowing money from GE using the false invoices as collateral. Eventually, the scheme came to light. Dry Van Logistics went bank- rupt. GE investigated. The Government indicted Lagos. Lagos pleaded guilty to wire fraud. And the judge, among other things, ordered him to pay GE restitution. The issue here concerns the part of the restitution order that requires Lagos to reimburse GE for expenses GE incurred during its own investigation of the fraud and during its participation in Dry Van Logistics’ bankruptcy proceedings. The amounts are substantial (about $5 million), and primarily consist of professional fees for attorneys, accountants, and consultants. The Government argued that the District Court must order restitution of these amounts under the Mandatory Victims Restitution Act because these sums were “necessary other expenses incurred during participation in the investigation of the offense or attendance at proceedings related to the offense.” The District Court agreed, as did the U. S. Court of Appeals for the Fifth Circuit. 864 F.3d 320, 323 (2017). Lagos filed a petition for certiorari. And in light of a division of opinion on the matter, we granted the petition. Compare United (CADC 2011) (subsection (b)(4) of the Mandatory Victims Restitution Act does not cover private investigation costs), with United 726–729 (statute not so limited); United ; United States v. Stennis-Williams, ; United 159–163 (CA2 2008) ; United 1056–1057 (CA9 2004) Cite as: 584 U. S. (2018) 3 Opinion of the Court II The Mandatory Victims Restitution Act is one of several federal statutes that govern federal court orders requiring defendants convicted of certain crimes to pay their victims restitution. It concerns “crime[s] of violence,” “offense[s] against |
Justice Breyer | 2,018 | 2 | majority | Lagos v. United States | https://www.courtlistener.com/opinion/4501696/lagos-v-united-states/ | their victims restitution. It concerns “crime[s] of violence,” “offense[s] against property including any offense committed by fraud or deceit,” and two specific offenses, one concern- ing tampering with a consumer product and the other concerning theft of medical products. 18 U.S. C. It requires, in the case of property of- fenses, return of the property taken or its value, in the case of bodily injury, the payment of medical expenses and lost income, in the case of death, the payment of funeral expenses, and, as we have in all cases, “reimburse[ment]” to “the victim for lost income and necessary child care, transportation, and other expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the of- fense.” We here consider the meaning of that italicized phrase. Specifically, we ask whether the scope of the words “inves- tigation” and “proceedings” is limited to government inves- tigations and criminal proceedings, or whether it includes private investigations and civil or bankruptcy litigation. We conclude that those words are limited to government investigations and criminal proceedings. Our conclusion rests in large part upon the statute’s wording, both its individual words and the text taken as a whole. The individual words suggest (though they do not demand) our limited interpretation. The word “investiga- tion” is directly linked by the word “or” to the word “prose- cution,” with which it shares the article “the.” This sug- gests that the “investigation[s]” and “prosecution[s]” that 4 LAGOS v. UNITED STATES Opinion of the Court the statute refers to are of the same general type. And the word “prosecution” must refer to a government’s criminal prosecution, which suggests that the word “investigation” may refer to a government’s criminal investigation. A similar line of reasoning suggests that the immediately following reference to “proceedings” also refers to criminal proceedings in particular, rather than to “proceedings” of any sort. Furthermore, there would be an awkwardness about the statute’s use of the word “participation” to refer to a vic- tim’s role in its own private investigation, and the word “attendance” to refer to a victim’s role as a party in non- criminal court proceedings. A victim opting to pursue a private investigation of an offense would be more naturally to “provide for” or “conduct” the private investigation (in which he may, or may not, actively “participate”). And a victim who pursues civil or bankruptcy litigation does not merely “atten[d]” such other “proceedings related to the offense” but instead “participates” in them as a party. In contrast, there is no awkwardness, indeed it seems perfectly natural, |
Justice Breyer | 2,018 | 2 | majority | Lagos v. United States | https://www.courtlistener.com/opinion/4501696/lagos-v-united-states/ | contrast, there is no awkwardness, indeed it seems perfectly natural, to say that a victim “participat[es] in the investigation” or “attend[s] proceedings related to the offense” if the investigation at issue is a government’s criminal investigation, and if the proceedings at issue are criminal proceedings conducted by a government. Moreover, to consider the statutory phrase as a whole strengthens these linguistic points considerably. The phrase lists three specific items that must be reimbursed, namely, lost income, child care, and transportation; and it then adds the words, “and other expenses.” Lost income, child care expenses, and transportation expenses are precisely the kind of expenses that a victim would be likely to incur when he or she (or, for a corporate victim like GE, its employees) misses work and travels to talk to government investigators, to participate in a gov- ernment criminal investigation, or to testify before a Cite as: 584 U. S. (2018) 5 Opinion of the Court grand jury or attend a criminal trial. At the same time, the statute says nothing about the kinds of expenses a victim would often incur when private investigations, or, say, bankruptcy proceedings are at issue, namely, the costs of hiring private investigators, attorneys, or account- ants. Thus, if we look to noscitur a sociis, the well-worn Latin phrase that tells us that statutory words are often known by the company they keep, we find here both the presence of company that suggests limitation and the absence of company that suggests breadth. See, e.g., Yates v. United States, 574 U. S. (2015) (slip op., 4). We add a practical fact: A broad reading would create significant administrative burdens. The statute provides for mandatory restitution, and the portion we construe is limited to “necessary other expenses.” The word “necessary” would, if the statute is broadly interpreted, invite disputes as to whether particular expenses “incurred during” participation in a private investigation or attendance at, say, a bankruptcy proceeding, were in fact “necessary.” Such disputes may become burdensome in cases involving multimillion dollar investigation expenses for teams of lawyers and account- ants. A district court might, for example, need to decide whether each witness interview and each set of documents reviewed was really “necessary” to the investigation. Similarly, the statute also limits restitution to expenses incurred only during “attendance at proceedings related to the offense,” inviting disputes as to whether, say, a licensing proceeding, a human resources review, an in-house disciplinary proceeding, a job inter- view, a Consumer Product Safety Commission hearing, or a neighborhood watch meeting qualified as “proceedings” sufficiently “related to the offense” so as |
Justice Breyer | 2,018 | 2 | majority | Lagos v. United States | https://www.courtlistener.com/opinion/4501696/lagos-v-united-states/ | qualified as “proceedings” sufficiently “related to the offense” so as to be eligible for restitution. To interpret the statute broadly is to invite controversy on those and other matters; our narrower construction 6 LAGOS v. UNITED STATES Opinion of the Court avoids it. And one begins to doubt whether Congress intended, in making this restitution mandatory, to require courts to resolve these potentially time-consuming contro- versies as part of criminal sentencing—particularly once one realizes that few victims are likely to benefit because more than 90% of criminal restitution is never collected. See GAO, Federal Criminal Restitution: Most Debt Is Outstanding and Oversight of Collections Could Be Im- proved 25 (GAO–18–203, 2018) (explaining that the Jus- tice Department considers 91% of outstanding criminal restitution to be “uncollectible”). There are, of course, contrary arguments—arguments favoring a broad interpretation. The Government points out, in particular, that our narrow interpretation will sometimes leave a victim without a restitution remedy sufficient to cover some expenses (say, those related to his private investigation) which he undoubtedly incurred as a result of the offense. Leaving the victim without that restitution remedy, the Government adds, runs contrary to the broad purpose of the Mandatory Victims Restitution Act, namely, “to ensure that victims of a crime receive full restitution.” (2010). But a broad general purpose of this kind does not al- ways require us to interpret a restitution statute in a way that favors an award. After all, Congress has enacted many different restitution statutes with differing lan- guage, governing different circumstances. Some of those statutes specifically require restitution for the “full amount of the victim’s losses,” defined to include “any losses suffered by the victim as a proximate result of the offense.” See 18 U.S. C. 2259(b), 2264(b), 2327(b). The Mandatory Victims Restitution Act, however, contains no such language; it specifically lists the kinds of losses and expenses that it covers. Moreover, in at least one other statute Congress has expressly provided for Cite as: 584 U. S. (2018) 7 Opinion of the Court restitution of “the value of the time reasonably spent by the victim in an attempt to remediate the intended or actual harm incurred by the victim from the offense.” Again the Mandatory Victims Restitution Act has no similar provision. And given those differences between the Mandatory Victims Restitution Act and other restitution statutes, we conclude that the considerations we have mentioned, particularly those based on a reading of the statute as a whole, tip the balance in favor of our more limited interpretation. We add that this interpretation does not leave a victim such |
Justice Breyer | 2,018 | 2 | majority | Lagos v. United States | https://www.courtlistener.com/opinion/4501696/lagos-v-united-states/ | add that this interpretation does not leave a victim such as GE totally without a remedy for additional losses not covered by the Mandatory Victims Restitution Act. GE also brought a civil lawsuit against Lagos for the full extent of its losses, and obtained an over-$30 million judgment against him. The Government says that GE has largely been unable to collect on that judgment, but there is no reason to think that collection efforts related to a criminal restitution award would prove any more successful. The Government makes one additional argument. It points out that GE shared with the Government the in- formation that its private investigation uncovered. And that fact, the Government says, should bring the expenses of that investigation within the terms of the statute even if the “investigation” referred to by the statute is a govern- ment’s criminal investigation. The short, conclusive answer to that claim, however, lies in the fact that the statute refers to “necessary child care, transportation, and other expenses incurred during participation in the inves- tigation or prosecution of the offense.” (em- phasis added). It does not refer to expenses incurred before the victim’s participation in a government’s investi- gation began. And the Government does not deny that it is those preparticipation expenses—the expenses of con- ducting GE’s investigation, not those of sharing the results 8 LAGOS v. UNITED STATES Opinion of the Court from it—that are at issue here. We therefore need not address in this case whether this part of the Mandatory Victims Restitution Act would cover similar expenses incurred during a private investigation that was pursued at a government’s invitation or request. It is enough to hold that it does not cover the costs of a private investiga- tion that the victim chooses on its own to conduct. * * * For the reasons stated, we conclude that the words “investigation” and “proceedings” in the Mandatory Vic- tims Restitution Act refer to government investigations and criminal proceedings. Consequently Lagos is not obliged to pay the portion of the restitution award that he here challenges. We reverse the Court of Appeals’ judg- ment to the contrary, and we remand the case for further proceedings consistent with this opinion. It is so ordered |
Justice Rehnquist | 1,978 | 19 | majority | Scott v. United States | https://www.courtlistener.com/opinion/109860/scott-v-united-states/ | In 1968, Congress enacted Title III of the Omnibus Crime Control and Safe Streets Act of 1968, which deals with wiretapping and other forms of electronic surveillance. 18 U.S. C. 2510-2520 (1976 ed.). In this Act Congress, after this Court's decisions in and set out to provide law enforcement officials with some of the tools thought necessary to combat crime without unnecessarily infringing upon the right of individual privacy. See generally S. Rep. No. 1097, 90th Cong., 2d Sess. We have had occasion in the past, the most recent being just last Term, to consider exactly how the statute effectuates this balance.[1] This case requires us to construe the statutory requirement that wiretapping or electronic surveillance "be conducted in such a way as to minimize the interception of communications not otherwise subject to interception under this chapter" 18 U.S. C. (1976 ed.). Pursuant to judicial authorization which required such minimization, Government agents intercepted all the phone conversations over a particular phone for a period of one *131 month. The District Court for the District of Columbia suppressed all intercepted conversations and evidence derived therefrom in essence because the "admitted knowing and purposeful failure by the monitoring agents to comply with the minimization order was unreasonable even if every intercepted call were narcotic-related." App. 39. The Court of Appeals for the District of Columbia Circuit reversed, concluding that an assessment of the reasonableness of the efforts at minimization first requires an evaluation of the reasonableness of the actual interceptions in light of the purpose of the wiretap and the totality of the circumstances before any inquiry is made into the subjective intent of the agents conducting the surveillance. 170 U. S. App. D. C. 158, We granted certiorari to consider this important question, and, finding ourselves in basic agreement with the Court of Appeals, affirm. I In January 1970, Government officials applied, pursuant to Title III, for authorization to wiretap a telephone registered to Geneva Jenkins.[2] The supporting affidavits alleged that there was probable cause to believe nine individuals, all named, were participating in a conspiracy to import and distribute narcotics in the Washington, D. C., area and that Geneva Jenkins' telephone had been used in furtherance of the conspiracy, particularly by petitioner Thurmon, who was then living with Jenkins. The District Court granted the application on January 24, 1970, authorizing agents to "[i]ntercept the wire communications of Alphonso H. Lee, Bernis Lee Thurmon, and other persons as may make use of the facilities hereinbefore described." App. 80. The order also required the agents to conduct the wiretap in "such a |
Justice Rehnquist | 1,978 | 19 | majority | Scott v. United States | https://www.courtlistener.com/opinion/109860/scott-v-united-states/ | required the agents to conduct the wiretap in "such a way as to minimize *132 the interception of communications that are [not] otherwise subject to interception" under the Act[3] and to report to the court every five days "the progress of the interception and the nature of the communication intercepted." Interception began that same day and continued, pursuant to a judicially authorized extension, until February 24, 1970, with the agents making the periodic reports to the judge as required. Upon cessation of the interceptions, search and arrest warrants were executed which led to the arrest of 22 persons and the indictment of 14. Before trial the defendants, including petitioners Scott and Thurmon, moved to suppress all the intercepted conversations on a variety of grounds. After comprehensive discovery and an extensive series of hearings, the District Court held that the agents had failed to comply with the minimization requirement contained in the wiretap order and ordered suppression of the intercepted conversations and all derivative evidence. The court relied in large part on the fact that virtually all the conversations were intercepted while only 40% of them were shown to be narcotics related. This, the court reasoned, "strongly indicate[d] the indiscriminate use of wire surveillance that was proscribed by Katz[4] and Berger."[5] The Court of Appeals for the District of Columbia Circuit reversed and remanded, stating that the District Court should not have based its determination upon a general comparison of the number of narcotics-related calls with the total number of calls intercepted, but rather should have engaged in a particularized assessment of the reasonableness of the agents' attempts to minimize in light of the purpose of the wiretap and the information available to the agents at the time of *133 interception. U. S. App. D. C. 125, 129,[6] Upon remand, the District Court again ordered suppression, this time relying largely on the fact that the agents were aware of the minimization requirement, "but made no attempt to comply therewith." App. 37, 38.[7] "The admitted knowing *134 and purposeful failure by the monitoring agents to comply with the minimization order was unreasonable even if every intercepted call were narcotic-related." The Court of Appeals again reversed, holding that the District Court had yet to apply the correct standard. 170 U. S. App. D. C. 158, The court recognized that the "presence or absence of a good faith attempt to minimize on the part of the agents is undoubtedly one factor to be considered in assessing whether the minimization requirement has been satisfied," but went on to hold that "the decision on the suppression |
Justice Rehnquist | 1,978 | 19 | majority | Scott v. United States | https://www.courtlistener.com/opinion/109860/scott-v-united-states/ | went on to hold that "the decision on the suppression motion must ultimately be based on the reasonableness of the actual interceptions and not on whether the agents subjectively intended to minimize their interceptions." Then, because of the extended period of time which had elapsed since the commission of the offense in question, that court itself examined the intercepted conversations and held that suppression was not appropriate in this case because the court could not conclude that "some conversation was intercepted which clearly would not have been intercepted had reasonable attempts at minimization been made."[8] On the remand from the Court of Appeals, following a nonjury trial on stipulated evidence which consisted primarily of petitioners' intercepted conversations, Scott was found guilty of selling and purchasing narcotics not in the original stamped package, see 26 U.S. C. 4704 (a) (1964 ed.), and Thurmon of conspiracy to sell narcotics, see 26 U.S. C. 7237 (b) and 4705 (a) (1964 ed.).[9] The Court of Appeals affirmed *135 the convictions, 179 U. S. App. D. C. 281, and we granted certiorari. II Petitioners' principal contention is that the failure to make good-faith efforts to comply with the minimization requirement is itself a violation of 2518 (5). They urge that it is only after an assessment is made of the agents' good-faith efforts, and presumably a determination that the agents did make such efforts, that one turns to the question of whether those efforts were reasonable under the circumstances. See Reply Brief for Petitioner 4-5. Thus, argue petitioners, Agent Cooper's testimony, which is basically a concession that the Government made no efforts which resulted in the noninterception of any call, is dispositive of the matter. The so-called "call analysis," which was introduced by the Government to suggest the reasonableness of intercepting most of the calls, cannot lead to a contrary conclusion because, having been prepared after the fact by a Government attorney and using terminology and categories which were not indicative of the agents' thinking at the time of the interceptions, it does not reflect the perceptions and mental state of the agents who actually conducted the wiretap. The Government responds that petitioners' argument fails to properly distinguish between what is necessary to establish a statutory or constitutional violation and what is necessary to support a suppression remedy once a violation has been established.[10] In view of the deterrent purposes of the exclusionary *136 rule, consideration of official motives may play some part in determining whether application of the exclusionary rule is appropriate after a statutory or constitutional violation has been established. But the existence |
Justice Rehnquist | 1,978 | 19 | majority | Scott v. United States | https://www.courtlistener.com/opinion/109860/scott-v-united-states/ | statutory or constitutional violation has been established. But the existence vel non of such a violation turns on an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time. Subjective intent alone, the Government contends, does not make otherwise lawful conduct illegal or unconstitutional.[11] *137 We think the Government's position, which also served as the basis for decision in the Court of Appeals, embodies the proper approach for evaluating compliance with the minimization requirement. Although we have not examined this exact question at great length in any of our prior opinions, almost without exception in evaluating alleged violations of the Fourth Amendment the Court has first undertaken an objective assessment of an officer's actions in light of the facts and circumstances then known to him. The language of the Amendment itself proscribes only "unreasonable" searches and seizures. In the Court emphasized the objective aspect of the term "reasonable." "And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. The scheme of the Fourth Amendment becomes meaningful only when it is assured that at some point the conduct of those charged with enforcing the laws can be subjected to the more detached, neutral scrutiny of a judge who must evaluate the reasonableness of a particular search or seizure in light of the particular circumstances. And in making that assessment it is imperative that the facts be judged against an objective standard; would the facts available to the officer at the moment of the seizure or the search `warrant a man of reasonable caution in the belief' that the action taken was appropriate?" (Footnotes omitted.) See also ; *138 We have since held that the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action. In United a suspect was searched incident to a lawful arrest. He challenged the search on the ground that the motivation for the search did not coincide with the legal justification for the search-incident-to-arrest exception. We rejected this argument: "Since it is the fact of custodial arrest which gives rise to the authority to search, it is of no moment that [the officer] did not indicate any subjective fear of the respondent or that he did not himself suspect that respondent was armed." The Courts |
Justice Rehnquist | 1,978 | 19 | majority | Scott v. United States | https://www.courtlistener.com/opinion/109860/scott-v-united-states/ | did not himself suspect that respondent was armed." The Courts of Appeals which have considered the matter have likewise generally followed these principles, first examining the challenged searches under a standard of objective reasonableness without regard to the underlying intent or motivation of the officers involved.[12] Petitioners do not appear, however, to rest their argument entirely on Fourth Amendment principles. Rather, they argue in effect that regardless of the search-and-seizure analysis conducted under the Fourth Amendment, the statute regulating wiretaps requires the agents to make good-faith efforts at *139 minimization, and the failure to make such efforts is itself a violation of the statute which requires suppression. This argument fails for more than one reason. In the first place, in the very section in which it directs minimization Congress, by its use of the word "conducted," made it clear that the focus was to be on the agents' actions not their motives. Any lingering doubt is dispelled by the legislative history which, as we have recognized before in another context, declares that 2515 was not intended "generally to press the scope of the suppression role beyond present search and seizure law." S. Rep. No. 1097, 90th Cong., 2d Sess., 96 See[13] III We turn now to the Court of Appeals' analysis of the reasonableness of the agents' conduct in intercepting all of the calls in this particular wiretap. Because of the necessarily ad hoc nature of any determination of reasonableness, there can be no inflexible rule of law which will decide every case. *140 The statute does not forbid the interception of all nonrelevant conversations, but rather instructs the agents to conduct the surveillance in such a manner as to "minimize" the interception of such conversations. Whether the agents have in fact conducted the wiretap in such a manner will depend on the facts and circumstances of each case. We agree with the Court of Appeals that blind reliance on the percentage of nonpertinent calls intercepted is not a sure guide to the correct answer. Such percentages may provide assistance, but there are surely cases, such as the one at bar, where the percentage of nonpertinent calls is relatively high and yet their interception was still reasonable. The reasons for this may be many. Many of the nonpertinent calls may have been very short. Others may have been one-time only calls. Still other calls may have been ambiguous in nature or apparently involved guarded or coded language. In all these circumstances agents can hardly be expected to know that the calls are not pertinent prior to their termination. In determining |
Justice Rehnquist | 1,978 | 19 | majority | Scott v. United States | https://www.courtlistener.com/opinion/109860/scott-v-united-states/ | calls are not pertinent prior to their termination. In determining whether the agents properly minimized, it is also important to consider the circumstances of the wiretap. For example, when the investigation is focusing on what is thought to be a widespread conspiracy more extensive surveillance may be justified in an attempt to determine the precise scope of the enterprise. And it is possible that many more of the conversations will be permissibly interceptable because they will involve one or more of the co-conspirators. The type of use to which the telephone is normally put may also have some bearing on the extent of minimization required. For example, if the agents are permitted to tap a public telephone because one individual is thought to be placing bets over the phone, substantial doubts as to minimization may arise if the agents listen to every call which goes out over that phone regardless of who places the call. On the other hand, if the phone is located in the residence of a person who is thought to be the head of a major drug ring, a contrary conclusion may be indicated. *141 Other factors may also play a significant part in a particular case. For example, it may be important to determine at exactly what point during the authorized period the interception was made. During the early stages of surveillance the agents may be forced to intercept all calls to establish categories of nonpertinent calls which will not be intercepted thereafter. Interception of those same types of calls might be unreasonable later on, however, once the nonpertinent categories have been established and it is clear that this particular conversation is of that type. Other situations may arise where patterns of nonpertinent calls do not appear. In these circumstances it may not be unreasonable to intercept almost every short conversation because the determination of relevancy cannot be made before the call is completed. After consideration of the minimization claim in this case in the light of these observations, we find nothing to persuade us that the Court of Appeals was wrong in its rejection of that claim.[14] Forty percent of the calls were clearly narcotics related and the propriety of their interception is, of course, not in dispute. Many of the remaining calls were very short, such as wrong-number calls, calls to persons who were not available to come to the phone, and calls to the telephone company to *142 hear the recorded weather message which lasts less than 90 seconds. In a case such as this, involving a wide-ranging conspiracy with a large |
Justice Rehnquist | 1,978 | 19 | majority | Scott v. United States | https://www.courtlistener.com/opinion/109860/scott-v-united-states/ | such as this, involving a wide-ranging conspiracy with a large number of participants, even a seasoned listener would have been hard pressed to determine with any precision the relevancy of many of the calls before they were completed.[15] A large number were ambiguous in nature, making characterization virtually impossible until the completion of these calls. And some of the nonpertinent conversations were one-time conversations. Since these calls did not give the agents an opportunity to develop a category of innocent calls which should not have been intercepted, their interception cannot be viewed as a violation of the minimization requirement. We are thus left with the seven calls between Jenkins and her mother. The first four calls were intercepted over a three-day period at the very beginning of the surveillance. They were of relatively short length and at least two of them indicated that the mother may have known of the conspiracy. The next two calls, which occurred about a week later, both contained statements from the mother to the effect that she had something to tell Jenkins regarding the "business" but did not want to do so over the phone. The final call was substantially longer and likewise contained a statement which could have been interpreted as having some bearing on the conspiracy, i. e., that one "Reds," a suspect in the conspiracy, *143 had called to ask for a telephone number. Although none of these conversations turned out to be material to the investigation at hand, we cannot say that the Court of Appeals was incorrect in concluding that the agents did not act unreasonably at the time they made these interceptions. Its judgment is accordingly Affirmed. MR. JUSTICE BRENNAN, with whom MR. |
Justice Ginsburg | 2,008 | 5 | dissenting | Baze v. Rees | https://www.courtlistener.com/opinion/145817/baze-v-rees/ | It is undisputed that the second and third drugs used in Kentucky's three-drug lethal injection protocol, pancuronium bromide and potassium chloride, would cause a conscious inmate to suffer excruciating pain. Pancuronium bromide paralyzes the lung muscles and results in slow asphyxiation. App. 435, 437, 625. Potassium chloride causes burning and intense pain as it circulates throughout the body. Use of pancuronium bromide and potassium chloride on a conscious inmate, the plurality recognizes, would be "constitutionally unacceptable." Ante, at 1533. The constitutionality of Kentucky's protocol therefore turns on whether inmates are adequately anesthetized by the first drug in the protocol, sodium thiopental. Kentucky's system is constitutional, the plurality states, because "petitioners have not shown that the risk of an inadequate dose of the first drug is substantial." Ante, at 1533. I would not dispose of the case so swiftly given the character of the risk at stake. Kentucky's protocol lacks basic safeguards used by other States to confirm that an inmate is unconscious before injection of the second and third drugs. I would vacate and remand with instructions to consider whether Kentucky's omission of those safeguards poses an untoward, readily avoidable risk of inflicting severe and unnecessary pain. I The Court has considered the constitutionality of a specific method of execution on only three prior occasions. Those cases, and other decisions cited by the parties and amici, provide little guidance on the standard that should govern petitioners' challenge to Kentucky's lethal injection protocol. In the Court held that death by firing squad did not rank among the "cruel and unusual punishments" banned by the Eighth Amendment. In so ruling, the Court did not endeavor "to define with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted." But it was "safe to affirm," the Court stated, that "punishments of torture, and all others in the same line of unnecessary cruelty, are forbidden." Next, in In re Kemmler, death by electrocution was the assailed method of execution.[1] The Court reiterated that the Eighth Amendment prohibits "torture" and "lingering death." The word "cruel," the Court further observed, "implies something inhuman. something more than the mere extinguishment of life." Those statements, however, were made en passant. *1568 Kemmler's actual holding was that the Eighth Amendment does not apply to the States, Finally, in Louisiana ex rel. the Court rejected Eighth and Fourteenth Amendment challenges to a reelectrocution following an earlier attempt that failed to cause death. The plurality opinion in that case first stated: "The traditional humanity of modern Anglo-American law forbids the infliction of unnecessary |
Justice Ginsburg | 2,008 | 5 | dissenting | Baze v. Rees | https://www.courtlistener.com/opinion/145817/baze-v-rees/ | humanity of modern Anglo-American law forbids the infliction of unnecessary pain in the execution of the death sentence." But the very next sentence varied the formulation; it referred to the "[p]rohibition against the wanton infliction of pain." No clear standard for determining the constitutionality of a method of execution emerges from these decisions. Moreover, the age of the opinions limits their utility as an aid to resolution of the present controversy. The Eighth Amendment, we have held, "`must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.'" Wilkerson was decided 129 years ago, Kemmler 118 years ago, and Resweber 61 years ago. Whatever little light our prior method-of-execution cases might shed is thus dimmed by the passage of time. Further phrases and tests can be drawn from more recent decisions, for example, Speaking of capital punishment in the abstract, the lead opinion said that the Eighth Amendment prohibits "the unnecessary and wanton infliction of pain," (joint opinion of Stewart, Powell, and STEVENS, JJ.); the same opinion also cautioned that a death sentence cannot "be imposed under sentencing procedures that creat[e] a substantial risk that it would be inflicted in an arbitrary and capricious manner," Relying on Gregg and our earlier decisions, the Kentucky Supreme Court stated that an execution procedure violates the Eighth Amendment if it "creates a substantial risk of wanton and unnecessary infliction of pain, torture or lingering death." Petitioners respond that courts should consider "(a) the severity of pain risked, (b) the likelihood of that pain occurring, and (c) the extent to which alternative means are feasible." Brief for Petitioners 38 (emphasis added). The plurality settles somewhere in between, requiring a "substantial risk of serious harm" and considering whether a "feasible, readily implemented" alternative can "significantly reduce" that risk. Ante, at 1532 (internal quotation marks omitted). I agree with petitioners and the plurality that the degree of risk, magnitude of pain, and availability of alternatives must be considered. I part ways with the plurality, however, to the extent its "substantial risk" test sets a fixed threshold for the first factor. The three factors are interrelated; a strong showing on one reduces the importance of the others. *1569 Lethal injection as a mode of execution can be expected, in most instances, to result in painless death. Rare though errors may be, the consequences of a mistake about the condemned inmate's consciousness are horrendous and effectively undetectable after injection of the second drug. Given the opposing tugs of the degree of risk and magnitude of pain, the critical question here, as |
Justice Ginsburg | 2,008 | 5 | dissenting | Baze v. Rees | https://www.courtlistener.com/opinion/145817/baze-v-rees/ | risk and magnitude of pain, the critical question here, as I see it, is whether a feasible alternative exists. Proof of "a slightly or marginally safer alternative" is, as the plurality notes, insufficient. Ante, at 1532. But if readily available measures can materially increase the likelihood that the protocol will cause no pain, a State fails to adhere to contemporary standards of decency if it declines to employ those measures. II Kentucky's Legislature adopted lethal injection as a method of execution in 1998. See 1998 Ky. Acts ch. 220, p. 777, Ky.Rev. Stat. Ann. 431.220(1)(a) Lawmakers left the development of the lethal injection protocol to officials in the Department of Corrections. Those officials, the trial court found, were "given the task without the benefit of scientific aid or policy oversight." App. 768. "Kentucky's protocol," that court observed, "was copied from other states and accepted without challenge." Kentucky "did not conduct any independent scientific or medical studies or consult any medical professionals concerning the drugs and dosage amounts to be injected into the condemned." Instead, the trial court noted, Kentucky followed the path taken in other States that "simply fell in line" behind the three-drug protocol first developed by Oklahoma in 1977. See also ante, at 1532, n. 1 Kentucky's protocol begins with a careful measure: Only medical professionals may perform the venipunctures and establish intravenous (IV) access. Members of the IV team must have at least one year's experience as a certified medical assistant, phlebotomist, emergency medical technician (EMT), paramedic, or military corpsman. App. 984; ante, at 1534 Kentucky's IV team currently has two members: a phlebotomist with 8 years' experience and an EMT with 20 years' experience. App. 273-274. Both members practice siting catheters at ten lethal injection training sessions held annually. Other than using qualified and trained personnel to establish IV access, however, Kentucky does little to ensure that the inmate receives an effective dose of sodium thiopental. After siting the catheters, the IV team leaves the execution chamber. From that point forward, only the warden and deputy warden remain with the inmate. Neither the warden nor the deputy warden has any medical training. The warden relies on visual observation to determine whether the inmate "appears" unconscious. In Kentucky's only previous execution by lethal injection, the warden's position allowed him to see the inmate best from the waist down, with only a peripheral view of the inmate's face. See No other check for consciousness occurs before injection of pancuronium bromide. Kentucky's protocol does not include an automatic pause in the "rapid flow" of the drugs, or any of |
Justice Ginsburg | 2,008 | 5 | dissenting | Baze v. Rees | https://www.courtlistener.com/opinion/145817/baze-v-rees/ | in the "rapid flow" of the drugs, or any of the most basic tests to determine whether the sodium thiopental has worked. No one calls the inmate's name, shakes him, brushes his eyelashes to test for a reflex, or applies a noxious stimulus to gauge his response. *1570 Nor does Kentucky monitor the effectiveness of the sodium thiopental using readily available equipment, even though the inmate is already connected to an electrocardiogram (EKG), A drop in blood pressure or heart rate after injection of sodium thiopental would not prove that the inmate is unconscious, see ; ante, at 1533 but would signal that the drug has entered the inmate's bloodstream, see App. 424, 498, 578, 580; 8 Tr. 1099 (May 2, 2005). Kentucky's own expert testified that the sodium thiopental should "cause the inmate's blood pressure to become very, very low," App. 578, and that a precipitous drop in blood pressure would "confir[m]" that the drug was having its expected effect, Use of a blood pressure cuff and EKG, the record shows, is the standard of care in surgery requiring anesthesia.[3] A consciousness check supplementing the warden's visual observation before injection of the second drug is easily implemented and can reduce a risk of dreadful pain. Pancuronium bromide is a powerful paralytic that prevents all voluntary muscle movement. Once it is injected, further monitoring of the inmate's consciousness becomes impractical without sophisticated equipment and training. Even if the inmate were conscious and in excruciating pain, there would be no visible indication.[4] Recognizing the importance of a window between the first and second drugs, other States have adopted safeguards not contained in Kentucky's protocol. See Brief for Criminal Justice Legal Foundation as Amicus Curiae 19-23.[5] Florida pauses between injection of the first and second drugs so the warden can "determine, after consultation, that the inmate is indeed unconscious." (per curiam) (internal quotation marks omitted). The warden does so by touching the inmate's eyelashes, calling his name, and shaking him.[6] If the inmate's consciousness *1571 remains in doubt in Florida, "the medical team members will come out from the chemical room and consult in the assessment of the inmate." During the entire execution, the person who inserted the IV line monitors the IV access point and the inmate's face on closed circuit television. In Missouri, "medical personnel must examine the prisoner physically to confirm that he is unconscious using standard clinical techniques and must inspect the catheter site again." "The second and third chemicals are injected only after confirmation that the prisoner is unconscious and after a period of at least three |
Justice Ginsburg | 2,008 | 5 | dissenting | Baze v. Rees | https://www.courtlistener.com/opinion/145817/baze-v-rees/ | is unconscious and after a period of at least three minutes has elapsed from the first injection of thiopental." In California, a member of the IV team brushes the inmate's eyelashes, speaks to him, and shakes him at the halfway point and, again, at the completion of the sodium thiopental injection. See State of California, San Quentin Operational Procedure No. 0-770, Execution by Lethal Injection, V(S)(4)(e) online at http://www. cdcr.ca.gov/News/docs/RevisedProtocol. pdf. In Alabama, a member of the execution team "begin[s] by saying the condemned inmate's name. If there is no response, the team member will gently stroke the condemned inmate's eyelashes. If there is no response, the team member will then pinch the condemned inmate's arm." Respondents' Opposition to Callahan's Application for a Stay of Execution in Callahan v. Allen, O.T., No. 07A630, p. 3 (internal quotation marks omitted). In Indiana, officials inspect the injection site after administration of sodium thiopental, say the inmate's name, touch him, and use ammonia tablets to test his response to a noxious nasal stimulus. See Tr. of Preliminary Injunction Hearing in 1:06-cv-1859 (SD Ind.), pp. 199-200, online at http://www.law.berkeley.edu/clinics/ dpclinic/LethalInjection/Public/Morales TaylorAmicus/20.pdf (hereinafter Timberlake Hearing).[7] These checks provide a degree of assurancemissing from Kentucky's protocol that the first drug has been properly administered. They are simple and essentially costless to employ, yet work to lower the risk that the inmate will be subjected to the agony of conscious suffocation caused by pancuronium bromide and the searing pain caused by potassium chloride. The record contains no explanation why Kentucky does not take any of these elementary measures. The risk that an error administering sodium thiopental would go undetected is minimal, Kentucky urges, because if the drug was mistakenly injected into the inmate's tissue, not a vein, he "would be awake and screaming." Tr. of Oral Arg. 30-31. See also Brief for Respondents 42; Brief for State of Texas et al. as Amici Curiae 26-27. That argument ignores aspects of Kentucky's protocol that render passive reliance on obvious signs of consciousness, such as screaming, inadequate to determine whether the inmate is experiencing pain. First, Kentucky's use of pancuronium bromide to paralyze the inmate means he will not be able to scream after the second drug is injected, no matter how much pain he is experiencing. Kentucky's argument, therefore, appears to rest on the assertion that sodium thiopental is itself painful *1572 when injected into tissue rather than a vein. See App. 601. The trial court made no finding on that point, and Kentucky cites no supporting evidence from executions in which it is known that sodium thiopental |
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